author: HIGGINS, J.

text:
    MAIN et ux. v. CARTWRIGHT.
    (No. 778.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 17, 1918.
    Rehearing Denied Feb. 14, 1918.)
    1. Boundaries <@=>43 —Judgment—Failuke to Settle Issue of Boundary.
    Judgment in a boundary suit not identifying the grantee or the block in which the land is situated, and leaving the dividing line unsettled, is insufficient to settle the rights of the parties.
    2. Appeal and Error <@=>719(8) — Assignment of Error — Insufficient Judgment.
    Insufficiency in the judgment in a boundary suit, in that it does not settle the issue of boundary, is fundamental error, necessitating reversal, though not assigned.
    3. Public Lands <@=>175(1) — Location by Railroad — Vacant Land — “Titled Land” —“Land Equitably Owned.”
    Where a section of land had not been patented to one railroad when another section overlapping to an extent was located for another railroad, on that date the first section was not “titled land,” and was not “equitably owned” by the first railroad, within Const, art. 14, § 2, providing that all genuine land certificates heretofore or hereafter issued shall be located only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the state.
    [Ed. Note. — For other definitions, see Words and Phrases, Titled.]
    4. Judgment <@=>712 — Persons Affected — One Not a Party.
    Where a railroad was not a party to the suit in which the state recovered a section of land from another railroad, its title to its own section of land overlapping the other was not affected by the judgment.
    5. Boundaries <@=3(6) — Unmarked Corner or Line as Controlling Courses and Distances.
    An unmarked corner or line is sometimes accorded the dignity of an artificial object, ana permitted to control a course and distance call, but such controlling effect is not always given.

      6. Boundaries @=»54(6) — Location by Rail-EOAD — PRESUMPTION AS TO LOCATION OF Lines on Ground ,by Surveyor.
    Where there is nothing to indicate that the surveyor did not actually survey the lines of a section of public lands located by a railroad, and locate the same upon the ground, the presumption obtains that he did so, particularly where he fixed the location of one corner by reference to natural objects.
    7. Public Lands <§=» 175(1) — Locations — Correction of Field Notes — Land Belonging to School Fund.
    Land located by a railroad and recovered by the state and so belonging to the permanent school fund under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5385, was appropriated land, and it was not lawful for the Land Commissioner to correct the field notes thereof to reduce its acreage and take from it land belonging to the fund and in effect give it to another survey owned by an individual.
    Appeal from District Court, Presidio County; Jos. Jones, Judge.
    Suit by T. J. Cartwright against A. B. Main and wife. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    C. E. Mead and H. H. Kilpatrick, both of Marfa, for appellants. Belcher & Sutton, of Marfa, C. C. Belcher, of Del Rio, C. R. Sutton, of Marfa, J. A. Stephens, of Benjamin, and Ocie Speer, of Ft. Worth, for appel-lee.
   HIGGINS, J.

Appellee, Cartwright, brought this suit in the ordinary form of trespass to try title, the premises sued for being described a^ follows:

“Survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company grant in Presidio county, Texas, and described by metes and bounds as follows: ‘Beginning at the N. W. corner of survey No. 528 said block; thence N. 1,900 vrs. to stake and mound; thence E. 1,900 vrs. to stake and mound; thence S. 1,900 vrs. to stake and mound; thence W. 1,900 vrs. to place of beginning.”

Defendants, Main and wife answered by general denial and plea of not guilty. The case was tried before the court upon agreed facts. The trial court adopted the agreed statement as his findings of fact, and the appeal is submitted for review upon such findings. Such findings are as follows:

“(1) It is agreed: That the plaintiff is the owner of survey No. 529, block No. 8, Galveston, Harrisburg & San Antonio Railway Company, grant located in Presidio county, Tex. That said survey was located for the said Galveston, Harrisburg & San Antonio Railway Company on July 7, 1875, by L. E. Edwards, deputy surveyor of El Paso district, and approved by A. H. French, surveyor of the El Paso district. That said survey, as originally located on the ground by said surveyor and described bjf the original field notes as follows: ‘Situated in El Paso district, on the waters of Alameto Ok. a tributary of Rio Grande river about -— miles from Ft. Davis and known as survey No. 529, in block 8; beginning at the N. W. Cor. survey 528; thence N. 1,900 vrs. to st. and m., thence E. 1,900 vrs. to st. and m., thence S. 1,900 vrs. to st. and m.; thence W. 1,900 vrs. to st. and m.’ That said section No. 529 was recovered from the Galveston, Harrisburg & San Antonio Railway Company by the state of Texas in the cause of the state of Texas v. Galveston, Harrisburg & San Antonio Railway Company, in the district court of Val Verde county, Tex., which said judgment was affirmed by the Supreme Court of Tex., June 27, 1891. That said section of land was afterwards placed on the market -as state public school lands, and sold to V. A. Haffard August 28, A. D. 1909, as 640 acres, and the plaintiff became the owner by a regular chain of transfer, and is now the owner of same.
“(2) That the defendants, A. B. Main and wife, Mrs. L. Main, are the owners of survey No. 9, in block 347, T. C. Ry. Co. grant situated m Presidio county, Tex. That said survey No. 9 was located for the T. C. Ry. Co., by S. A. Thompson, deputy surveyor of Presidio county. Tex., on June 6, 1882, and by the original field notes of said survey was located and described as follows: ‘Beginning at a stake and mound one-mile south of the S. W. corner of survey No. 7,' in this block for the N. W. corner of this survey; thence south 1,900 vrs. built a rock mound 3 ft. high long rock marked A. in center of mound, at the N. W. corner of survey No. 529. in Block 8, Galveston, Harrisburg & San Antonio Railway Company, for the S. W. corner of this survey, from whence a clump of oaks brs. S. 48%° E. and a double oak brs. 38% ° E. about 220 vrs.; thence E. 1,900 vrs. to a rock mound for the S. E. corner of this survey; thence north 1,900 vrs. to a rock mound composed of 4 large rocks for- the N. E. corner of this survey, from which the west end of a ledge of rock in valley, brs. N. 9 E. and an oak 15" in dia. brs. S. 48% E. 800 vrs.; thence west 1,900 vrs. to the place of beginning.’ That the defendants are the owners of said survey No. 9.
“(3) That there is a conflict of 826 varas between block No. 8 Galveston, Harrisburg & San Antonio Railway Company and block 347 Texas Central Railway Company grants.
“(4) That section No. 10, block 347, Texas-Central Railway Company grant which was surveyed for the public free school fund by virtue of certificate for survey No. 9, contains 640 acres, and that for the purpose of correcting survey No. 9, so as to make it contain 640-acres, the Commissioner of the General Land Office of the state of Texas requested a resurvey of survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company, which corrected survey was made in September,. 1907, and said field notes filed for record March 1908, and approved April 1, 1908, by Commissioner of the General Land Office for 361.2. acres. That by said corrected field notes said survey No. 529 is described as: ‘Beginning at the Ñ. W. corner of survey No. 528; thence-north 1,074 vrs.; thence east 1,900 vrs.; thenee-west 1,900 vrs. to the place of beginning.’ That said corrected field notes are recognized by the Commissioner of the General Land Office as. the correct field notes for said survey No. 529. That the distance from the S. W. corner of survey No. 7, in block 347, Texas Central Railway Company to the northwest corner of survey No. 529, block No. 8, Galveston, Harrisburg & San Antonio Railway Company, is 1,074 varas,, and that the distance from the northeast corner of said survey No. 529 to the northeast, corner of said survey No. 9 is 1,074 vrs.
“(5) That said survey No. 9, in block 347,. Texas Central Railway Company, as patented, by the state of Texas, to the grantors of the defendants herein on March 1, 1884, as being 1,-900 varas square and containing 640 acres.
“(6) It is further agreed by the parties hereto-that the only question involved in this suit is a question of boundary.”

Upon the findings, the court made the following conclusions of law:

“1. The question in the case is, Was it lawful to so correct the field notes of the original Galveston, Harrisburg & San Antonio Railway Company, survey No. 529, block 8, it being land belonging to the general school fund so as to reduce its quantity, and give it less than was called for by its original field notes, and thereby take from it the land in controversy and give it to an individual survey? Theré are several statutes which have a bearing upon this question. Article 5385 provides that: ‘In all cases where said land, or any portion thereof, has been surveyed into tracts of 640 acres, more or less, and field notes thereof returned and filed in the General Land Office, the same is hereby declared a sufficient designation of said land; and the Commissioner of the General Land Office shall dispose of the same by the survey and block numbers contained in said field notes.’ This article taken in connection with the act of February 3, 1883, which, in effect, declares that all locations of public land surveyed for the benefit of the public free schools are valid, whether the certificates by which they were located were “void” or voidable, valid or invalid. And the Act of March 22, 1889, which, in effect declares that all lands embraced within the surveys located by virtue of the certificates of the class by virtue- of which the survey in question was located are withdrawn from the mass of the public domain, and the subsequent provisions of the statute declare that all excess of said surveys shall belong to the public free school fund, and, providing how those surveys that belong to individuals may be corrected so as to ascertain this excess, clearly forbids the Commissioners of the General Land Office from making any correction on the said survey which would reduce the area or quantity of the land called for. Especially is this true where it is attempted, as in this .case, to reduce survey 529 in order to give a junior individual survey made by virtue of entirely different certificates its full complement of land. Erisbie v. Smith, 13 Tex. Civ. App. 384, 35 S. W. 336.
“(2) In so far as survey No. 9, block 347, Texas Central Railway Company, claimed by the defendants to overlap survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company, belonging to the plaintiff, the same is void under the provisions of section 2, art. 14, of the Constitution of the state which provides ‘that all genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented, only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records or in the General Land Office.’
“(3) Since it is agreed that survey No. 529 claimed by the plaintiff was located on the ground by the surveyor, and was awarded to the plaintiff for 640 acres, and the defendants’ survey No. 9 calls to connect on to the north.west corner of plaintiff’s survey No. 529, and to conform with its lines as actually placed on the ground, I hold as a matter of law that the call for plaintiff’s corners and lines are superior to the calls for course and distance, and therefore that its lines cannot be extended so as to lap over plaintiff’s survey 529 as contended for in this case.
“(4) It is my opinion under the agreed facts that plaintiff is entitled to recover the land embraced in the original field notes of survey 529, Galveston, Harrisburg & San Antonio Railway Company, block No. 8, and judgement is accordingly entered.”

The judgment recites that the court was of the opinion that plaintiff was entitled to recover the lands sued for, and entered judgment accordingly, describing the land as follows:

“Beginning at the N. W. corner of survey No. 528 said block; thence N. 1,900 vrs. to stake and mound; thence E. 1,900 vrs. to stake and mound; thence S. 1,900 vrs. to stake and mound; thence W. 1,900 vrs. to place of beginning.”

Prom this judgment Main and wife appeal. To show the situation on the ground a plat is hereto attached.

Opinion.

Prom the statement made, it is apparent that this is a boundary suit involving the location of the dividing line between section 529 and section 9. The description of the land in the judgment is not even as complete as that given in the petition. It does not identify the grantee or the block in which the same is situate. Possibly, however, in this particular it would be aided by the petition. Conceding this to be true, the issue of boundary remains unsettled. The judgment leaves the location of the dividing line unsettled and the cáse just where it started. The description by metes and bounds simply follows the original field notes. The location of the disputed line is not established arid fixed by reference to any known and readily identified permanent object. Any officer undertaking to execute a writ of possession would have to constitute himself the court and jury and determine the location of the north line of section 529. Under the authorities, it is well settled that in a boundary suit the description contained in this judgment is insufficient to settle the rights of the parties. Reed v. Cavett, 1 Tex. Civ. App. 154, 20 S. W. 837; Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Edwards v. Smith, 71 Tex. 156, 9 S. W. 77; Merrell v. Kenney, 45 S. W. 423; Bank v. Webb, 60 Tex. Civ. App. 321, 128 S. W. 426; Wilhelm v. Baumann, 63 Tex. Civ. App. 146, 133 S. W. 292; Johnson v. Gary, 157 S. W. 237; Bailey v. Baker, 42 S. W. 124.

This error is not assigned or called to our attention in any way, but it is plainly apparent upon the face of the record. It would be an idle ceremony to affirm a judgment which has failed to settle the controversy. The insufficiency of, and error in, the judgment is fundamental, and necessitates a reversal even though it is not assigned. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Oar v. Davis, 105 Tex. 479, 151 S. W. 794; Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518; Hahn v. Kellogg, 42 Tex. Civ. App. 680, 94 S. W. 389; Gibson v. Pierce, 146 S. W. 983; Adams v. Faircloth, 97 S. W. 507.

Upon the legal questions arising in the case appellee urges in support of the judgment rendered in his favor, the following propositions:

“(1) The judgment of the trial court is right, and should be affirmed. In so far as survey No. 9, block 347, Texas Central Railway Company, claimed by appellants, overlaps survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company,’ belonging to appellee, tbe same is void under the provisions of section 2, art. 14, of tbe Constitution of the state.
“(2) Moreover, upon tbe recovery by the state of survey 529, from tbe Galveston, Harrisburg & San Antonio Railway Company, the entire survey as previously surveyed immediately became donated and set apart to the public free school fund of the state by virtue of tbe legislative intent, and was never at any time thereafter ‘vacant and unappropriated public domain,’ subject to appellants’ location, survey -or patent.
“(3) The judgment of tbe trial court shall be affirmed for tbe further reason that survey No. 529 was located on tbe ground by tbe surveyor, and was awarded to appellee for 640 acres, and the ■ appellants’ survey No. 9 calls to connect with tbe corner of appellee’s survey and to conform with its lines as actually placed on the ground, and such calls for corners and lines actually made on tbe ground are superior to calls for corners and distances, for which reason the lines of survey 8 cannot be made to extend so as to overlap appellee’s survey No. 529, as ■contended for by appellants.”

Section 2, art. 14, of the Constitution contains the following language:

“Provided, that all genuine land certificates heretofore or hereafter issued shall be located, ■surveyed or patented, only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of tbe state, evidence of the appropriation of which is on tbe county records or in the General Land Office; or when the appropriation is evidenced by the occupation of tbe owner, or of some person holding for him.”

By article 5385, Vernon's Sayles’ Civil Statutes, it is declared:

“All lands heretofore set apart under the Constitution and laws of Texas, and all of the unappropriated public domain remaining in tbe state of Texas, of whatever character, and wheresoever located, including any lands hereafter recovered by the state, except that included in lakes, bays and islands along tbe Gulf -of Mexico within tidewater limits, is set apart and granted to the permanent school fund of the state; and all such lands heretofore or hereafter recovered from railway companies, firms, persons, or other corporations by the state, by suit or otherwise, and constituting a part of said school fund as herein provided, shall be disposed of as other school lands, except as otherwise provided by law. In all cases where said lands, or any portion thereof, has been surveyed into tracts of six hundred and forty acres, more or less, and field notes thereof returned to and filed in the general land office, the same is hereby declared a sufficient designation of said land; and the commissioner of the general land office shall dispose of the same by the survey and block numbers contained in said field notes.”

The act of February 3, 1883 (Gen. Laws, p. 4), provides:

“Any and all public lands heretofore surveyed by railroads for corporations or any company or any person in this state, for the benefit of the ■ public free schools of this state, by virtue of any certificate, valid or invalid, void or voidable, be, and the same are hereby declared to be lands belonging to the public free schools of this state.”

By Act of March 22, 1889, General Laws, page 103, it is declared:

“That all surveys and blocks of surveys heretofore made by virtue of valid alternate script be and the same are, hereby declared to segregate from the mass of the public domain all the land embraced in said surveys or blocks of surveys as evidenced by the corners and lines of same, or by calls for natural or artificial objects, or the calls for the corners and boundaries of other surveys, or by the maps and other records in the General Land Office. That all excess in said surveys or blocks of surveys are hereby donated and declared to belong to the public free school fund of the state; and it shall be the duty of the commissioner of the General Land Office to ascertain, by any and all means practicable the existence and extent of such excesses, and to provide for and direct such surveys, or corrected surveys, as may be necessary for this purpose.”

The foregoing constitutional and statutory provisions, as well as the cases of Day L. & C. Co. v. State, 68 Tex. 526, 4 S. W. 865, and Frisbie v. Smith, 13 Tex. Civ. App. 384, 35 S. W. 336, are relied upon by appellee as supporting the first two propositions, but under the facts presented they have no application. Under the agreed facts, it appears that this land was recovered by the state by judgment rendered in the district court of Val Verde county, affirmed by the Supreme Court June 27, 1891. See Railway Company v. State, 81 Tex. 572, 17 S. W. 67. In appellants’ brief it is stated that the agreement is erroneous in stating that the land was recovered by the state in the above-mentioned suit, and that in fact it was recovered in another suit in the District Court of Val Verde county, namely, the case of G., H. & S. A. Ry. Co. v. State, reported in 34 S. W. 747, and 36 S. W. 111. It makes no difference in which suit the recovery was had. In either event the recovery was based upon the fact that the certificate by virtue of which section 529 was located was unlawfully issued. Section 529 was located in 1S75, but in view of the holding of the court upon the recovery of the land by the state, such location was invalid. So far as the record discloses, the section had not been patented to the Galveston, Harrisburg & San Antonio Railway Company in 1882, when section 9 was located for the Texas Central Railway Company. On that date it was not titled land, nor was it equitably owned by the Galveston, Harrisburg & San' Antonio Railway Company, within the meaning of section 2, art. 14, of the Constitution. McLeary v. Dawson, 87 Tex. 524, 29 S. W. 1044; Adams v. Railway Company, 70 Tex. 252, 7 S. W. 729; Kennedy Pasture Co. v. State, 196 S. W. 287; Hanrick v. Dodd, 62 Tex. 75. So, by its location in 1882, the Texas Central Railway Company acquired the equitable title to the disputed strip of land, and by the issuance of the patent in 1884 the said Texas Central Railway Company acquired both the legal and equitable title. The Texas Central Railway Company was not a party to the suit in which the state recovered section 529, so its title to the land was in no wise affected by the judgment in that case. The disputed strip thus did not pass to the school fund upon the recovery by the state against the Galveston, Harrisburg & San Antonio Railway Company, but belonged to the Texas Central Railway Company, and the statutes and constitutional provision quoted above have no application. The same is true of Day L. & C. Co. v. State and Frisbie v. Smith.

Under this view of the case, the only remaining question relates to the location of the south line of section 9. The trial court concluded as a matter of law that since survey 529 was actually located on the ground, and since the field notes of survey 9 call for a connection with the northwest corner of survey 529, and conforms with the north line thereof as actually placed on the ground, such call was superior to the course and distance call in the location of survey 9, and that the south line of 9 could not be extended so as to overlap 529. Under some circumstances this conclusion of the court would have been proper. An unmarked corner or line is sometimes accorded the dignity of an artificial object, and permitted to control a course and distance call. Maddox Bros. v. Fenner, 79 Tex. 279, 15 S. W. 237; Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317. But such controlling effect is not always given. Gerald v. Freeman, 68 Tex. 201, 4 S. W. 256; Gregg v. Hill, 82 Tex. 405, 17 S. W. 838.

In the instant case the northwest corner of 529 and the north line thereof can only be located by running 1,900 varas north from the northwest comer of survey 528. The southwest corner of 9, which calls for the northwest corner of 529, is marked by. natural objects. There is nothing to indicate that the Surveyor Thompson did not actually survey the lines of 9 and locate same upon the ground. In this condition of the record the presumption obtains that he did do so. Cases cited, 3 Michie, Digest, pp. 87, 88. This presumption is strengthened by the particularity with which he fixed the location of the southwest corner by reference to natural objects. As we construe the findings, survey 9 as actually surveyed and located by the surveyor overlapped 529 a distance of 826 varas. The object of all rules formulated by the courts for locating, fixing, and determining boundaries has been to ascertain and discover, if possible, the. footsteps of the surveyor, and in this way identify the survey actually made. Since the presumption obtains that survey 9 was actually located on the ground, the southwest corner thereof marked, and since the findings clearly indicate that, as actually located, it overlapped section 529 by 826 varas, the court therefore erred in giving controlling'effect to the unmarked corner and line of 529 over the distance calls in 9.

Upon retrial, if it be established that the south line of 9 as actually surveyed overlapped the north end of 529, then the distance call shall prevail over the call for the northwest corner and north' line of 529, and Cartwright is not entitled to recover.

On the other hand, if there was no such overlapping then section 529, having been recovered by the state, became land belonging to the permanent school fund. Article 5385, supra. As such, it was appropriated land (Day L, & C. Co. v. State, supra), and it was not lawful for the land commissioner to correct the field notes thereof so as to reduce its acreage and take from it land belonging to such fund and in effect give it to another survey owned by an individual. Under such circumstances, the correction was without lawful warrant, and, Cartwright having purchased the survey as containing 640 acres, he is entitled to recover.

The corrected field notes of 529 given in paragraph 4 of the findings have a missing call, but it is readily supplied. There is also in said paragraph a manifest error in the stated distance from the southwest corner of survey 7 to the northwest corner of survey 529, but it is of no importance.

Reversed and remanded.

WALTHALL, J., did not sit, being absent on committee of Judges assisting the Supreme Court.
      @=For other oases ses same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For otoe.- oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    GONZALES et al. v. FLORES.
    (No. 5950.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1918.
    On Motion for Rehearing, Feb. 13, 1918.)
    1. Appeal and Error <®^215 (1)—Review — Instructions—Necessity op Objection.
    Appellants, having failed to object to the charge of the court cannot contend on appeal that there is no evidence to support verdict and judgment.
    2. Replevin @=5126—Sequestration—Judg-ment on Bond—Evidence.
    Under Rev. St. 1911, art. 7106, providing for a summary judgment against sureties on re-plevin bond, if suit is decided against defendant the introduction of the bond in evidence is unnecessary.
    3. Appeal and Error <@^1050(3)—Harmless Error not Appecting Result.
    The introduction in evidence of the replev-in bond, without the application _ for writ of sequestration in summary proceeding for judgment against the surety on the bond under Rev. St. 1911, art. 7106, is harmless error; the introduction of such bond being unnecessary.
    4. Replevin @=>135 — Judgment against Surety—Question por the Court.
    The question whether judgment should be rendered against sureties on replevin bond is exclusively for the court.

      •5. Replevin <&wkey; 135 — Findings — Validity op Bond.
    Where the replevin bond is copied into the judgment and recovery thereon decreed it amounts to a finding' that the bond is valid.
    0. Replevin <&wkey;135 — Bond—Judgment and Review — Presumption.
    A replevin bond, valid on its face and adjudged valid, will not be presumed invalid because of an order quashing the writ of sequestration or other defect not shown and not urged on motion for new trial.
    7. Appeal and Error &wkey;>1069(2) — Harmless Error — Deliberation op Jury —Taking Papers to Jury Room.
    That a jury, on considering verdict, took with them memoranda in Spanish from which plaintiff testified, but which, while filed, were not introduced in evidence, held harmless error, where nothing in the record shows that the jury considered them or understood the Spanish language.
    8. Appeal and Error &wkey;>930(l) — Harmless Error — Verdioi>-Presumption as to Evidence Considered.
    It will not be presumed that the jury considered memoranda describing a brass bed inadvertently omitted from the petition in re-plevin, because such bed is included in their verdict, where plaintiff testified as to the bed and its value, and it is not shown to be described in the memoranda.
    On Motion for Rehearing.
    9. Appeal and Error <&wkey;1149 — Judgment-Amendment — Clerical Error in Name oi Surety.
    A judgment against a surety on a replevin bond, wrongly Stating surety’s last name, held clerical error, in view of correct naming of surety in findings, and that surety, in such correct name, appealed therefrom, and such error can be corrected by appellate court.
    10. Replevin i&wkey;135 — Judgment^-Description op Property.
    A judgment approving a verdict in replevin which establishes the value of each article as shown by the verdict, as copied therein, complies sufficiently with the statute, especially when considered with the judgment provision authorizing return of property described in verdict, or any portion thereof.
    11. Appeal and Error i&wkey;1073 (7) — Review-Judgment.
    Failure of the court to find the value of each item in a judgment in replevin is not fundamental error requiring reversal.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by Miguel I-I. Flores against Maria Gonzales and others. Judgment for plaintiff, and defendants appeal.
    Affirmed. Rehearing and motion for certiorari denied.
    Chambers & Watson, of San Antonio, for appellants. T. I-I. Ridgeway and L. B. Camp, both of San Antonio, for appellee.
   MOURSUND, J.

Miguel H. Flores sued Maria Gonzales to recover certain personal property alleged to be of the value of $884.25, and by amended petition made F. A. Chapa and Telesforo Martinez parties defendant, alleging that she had sued out a writ of sequestration and caused the same to be levied by the sheriff upon the property sued for, whereupon defendant on October 4, 1910, duly executed a replevin bond in the sum of $1,800, with said Chapa and Martinez as sureties. Defendants answered by general demurrer and general denial. The cause was submitted upon special issues, to which no objections were urged, and in answer thereto the jury found that plaintiff’s wife at. the time of her marriage to plaintiff owned certain articles sued for, stating the reasonable cash market value as found by them at the date of the trial, the aggregate being $742.00, and that plaintiff purchased certain articles sued for after his marriage, the cash market value thereof at the time of the trial being stated, the aggregate being $90.45. The plaintiff in open court remitted the sum of $75, found to be the value of a brass bed, which was mentioned in the replevin bond, but was not mentioned in the amended petition. This sum was deducted from the value found by the jury, and judgment rendered for the remainder, $758.05, with 6 per cent, interest from date of the judgment against all of the defendants, such judgment being drawn in accordance with the' sequestration statutes. All of the defendants appealed.

Appellants, having failed to object to the charge of the court, are in no position to contend that there is no evidence to support the verdict and judgment. Modern Woodmen of America v. Yanowsky, 187 S. W. 730; Elser v. Putnam, 171 S. W. 1052; Strong v. Harwell, 185 S. W. 676; Pearce v. Supreme Dodge, 190 S. W. 1156. The first and second assignments are therefore overruled.

The court permitted the introduction in evidence of the replevin bond, over defendant’s objection that plaintiff must offer in evidence his application for writ of sequestration, his bond, and the writ of sequestration before the replevin bond, would be admissible. Appellant contends that this ruling constitutes error, and also contends that the replevin bond, unaccompanied by proof of the instruments referred to, would not support a judgment against the sureties. It is not contended that the introduction of the bond in evidence was prejudicial to defendants upon any issue submitted to the jury. No issue with respect to the bond was submitted to the jury, and its validity or invalidity could not have affected the verdict. It was unnecessary to introduce the bond in evidence, as our statutes provide for a summary judgment to be rendered thereon if the suit is decided against the defendant. Article 7106, R. S. 1911; Tyson v. Bank, 154 S. W. 1055. The introduction of the bond, over the objection urged thereto, did not constitute such an error as would require a' reversal of the judgment. The question, whether judgment should be rendered on the bond, was one which addressed itself exclusively to the court.

It is recited in the judgment that a replevy bond was given, the bond is copied in the judgment, and a recovery thereon decreed. This amounts to a finding that the re-plevy bond is valid. Appellants contend that, in the absence of the affidavit and bond for writ of sequestration, and the writ of sequestration, it cannot be determined that the replevy bond is valid, and that therefore it would not support a judgment. It is true that it has been held that when the writ of sequestration falls by reason of an order quashing the same, the re-plevy bond falls with it. Mitchell v. Bloom, 91 Tex. 634, 45 S. W. 558; Avery v. Popper & Bro., 92 Tex. 337, 49 S. W. 219, 50 S. W. 122, 71 Am. St. Rep. 849. No presumption can be indulged as against the judgment of the court that the replevin bond is invalid. It is valid on its face, and if there is any order of court quashing the writ of sequestration and thus invalidating the replevin bond, the defendants should have shown that fact, and urged it in their motion for new' trial. As they are not able to show that the bond is invalid, the judgment of the court, in effect establishing its validity, must be upheld. The third and fourth assignments are overruled.

It appears from the motion for new trial that among the papers taken by the jury to the jupy room were two original memoranda in Spanish from which plaintiff testified, but which, while filed, were not introduced in evidence. There is nothing in the record to show that the jury noticed or considered such memoranda, or that any of them understood the Spanish language. In the statement appellants contend that consideration of the memoranda is shown by the fact that the jury found for plaintiff for a brass bed, mentioned in one of the memoranda, but not included in the petition. The omission of this item from the petition was evidently not noticed by plaintiff’s counsel until after the trial, for plaintiff testified to the value thereof, and it was replevied as shown by the bond. In the bond it is not described as a brass bed, but plaintiff in his testimony so described it. Whether it was so described in the memoranda- we cannot sa-y. The bed was one of the most valuable articles testified about by plaintiff, and the fact that the jury included it in its verdict does not indicate that they considered or referred to the memoranda. The only issue was that of value, and the only witness who testified as to value was plaintiff, and his testimony corresponded to the values stated in the replevin bond and the verdict of the jury. Under the facts of this case we hold that the 'action of the jury in taking with them the lists of property testified from by plaintiff does not constitute such error as requires a reversal of the judgment. In the cases of Raver v. Bowers, 33 S. W. 131, Goar v. Thompson, 19 Tex. Civ. App. 330, 47 S. W. 61, and City of Ft. Worth v. Young, 185 S. W. 983, the court found that the documents taken into the jury room were considered by the jury and had a bearing upon controverted issues. . Each of the cases is easily distinguishable from this. That it is a legitimate inquiry whether the matter complained of probably affected the verdict is sustained by the case last cited, as well as the cases of Beeks v. Odom, 70 Tex. 183, 7 S. W. 702, and S. A. & A. P. Ry. Co. v. Moerbe, 189 S. W. 128. The fifth assignment is overruled.

The sixth assignment is too general to be considered.

The judgment is affirmed.

On Motion for Rehearing.

Appellants contend that the judgment should be reversed on the ground of fundamental error, in that it is against Telesforo Gonzales, instead of Telesforo Martinez. It is apparent that the variance was caused by a mere clerical error, for the court finds that F. A. Chapa and Telesforo Martinez executed the replevy bond, and the bond is copied in the judgment, and then finds that plaintiff is entitled to judgment against Maria Gonzales as principal and F. A. Chapa and Telesforo Martinez as sureties. The recovery of the amount found by the jury is then awarded, and in doing so, instead of writing Telesforo Martinez, the name is written “Telesforo Gonzales.” The court then finds that the sureties, Chapa and Telesforo Martinez, became active defendants on November 20, 1916, but in the award of costs against them from such date the name, Telesforo Gonzales, is again used instead of Telesforo Martinez. There was no party to the suit by the name of Telesforo Gonzales, and Telesforo Martinez appealed from the judgment. Clerical mistakes of this character can be corrected by the appellate court. Robinson v. Moore, 1 Tex. Civ. App. 93, 20 S. W. 994. The mistakes with regard to the name will be corrected, and the judgment in that respect reformed by this court.

Fundamental error is also predicated on the failure of the court to find the value of each article separately. The judgment by approving the verdict of the jury establishes the value of each article as found by the jury, and such value is shown by the verdict copied in the judgment. This is a sufficient compliance with the statute, especially when considered in connection with the provision in the judgment authorizing the return of the property, “or any portion thereof described in the verdict,” and directing the sheriff to receive same and receipt therefor and to deliver same to the plaintiff, and that the clerk should enter a credit upon the judgment for the value of the property so returned. The sureties were amply protected by the judgment in their right to return the property, but if they were not, as the jury found the value of each item, there could be no objection to the correction of the judgment by this court so as to protect them in such right. This court has heretofore held, however, that the failure to find the value of each item is not a fundamental error. Owens v. Vander Stucken, 133 S. W. 491.

We see no reason for changing our views with respect to the disposition of the assignments of error. The motion for rehearing is overruled.

Appellees have filed a motion for certiorari to bring up a corrected judgment? the corrections made by us as to the name of Teles-foro Martinez having also been made in the trial court since we affirmed the judgment. The motion will be denied, as we deem it-wholly unnecessary to pursue that course.
      @=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=53Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    GALLAMORE v. GLAZIER et al.
    (No. 7862.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 26, 1918.)
    Intoxicating- Liquors &wkey;>181 — Sale to Minors — Recovery OE PENALTY — PARTIES.
    Where there had been no legal proceeding awarding custody and control of a minor and the real father was still living, the stepfather, who had married minor’s mother after divorce, could not, the mother being dead, maintain an action for the penalties prescribed by Vernon’s ¡áayles’ Ann. Civ. St. 1914, art. 7452, for selling or giving intoxicants to a minor, although the minor had lived with and been supported and controlled by the stepfather, and his father had neither supported nor asserted any interest in his welfare, in view of article 4070, providing that where one of the parents is dead the survivor is the natural guardian of the person of the minor children and entitled to appoint a guardian of their estates.
    Appeal from District Court, Dallas County; W. S'. Whitehurst, Judge.
    Suit by W. H. Gallamore against L. Glazier and another. Demurrer to complaint sustained, and plaintiff appeals.
    Affirmed.
    Albert Walker and O. F. Wencker, both of Dallas, for appellant. Felix D. Robertson and T. L. Camp, both of Dallas, for appel-lees.
   RASBURY, J.

This suit was brought by appellant against appellee Glazier, as a principal, and appellee Fidelity & Deposit Company, as surety, upon a retail liquor dealer’s bond to recover $5,000 for ten separate violations of the statute in the sale of liquor to appellant’s stepson, C. F. Day, a minor. The suit was grounded on that portion of article 7452, Vernon’s Sayles’ Civil Statutes, which makes the liquor dealer and the sureties upon his bond liable to defined persons for prescribed penalties in case of selling or giving or permitting to be sold or given in his premises intoxicating liquors to any person under the age of 21 years. The pleading, consisting of an amended and supplemental petition, omitting formalities, alleged in substance that the minor was the son of Buck Day and his former wife, who divorced him and to whom in said proceeding was awarded the exclusive control, care, and custody of said minor. After said Buck Day’s wife had so divorced him, and in March, 1903, she married appellant and remained his wife until her death in 1912. When appellant married his said wife, her minor son, who was 5% years of age, lived with appellant and his wife until her death and with appellant thereafter up to the filing of this suit, a period of nearly 14" years. From the time of appellant’s marriage with the minor’s mother until her death, and since, said minor, whom appellant regards with affection, has made his home with the appellant, during which time appellant has exercised over him entire control, custody, and care, performing ip behalf of said minor the things a father would do under similar circumstances, by training and looking after said minor as his own child, providing him with needed clothing, educational advantages within appellant’s means, advising and counseling him concerning his conduct, securing him employment, and in that connection controlling his earnings, and in the exercise of such advice, restraint, and control said minor has recognized appellant’s authority both before and since the death of his mother. The father of -said minor, Buck Day, has at no time since said divorce or since the death of his former wife asserted any interest in the welfare of said minor or contributed anything to his support and maintenance. Further, the mother of said minor upon her deathbed placed said minor in appellant’s control, custody, .and care and requested appellant to continue to care for, rear, and educate said minor and continue with said minor the parental relations of the past. The trial judge sustained the general demurrer and three special exceptions directed against said petition. From such action this appeal was taken.

The rights conferred by the provision of the statute cited and those entitled to assert them have been considered from nearly every angle of offense and defense, and for that reason we shall not engage in any general discussion of the construction placed thereon by the many decisions, but confine ourselves to the precise question involved in the several propositions challenging the action of the court in the respect stated. The real issue, gathered from an analysis of the propositions, is whether one standing in loco paren-tis to a minor while the real parent is in esse may, as an aggrieved person, maintain a suit to recover the penalty prescribed by the statute in the case stated. In Peavy v. Goss, 90 Tex. 89, 37 S. W. 317, it was held that the only person aggrieved in case of a sale, etc., to a minor, and hence the only person entitled to sue, was the parent or some one standing in loco parentis. While the petition in the instant case does disclose that appellant was in fact standing in loco parentis to the minor, and that his real father while living had neither contributed to the support of the minor nor asserted any interest in his welfare, but by inference had abandoned his rights in that respect to appellant, yet that fact did not affect the right of the real father to maintain a suit for penalties. Cox v. Thompson, 96 Tex. 468, 73 S. W. 950; Price v. Wakeham, 48 Tex. Civ. App. 339, 107 S. W. 132. It is also true that appellant’s wife, under the holding in Price v. Wakeham, supra, had the right in her lifetime to maintain such a suit in virtue of the right of custody and control conferred by the district court, but that fact is also without force in view of her death before suit, and in view of the fact that the father became the natural guardian of the person of the minor upon her death, and entitled to the guardianship of his estate. Article 4070, Vernon’s Sayles’ Tex. Civ. Stats.

We thus recur to the original question, as stated. And while it seems consistent with reason for another, by his voluntary acts, to stand in loco parentis in fact to a minor, it does seem inconsistent with reason that such other by reason of that relation may succeed to the legal rights of the real parent.. Parentage and the legal consequences and rights arising from that relation may not be changed by the voluntary acts, however commendable and philanthropic, of another.» Courts may only change the legal rights arising from the relation' in a limited respect when it is made to appear to be for the best interests of the minor. Further, the recovery authorized by the article cited does not accrue to, nor is it for the benefit of, the minor. On the contrary, it accrues to and is for the benefit of those aggrieved; that is to say, adopting the precise language in Peavy v. Goss, supra, “any person having an interest recognized by law in the subject-matter of the judgment,” who, in suits of this character, were held to be only the parents or those standing in loco parentis. The most that can be deduced from the case cited, in our opinion, is that one standing in the place of the parent during the life of the latter may become an aggrieved person only when that right has been conferred in some legal manner, as by decree appointing such person guardian or awarding to him the control and custody of such minor. Even in such case it is doubtful whether the real parent would lose his right to sue. Neither the relation of stepfather nor the dying request of the minor's mother that appellant assume the responsibility, even if it be conceded, as it may, that it was for the best interest of the minor, created any legal status between the parties nor conferred any parental rights upon appellant. As we have shown, the natural guardian of a minor is declared by statute to be its parent, and while the custody and control of the minor may be awarded to one of the two parents or for that matter to another, until that change has been accomplished, one standing in loco parentis does not, in our opinion, become an aggrieved person within the contemplation of the act.

We also hold there is a marked distinction to be made between one who is an aggrieved person under the special provisions of the statute cited, and the rights and liabilities generally of a minor and one who voluntarily stands in loco parentis to him. The rights of aggrieved persons as defined in the statute arise by virtue .thereof, while the rights under the other relation arise upon different grounds. Oases of the latter character, of which Schrimpf v. Settegast, 36 Tex. 296, is typical, place their holding upon moral and equitable grounds and deal with rights accruing to the minor, the one assuming the relation of parent in fact and third persons, and have to do with the right of the minor to recover for his services, the right of the one assuming the relation to receive the services without compensation, and the rights of third persons to hold the latter bound for the maintenance and support of such minor. In the case cited it is said that a person “who had, through motives of kindness or charity, received an orphan child into his family, whether it be a stepchild or an entire stranger, and treated it as a member of his family,” would, “so long as such child should see fit to remain in such family,” be bound for its support and maintenance and entitled to its reasonable services. It is apparent that the rule in such cases is without application or controlling force in the instant case.

From what has been said, we conclude the petition was subject to the general demurrer, in that the facts related failed to show any legal right in appellant susceptible of an enforcement in the courts. Accordingly the judgment of the trial court is affirmed.

Affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numfcerea Digests and Indexes


text:
    MATTHEWS v. DEASON et al.
    (No. 7870.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 19, 1918.)
    1. Contracts &wkey;337 (2) — General Demurrer —Sufficiency of Petition — “Foreclose”— “Dispossess.”
    Petition, alleging that in a prior action defendants sued plaintiff to “foreclose” on certain promissory notes and to “dispossess” plaintiff of a lot of land of which he was the owner in possession, and .that pending suit upon representation of defendants that a cloud on title to the land could be removed by so doing plaintiff agreed to entry of judgment on condition that defendant would reconvey to him on certain pay-, ments and assumption of the indebtedness, and that plaintiff made the payments and tendered performance, sufficiently alleged a breach of contract, since the word “foreclose” means to shut out, to bar, aryl is used of the process of destroying an equity of redemption and “dispossess” meant to oust from the land by legal process.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and' Second Series, Foreclose; Dispossess.]
    2. Contracts <&wkey;337(2)- — Damages—Breach— Pleading — Sufficiency.
    Where plaintiff alleged a contract hy which he permitted judgment to be entered in a foreclosure suit against him, on condition that defendants would reconvey, and that they refused to reconvey and dispossessed him, it was unnecessary to allege that by the judgment they acquired title to the land.
    3. Contracts &wkey;>333(l) — Damages—Breach —Pleading—Sufficiency.
    Complaint, alleging breach of agreement as to conditions of entry of judgment in “suit No. 18163a in Fourteenth district court of Dallas county” for the purpose of foreclosing plaintiff’s right of redemption, sufficiently identified the action in which the agreed judgment was entered.
    4. Trusts <&wkey;17, 18(5) — Oral Agreement — Statute of Frauds.
    An oral agreement by which plaintiff suffered judgment in foreclosure suit to be entered against him when defendants agreed to reconvey the land to him, if entered into, was not void under the statute of frauds because it created a trust.
    Error from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by S. X. Matthews against J. T. Dea-son and others. From an order sustaining general demurrer and special exceptions to the amended petition, plaintiff brings error.
    Reversed and remanded.
    M. M. Parts, of Dallas, for plaintiff in error. Burgess, Burgess, Chrestman & Brun-didge, .of Dallas, for defendants in error.
   RASBURY, J.

Originally, as appears from the record, plaintiff in error sued defendants in error to compel specific performance of an alleged contract to convey a lot of land in the city of Dallas and to enjoin pendente lite the threatened sale thereof by the sheriff of Dallas county. Interlocutory writ of injunction was issued upon fiat of the trial judge returnable to the succeeding term of court. Motion to dissolve the writ was filed, but not acted upon, and, so far as the record discloses, the interlocutory writ is yet in force. However, at a subsequent term of court plaintiff in error amended his petition, and in lieu of the suit for specific performance of contract sought recovery of damages for the breach thereof and an unlawful eviction from the premises agreed to be conveyed. We therefore treat the original suit as abandoned and the interlocutory writ as result thereof dissolved. The general demurrer and certain special exceptions leveled against the amended petition were sustained. Plaintiff in error declined to amend, and the cause is here upon assignments challenging the action of the court in the respect stated.

Omitting formalities, the petition alleges, in substance, that theretofore, in suit No. 18163a in the Fourteenth district court of Dallas county, defendants in error sued plaintiff in error to “foreclose” on certain promissory notes, and to “dispossess” the latter of. a lot of land in Dallas county, of which plaintiff in error was owner and in possession of at the time. Pending suit and upon the representation of defendants in error that a “cloud,” etc., upon the title to said land could be removed by so doing, plaintiff in error agreed to the entry of judgment in said cause on condition that defendants in error would reconvey said land to him, upon the payment of $800 in cash, the assumption of an existing debt of $4,000 against said lot, and.the securing of an extension in its time of payment, the execution of plaintiff in error’s note for $2,000, payable in monthly installments of $65 after date; also the execution of his note for $350 due in six months, payable one-half in cash and one-half in merchandise. Thereafter, in compliance with the agreement, plaintiff in error, by paying the First State Bank of Dallas $100, secured an extension of three years upon said $4,000 note, tendered defendants in error $800 cash, and offered and .was willing to execute the other notes,- and requested defendants in error to convey him said lot of land, which they refused to do. Further, that defendants in error, in order to defraud plaintiff in error, did, under authority of said judgment, sue out a writ of possession and by authority thereof remove plaintiff in error therefrom, to his damage, etc.

Do the facts related, if true, disclose a legal right in plaintiff in error susceptible of enforcement? If they do, the petition is sufficient against the general demurrer, since “if, upon a fair and reasonable construction, giving to all ambiguities the reasonable interpretation most favorable to the pleading, there-appear in it sufficient facts to show a legal right in the pleader, the general demurrer should be overruled.” Towne’s Texas Plead-ing, 530, 380. In other words, “if sufficient facts be stated to enable the court to see that a good cause of action or ground for defense-exists, however defectively stated, the insufficiency or defectiveness of the averments cannot be taken advantage of on general demurrer.” Williams v. Warnell, 28 Tex. 610.

It will not be denied, upon analysis, that the petition sufficiently states that a suit by defendants in error against plaintiff in error was pending, and that the latter agreed that judgment might be and was entered therein on condition that the land described would be reconveyed to plaintiff in error whenever he paid an amount of cash, etc., to-defendants in error, and that he did, after-judgment, in all respects comply with such conditions subsequent, and that defendants, in error refused to convey the land. The insufficiency of the pleading lies, if at all, in the generality of the allegations of the petition concerning the character and purpose of the pending suit. Even in that respect, we conclude, in the light of the rule stated, the insufficiency is in the manner and form of stating the facts, rather than in the substance of what is actually conveyed by the language used. The allegation is that defendants in error had sued Matthews in case No. 18103a in the Fourteenth district court of Dallas county to “foreclose” on certain notes and to “dispossess” him of a lot of land in the city of Dallas, and that he had agreed to judgment in that suit on the conditions enumerated. To foreclose is “to shut out; to bar. Used of the process of destroying an equity of redemption.” Bouvier. The force and pertinency of that allegation was to say that the suit was to destroy plaintiff in error’s right of redemption in the land described. Dispossession, as used in the petition, meant of course the ouster of plaintiff in error from the land by legal process after foreclosure. Thus we have, in substance, attaching to the terms used their ordinary meaning, the averment that the suit was to foreclose plaintiff in error’s equity of redemption in the land and to oust him of possession of the same. To that character of judgment it is clear from the other allegations plaintiff in error agreed on condition that the land would be reconveyed on certain conditions, with which he complied, but which defendants in error repudiated. Accepting as true the allegations detailed, they show a breach of the contract to reconvey the land and for which a cause of action exists for any legal damages which may be shown; and consequently the general demurrer was erroneously sustained.

In support of the contention that the petition is insufficient against the general demurrer, it is pointed out by counsel that the petition asserts that plaintiff in error was the owner and in possession of the land when the suit was filed, but fails to allege that by their suit defendants in error acquired title, which it is argued would be necessary in order to maintain the present suit. We believe not. While the petition does not allege that defendants in error acquired the title to the land, it does allege that plaintiff in error was dispossessed thereof by process issued upon the judgment, to which he consented. Such being the case, we believe it will and must be conceded that it is immaterial whether defendants in error acquired title to the land by the foreclosure proceedings, but that it is sufficient in this proceeding that through the agency of the judgment to which Matthews consented he was ousted from possession of the land.

It appears from the judgment that every special exception contained in defendants in error’s original and supplemental answer was sustained. An examination of. these special exceptions fails to disclose that any one of them raised any issue not raised by the general demurrer, save two.

By one of the special exceptions it is, in substance, urged that the petition does not furnish sufficient information concerning the suit in which the agreed judgment was entered in order to enable the court to determine whether plaintiff in error was entitled to the relief sought. This special exception might well be held a general demurrer, since the function of the special exception is to point out the specific facts necessary to be alleged, or which have been omitted, as distinguished from the function of the general demurrer, which declares that the facts actually alleged fail to show a legal right. But even though it should be regarded as sufficient as a special exception the petition, in our opinion, sufficiently alleges the character or purpose of said suit,' since it declares it was suit No. 18163a in Fourteenth district court of Dallas county, and was for the purpose of foreclosing plaintiff' in error’s right of redemption in certain lands and to dispossess him thereof.

The other special exception raises the issue that the contract alleged by plaintiff in error is within that provision of the statute of frauds that declares that no action upon any contract for the sale of real estate shall be brought in any court, unless the promise or agreement upon which such action shall be brought or some memorandum thereof shall be in writing and signed by the party to be charged therewith or some person by him thereunto lawfully authorized. While the petition does not, in express terms, allege that the agreement was in writing or that it was oral, that point is immaterial in this case, for the reason that we conclude that the alleged agreement, if true, created a trust or confidence in lands, capable of enforcement whether in parol or in writing. All parol contract^ concerning lands are not void. Only those which contemplate the sale of lands or the leasing thereof for a longer term than one year are void. The provision has been, and should be, liberally construed, and all agreements, within its scope and spirit, brought under its operation in order to suppress the mischief it was designed to prevent. Our courts, however, in • construing the statute, hold there is a difference between contracts for the sale or lease of lands and those having reference to other interest in lands, one of which is an agreement which creates trusts or confidences in lands. Such agreements when established may be the basis of appropriate relief whether in writing or in parol. James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743; Mead v. Randolph, 8 Tex. 191; Bailey v. Harris, 19 Tex. 109; Long Mfg. Co. v. Gray, 13 Tex. Civ. App. 172, 35 S. W. 35; Brown v. Jackson, 40 S. W. 162; Anderson v. Powers, 59 Tex. 213; Brotherton v. Weathersby, 73 Tex. 471, 11 S. W. 505; Warner v. Railway Co., 164 U. S. 435, 17 Sup. Ct. 154, 41 L. Ed. 504. The language we have used in stating the rule is, in substance, that employed in James v. Eulcrod, supra, and is the rule, since followed by an unbroken line of cases. The cases cited, and many that have not been cited, present a variety of facts held to create a trust or confidence as distinguished from a sale, a number being cases where the absolute title was passed as security for debt with parol agreement to reconvey upon satisfaction of the debt. Brown v. Jackson is much in point here, since it was there held that an agreement, on purchase of land under execution, that the purchaser would reconvey the land' to the execution debtor on payment of the balafi.ee of the judgment is not void because resting in parol.

For the reasons stated upon both issues' discussed, the judgment is reversed, and cause remanded for another trial consistent with the views herein expressed.

Reversed and remanded.
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      c&wkey;iFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    BUCKHOLTS STATE BANK v. GRAF et al.
    (No. 5701.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 9, 1918.
    Rehearing Denied Feb. 13, 1918.)
    1. Appeal and Error <&wkey;231(9) — Objection in Lower Court — Instructions.
    Requested instructions made a part of the bill of exceptions he Id sufficient, under Rev. St. 1911, arts. 1971, 2061, to indicate the objections to the peremptory charge given.
    2. Trial <&wkey;349(2) — Verdici^-Requbst fob Special Findings.
    Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a), providing the court shall, upon request of either party, submit the cause upon special issues, except when it cannot be so determined, is mandatory; the court having discretion, subject to review, as to whether the cause can be so determined.
    3. Appeal and Error t&wkey;1062(2) — Question for Jury — Refusal to Submit on Special Issues.
    Where the evidence on an issue was conflicting and irreconcilable, there was an issue for the jury, the failure to submit which specially, as requested, is, under Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a), reversible ex'ror.
    4. Jury <&wkey;31(3) — Right to Trial by Jury —Constitutional Provisions.
    Action of court, in peremptorily instructing a jury, held equivalent to a denial of the right of trial by jury of a material controverted fact, and in violation of Const, art. 1, § 15.
    5. Banks and Banking <&wkey;175(5) — Collections — Negligence.
    In an action against a bank for negligently failing to collect a draft, the measure of damages is compensation for the injury thereby suffered, which is not necessarily the face of the draft.
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by Henry Graf and others against I. B. Williams, the Buckholts State Bank, and others. Judgment for plaintiffs, and defendant bank appeals.
    Reversed and remanded.
    Morrison & Lewis, of Cameron, and Ether-idge, McCormick & Bromberg, of Dallas, fox-appellant. Geo. T. Willrich and Jno. T. 'Duncan, both of La Grange, D. R. Criswell, of •Buckholts, and Chambers & Baskin, of Cameron, for appellees Henry Graf and others. Cecil L. Simpson and Monta R. Ferguson, both of Dallas, for appellees Pierson & Taft, Inc. E. A. Wallace, of Cameron, for appel-lees Z. A. Ray and others. Cox & Snodgrass, of Temple, for appellee Temple Trust Co.
   JENKINS, J.

In view of the disposition which we make of this case, our findings of fact and decision as to points of law in our former opinions herein become unnecessary, and they are therefore withdrawn, and this opinion is substituted in lieu thereof.

The following statement will suffice for an understanding of this opinion: The plaintiffs, who are hereinafter referred to as the Grafs, owned 1,030 acres of land in Bell county, which they sold to I. jS. Williams in part consideration of 18 vendor’s lien notes of $1,000 each. Subsequently Williams sold 100 acres of this land, and the Grafs released their vendor’s lien on the same and surrendered three of said notes. Williams also sold 265 acres, and the Grafs released their lien on same, and credited the indebtedness to them with $6,000. This left principal and interest due them of $12,150, with a vendor’s lien on the remainder of the land, 665 acres. Williams wrote the Grafs that he had sold 289.98 acres to A. L. Ray, and requested them to send six of the remaining notes, together with a release of their lien on said 289.98-acre tract, to the Buckholts State Bank, appellant, and that he would pay off said notes with accrued interest. The Grafs executed the release and sent the same, together with six notes, to appellee, with draft attached for $6,723.85, the principal and interest due, with instructions not to deliver the release until the notes were paid. Williams had previously executed a deed to Graves, which was intended as a mortgage to secure $6,500 that he owed Graves. Ray was to pay Williams for this land by deeding him a tract of land in Bell county, and executing his nine vendor’s lien notes for $1,000 each, and Williams contemplated paying his debts to the' Grafs and to Graves by selling these notes and borrowing money on the land he was to get from Ray. The Temple Trust Company bought the Ray notes, for which they gave Williams a check for $8,900, intending mat $6,723.35 of the proceeds thereof should be used in payment of the draft drawn by the Grafs. Appellant collected this draft for $8,900, but afterwards permitted Williams to draw out the full amount thereof, and neither appellant nor Williams remitted any part thereof to the Grafs. A material issue herein is as to whether the Graf draft was paid to appellant out of the Temple Trust Company draft. The Temple Trust Company, at the time it delivered the Williams’ check to appéllant, obtained possession of the release, and placed the same of record in Bell county. Subsequently the trust company sold the Ray notes to Pierson & Taft, and Ray soid 100 acres of the 289.98 acres to Smith. The Grafs brought this suit against Williams to collect the amount due them on the six notes sent to appellant, and made the trust company, Ray, Smith, and Pierson & Taft parties defendant for the purpose of removing cloud from their title, and in the alternative against appellant to recover the principal and interest of said six notes in the event it should be held that appellant had collected the same. A jury was demanded by appellant, but a,t the conclusion of the testimony the court peremptorily instructed the jury to return a verdict in favor of the Grafs against appellant for the amount of their draft, and against the Grafs as to all the other defendants.

The appellant requested the court to submit the case on special issues presented by it to the court, and excepted to the action of the court in giving the peremptory instruction, and-in refusing to submit the case on special issues. .

It is urged by the Temple Trust Company, one of appellees herein, that we ought - not to consider any of appellant’s assignments based on the alleged error of the court in giving the peremptory charge to the jury, for the reason that it did not present specific objectións to said charge as required by articles 1971 and 2061, R. S. The requested instructions were made a part of the bill of exceptions, and we think they are sufficient to indicate the objections to the charge given.

Article 1984a, R. S., as added by Acts of 1913 (Acts 33d Leg. c. 59 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a]) requires:

“In all jury cases the court, upon request of either party shall submit the cause upon special issues raised by the pleadings and the evidence in the case * * * provided that if the nature of the suit is such that it cannot be determined on the submission of special issues, tb.e court may refuse the request to do so; but the action of the court may be reviewed on proper exceptions, in the appellate court.”

As we construe this article, it is in the discretion of the trial court to determine, in the first instance, whether or not the case is one which can be submitted on special issues, and his discretion extends no further. If it be determined on appeal that the caiuse could properly have been submitted on special issues, the statute is mandatory that it should have been so submitted, and the refusal to do so constitutes reversible error, unless the uncontradicted evidence leaves no material issue of fact to be determined by the jury.

Requested issue No. 1 is as follows:

“Did the defendant, I. B. Williams, ever pay or cause to be paid the 6 vendor’s lien notes for $1,000 each, described in plaintiff’s petition?”

Requested special issue No. 4 is in legal effect the same as No. 1, though it submits-more in detail the issuable facts as to such payment. This issue was raised by the pleadings, and was very material, inasmuch as, if said notes had not been paid, plaintiffs .were entitled to judgment against Williams for their debt, with enforcement of their vendor’s lien against the other defendants, except to such of them, if any, as were innocent purchasers. On the other hand, if the notes had been paid to the appellant, as agent for the Grafs, the debt and the lien were extinguished, and appellant was liable to the Grafs for money received and converted by it. The evidence upon this issue was contradictory and irreconcilable.

The action of the court in peremptorily instructing the jury was equivalent to denying the appellant the right of trial by jury upon a material and controverted issue of fact. Such right is guaranteed by the Constitution of this state (article 1, § 15), and therefore must be conclusively presumed to be a valuable right.

If, upon another trial hereof, it shall be found that appellant negligently failed to collect the draft sent to it by plaintiffs, their measure of damage will be compensation for the injury which they thereby suffered, which is not necessarily the face of the draft. Thomas v. Morse, 80 Tex. 289, 16 S. W. 48; Bank v. Brogden, 98 Tex. 360, 83 S. W. 1098; Bank v. Hendrix, 147 Ala. 670, 39 South. 295, 1 L. R. A. (N. S.) 246; Bank v. Bank, 99 Ark. 386, 138 S. W. 472; Bank v. Bank, 77 N. Y. 328, 33 Am. Rep. 618; Mott v. Bank, 22 Hun (N. Y.) 358.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial in accordance with this opinion.

Reversed and remanded.
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author: HARPER, C. J.

text:
    JURADO v. HOLMES.
    (No. 772.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 10, 1918.
    On Rehearing, Feb. 14, 1918.)
    1. Sales &wkey;>215 — Sale oe Cattle on Range. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7170,
    requiring a bill of sale always to be taken on sale of cattle on the range, and article 7171, making possession prima facie illegal without a bill of sale, have no extraterritorial effect, where the sale without the state was accompanied by actual delivery, and the property was after-wards brought into the state.
    2. Evidence <&wkey;317(4) — Heabsay—Admissi-bility.
    Where plaintiff bought cattle in Mexico, and they were claimed by defendant as administrator of his grandfather, a witness should not have been allowed to testify that he accompanied plaintiffs vendor when he paid money to the persons on whose behalf defendant claimed the cattle, and that plaintiff’s vendor then stated that he was buying certain interests of the estate; such testimony being hearsay.
    3. Appeal and Ekeor <&wkey;8S2(9) — Waiver op Error.
    That a party, objecting to testimony as hearsay, brings out testimony to the same effect on cross-examining the witness, does not waive the error.
    On Rehearing.
    4. Evidence <S=»118- — Res Gesms — Hearsay.
    The rule against hearsay testimony does not include res gestas of the transaction, such as declarations evoked by the transaction itself, without premeditation, voluntary, and spontaneous.
    5. Evidence <&wkey;121(9) — Res Gestíe.
    Where plaintiff bought cattle in Mexico, and defendant claimed them as administrator of an estate, testimony of one who accompanied plaintiff’s vendor, when he paid the money to the persons on whose behalf defendant claimed the cattle, that the vendor said at the time that he was buying certain interests from the estate, is not admissible as res gestae.
    Appeal from District Court, El Paso County ; S. J. Isaaclis, Judge.
    Suit by George M. Holmes against Pedro Rodriguez Jurado. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial. On rehearing, motion overruled.
    Turney, Culwell, Holliday & Pollard and Harrington & Bridgers, all of El Paso, for appellant. F. G. Morris and T. A. Fálvey, both of El Paso, for appellee.
   HARPER, C. J.

The record shows that Holmes, appellee, shipped certain cattle from the republic of Mexico through the custom house at El Paso, and that; thereafter in some way he lost his possession of them. Through a claim of ownership of a part thereof for himself and as administrator of an estate for others, appellant obtained possession (in some way not revealed). Appel-lee, by writ of sequestration, levied upon them, and defendant (appellant here) filed re-plevy bond. This suit is for the cattle, or, in the alternative, for their value. The cause was submitted upon special issues to a jury, and upon the verdict judgment was rendered for appellee, Holmes, for $2,590, from which this appeal is prosecuted.

The first assignment is that the trial court should have instructed a verdict for appellant, because the evidence is conclusive that the cattle are claimed by appellee by purchase upon the range, and his title is not evidenced by bill of sale; therefore the possession of the cattle is prima facie illegal. The cattle were upon the range in the republic of Mexico, and from there shipped to the United States through the custom house. Under the holding in Bank v. Daugherty, 81 Tex. 301, 16 S. W. 1028, the provisions of articles 7170 and 7171, Vernon’s Sayles’ Statutes of Texas, to the effect above claimed, will not be given an extraterritorial effect, where the sale was accompanied by actual delivery and afterwards brought into the state, because the statute has reference to cattle found within this state.

The second assignment charges error in admitting over objection the following testimony:

Witness Payan: “I went tó Parral at that time for my family, and Don Ygnacio and I went to the attorney’s house, Mr. Gomez y Salas. Mr. Loya told me to act as companion, so he could deliver some money, so I would be present when he would deliver the money, and that is where I knew those people he introduced as his relations. I did not see the defendant, Pedro R. Jurado, present at the time; he was not there. Mr. Loya stated to me he was delivering that money for interests he was buying from the inheritance left by Pedro Maria Jura-do; that is all, and I left them. I saw the money delivered to this man Rodriguez. They were referring to some interests, cattle and other things. They did not tell me what ranch or cattle, or anything; just told me it was property left by the will of Pedro Maria Jurado; during that time that man was very well known in that district. I have been informed that the people I was talking to were the father and mother of the defendant here.”

To which testimony; the defendant objected for the following reasons, to wit: That the same was immaterial and irrelevant, and in no way binding upon the defendant, and further that said testimony was not admissible as rebuttal testimony, and that it was hearsay, and that it was secondary; that, if there was any sale of these cattle then, a bill of sale would be the best evidence as to the transfer and sale, and that said testimony was merely hearsay, and was incompetent; and, further, that the witness does not know whether the parties referred to are the same parties at interest in this case. The testimony, if of any probative effect, tends only to establish that Loya, appellee’s vendor, had purchased the cattle from the same parties for whom the appellant claims the cattle as administrator under the will of their grandfather. It seems clear that the testimony should not have been admitted, for the reason that it was hearsay testimony. The appellee urges that it was res gestae of the transaction. It is clear that the witness did not know what the money was paid for, and there is no other testimony in the record to identify the object of the payment.

Appellee further urges that, since appellant brought out the same testimony upon cross-examination, he waived the error. The rule is settled to the contrary in Cathey v. Railway Co., 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103. The test question in this case is: Did appellee get title by his purchase from Ygnacio Loya? And the record discloses that, if the latter had title, it was from the heirs of Pedro Maria Jurado, and there is no other evidence, .than that above complained of, to show that he acquired such title, and this is not admissible, unless it be clearly shown that the money paid was the purchase price of the cattle in controversy. We note also, in view of another trial, that defendant testified that certain of the cattle were his by inheritance as one of the heirs, and that this is in no wise contradicted. For this reason appellant in any event should have had judgment for such cattle.

The third is that it was error to refuse special charge requested by appellant. Was there a market value in El Paso for the class and kind of cattle of those in controversy? And the fourth is based upon an objection to the main charge, upon the ground that it assumed that there was a market value for the cattle in El Paso. Under the evidence, the question is so doubtful as to require the court to submit it affirmatively to the jury, and it was erroi to submit the question, “What is the market value * * *?” without first submitting the question of whether in fact there was a market value.

The fifth complains of the misconduct of the jury in arriving at the market value of the cattle. If error, not likely to occur upon another trial.

For the reasons noted above, the cause is reversed and remanded for a new trial.

On Rehearing.

Appellee, upon motion for rehearing, very earnestly urges that the testimony of witness Payan, complained of in the second assignment, while hearsay, was nevertheless within the exception to the rule that hearsay evidence is not admissible, because it was res gestee of the transaction, and therefore admissible, and further urges that in determining the question the court should.look to other testimony of the same witness which was explanatory of that objected to, and requests that we discuss this suggestion more fully, in order that it may be determined just what evidence is excluded by our holding. In the original opinion we considered only one objection to this testimony, namely, that it was hearsay. We did not pass upon the objections made in the court below, as shown by the bill of exceptions, but which were not urged in this court. The rule which rejects hearsay evidence applies to that kind of evidence which does not derive its value solely from the credit to 'be attached to the witness himself, but rests also in part on the veracity and competency of some other person, not a party to the action, nor in the presence and hearing of a party thereto, from which the witness received his information. To this rule what is termed res gestse of the transaction, such as declarations evoked by the transaction itself, and without premeditation, that they sprang out of it, were voluntary and spontaneous, and made at a time so near as to preclude the idea of deliberate design, is admitted as an exception thereto. Malone v. T. P. Ry. Co., 49 Tex. Civ. App. 398, 109 S. W. 430; McGowen v. McGowen, 52 Tex. 657.

Now, bearing in mind the well-settled rule of hearsay evidence and the principle upon which the exception is predicated, let us apply them to the evidence which we hold was not admissible. As stated in the opinion, if this evidence has any probative value, it is because it tends to prove that Loya acquired the title to the cattle in controversy from the people whom the appellant claims to represent as administrator. Loya was not under oath when the purported statements were made, so Payan’s testimony concerning his statements derives its value in part from the credit to be attached to the veracity and competency of Loya; for this is not testimony concerning the sale, except in so far as Loya’s statements to him are evidence of the transaction or sale. In other words, to admit this testimony is to permit appellee to prove the transaction itself (sale by the heirs to Loya) by the unsworn statements of the party (Loya) from whom he claims to have purchased ithe cattle, supported by the fact that he saw money paid. Payan’s words are:

“Mr. Loya told me to act as companion, so he could deliver some money, so I would be present when he would deliver the money. * * * Mr. Loya stated to me he was delivering that money for interests he was buying from the inheritance left by Pedro Maria Jurado; that is all, and I left them. I saw the money delivered to this man Rodriguez. They were referring to some interests, cattle and other things. They did not tell me what ranch or cattle, or anything; just told me it was property left by the will of Pedro Maria Jurado; during that time that man was very well known in that district. I have been informed that the people I was talking to were the father and mother of the defendant here.
“Cross-Examination: * * * Loya told me that he had to pay some money to these people for something. I did not see what he got for his money. I was not present when he received anything. I saw him pay the money to these people. I do not know how much he paid them. It was bank notes of Mexico. He paid that money to Rodriguez and his wife, in the office of the attorney, Gonzales. The money was handed to Rodriguez. The lawyer had some documents that were signed by several witnesses. I do not know what they did with the documents. There were several people present at the time. Hon Ygnacio Loya was there. He told me he wanted me to go with him, so I would be present when the money was turned over. He did not talk about the lawyer, but I suppose the lawyer in that case had to make out the documents. He was present when the money changed hands. Loya told me that the money was concerning some interests left by the will of Pedro Maria Jurado. I did not see the will; I don’t know anything about that. This lawyer’s home was in Parral. I did not see the cattle, or any of the property that was turned over. I understood from the transaction I heard and saw that all of the property these people received from the father of Rodriguez was sold to Loya.”

We distinctly recognize the rule contended for by appellee, admitting as a part of the res gestte voluntary and spontaneous declarations, evoked by the transaction itself and made at the proper time. The testimony quoted is insufficient to bring within the rule the declarations made by Loya to Payan. It does not sufficiently appear that they were made at the time the alleged sale transpired and as a part of the transaction. The statements, for aught the testimony shows, may have been made at some other time. We adhere to our ruling that the testimony was inadmissible.

The prrtinency of Terrell v. McCown, 91 Tex. 231 43 S. W. 2, cited by appellee is not apparent. Sparks v. De Bord, 110 S. W. 757, is simply an application of the res gestse rt le.

The -aotion for rehearing is overruled.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
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