text:
    CAMPBELL et al. v. GIBBS et al.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 4, 1913.
    On Motion for Rehearing, Jan. 27, 1914.)
    1. Appeal and Error (§ 989) — Questions Reviewable — Findings—Evidence.
    The court, in passing on an assignment that the finding was contrary to the evidence, will only determine whether there was sufficient evidence to authorize the finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3897; Dee. Dig. §
    2. Trespass to Tet Title (§ 41) — Grants— Location — Evidence.
    In trespass to try title to recover land under ancient grants, evidence 'held to sustain a finding that the land claimed had not been located and surveyed on the ground, so as to embrace the land claimed by plaintiff.
    [Ed. Note. — For other cases, see Trespass, to Try Tide, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    3. Trespass to Tet Title (§ 38) — Title of Plaintiff — Bueden op Peoop.
    A plaintiff suing in trespass to try title to recover land under an ancient grant, has- the burden of establishing the- location of the grant, so as to include the land sued for.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    4. Stipulations (§ 14) — Operation and Effect-Evidence.
    An agreement of the parties in trespass to try title, which stipulates that the defendants Claiming under junior patents have such title, if any, as was vested in the junior patentees, relieves defendants of the burden of establishing the consecutive links in their respective chains of title, and satisfies the requirement of the three-year statute of limitations as to title, or color of title, from the sovereignty.
    i[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 24-87; Dec. Dig..§ 14.]
    5. Adverse Possession (§ 7) — Color of Title.
    Where the state of Texas placed grants made by any former sovereign, on the same footing as those made by the state, rights originating by treaty or under the Constitution or laws of the state were not violated, and such •grants were not protected from the operation of the statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 12-16; Dec. Dig. § 7.]
    6. Public Lands (§ 176) — Conflicting Grants.
    Where the state of Texas placed grants made by a former sovereign on the same footing as those made by the state, any grant by the state of a part of lands embraced in a grant of a former sovereign was void in the same sense that a grant by the state of land covered by a prior valid grant from the state is void.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dec. Dig. § 176.]
    7. Adverse Possession (§ 73) — Color of Title — “Sovereignty of the Soil.”
    Junior patentees of the state, or persons holding under the patentees, hold under the sovereignty of the soil within the three-year statute of limitations; the term “sovereignty of the soil” meaning, when the ^statute was first adopted in 1841, the then existing sovereignty.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 435-442; Dec. Dig. § 73.]
    Error to District Court, Madison County; T. J. Ford, Special Judge.
    Trespass to try title by Charlotte Campbell and others against Mrs. S. Gibbs and others. There was a judgment for defendants for the respective tracks claimed by them, which covered substantially all of the land sued for, and plaintiffs bring error.
    Affirmed.
    Alex C. Bullitt, of San Antonio, for plaintiffs in error. Dean, Humphrey & Powell, of Huntsville, and E. A. Berry, of Madisonville, for defendants in error.

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

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

   REESE, J.

This is a suit in trespass to try title, by Charlotte Campbell and others against Mrs. Sallie Gibbs and others, to recover four leagues of land lying in Madison and Walker counties. The land sued for is in two' tracts, one being all of a certain grant of four leagues in the name of Gordiano Badil-Ta, lying west of the Trinity river, and the other two-league grant in the name of Badil-la. Some of the defendants disclaimed as to all of the land except certain described tracts, as to which they pleaded not guilty and the statute of limitation of three, five, and ten years. Others pleaded not guilty and the statutes of limitation. Some of them specially denied the validity of the so-called Badilla grants, and alleged that if there had ever been such valid grants the same did not cover or include any land in Madison or Walker counties. Plaintiffs dismissed as to some of the defendants. The case was tried by the court, without a jury. The plaintiffs had judgment on the disclaimers and partial disclaimers of certain of the defendants, and against W. L. Dean, who appeared to have claimed an undivided interest in the Gordi-ano Badilla grants. Substantially the judgment was in favor -of the defendants for the respective tracts to which they asserted title, which coyered substantially all of the land sued for. The plaintiffs prosecute error The trial court filed conclusions of fact and law. The parties will be designated as appellants and appellees.

The appellants claim title under Andrew Dexter, as the owner of the two Gordiano Badilla - concessions or grants, which were made by the government of Ooahuila and Texas in 1832. The land claimed by appellants to be covered by these grants, in Walker and Madison counties, was afterwards covered by patented locations by the republic and state of Texas, and defendants claim title under these patents. The concession was for 11 leagues, under which was surveyed the following two tracts of land of 4 and 2 leagues, respectively: “Commencing the first corner on the black oak, eighteen inches in diameter, from there south 450 west, 1971 vrs. to the corner of the tract of Valentin Elquezaval; from there continuing the same course with his line, 14,140 vrs. to the River Trinity; passing the same and continuing with the line of the Citizen Jose Maria Musquiz 14,140 vrs. to the second corner; from there south 45 east, 3535 vrs. third corner; from there north 450 east 13,765 vrs. to the Trinity river, passing this and continuing the same course 14,915 vrs. to the fourth corner; from there north 450 east 3535 vrs. to where the survey commenced, containing four leagues. Beginning the first corner up the west margin of the Trinity river where the lower line crosses of a tract, survey to the Citizen Jose Maria Musquiz; from there southwest with his line, 15,420 vrs. second corner; from there south 450 east, 3,252 vrs. to the third corner; from there north 450 east 15,329 vrs. to the fourth corner; on the west of the Trinity river; from there up the river to the corner where it was commenced, containing two leagues.”

All of the land west of the Trinity river-in Madison and Walker counties in the four-league tract is embraced in this suit, and all of the two-league tract, which also lies in Madison and Walker counties. The following-agreement as to the facts was entered into-by the parties and introduced in evidence:

“(1) That where heirship is a necessary link in the chain of title of any of the parties, such heirship will stand admitted, and proof thereof is hereby expressly waived.
“(2) That subject to rights, if any they have, of the defendants under the statutes of limitation, the plaintiffs and defendant W. L. Dean are the owners of the Gordiano Badilla grant of land, and have such title, if any, to the land in controversy as was granted to Gordiano Badilla or Andrew Dexter, or any one holding title under either of them, and as the same relates to the Gordi-ano Badilla two-league survey of land referred to in plaintiffs’ petition, the defendant W. L. Dean has an undivided one-half interest, and as to that part of the four-league survey referred to in plaintiffs’ petition, said defendant W. L. Dean has an undivided S806/i77i2, and the plaintiffs have the remainder of such title, if any, as was vested in the said Gordiano Badilla or the said Andrew Dexter, or any one holding under them, to said tracts of land.
“(3) It is agreed that the plaintiffs may offer in evidence certified copies of the- testi-monio relating to said Badilla title now on file in the office of the commissioners of the general land office of the state of Texas, subject to the same objections only as might be made to said testimonio itself were it offered in evidence.
“(4) It is agreed that the several defendants claiming under so-called junior patents have such title, if any, as was vested in the junior grantees or patentees of the several tracts of land claimed by the said defendants, respectively, by their answers in this cause.”
“(7) It is not intended hereby to agree that the said Badilla grant of land was located so as to cover or include the land in controversy, as claimed by plaintiffs, but the question of the original location of said land, and whether it includes the lands claimed by defendants, is a question to be determined by evidence introduced upon the hearing of this cause, and this agreement is without prejudice, either to the contention of plaintiffs that said Badilla grant of land was originally located as claimed by the defendants (plaintiffs), and is also without prejudice to the contention of the defendants that said Badil-la grant of land was not located so as to cover and include the lands claimed by the defendants, respectively.
“(8) It is also expressly provided that this agreement is without prejudice to any of the pleas of limitation set up by the defendants herein, and without prejudice to the rights of the defendants, or any of them, under their respective pleas of limitations and the proof that may be “offered in support thereof.”

The case turned very largely upon the true location of the two Badilla grants, the appellants claiming that they were located, that part of the four-league grant west of the Trinity river in Madison and Walker counties, and the two leagues almost entirely in Walker county, with a small portion thereof in Madison county, as shown by the delineation thereof on the present maps of said counties, covering the land in controversy, and the appellees denying that any portion of either grant was located in either of said counties, or covered any part of the surveys of land claimed by them or either of them. Beginning in 1838, by patents issued by the republic of Texas, and continuing until substantially all of the lands covered by the Badilla grants in Madison and Walker counties, as claimed by appellants, were taken up, all of said land has been covered by locations and patents from the republic and state, under which appellees hold title.

The following findings of fact of the trial court are substantially supported by the evidence, and are adopted by us as our conclusions of fact:

“Third. I find that the evidence fails to show that the lands and premises described in plaintiffs’ petition were ever in fact located and surveyed on the ground as the place where plaintiffs claim said lands to be located. The evidence wholly fails to show any original marked lines or corners called for in the original field notes contained in the testimonios of title offered in evidence by the plaintiffs; and there was no evidence whatever tending to show that the Valentin Elquezaval grant was located adjacent to the line of the upper Gordiano Badilla grant, as called for in the original field notes of said upper Badilla grant, nor was there any evidence offered tending to show that the Jose Maria Musquiz survey was ever located adjacent to either of the Badilla grants, as called for in the field notes covering said Badilla grants, but there was evidence tending to show that the Valentin Elquezaval and Jose Musquiz surveys were located in different parts of the state of Texas, to wit, on Red river.
“Fourth. I further find that the lands claimed in plaintiffs’ petition were never platted in the General Land Office and shown on the official map in use in the General Land Office, covering what is now Walker and Madison counties, until the year 1858, and the evidence fails to show by what authority said lands were then platted on the maps in the General Land Office as being originally located and surveyed where said grants are shown on the maps of Walker and Madison counties in use in the General Land Office from and after the year 1858, and where said lands are claimed to be located by the plaintiffs.
“Fifth. I further find that prior to the year 1858 other locations were made upon valid certificates issued by proper authority, and surveyed upon the very lands claimed by the plaintiffs to be covered by the Badil-la grants, and that said locations and surveys were prior to the platting of said grants upon the land office maps of what is now Madison and Walker counties, and that valid patents were issued by the republic and the state of Texas upon practically all of said locations and surveys.
“Sixth. I find that there has been continuous assertion of title by those holding under said locations and patents emanating from the republic and state of Texas, and including the lands claimed by the defendants in their several answers filed herein, and, on the contrary, the evidence fails to show a continuous and connected assertion of title under the original grants to Gordia-no Badilla, or his agent Andrew Dexter, of the lands claimed by the plaintiffs.
“Seventh. I further find from the evidence that the following surveys of land patented by the republic and state of Texas, and which appear to be in conflict with the lands claimed in plaintiffs’ petition, were settled 'on by the original grantees and patentees, and those claiming under the original grantees, more than 50 years ago, to wit: James J. Holcomb survey of 6,636,540 square va-ras; the B. E. Dyer 640-acre survey; the Wm. Garrett survey of 2,952 acres; the M. G. Clements 160 acres; the Jno. D. Murphy survey of 320 acres; the Christopher Edinburgh survey of 640 acres; the David Davis survey of 640 acres; the S. P. Reeves survey of 320 acres; the Henry L. White survey of 320 acres — and that the following surveys were settled on by the original grantees, or those holding under them, more than 30 years ago, to wit: The Chas. Hill 320-acre survey and the J. D. Baker survey of 160 acres; the John Henry Pierson survey; the John Montgomery survey; the Elizabeth Jones survey; the George Young survey; and the Antonio Herrera one-half league survey.
“Eighth. I further find that the following defendants have shown sufficient actual and adverse possession of the lands claimed by them and described in their respective answers to entitle them to recover under the. statutes of limitation as follows: The defendants W. L. Hill, J. A. Elkins, W. A. Sims, B. F. Gibson, under the statutes of limitation of three, five, and ten years; the defendant C. M. Ford under the statutes of limitation of three, five, and ten years; the defendants A. Roundtree, Phil Terrell, Henry Barrett, Alonzo Young, Henry Tucker, and William Tucker under the statutes of limitation of ten years; the defendant M. D. Seay is entitled to recover the first tract of land described in his answer under the statutes of limitation of three, five and ten years, and the tract in his answer described which is neither a part of the J. S. Hunter nor John Spiller survey, under the statutes of limitation of ten years; the defendant R. E. L. Upchurch is entitled to recover the first tract of land described in his answer (being all the land .claimed by said defendant in conflict with the lands described in plaintiffs’ petition) under the statutes of limitation of three, five, and ten years; the defendant Dan Manning is entitled to recover the lands described in his answer under the statutes of limitation of five and ten years; the defendant ,W. L. Dean is entitled to recover the 160 acres described in his answer under the statutes of limitation of five and ten years; the defendant J. A. Herring is entitled to recover under the statutes of limitation of three, five, and ten years; the defendant Mrs. Sallie E. Gibbs is entitled to recover the third, fourth, eighth, and ninth tracts described in her answer under the statutes of limitation of three, five, and ten years,' and tract No. 6 in her said answer described, under the statutes of limitation of three and five years, and tracts Nos. 7 and 12 in her answer described, under the statutes of limitation of three and five years.
“I further find that all the defendants hold regular claims of title from and under the republic and state of Texas to the several tracts of land as claimed by them, respectively, and in their said answers described.”

The first assignment of error goes to the heart of the case by attacking the conclusion of fact embraced in the third finding, as above set out, as to the location of the two Gordiano Badilla surveys, west of the Trinity river. Under this assignment appellants present the proposition that the evidence conclusively shows that the said grants were located upon the lands claimed by them, and embrace and include the lands claimed by appellees. In passing upon this assignment it will only be necessary to determine whether there is sufficient evidence in the record to authorize the finding complained of. After a careful examination of the evidence we have concluded, as shown by our conclusions of fact, that this conclusion of the trial court is sufficiently supported by the evidence, and have adopted the same.

There was evidence sufficient to show that these two surveys, although made in 1832, were never delineated on any map of Madison or Walker county until 1858. A. H. Wooters, who seems to have been interested in them, had a survey made in 1858, locating the surveys where appellants claim them to be, and it is fairly to be inferred from all the evidence that it was not until after this that they were so marked or delineated on the maps of these counties. Witnesses testified that no trace could be found on the ground of any line older than the one made by these surveys of 1858. Persons living on, or in the neighborhood of, the land testified that they had never heard of a Badilla grant, as covering the lands sued for, until about 10 or 12 years before this suit was filed (in 1911). The field notes of the four-league grant call to begin at the first or northeast corner, east of the Trinity river, and in Houston county, at a black oak 18 inches in diameter. It is not surprising that no trace could be found, after this length of time, of this witness tree. From this point the field notes call to run 1,971 varas to the corner of the tract of Valentin Elquezaval. This was on the east side of the river in Houston county. Continuing, the line runs 14,140 varas to the Trinity river, crosses the same and continuing with the line of the citizen Jose Maria Musquez 14,140 varas to corner. This makes two calls on the north line of the four leagues for older surveys. The field notes of the two leagues, lower down on the Trinity, and all except a small portion on the north side, which’is in Madison county, lying in Walker county, call to begin “on the west margin of the Trinity river where the lower line of a tract surveyed to citizen Jose Maria Mus-quiz crosses the river.” The call for this tract and the Trinity river as the eastern boundary are the only calls except those for course and distance. The testimony showed that there were no such surveys as the El-quezaval or the Musquiz anywhere in the neighborhood of either of the Badilla surveys, either in Walker, Madison, or Houston counties. There was nothing to indicate where either of these surveys was, or ever had been, located. On the contrary, the evidence tended to show that no such surveys had ever been shown by the records of the General Land Office, in either of these counties. These records showed or tended to show that the only survey in the name of Valentin Elquezaval was in Red River county, and the only reference to a Jose Maria Musquiz survey locates it on the Trinity river, above the old San Antonio road, and 10 or 15 miles above the Badilla four leagues as .located by appellants. The evidence with regard to these Musquiz and Elquezaval grants is very vague and indefinite, but it is sufficiently clear that, so far as the location of these grants is connected with either of the Badilla grants, they rebut the inference that the last two grants were located as claimed by appellants, or touched or included any of the lands in controversy. Referring to what was shown about the Musquiz grant, M. M. Kenney, Spanish translator in the General Land Office and custodian of old Spanish records, testified that there was among these records a title in the name of Jose Maria Musquiz, and there was a pencil memorandum on the title papers as follows: “Five leagues on both sides of the Angelina above the San Antonio road, adjoining above the Gordiano Badilla.” It is quite likely that the reference to the Angelina river was a mistake, and intended for the Trinity. It does appear that the Musquiz survey, called for in the field notes of both the Badilla grants, lay on both sides of the Trinity river. This memorandum on the title of the Mus-quiz above referred to is, we think, of much significance; when we consider the hazy condition of the evidence, as to the location on the ground of the Badilla surveys, when considered in connection with parts of the title of the Badilla grant, introduced in evidence by appellants, as the foundation of their title. The application for the concession by Dexter designates the lands desired as a part of the vacant lands which front on the Trinity river, above the road that goes from, this town (Nacogdoches) to San Antonio, and.. part' in the neighborhood of the Neches river. The acting alcalde, who received the petition,' in making his order thereon states: “I, the-alcalde commissioned, having gone with the-interested parties, with the surveyor appointed and witnesses of assistance, to the-Trinity river, on the road which goes from this town to San Antonio de Bexar, and having made upon the left margin of said river measurements,” etc. These statements-are with reference to the four leagues, and would tend to corroborate the other evidence1 to show that this grant was located above the San Antonio road. The field notes of the ■ two-league grant also call for a Musquiz grant, whose lower line was the upper line-of this survey, while the lower line of the-Musquiz grant called for in the four league was also upper line of the four leagues, from, which it would appear that there were two-Musquiz surveys. It is further to be noted that the two leagues follow in the title the four leagues, and that the field notes of the two league call, “Beginning the first corner up the west margin of the Trinity river,” which would indicate that the two leagues-were located above the four leagues on the-Trinity, while of the two surveys, as claimed by appellants, the two leagues lie below the-four leagues on the Trinity. It was shown that the old road from Nacogdoches to San Antonio de Bexar crossed the Trinity river-more than ten miles above the upper of these two surveys, if located as claimed by appellants.

Now while this evidence does not show with any definiteness and certainty where, in fact, the two Gordiano Badilla surveys were-located, it certainly cannot be said that it even tends in any degree to indicate that they were located where appellants claim, or so as to include any of the lands claimed by appellants.

But it was further shown that these surveys were never delineated on any map of Madison or Walker counties in use in the-General Land Office until 1858, and to show that they were not recognized in the General Land Office as located where appellants-claim, the entire body of lands covered by both of them has been taken up by patented-, locations, recognized as valid by the state. The patents issued for various tracts and at different dates extending from 1838 to 1858, and one tract in 1894, about 30 surveys in all. This shows that during all of these years-this body of land was treated as vacant land. The grantees and those holding under them-have, some of them, been living upon the land for 50 years with no knowledge or information on the part of the owners, until the be— ginning of this litigation, that the land, or any part of it, was covered by the Badilla grants. It is a further circumstance, slight, it is true, that as claimed by appellants the upper line of the two leagues crosses the Bedias creek twice, and the lower line of the four-league survey crosses it once after crossing the Trinity river. It was shown that this was a well-known stream of considerable size, and it was in testimony that it was almost the universal custom, in making surveys, to call in the field notes for the crossing of streams of this size. This creek was not called for in the field notes of either survey. Taking this circumstance for what it is worth, it corroborates the theory that these surveys were originally located several miles above where appellants claim them to be.

The only evidence of any importance in the record which sustains appellants’ contention is the following: “It was shown that the field notes of several patented surveys, in both Madison and Walker counties, call for some of the lines of these Gordiano Badilla surveys, and these surveys are so located on the map as to show that the lines called for are the same as claimed by appellants. It was shown that prior to 1858, when the Badilla surveys were first delineated on the maps of Walker and Madison counties, a few surveys were made in those counties, and the field notes returned to the General Land Office in which the lines of the Badilla surveys, one or the other of them, were called for, and that, according to these calls, the lines of the Badilla grants can be located as claimed by appellants. There were several of such surveys in Houston county,'in which about one-half of the four-league grant, according to the field notes introduced by appellants, lay, some before and some since 1858, and several made in Madison and Walker counties calling for the Badilla surveys made since 1858.” We are not disposed to minimize the strength of this testimony as tending to show a location of the Badilla grants in Madison and Walker counties, corresponding to the location claimed by appellants. We do not think, however, that it is sufficient, when the evidence hereinbefore referred to is considered, to compel the conclusion on the part of the trial court that the grants were so located and were valid. In so far as these calls show or tend to show a recognition by surveyors of the location of the lines called for, it must not be lost sight of that the state and the republic through the General Land Office was all of the time recognizing locations made on this land, and issuing patents therefor. This can only be accounted for upon another theory which finds support in the evidence. It was shown that the Badilla grant of 11 leagues was located twice; once in 1832, by Andrew Dexter, attorney in fact for Badilla, and again in 1833 by Adolphus Sterne and Roberts in Bed River county. This last location seems to be r'ecognized as valid in the General Land Office. The original of the grant or concession is attached to the papers of the Red River or Sterne title, while only a copy is so attached to the Dexter title. For some unexplained reason, it may be that with the consent of all parties interested, the locations on the Trinity were abandoned and the grants located in Red River county. Whether this be true or not does hot affect the question presented by the assignment of error under consideration. Taking all of the evidence on this point in the entire record, we are unable to say that the trial court erred in the finding of fact, set out in the third paragraph thereof, that the evidence fails to show such location of the Badilla grants as would include any of the lands sued for. If this is true, appellants’ case fails. The burden was upon them to establish this fact. This disposes of the first assignment of error, which is overruled. The second proposition under the assignment is not germane to the assignment. The court’s finding of which complaint is made does not involve the question presented by the proposition.

If appellants failed to establish their right to recover any of the land sued for, the other assignments of error become immaterial. They can be disposed of without much discussion.

The second, third and fourth assignments of error complain of certain findings of fact on the ground that they are not supported by the evidence. We cannot undertake, in this opinion, to set out the evidence which supports and justifies these findings. We have examined all of the evidence with care before making our own conclusions, as stated. In adopting the trial court’s findings of fact we disposed of these assignments, which are overruled..

The other assignments of error relate to the trial court’s conclusions as to the title of appellees under the statutes of limitation of three, five, and ten years. The court found that some of appellees had established their title under the three-year statute of limitation — that is, that they had been in possession of the tracts claimed by them for three consecutive years — and that they had title or color of title from the sovereignty. To establish their title from the sovereignty, appellees relied upon that part of the agreement hereinbefore set out wherein it .was agreed that the several defendants, claiming under so-called junior patents have such title, if any, as was vested in the junior grantees or patentees of the several tracts of land claimed by the said defendants, respectively, by their answers in this case. The appellees set up title under the several original grantees or patentees to whom the several tracts had been patented by the republic and state of Texas. The purpose of the agreement was to relieve appellees of the burden of establishing the consecutive links in their respective chains of title, by an admission that they had such title. The case under the admission stands as though each of the appellees had established, by a regular unbroken chain, his title from the original grantee under whom he claimed. This satisfied the requirements of the three-year statute as to title or color of title from the sovereignty.

But it is contended by appellants that the land had been granted to Gordiano Badilla by a former sovereignty, and had never been subject to the sovereignty of the republic or state of Texas, and that therefore (1) the provisions of the three-year statute of limitation as to title or color of title from the sovereignty is not met by showing such title under the republic or state of Texas, and (2) that, if the provision of the statute were so construed as to meet this case, it was beyond the power of the Legislature thus to divest the title under the former sovereignty. Neither of these contentions is sound. The state has always shown a religious regard for valid titles emanating from any former sovereign. When such grants are placed upon the same footing as those made by the state herself, it certainly cannot be said that any rights, whether originating by treaty or under the Constitution or laws of this state, have been violated. There is nothing in the nature of those rights to protect‘them from the operation of the statutes of limitation adopted for the settlement of land titles. The “sovereignty of the soil” in the three-year statute meant, when the statute was first adopted in 1841, the then existing sovereignty. The change from the republic to the state wrought no change in this sovereignty except to transfer it to the state, the present sovereign. Any grant or patent by the state of any part of the lands embraced in the Badilla grants, if these grants^had been valid grants of these lands, would have been void in no other sense, and certainly no further than would have been void patents by the state of lands covered by prior valid patents from the state. In either case the state would be without power to convey title to lands which had previously been disposed of by valid grants of a previous sovereign or patents emanating from itself.

But in the case of junior patents, upon lands previously titled by the state, it seejns to be well settled that such junior patentees or persons holding title under them hold under the sovereignty of the soil, and may prescribe under the statute of limitation of three years as against the holder under the senior patent. Whitehead v. Foley, 28 Tex. 14; Smith v. Power, 23 Tex. 29; League v. Rogan, 59 Tex. 431; Galan v. Town of Goliad, 32 Tex. 776; Land Mortgage Co. v. State, 1 Tex. Civ. App. 616, 23 S. W. 259. .

We have concluded that the court’s conclusions of fact with regard to the claim of title by appellees under the statutes of limitation were supported by the evidence, and will not be disturbed. The remaining assignments of error have been examined and our conclusion is that none of them presents any ground for reversal of the judgment, even if material. None of them is, in fact, material in view of the court’s findings, approved by us, that appellants failed to establish the one fact absolutely essential to their right to recover; that is that, assuming the validity of the Badilla grants, they are not shown to cover any part of the lands sued for. Einding no grounds for reversal, the judgment is affirmed.

Affirmed.

On Motion for Rehearing.

In plaintiffs in error’s motion for rehearing attention is called to what is shown to be an erroneous statement as to the facts. It does not appear who made the survey of 1858 of this grant. The survey which was afterwards made by A. H. Wootters, or in which he assisted, was made in 1888 or 1889. Plaintiffs in error are in error in saying that it is stated we found as a fact that A. H. Wootters testified that no trace could be found on the ground of any older survey than the one of 1858. The opinion does not so state. The errors corrected are immaterial.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    YOUNG et al. v. BANK OF MIAMI.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1913.
    On Motion for Rehearing, Dee. 13, 1913.)
    1. Guaranty (§ 82) — Action Against Guae-antoes — Parties .
    Where defendants guaranteed certain assets of a bank on transferring the bank and its assets to plaintiff, the contract of guaranty being an independent undertaking, tho principal debtors were not necessary parties to a suit on the guaranty.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 97; Dec. Dig. § 82.]
    2. Guaranty (§ 82) — Parties — Right to Sue.
    Where the assets of a firm operating a private bank were transferred to another partnership engaged in operating a new bank, and the latter contracted to collect certain paper, and, if it could not be collected, then defendants, the transferring firm, were to pay the same on transfer of the judgment therefor, and had the option to pay the same in cash' and take a transfer thereof, and to designate the attorney who should conduct any suit, the suit on the guaranty was properly brought in the name of the new banking firm.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 97; Dec. Dig. § 82.]
    3. Guaranty (§ 87) — Action—'Variance.
    On the transfer of a bank’s assets to plaintiffs, a partnership operating a new bank, defendants, the transferrors, guaranteed the collection of such assets, and in an action on the guaranty the petition alleged that plaintiffs were to turn over the paper not collected to an attorney designated by defendants for collection, and defendants were to sue on all of the paper so turned over and collect by execution. The contract for transfer of the assets provided that the new bank was to collect the same by demand or judgment, and, if not so collected, then defendants would pay the debt on the transfer of the judgment. Defendants also had the option, before the paper was placed in the hands of an attorney, to pay the same in cash and take a transfer, reserving the right to designate the attorney who should conduct the suit. Held, that the gist of the action was whether defendants had breached their contract of guaranty, and though it was alleged, as part of the breach, that the attorney so selected had refused to prosecute the claims to judgment, there was no material variance between the contract and the petition.
    [Ed. Note — For other cases, see Guaranty, Gent. Dig. § 101; Dec. Dig. § 87.]
    4. Guaranty (§ 70) — Performance or Conditions — Reasonable Time.
    Where a contract, guaranteeing certain of the assets of a bank transferred to plaintiffs, provided that all paper due at the signing of che contract should be collected by plaintiffs in 80 days, or suit brought thereon, and, if prompt payment was not made, the paper should be placed in the hands of an attorney for suit thereon, but it was further provided that time was not of the essence of the contract, it was sufficient if uncollected paper was placed in the hands of an attorney within a reasonable time, and hence the guarantors were not relieved from liability because the uncollected assets were not delivered to the attorney within 80 days.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 78-80; Dec. Dig. § 70.]
    5. Guaranty (§ 86) — Assets or Bank — Contract — Breach—Measure or Damages.
    Where defendants, on transferring the assets of a bank to plaintiffs, a new partnership operating a new bank, guaranteed the collection of the face value of certain notes and overdrafts transferred, plaintiffs contracting to collect the same by demand or suit by an attorney of defendants’ selection, and, if this was impossible, defendants to pay the same and accept a transfer of the assets so uncollected, defendants having repudiated the agreement, plaintiffs were not entitled to recover the face value of the notes and overdrafts so uncollected, in the absence of proof that the principal debtors were insolvent, but the measure of plaintiffs’ damage was the difference between the face value of such indebtedness and its actual value.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 88-46; Dee. Dig. § 36.]
    6. Guaranty (§ 90) — Evidence.
    In an action on a guaranty, made by the owners of a private bank, to a partnership, consisting of one of their number and others who were to operate a new bank, that certain of the assets of the bank transferred were collectible, evidence of one of such partners as to representations made by the continuing partner to him as to the collectibility of the paper in the bank was admissible.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 103; Dec. Dig. § 90.]

      7> Guaranty (§ 77) — Breach — Waiver or Precedent Conditions.
    Where defendants repudiated a guaranty of collection of certain of the assets of a bank and declared that they would no longer be bound thereby, plaintiffs were entitled to accept such declaration as final and as a waiver of all conditions precedent to suit, to be performed by them, and to sue at once for breach of the contract.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 87-90; Dec. Dig. § 77.]
    Appeal from District Court, Hemphill County ; C. E. Gustavus, Special Judge.
    Action by the Bank of Miami against D. J. Young and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    H. E. Hoover, of Canadian, and Ewing & Dial, of Miami, for appellants. B. M. Baker, and G. O. McGrohan, both of Canadian, and J. A. Holmes, of Miami, for appellee.

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

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

   HUFF, C. J.

The statement of the allegations in plaintiff’s petition by appellants is adopted by us, as the appellee concedes that it is substantially correct. The statement of exceptions and pleas of defendants will not be made, as we think our opinion will otherwise disclose the issues made thereby:

“This suit was filed in the district court of Hemphill county, on the 20th day of December, 1912, by T. M. Cunningham, L. B. Robertson, W. S. Martin, T. J. Boney, and others, a partnership engaged in a general banking business at Miami, Tex., under the firm name of the Bank of Miami, against D. J. Young, Robt. Moody, Thos. F. Moody, and W. S. Martin. The plaintiff alleged: That on and prior to the 21st day of September, 1912, the defendants were engaged in a general banking business as partners, at Miami, under the firm name of the Bank of Miami, and on that day the plaintiff organized the partnership and purchased the banking business of the defendants, and continued the business under the firm name of the Bank of Miami, and that the purchase included the banking business, real estate, books, notes, accounts, and overdrafts of the defendants. That a written contract was entered into between the parties, which included an obligation on the part of the defendants to guarantee the payment of all notes, overdrafts, accounts, and other paper due at the time of the sale to the Bank of Miami, but said guaranty being given ill consideration of the purchase price paid by plaintiff for said banking business and under such conditions as follows: That all the notes, overdrafts, etc., due and to become due the bank were to be collected by the newly organized bank, in so far as collections could be made by notice and demand on the debtors; that, if same could not be so collected, plaintiff was to turn over the paper not collected to an attorney., selected by defendants, for collection by suit, and defendants were to sue on all of said paper so turned over and prosecute to judgment thereon promptly and collect by execution. If collection could not be thus made by execution, then defendants were to pay plaintiff all the money due on the paper not so collected. That thereafter they requested the defendants to designate an attorney, and the defendants designated H. E. Hoover, and thereafter they presented to said Hoover many of the notes, accounts, and overdrafts, and requested him for the defendants to bring suit upon and collect the same. That Hoover, acting for the defendants, accepted certain of the overdrafts and notes for collection, but rejected many others, and turned them to the plaintiff and notified the plaintiff the defendants would not undertake the collection of the same and denied all liability and responsibility thereon under the contract. That, by their-act in refusing to take charge of said collections and refusing to put same into judgment and denying liability thereon, the defendants broke their contract with plaintiff, and plaintiff alleged that; pursuant to the terms of said contract, it presented to said attorney certain overdrafts and notes which are set out in the pleadings; that the attorney accepted all of said notes and overdrafts so presented for collection except the note of G. O. Nickel, Geo. Nickel, H. O. Harris, five notes of Tom Cook, and the note of J. G. Ramsey, and the note of W. G. Crawford, and all of the overdrafts, except the overdraft of S. M. Bird, J. G. Ramsey, and H. E. Ratloff (these notes and overdrafts refused being the only items in controversy in this suit). In the seventh paragraph of the petition the plaintiff charges that the defendants, by breaching the contract and denying liability on said notes and overdrafts, had damaged plaintiff in the sum of $25,000, and prayed for judgment for the amount due. on the notes and overdrafts, attorney’s fees and interest, and, if that should not be allowed, then it prayed for judgment for the amount due on all overdrafts, said notes, attorney’s fees, and interest, shown to have been rejected by the defendants, and, if same should be rejected, then the decree of the court fixing the liability of defendants; prayed for a writ of mandamus for costs of suit.”

The trial court made the following findings: •

“Findings of Pact.
“First. I find that on and prior to September 21, 1912, defendants D. J. Young, Robert Moody, Thomas F. Moody, and W. S. Martin were the owners of a banking business, located at Miami, Tex., conddcted by them as copartners, under the firm name of the Bank of Miami, Tex., and will hereinafter be referred as to the ‘Old Bank.’
“Second. That on September 21, 1912, said defendants sold said banking business to the defendant W. S. Martin- and his associates, being the plaintiffs named in the petition, who continued to conduct the said banking business as copartners using also the firm name ‘The Bank of Miami, Texas,’ and will be hereinafter referred to as the ‘New Bank.’
“Third. That the sale of said banking business by the old bank to the new bank was evidenced by a written contract, of date September 21, 1912, with two supplements thereto, admitted in evidence on the trial, and that said contract fixed the rights, duties, and liabilities of all of the parties.
“Fourth. That when said contract was, entered into there was owned and in possession of the old bank, as a part of its assets, the following, notes and overdrafts, which were owing to it, to wit: Note of Hi G. Harris, for $206, dated July 6, 1909, due 90 days; interest 10 per cent, from maturity, bearing a credit of $117, dated September 22, 1911. Note of G. C. Nickel and Géo. W. Nickel for $51.25, dated March 3, 1910, due 90 days; interest 10 per cent, from maturity, bearing credit of $20, dated October 3,1910. Note of W. G. Crawford for $37, dated August 15, 1910, due 90 days; interest 10 per cent, from maturity, bearing credit of $2.43, undated; another credit, interest paid to January 20, 1911; another credit of $15 dated September 13, 1911; and another credit ‘interest paid to January 4, 1912.’ Four notes of Thomas Cook, one for $694.66, one for $500, one for $1,000, and one for $1,500, all dated December 27, 1911, due six months after date, bearing interest at the rate of 10 per cent, after maturity, and one note of Thomas Cook for $1,650, dated September 1, 1912, due one day after date, bearing interest at 10 per cent, from date. Overdraft against S. M. Bird for $2,601.25 .and overdraft against J. G. Ramsey for $214.29. And that said notes and overdrafts are the only items involved in this suit, and were included within the terms of the contract of September 21, 1912.
“Fifth. That the evidence introduced did not show that the old bank held any security for the payment of said notes and overdrafts, except the Thomas Cook notes, upon which obligations it held collateral as follows: Two notes from Fred D. Kline and Ulricka Kline, payable to the order of Andrew E. Larson, indorsed in blank,' without recourse, by the latter, and also indorsed by Thomas Cook, dated May 6, 1910, one for $1,000 due on or before May 6, 1913, and the other for $2,700, due on or before May 6, 1915, both bearing interest at 7 per cent, from date, and were secured, as the testimony showed, by a mortgage on some land in the state of Oklahoma, upon which there were some prior incum-brances of approximately $4,000, and that the land was subsequently sold at sheriff’s sale under foreclosure of one of the prior incum-brances ; and four mortgages in the form of deeds executed by Thomas Cook to W. S. Martin for some town lots in Hereford, Tex.; and a tract of land in Castro county, Tex., containing 327 acres.
“Sixth. That the new bank, after its purchase of the banking business and the execu-’ tion of the contract of September 21, 1912, and within 30 days, in substantial compliance of said contract, attempted to collect said notes and overdrafts, but failed to do so, and such indebtedness is still owing and unpaid.
“Seventh. That the new bank, in substantial compliance with the contract of purchase and within a reasonable time, and without breach or waiver of its rights under said contract, requested D. J. Young to select and designate an attorney to sue upon said notes and overdrafts, and collect them by judgment and execution if possible, with the end in view of complying with the terms of said contract of purchase, and holding the old bank liable for tlie ultimate payment of all ■of said indebtedness, in accordance with the ■terms of said contract.
“Eighth. That in pursuance of the request -of the new bank, for the selection and designation of an attorney, the defendant D. J. Young, acting for the old bank, under the •terms of said contract, did on November 11, 1912, select and designate H. E. Hoover, Esq., ■an attorney of Canadian, Tex., to handle said indebtedness, and notified the new bank thereof, which was in substantial compliance with said contract.
“Ninth. That the said H. E. Hoover accepted the designation of himself, and thereupon and thereby became the agent and representative of the old bank to act for them .in the premises, and defendants are bound ■by his acts in reference to the indebtedness mentioned.
“Tenth. That correspondence was conducted' between the new and old banks during the months of October and November, 1912, prior to November 19, 1912, as shown by the letters offered in evidence; some- of the letters referring to some of the items of indebtedness mentioned, but not to all of them.
“Eleventh. That on November 14, 1912, the -old bank called upon the new bank to place in hands of H. E. Hoover all of the indebtedness then due, which the new bank would ■not release from the guaranty contained in ■the contract of September 21, 1912, and in pursuance to such request the new bank on •or about November 19, 1912, delivered to the said H. E. Hoover a number of notes and ■overdrafts, including the notes and over■drafts involved' in this suit.
“Twelfth. . That in making delivery to H. E. Hoover, on or about November 19, 1912, of the notes and overdrafts involved in this -suit, the new bank was acting in substantial compliance with the terms of the contract of September 21, 1912, and within a •reasonable time, and the evidence offered in behalf of the old bank was not sufficient to show that there had been a breach or waiver, by the new bank, of the terms of said contract as to such items of indebtedness.
“Thirteenth. That the said H. E. Hoover, ■acting for the old bank, on or about November 21, 1912, returned the items of indebtedness involved in this suit to the new bank, and declined and refused to carry out the -terms of the contract as applied thereto, as .evidenced by the letter of said H. E. Hoover .to W. S. Martin, cashier, dated November 21, 1912, read in evidence on the trial of this •case, which letter I find to be a repudiation of the contract and denial of any and all liability on the items involved, which act has ■been fully ratified by the old bank.
“Fourteenth. I further find that the testimony offered by the old bank to show that there was loss of security, in the sale of the land in Oklahoma under prior incumbrances, was insufficient to show there had been a loss of security such as would release the old bank from the guaranty as to the' Thomas Cook notes.
“Fifteenth. I further find that the new bank, after the return, by the said H. E. Hoover, of the items of indebtedness involved in this suit on November 21, 1912, has not instituted suit upon any of them or taken any further action to enforce collection.”

By clause 4 and the supplement to the contract, the Moodys and Young guaranteed 10/zo of the notes and overdrafts of the old bank, as shown by the books on the 21st day of September, 1912, “in case of failure to collect said notes, as hereinafter indicated.” All notes and overdrafts guaranteed .by the old bank were to be collected by the new bank. Demand for payment was to be made immediately upon the indebtedness becoming due, and, if not promptly paid, the paper was to be placed in the hands of an attorney for collection by suit and suit to be immediately instituted thereon. The attorney was to be selected by the old bank; suit was to be pressed to judgment .as soon as possible; and, when judgment was obtained, execution was to be issued; and, if the money could not be made by execution, then the old bank was to pay the same upon a due transfer of the judgment to the parties composing the old bank. By the contract the old bank transferred to the new the entire property of the Bank of Miami, including the banking house and grounds, all bills, notes, and other property of whatsoever kind or character; the price was the capital stock, $25,000, surplus $15,000, and the net earnings of the business from January 1, 1912, to date of delivery of the property, and $2,500 bonus and premium.

By exceptions and plea in abatement, the appellant sought a dismissal of the cause for the reason that the principal obligors in the notes and overdrafts were not made parties, and no excuse in law was alleged, authorizing the suit against the guarantors, without joining the principals, on the ground that the appellants in the contract declared on were only sureties or guarantors. “The guarantor, being bound by a separate contract and only collaterally liable, cannot be joined in the same suit with the principal.” Brandt, Surety & Guarantor, § 2; Shropshire v. Smith, 37 S. W. 174, and Id., 37 S. W. 470; Page v. White Sewing Machine Co., 12 Tex. Civ. App. 327, 34 S. W. 988. The contract of guaranty in this case is an independent undertaking on the part of the guarantors. They are not bound by the same instruments on which- the principals are bound. This suit was upon an alleged breach of the contract of guaranty and for consequent damages. We are therefore of the opinion that it was not necessary to join the principals with the guarantors in this suit, and that there was no misjoinder of causes of action. We do not think articles 1204, 3818, and 3819, Sayles’ Civil Statutes, apply to cases of this character. All assignments complaining of the court’s action in overruling exceptions and in not sustaining the plea of abatement, on the grounds above specified, are overruled.

We think the terms of the contract clearly indicate that the suit should be brought in the name of the new bank. The paper was transferred to the new partnership, and it was to collect the same by demand or on a judgment and execution, and, if not so collected, then the old bank would pay the debt upon the transfer of the judgment. By the eighth provision, the old bank had the option, before the paper was placed in the hands of an attorney for collection, fo pay the same off in cash and take a transfer; in the fifth paragraph the old bank reserved the right to designate the attorney who should conduct the suit. The evidence would warrant the court in finding that the appellants had the right to direct the bringing of the suit or to prevent one being brought.

A perusal of the correspondence between the parties is at least suggestive that the parties to the contract so interpreted it. The necessity of bringing the suit under the terms of the contract was left to the option of the old bank. Doubtless the suit should have been prosecuted in the name of the new bank, yet both parties were vitally interested in the collection of the indebtedness under the contract. Appellants objected to the introduction of the contract in evidence, because there was a variance between the allegations of the terms of the contract declared on and in the contract offered in evidence. The allegation in the petition that “plaintiff was to turn over the paper not collected to an attorney selected by the defendants for collection by suit, and defendants were to sue on all of said paper so turned over, and prosecute to judgment thereon promptly, and collect by execution,” we think presented no material variance in the allegation and the contract. Whether the suit should be brought was largely in the hands of the defendants, and the parties, as above suggested, apparently at least so interpreted the contract; but, if there was a variance from the strict letter of the contract, it was immaterial and would not affect the rights of the parties in this suit. The real question at issue was whether appellants breached the contract. True, it is alleged as a part of the breach tha.t the attorney for appellants refused to take charge of the collections and prosecute to judgment; but the gravamen of the breach alleged is a denial of liability and responsibility thereon under the contract. We think there was no error in admitting the contract in evidence.

The court found from the evidence before him that appellants repudiated the contract and denied any and all liability on the contract involved, which act was afterwards ratified by the old bank. It is urgently contended there was no evidence supporting this finding. We are inclined to believe there is testimony supporting the findings of the trial court; but, as the case will be reversed, we will refrain from discussing it.

Appellants appear to have based their denial of liability on the contract, on the ground in part that suit was not brought in 30 days after the date of the contract. The seventh paragraph of the contract stipulates that all paper due at the signing of the contract shall be collected in 30 days or suit brought thereon in the same manner as mentioned in paragraph 5. The fifth paragraph stipulates that, if prompt payment is not made, it shall be placed in the hands of an attorney and suit immediately instituted. The thirteenth provision declares the terms of the contract are to be complied with and fully settled and terminated as soon as possible, taking into consideration the conditions to be met consistent with good business and the best interest of all concerned, “but it is expressly understood that time is not the essence of this contract.” We have concluded, under the provisions of the contract, that appellants were not justified in breaching the contract, because of the thirty day clause; but, under the provisions of the contract, the papers should be placed in the hands of the attorney within a reasonable time, taking into “consideration the conditions to be met,” and that it was not the intention of the parties to make time the essence of the contract. “If a party desires to make time of the essence of a contract, he should leave no doubt of the intention of the contracting parties so to make it” Kirchoff v. Voss, 67 Tex. 320, 3 S. W. 548.

The appellants assail the findings of the court, to the effect that the appellee was acting in substantial compliance with the terms of the contract and within a reasonable time, in requesting Young to designate an attorney to bring suit, and in placing the paper in the hands of the attorney so designated, and that in so doing it did not breach or waive its right under the contract, because appellants assert the facts did not warrant the finding. We overrule all assignments bringing into question the findings of the court on this point.

As seen from the above, we do not believe appellants were justified in renouncing liability. Having done so, what are the rights of the respective parties? Appellee, upon the breach, could sue for damages. The appellants, “by the twenty-first assignment, assail the judgment of the court in holding that appellee might sue for damages for such breach and were entitled to recover thereunder the face value of the notes and overdrafts sued upon. The trial court, in his conclusions of law, held appellee is “entitled to recover, as measure of damages, the amount due on each of said notes, with interest thereon as stipulated in said notes, to the date of judgment, and the amount of the overdrafts on September 21, 1912, with interest thereon to_ the date of judgment, at the rate of 6 per cent, per annum, and have accordingly rendered the judgment.” The pleadings do not allege that the parties executing the notes or owing the overdrafts were insolvent, or that the debts involved in this suit were valueless or noncollectible. The evidence does not show such to be their condition. The trial court does not find such to be the fact. Appellees allege and prove a breach of the contract and ash for damages for the breach. The appellants deny their liability on the guaranty, in effect announcing they would not tahe the indebtedness after it was reduced to judgment and pay for it. Upon the repudiation of such executory agreement by appellants, the appel-lee could have made its choice between the two courses open to it, but can neither confuse them together nor tahe both. Appellee was entitled to recover the damages which it sustained from the breach alleged, which in this case perhaps was the face value of the indebtedness. This, however, was subject “to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.”

When appellants renounced liability, the appellee in effect agreed to such renunciation, and was therefore, remitted to its action for damages. In other words, they retained the indebtedness ¿as their property and did not hold appellee to the contract to pay for the same after judgment Whatever that indebtedness was worth was not a loss. If it was collectible, then the indebtedness was not a loss, and no damage resulted therefrom. By the judgment of the court, appellee recovered the face value of the debt, with interest, and may still retain the indebtedness itself and recover on it, if there is security, or if the parties or any of them are solvent For such amount which may be collected, appellee is not damaged in that sum, whatever it is. The pleadings and evidence should not only show’a breach, but it must also show the damage. As we understand the record in this case, that is not shown. Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302. In the above case, Judge Williams, speaking for the Supreme Court, said: “The following statement of the principles governing such cases in Frost v. Knight, L. R. 7 Exch. 112, has commanded the acceptance of most of the text-writers and courts in England and America: ‘The law with reference to a contract to be performed at a future time, where the party bound to performance announces prior to the time his intention not to perform it, as established by the cases of Hochster v. De la Tour, and The Danube & Black Sea v. Bowden, Reid v. Hoskins, and Barwick v. Buba, on the other, may be thus stated: The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of nonperformance; but in that case he keeps the contract alive for the benefit of the other party as well as his own. He remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it. On the other hand, the prom-isee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring an action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the nonperformance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.’ When the promisee adopts the lattter course, treating the contract as broken, and himself as discharged from his obligations under it, he resolves his right into a mere cause of action for damages. He is no longer concerned with the disposition which the promisor may make of the subject-matter of the contract.”

The contract of guaranty, as we interpret it, is that the indebtedness is collectible by law. The burden in such case is on the plaintiff to show the noncollectibility of the indebtedness. Brandt, Suretyship & Guarantor, §§ 111-113; Evans v. Bell, 45 Tex. 555. If there is any presumption to be indulged in, it should be presumed that the debtor will and can pay his obligation, and, in the absence of proof to the contrary, that the appellee can and will collect the indebtedness declared upon. If they do so, then they have lost nothing, in. so far as the debts are concerned, and are not damaged in that sum by the breach of the contract. The appellee cites us to the case of Young v. Dalton, 83 Tex. 497, 18 S. W. 879, as authority sustaining the measure of damages adopted by the trial court. In that case the contract and breach stipulated for the payment of a note —the contract price of the cattle. This the purchaser failed to do. The court held that the aggrieved party could sue for the contract price at once upon the breach, and that the measure of damages was the amount of the note agreed upon or the contract price. The guaranty in this case is collection — not payment. When the contract was breached, the damages then recoverable are to be measured by the contract. Such indebtedness not collectible would ordinarily measure the ap-pellee’s loss or damage. We think the court was in error, under the pleadings and evidence in this case, in fixing the measure of damages at the amount due on the notes and overdrafts. The measure of damages, in our opinion, was the difference between the face value of the indebtedness and its actual value to be ascertained from the evidence.

We are inclined to think the trial court was in error in excluding the offered testimony of Young, as to certain representations made by Martin to him, with reference to the collectibility of the paper in the bank. We shall content ourselves by referring to the authorities cited by appellants. Collinson v. Jefferies, 21 Tex. Civ. App. 653, 54 S. W. 28; Byers Bros. v. Maxwell et al., 73 S. W. 437; Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 35 L. Ed. 679; Page v. Krekey, 137 N. Y. 307, 33 N. E. 311, 21 L. R. A. 409, 33 Am. St. Rep. 731. As to whether Young was misled or ought to have known the condition of the bank paper, or did know, will be determined after hearing all the evidence by the court or jury trying the case. If there had been no other error, in the present condition of the record, we would not have reversed the case; but, in view of another trial, we express our opinion on the admissibility of the evidence offered and rejected. The twelfth assignment of error is therefore sustained.

We regard the findings of the trial court, to the effect that appellants renounced liability under the contract on the indebtedness declared upon in this ease as a breach of the contract, which had the effect, in so far as appellants were able to do so, to repudiate the contract itself and to terminate the contractual relation between the parties. This afforded the appellees an opportunity to accept the declaration if they chose to do so, and thus make effective the declaration of intention not to perform, rendering the contract thereby one that is broken on the part of appellants. The appellee, having accepted the declaration, could at once sue to recover the damages. It was not then necessary to show that all the precedent conditions had been complied with, for- appellants, by their renunciation, dispensed with such showing. Appellee then had a cause of action on the breach for the damages sustained. Kilgore v. Northwest Texas Baptist Educational Society, 90 Tex. 139, 37 S. W. 598; 9 Cyc. 635. (3) a.

All assignments not herein mentioned are overruled. We have given our views upon the whole case, without expressing our opinion upon each assignment separately.

For the errors pointed out, the ease is reversed and remanded as to the appellants herein, but will be affirmed as to W. S. Martin, as he does not complain in this court at the action of the trial court, and the judgment as to him will be affirmed.

On Motion for Rehearing.

The earnestness of counsel for appellee, as well as the ability and research which they have put forth upon the motion for rehearing, has induced us to again go over the case carefully and to examine the authorities cited in the motion. In citing Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302, in the original opinion, we did not do so on the measure of damages, but as to the rights and remedies of the parties, when the contract is breached by one. The case of Mudgett v. Texas Tobacco Growing Co., 61 S. W. 149, cited by appellee, illustrates the principle involved. Judge Gill there said: “Conceding,- however, the correctness of his contention that he was wrongfully discharged, what right accrued to appellant, and whaf was his remedy? Clearly, not a suit upon the contract; for-that had been breached, and his remedy was either an action for damages for its breach, or to treat the contract as rescinded and sue for his wages already earned and due. The action for the breach of contract is not for wages, but for damages. The policy and purpose of the law in such a case is to compensate the servant for the damages suffered as a proximate result of the breach.” This is not a suit on the contract ; neither is it one treating the contract as rescinded and a suit to recover the money paid in the purchase of the bank; but it is simply a suit for damages occasioned by a breach- — compensation for the damages suffered as the result of the breach. What contract is breached? A guaranty of the col-lectibility of the indebtedness. What will compensate appellee for this loss? A payment of such indebtedness as is noncollectible. What facts must appellee allege and prove, showing damage and measure the compensation? The indebtedness not collected and that which cannot be. We certainly understand the rule to be that the burden is on the plaintiff in the first instance to allege and prove the breach, the injury, and the amount necessary to compensate him.

The ease of Johnston v. Mills, 25 Tex. 704, cited by appellee, is one in which Johnston and Dewberry occupied the position of Young or the old bank, and R. D. and D. G. Mills occupied the position of Martin or the new bank, with reference to the contract. It should also be borne in mind that was a suit on the contract — not for damages for its breach. Johnston and Dewberry bound themselves ultimately to pay certain indebtedness. Judge Roberts said in that case: “Johnston and Dewberry in effect guaranty the note to be good, and that it can be collected so as to complete the extinguishment of their debt to R. and D. G. Mills. Such a guaranty imposes on R. and D. G. Mills the duty to use reasonable diligence in the collection, by due process of law, in- its ordinary and regular .course, in the absence of any stipulation to the contrary.” In that case R. and D. G. Mills reduced to judgment the debt guaranteed and by agreement granted a stay of execution. The court, in that case, further discussing it, said: “It was incumbent on R. and D. G. Mills, in order to recover, to show they had not collected the money on this note, and having shown that, in the steps taken by them, they- had departed from the regular •course of tlie law by giving' a stay to Oox, that imposed upon them the burden of showing that their failure to collect was not in whole or in part caused by the stay which they gave.”

The contract by appellants in this case was that they guaranteed 19/20 of the indebted-mess so transferred; “that is, in case of failure to collect said notes as hereinafter indi•cated.” The fifth clause of the contract follows the above stipulation, and is headed “Collection of Guaranteed Notes — How to be Made.” They must be collected by the ap-pellees Martin and his associates. Demand is to be made immediately upon same becoming •due. If not promptly paid, placed in the hands of an attorney for collection by suit. Young and his associates reserving the right to designate the attorney. The suit was to be •pressed to judgment, and when obtained execution to be issued, and, if the money could not be made by execution, then appellants were to pay the same upon the transfer of the judgment to them. If this was a suit on the contract to enforce it according to its terms, as was' in Johnston v. Mills, supra, then appellees, before they could recover, •would have to show that they had not collected the indebtedness and had taken all the steps which the contract stipulated they •should, and that they were ready to transfer the judgment after a failure to collect on •execution. This contract only stipulated what the law required of appellees without the contract. In Texas City Improvement Co. v. Griswold, 41 S. W. 513, the court said: “The question is whether or not appellant, having guaranteed collection of notes, and not their payment, was subject to suit until a failure to collect from the principals by legal proceedings. As stated before, we have no doubt that if it was alleged and proved that the notes were, for some cause, uncob lectible, resort could be had on appellant, and the same would be the case, where the uncol-lectibility of the notes from the maker is demonstrated by judgment and return of nulla •bona.” If this had been a suit on the contract instead of for damages occasioned by its breach, the burden would have been on ap-pellees to show the notes had not been collected and were not collectible after prosecuting to execution and by failure to collect under execution. If, after a return nulla bona, appellants failed to pay, then they could be sued on the guaranty for the sum so due under the terms of the contract.

Under the breach of a contract upon sale •of property, if the warranty is breached, or the thing sold is not as represented, the party aggrieved has two remedies: He may rescind and recover the price paid, or he may rétain the thing sold and recover the difference between its value and the agreed price. If it should prove absolutely worthless, the measure of his damages would be the price paid and such additional special damages as may have resulted therefrom.

The appellees cite a line of authorities holding that, when the plaintiff alleges and proves damages resulting from the breach of a contract or from a wrong, then the burden is on the defendant to show that the plaintiff could: have mitigated or lessened the damages .by the exercise of ordinary care or diligence. This rule is not denied or controverted; but we think it will be hard to find a case where plaintiff’s cause of action, whether ex con-tractu or ex delicto, is made out by simply showing a breach or wrong without showing any injury or damage. Appellees assert simply that appellants must affirmatively prove the negative of the proposition in order to escape liability. The affirmative proposition resting on appellees was that appellants executed a guaranty that the indebtedness could be collected, and that they denied liability, and therefore breached the contract. That this action damaged them. If the indebtedness was paid, they were not damaged. This ap-pellees knew better than appellants, for they had the paper. If not paid, if they could collect, no damage would result under the guaranty of the collection. If not collectible, they should allege and prove that fact in order to show the damages. If it became noncollectible, because of negligence or the want of ordinary care on thie part of appellees, then the burden would shift to appellants to show such want of diligence or care. The case of Foster County State Bank v. Hester, 18 N. D. 135, 119 N. W. 1044, cited by appellees, we think sustains our view. Other cases by ap-pellees, we think, can be easily distinguished, either' on the facts proven or the contract upon which same is based. We believe the proper measure of damages was stated by us in the original opinion. Brightman v. Reeves, 21 Tex. 70. The case, in our opinion, was properly reversed on the grounds stated in the opinion.

The motion for rehearing is overruled.


author: REESE, J.

text:
    BAKER v. HAHN.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 22, 1913.
    Rehearing Denied Dec. 18, 1913.)
    1. Bills and Notes (§ 462) — Pleading (§ 8) —Conclusions.
    A petition alleging that a note was transferred to plaintiff, followed by a copy of the note, which apparently was signed by defendant, and that by the terms of the note and by reason -of the transfer defendant became liable and bound to pay plaintiff according to the terms of the note, does not state a cause of action and will not support a default judgment because not alleging that defendant executed or delivered the note; the allegations that he became bound to pay plaintiff being a mere legal conclusion.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1444, 1445-1461, 1464-1466; Dec. Dig. § 462; Pleading, Cent. Dig. §§ 12-281/2, 68; Dec. Dig. § 8.]

      2. Judgment (§ 17) — Process to Sustain— Personal Service — Necessity. ■ .
    Execution as in a personal judgment should not be awarded by the judgment in an action against a nonresident commenced by substituted service and attachment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]
    3. Attachment (§ 211) — Foreclosure — Pleadings to Sustain.
    Where an action against a nonresident is commenced by attachment, a default judgment on a petition, not stating a cause of action will not warrant a foreclosure of the attachment.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 706-721; Dec. Dig. § 211.]
    4. Attachment (§§ 119, 122) — Issuance—Validity.
    Where the affidavit and bond for the issuance of an attachment were sufficient, the fact that the petition was subject to general demurrer will not render the issuance and levy of the attachment void, and the petition may be amended without suing out a new writ of attachment.
    [Ed. Note. — For other cases, see Attachment, CentDig. §§ 214, 323-337; Dec.Dig. §§ 119,122.]
    5. Judgment (§ 17) — Pleadings to Sustain —Amendments—Effect.
    Under district court rules 13 and 14 (142 5. W. xviii), providing for amendments and that, unless the substituted instrument shall be set aside, the instrument for which it is substituted shall no longer be regarded as a part of the pleading, an original petition after an amendment is no part of the pleading, and a service of the original petition, .together with notice, upon a nonresident, where the action was begun by attachment, will not support a judgment; the original having been supplemented by an amended petition.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.]
    6. Process (§ 66) — Service by Publication.
    Under Rev. St. of 1911, art. 1869, providing that, where the defendant is absent from the state or is a nonresident, the clerk shall upon the application of any party to the suit address a notice to the defendant requiring him to answer plaintiff’s petition and that a certified copy of the petition shall accompany the notice, the service of a copy of the amended petition is not authorized where the notice made no reference to the amendment.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 53; Dec. Dig. § 66.]
    7. Constitutional Daw (§ 312) — Due Process oe Law — Nonresidents—Attachment —Effect.
    The issuance and levy of an attachment on the property of a nonresident gives the court jurisdiction to enforce a judgment recovered against the nonresident upon the property, and the enforcement of such judgment is not a deprivation of property without due process.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 928; Dec. Dig. § 312.]
    Error to District Court, Colorado County; M. Kennon, Judge.
    Action by A. W. Hahn against N. A. Baker. There was a judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    W. 6. Love, of Houston, for plaintiff in error. Townsend, Quin & Townsend, of Columbus, for defendant in error.

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

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

   REESE, J.

In this case A. W. Hahn sued N. A. Baker in the district court of Colorado county on a promissory note for $1,300, payable to P. Hahn, administrator, and alleged to have been by him transferred to plaintiff. The original petition was filed October, 16, 1909. Defendant, Baker, is alleged to be a resident of Cook county, Ill. On July 19, 1910, the plaintiff made affidavit and executed bond as required by statute in such proceedings and sued out an attachment based on the fact that defendant was a nonresident, which was issued July 23, 1910, and levied on July 28, 1910, on two lots in the city of Houston in Harris county, Tex. Thereafter, on January 10, 1912, plaintiff filed an amended petition adopting, without repeating them, the allegations of his original petition as to the debt and alleging the facts with regard to the issuance and levy of the attachment and praying for foreclosure of the attachment lien. Up to this time no service of any kind had been had upon Baker. On January 10, 1912, a notice was issued under the provisions of the statute for service upon nonresidents out of the state. This notice refers to the original petition filed October 16, 1909, and sets out substantially the allegations thereof, and states that a certified copy of this petition accompanies the notice. No reference is made to the amended petition or to the attachment. A true copy of this notice was on January 16, 1912, delivered to Baker in the city of Chicago, Cook county, Ill., by a person duly qualified to make such service, who in his return states that he delivered this copy of the notice “with certified copies of the plaintiff’s petition accompanying the same.” Thereafter, on February 6, 1913, judgment was rendered in favor of plaintiff against the defendant- for the amount of principal, interest, and attorney’s fees due on the note, amounting to $2,001.09, and foreclosing the attachment lien. The defendant brings the ease to this court for review by writ of error. The parties will be referred to as plaintiff and defendant as in the trial court.

Under his first and second assignments of error defendant, Baker, assails the judgment on the ground that the pleadings of plaintiff are legally insufficient to authorize the judgment. These assignments will have to be sustained. The allegations of the petition are in substance that on the - day of -, 19 — , P. Hahn, administrator of the estate of -, for a valuable consideration transferred to the plaintiff a certain promissory note, followed by a copy of a note for $1,300, dated May 9, 1905, payable December 1, 1905, to P. Hahn, administrator, or order, with interest and attorney’s fees, and signed N. A. Baker. It is further alleged that P. Hahn transferred the note to A. W. Hahn, and that by reason of such transfer plaintiff became the owner, and that “by the terms of said note, and by reason of the transfer of same to plaintiff, the said defendant, N. A. Baker, then and there became liable and bound to plaintiff and promised to pay plaintiff the said sum of money according to the terms, reading, and effect of said note.” There is no allegation that Baker executed or delivered the note to P. Hahn or to anybody. We have set out every material allegation of the petition on this point. The petition was insufficient to' authorize the judgment by default. It stated no legal cause of action against the defendant. The decisions on the point are numerous and uniform. We cite a few of them: Jennings v. Moss, 4 Tex. 453; Fortune v. Kerr, 25 Tex. Supp. 310; Malone v. Craig, 22 Tex. 609; Gray v. Osborne, 24 Tex. 157, 76 Am. Dec. 99; Sneed v. Moodie, 24 Tex. 159; Moody v. Benge, 28 Tex. 545. The allegation that defendant was indebted to plaintiff is a legal conclusion. No facts are stated from which such liability would result. Setting out the note in the petition, including the signature “N. A. Baker,” is not equivalent to an allegation that the defendant executed it. The first and second assignments of error are well taken and must be sustained.

The judgment was also erroneous in awarding execution as upon a personal judgment, which was unauthorized. The court could go no further in enforcing payment of the judgment than by a sale of the attached property.

As the petition was insufficient to authorize a judgment for the debt, it did not authorize a foreclosure of the attachment. The judgment of foreclosure must also fail. If the affidavit and bond for attachment were sufficient to authorize the issuance of the writ, and there is no suggestion that they were not, the fact that the petition was subject to general demurrer did not render the issuance and levy of the writ of attachment invalid. Boyd v. Beville, 91 Tex. 439, 44 S. W. 287; Tarkinton v. Broussard, 51 Tex. 550. The case of Thomas v. Ellison, 102 Tex. 354, 116 S. W. 1141, inferentially approves this doctrine, though the attachment was quashed in that case, on the ground that the cause of action set up in the amended petition did not accrue until after the attachment was sued out. The fourth assignment of error presenting this question is overruled.

Appellant complains of the fifth assignment of error that the notice served upon him was not sufficient to authorize the foreclosure of the attachment lien. This assignment must be sustained. The notice was accompanied by a certified copy of the original petition, which had been superseded by the amended original petition, and could be no longer regarded as a part of the pleadings in the record. Bules 13, 14, District Court (142 S. W. xviii). No reference is made in the notice to the amended petition, and it afforded no authority for a delivery of a certified copy of that also. R. S. 1911, arts. 1869-1871. Other questions presented by propositions under this assignment need not be decided. This is not a collateral attack upon the judgment, and questions which might be material in ease of such collateral attack need not be now decided. Bowers v. Chaney, 21 Tex. 368.

We overrule the sixth assignment, which assigns as ground of. error that the court was without jurisdiction over either the person or property of defendant, and the judgment is an attempt to deprive defendant of his property without due process of law, in violation of the Constitution of the United States. Cooper v. Reynolds, 10 Wall. 319, 19 L. Ed. 931. The issuance and levy of the attachment gave the court jurisdiction of the property, but the court could proceed no further towards enforcing such attachment by decreeing a sale of the property until service was had upon the defendant in some one of the modes of service provided by statute, or there was a personal appearance in some way. Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295; Barelli v. Wagner, 5 Tex. Civ. App. 445, 27 S. W. 17.

It is only necessary for us to say, on this record, that the judgment must be reversed for the errors indicated. This does not affect the issuance and levy of the attachment, if plaintiff amends his petition so as to state a good cause of action, and the affidavit and bond are sufficient. Boyd v. Beville, Tarkinton v. Broussard, supra.

For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.