text:
    WHITE et al. v. McFADDIN.
    (No. 426.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 24, 1919.)
    1. Injunction @=o157 — Tbmporaey Injunction — Scope—Pleading.
    Where temporary injunction is granted on ex parte hearing, all allegations, including the prayer for relief, should be construed strictly against the petitioner, and the relief granted should not be broader than the prayer'.
    2. Injunction @=>118(2) — Tempoeaby Oedeb —Pleading—Sufficiency.
    Where a petition for injunction, to restrain defendants from driving petitioner’s cattle from certain land, alleged that petitioner owned one-fourth of a designated section, but did not further describe same, it did not authorize an injunction.
    3. Injunction <⅜=118(2) — Petition—Sufficiency.
    Where a petition for injunction to restrain defendants from driving petitioner’s cattle from certain land failed to allege that petitioner was entitled to possession of the land, and did not negative the defendants’ right to possession thereof under lease and to drive away cattle other than their own, it was error to grant a temporary’ restraining order on an ex parte hearing.
    4. Injunction @=>136(3) — Tempobaey Injunction — Geounds—Disceetion.
    Granting a temporary injunction restraining defendants from driving the petitioner’s cattle away from certain land, without a hearing, was not such an abuse of the court’s discretion as to constitute error, where it was alleged that the cattle could get water at no other place in the vicinity.

      Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Action by W. P. H. McEaddin against R. M. White and others. From an order granting temporary injunction, defendants appeal.
    Injunction dissolved, and cause reversed and remanded.
    Oliver J. Todd and W. G. Reeves, both of Beaumont, for appellants.
    C. W. Howth, of Beaumont, for appellee.
   WALKER, J.

This is an appeal from an order of the district court of the Sixtieth district, granting a temporary injunction to the appellee, restraining the appellants from driving cattle from Texas & New Orleans section 185 and a quarter of Texas & New Orleans section 184; said order having been made on the ex parte application of appellee, and without any notice to appellants, and with no proof before the court except the sworn petition of appellee. Omitting formal parts, appellee’s petition in full is as follows:

“Now comes W. P. H. McEaddin, a resident of Jefferson county, hereinafter styled plaintiff, complaining of R. M. White, Cade White, and Jack White, all of whom reside in Chambers county, Texas, styled defendants, for cause of action says:
“(1) That the plaintiff is the owner of T. & N. O. section 185 and one-fourth of T. & N. O. section 184, situated in Jefferson county, Texas.
“(2) That a part of Pignut gulley runs through and is situated upon T. & N. O. section 185 and contains the only water available for cattle for drinking purposes for miles around in that section of Jefferson county.
“(3) That the plaintiff is the owner of a large number of cattle now grazing upon said sections and adjoining sections, and that the defendants own cattle in Chambers and Jefferson county now grazing upon 'said sections and adjoining sections of land, and that the said cattle herd and commingle together.
“(4) That the defendants and each of them are now threatening to and will drive said cattle belonging to the plaintiff off of said section 185, or cause it to be done, in order to prevent the said cattle from obtaining the benefits of the water in Spindletop gulley on said section, and that he will do so unless restrained by this honorable court by writ of injunction, and that in the event he carries out said threat, the said cattle belonging to the plaintiff will die of thirst and the plaintiff will suffer an irreparable injury.
“Premises considered, the plaintiff prays that this court do issue and cause to. issue its writ of injunction commanding the defendants and each of them to restrain and desist from driving said cattle belonging to plaintiff off of said T. & N. O. section 185 and quarter of T. & N. O. section 184, or cause it to be done, and that the said cause be set down for hearing, and that the defendants and each of them be cited to appear and answer and show cause why said injunction should not be made permanent.”

On this petition and prayer, the court granted the injunction in all things as prayed for ¿s to section 185 and one-fourth of section 184.

Appellants’ first assignment of error is as follows:

“The trial court erred in granting temporary injunction herein, as to section 185, because there was no prayer in plaintiff’s petition for said relief.”

It will be noted from plaintiff’s petition that he asked for no relief as to section 185. In petitions, other than petitions for injunction, this might not be error; but we think, in a suit of this character, where the relief is granted on an ex parte hearing, that all the allegations in the petition, including the prayer for relief, should be construed strictly against the 'pleader, and in no event should the relief granted be broader than the prayer.

In his petition, appellee alleges that he owns one-fourth of T. & N. O. section 184, but does not designate which one-fourth,' nor does he give any further description of the same.

Appellants’ second assignment of error complains of the action of the court in granting the injunction as to the quarter section, on the ground that it is not described sufficiently to be identified. This proposition is sustained. It is error to grant an injunction affecting real estate, when the same is not described so that it can be identified.

Appellants’ third and fifth assignments of error are as follows:

Third: “The trial court erred in granting a temporary injunction herein, because plaintiff’s petition did not show a cause of action against the defendants in this: That it did not allege in any manner whatsoever that plaintiff was entitled to the possession of any of the land described in his bill.”
Eifth: “Plaintiff’s petition is furthermore insufficient in that it does not negative the fact that defendants were entitled to the exclusive possession of the land in question by virtue of a lease or otherwise, and alleges no facts negativing the right of the said defendants to drive off cattle other than their own.”

These assignments are well taken. In Gil-lis v. Rosenheimer, 64 Tex. 243, the Supreme Court announces the following rule for construction of pleadings in injunction suits of this character:

“The rule of pleading, that the statements of the party are to be taken most strongly against himself, is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising from the facts so stated, -from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.” Gillis v. Rosenheimer, 64 Tex. 243; Santa Fé Townsite Co. v. Norvell, 187 S. W. 978; Carter v. Griffin, 32 Tex. 213; Weaver v. Emison, 163 S. W. 923; King v. Driver, 160 S. W. 415; Kell Milling Co. v. Bank of Miami, 168 S. W. 46.

Chief Justice Conley, in Santa Fé Townsite Co. v. Norvell, supra, reviewed at some length the decisions of our Supreme Court as to the sufficiency of the petition to sustain an injunction granted on an ex parte hearing, and reaffirms the rule as announced •above.

Appellants’ sixth assignment of error is that the court erred in granting this temporary injunction without a hearing.

We cannot sustain this proposition. While a temporary restraining order would have possibly protected plaintiff in his rights, still we do not think that the court’s action in granting the temporary injunction is- such an abuse of his discretion as to constitute error. Cattle must have water. The petition states that this water at Spindletop gulley is the only water within miles of sections 184 and 185.

We recognize the full force of the rule as stated in Santa Fé Townsite Co. v. Norvell, and other cases above cited, as well as in Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 45, Cartwright v. Warren, 177 S. W. 197, and I. & G. N. Railroad Co. v. Anderson County, 150 S. W. 239; yet, if the petition in this case was sufficient in all .other respects to sustain the judgment, we would not be disposed to disturb it on this •assignment.

Eor the errors above indicated, the injunction granted by the lower court is dissolved, and this cause is reversed and remanded, with instructions to proceed with the same according to the views herein indicated.
      @s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    LEE et al. v. BENZES et al.
    (No. 6158.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 5, 1919.)
    1. Pleading <&wkey;22S — Certiorari — Exceptions — Admission.
    Upon exceptions to petition for certiorari, •averment of petition must be taken as true.

      2. Executors and Administrators <&wkey;379— Sale of Land — Inadequacy oe Price.
    Where land is sold by administrator for one-fourth of its actual value, the inadequacy in price is so great as to shock the conscience and raise a presumption that the court was imposed upon.
    ■3. Executors and Administrators <&wkey;375— Sale of Land — Order Confirming Sale— Certiorari.
    An order confirming administrator’s sale of land for one-fourth of its actual value is so grossly unjust to the heirs as to be subject to revision by certiorari, though petition for cer-tiorari did not allege fraud or mistake.
    4. Certiorari &wkey;>42(9) — Trial Amendment-Issues.
    On certiorari, court properly refused petitioner permission to file trial amendment' presenting additional grounds; the petitioner, under Vernon’s Sayles* Ann. Civ. St. 1914, art. 740, being confined to the grounds specified in the petition.
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Certiorari by 'Richard Lee and others to review order approving and confirming administrator’s sale, and order appointing Theo. W. Jahns, administrator, opposed by Gran vil Benzes and others. Exceptions sustained to that portion of petition relating to the confirmation of sale, and after the trial as to the remaining matters there was judgment against petitioners, and they appeal.
    Reversed and remanded.
    E. E. Fischer, of Seguin, for appellants.
    Dibrell & Mosheim, of Seguin, for appellees.
   MOURSUND, J.

On September 21, 1916, in the county court of Guadalupe county, sitting in matters of probate, there was entered an order in the administration of the estate of Sampson Lee, approving the report of the sale of 50 acres of land belonging to said estate, and'confirming such sale. The report of the administrator showed that the sale had been made to Clarence Freeman at public auction for $425 cash. On January 30, 1918, an order was entered approving the final account of the administrator and discharging the administrator.

A petition for certiorari to review the order approving and confirming said sale, and the order appointing Theo. W. Jahns administrator, was presented to the district judge on November 28, 1917, by appellants, the surviving wife and heirs at law of Sampson Lee. The petition was ordered filed. The prescribed bond was duly given and the writ of certiorari issued.

On May 3, 1918, the cause came on to be heard, and the court sustained exceptions to all that portion of the petition relating to the confirmation of such sale. Thereupon a trial was had as to the remaining matters, and judgment rendered against the petitioners.

The petition for certiorari contained the following allegations:

“That the sale of said land was not fairly made, in that the same was sold much under the real market value of said land. Contestants allege that said land is worth in ’ the market and was worth in the market at that time, and is worth now, at least $1,700, or more than four times the value for which it was sold. That the said land was sold by Clarence Freeman to defendant Granvil Benzes on the 6th day of November, 1916, for $1,700, when on the 1st day of August, 1916, the said administrator sold said land to Clarence Freeman for only $426.”

The contestants also allege that the land was sold so far ibelow an adequate price, and below the real market value thereof, that great injury has resulted to them.

The exception sustained to said allegations reads as follows:

‘‘These defendants specially except to that part of plaintiffs’ petition which seeks to set aside the deed made by the administrator, to Clarence Freeman, for the reason that it appears from the petition that the administrator of the estate of Sampson Lee, deceased, made application for the sale of said land, and that an order of sale was granted by the court, and that said land was sold under said order in the regular way, and said sale was reported to the court by the administrator as required by law, and approved by the county judge of Guadalupe county, sitting as a probate court, and there is no allegation of fraud on the part of the administrator, or on the part of the purchaser of said land at said sale, and no allegations of any collusion between the administrator and the purchaser, 'Clarence Freeman, at said sale or between said Clarence Freeman or any other person at said sale; but in so far as the allegations of said petition are concerned, it does not appear that there was any fraud or any wrong perpetrated by the administrator or the purchaser of said land at said sale, and in the absence of any allegations of fraud, on the part of the administrator, or the purchaser, said sale would be in law valid, and these defendants pray that said allegations be stricken out.”

Upon the issue, whether the court erred in sustaining such exception, both parties cite the cases of Clopper v. Hutcheson, 16 Tex. Civ. App. 157, 40 S. W. 604, and Comstock v. Lomax, 135 S. W. 185, both decided by this court. In neither of these cases was it held that an order confirming a sale could not be reviewed by means of certiorari, no matter how inadequate a price was obtained. On the contrary there are expressions in both opinions to the effect that there might be such inadequacy of price as to warrant relief by cer-tiorari. In each of the cases the court considered the facts adduced upon the trial. In this case, an exception to the petition was sustained, and the averment must be taken as true that the property was sold for one-fourth of its value. The inadequacy is so great as to shock the conscience, and raise a presumption that the court was imposed upon in some way. We conclude that the exception should not have been sustained.

An investigation of our decisions relating to certiorari to the county court has not put us in possession of any definitely expressed rule with respect to what is meant by distinctly setting forth the error in the proceeding sought to be revised. However, as a party who did not appear in the probate court may institute certiorari) proceedings (Heaton v. Buhler, 127 S. W. 1078), it appears that the inquiry is not directed at whether the county court was justified in entering a certain order upon the evidence adduced before him, but whether the order entered is one which in view of the facts set out in the petition for certiorari is distinctly shown to be one which the law declares should not be entered. If land is worth four times the sum for which a sale is approved, an order has been entered which is grossly unjust to the heirs, and which we believe is subject to revision by certiorari, even though unaccompanied by allegations of fraud or mistake.

We conclude that the court did not err in refusing permission to file a trial amendment. The amendment could serve no purpose of explaining or adding to the ground relied on in the petition as showing error in confirming the sale, but presented additional grounds charging misinformation by the administrator as to the date of the sale and collusion on his part with the purchaser. The statute confines the petitioner to the grounds specified in .the petition. Article 740, Vernon’s Statutes.

There being no statement of facts in the record, we are unable to determine whether the judgment denying the application of Hood Lee to be appointed administrator is contrary to the evidence. The judgment indicates that the court refused to appoint an administrator, because, having declined to try the issue, whether the sale should be confirmed, it appeared there was no property to administer upon.

We conclude that, although the assignment must be overruled, it is proper to reverse the entire judgment, and remand the cause for a trial upon the issues presented in the petition for certiorari.

Judgment reversed, and cause remanded.
      ®=sFor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    QUINTANA et al. v. GIRAUD.
    (No. 6180.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 5, 1919.)
    1. Homestead <&wkey;150(l) — Right of Surviving Unit of Family — Administration.
    Unde'r Rev. St. 1911, arts. 3413, 3416, referring to duty of probate, court to set apart for the use of widow, minor children, and unmarried daughters .remaining with the family of deceased all property of the estate exempt from execution, where there was no administration of the estate, there could be no setting apart of exemptions granting to an unmarried adult dahghter possession of the homestead rent free, until partition be effected by sale.
    2. Homestead <&wkey;150(l) — Exemptions — Right of Unmarried Daughter — Statutes.
    Rev. St. 1911, art. 3549, relating to sales upon partition of decedent’s land, has no reference to homestead or other exemptions which may be set apart for use of widow and unmarried adult daughters.
    3. Partition <&wkey;12(3) — Homestead — Partition Among Heirs — Possession by Unmar- . ried Daughter.
    If it be true that the homestead is protected in favor of an unmarried adult daughter against creditors, Const, art. 16, § 52, does not protect it in her favor from partition among the heirs, the only persons thus protected being the surviving husband or wife or minor children.
    4. Homestead <&wkey;18, 134^-Right of Deceased’s Wife and Unmarried Daughter — Ac- / quiring New Homestead.
    While the wife and adult unmarried daughter of deceased could hold his homestead, the wife could not acquire a new homestead where no obligation rested upon her to support the adult daughter.
    ⅝ Executors and Administrators &wkey;>7 — Independent Executrix — Solvent Estate —Jurisdiction.
    Where an estate was solvent, and the will provided that no action should be taken in county court, and defendant was an independent executrix asserting adverse claims of other heirs, the district court alone had authority to determine the heirs’ right in a suit for partition.
    6. Partition <&wkey;53 — Appointment of Receiver.
    In a partition suit, where parties were jointly interested in the property, and the facts showed that defendant was appropriating the proceeds thereof to her own benefit, rents were in imminent danger of being lost to the heirs, and taxes were’ accumulating, the appointment of a receiver was' clearly authorized by Rev. St. 1911, art.i 2128, subd. 1.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by Jesusa Quintana Giraud and husband against Emilia Quintana and others for partition. From decree for plaintiffs, the named defendant appeals.
    Affirmed.
    D. A. McAskill and Arnold & Cozby, all of San Antonio, for appellant.
    Mauermann & 1-Iair and Ryan & Matlock, all of San Antonio, for appellees.
   FLY, C. J.

This suit was inaugurated by appellee, joined by her husband, Francis M. Giraud, against appellant and 29 others, in which a partition was sought of lot No. 5 in city block No. 102, West Nueva and Guilbeau streets, in the city of San Antonio, and lot No. 4 in city block 102, between said two streets , in said city, appellee claiming that she was the owner of an undivided interest in said lands, and that the defendants were the owners of the remaining interest. Ap-pellee also sought' to recover her part of the rent of the property from appellant. Appellant answered that she was the independent executrix of the estate of her mother, who was also the mother of appellee, and had the right of control and management of the estate, and owned in her own right the greater part of the estate; that the property sought to be divided was the homeste'ad of her parents, and that she being an unmarried daughter, and the surviving unit of her parents’ family, had the right to the use and occupancy of the same without the payment of rent. The case was heard by the court, without a jury, and judgment was rendered partitioning lot 4, herein described, among the parties, 17½/112 being allotted to appellee, 43/112 to appellant, and the remainder to nine other parties, and allotted out of lot No. 5, herein described, to appellant eight-thirtieths, and appellee five-thirtieths, the remainder being allotted to nine other parties. The judgment recited that appellant had acquired by purchase the interests of certain of the heirs, 'which accounts for her receiving a greater proportion of the property than the others. F. M. Giraud had claimed the sum of $1,799.80 for taxes paid on the property, which claim was denied because barred by limitation. The court also allotted to appellant out of the estate of Gerónimo Quin-tana one-seventh, and the same to appellee. The court found that the property was incapable of partition, and ordered it sold, rent being assessed against all parties occupying the premises from and after the date of the judgment, and the San Antonio Loan & Trust Company was appointed receiver of the property to collect rents and revenues and to offer the property for sale reporting all offers to the court. Appellant and Bessie McDonald Quintana filed separate appeal bonds, but the latter has not filed a brief herein. For some reason, not apparent to the court, there is copied into this record a petition for a writ of error, filed by attorneys for Jesusa Q. and IP. M. Giraud, and a su-persedeas bond by tbe same parties. There is also attached to the record what purports to be the original trial amendment to the answers of appellant, accompanied by a number of unexplained and unintelligible figures which seem to have no bearing on this cause.

The facts show that lot 4 was the community property of Rafael Quintana and his wife, Dominga Quintana, that Rafael Quin-tana died intestate, leaving surviving him his wife and eight children, appellant and appel-lee being of the number. Lot No. 5, the remaining portion of the property in controversy, was the separate estate of Dominga Quintana, who died January 15, 190S, leaving a will in which all of her property was devised to her daughters, appellant and ap-pellee and Isabel Quintana Perez, and to her grandchildren, the heirs of her son Rafael Quintana, deceased, and to Jose and Geróni-mo Quintana. After the death of Rafael Quintana, the father of appellant and appel-lee, Dominga Quintana, his widow, moved from their old home into the “new home” which she built on a part of the old homestead premises. Appellant was never married, and lived with her mother until the death of the latter, and has since her death continued to live in the “new home.” IP. M. Giraud and appellant qualified as executors of the estate of Dominga Quintana, appellant taking exclusive possession of all the property, community and separate, except one house occupied by appellee and her husband.

It is the contention of appellant, through the first assignment of error, that appellant, being an unmarried daughter, living with her mother when the latter died, and continuing to occupy the home after such death “is the surviving unit of the family and has the right to the possession of the homestead, rent free, until the partition of said property is effected by sale.” In support of the proposition, articles 3413, 3416, and 3549, Revised Statutes, and several decisions are cited. The first two cited articles refer to the duty of the probate court “to set apart for the use and 'benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased all such property of the estate as may be exempt from execution or forced sale by the Constitution and laws of the state, with the exception of any exemption of one year’s supply of provisions,” and designate to whom the property shall be delivered. There was no administration of the estate of Rafael Quintana, and consequently there could have been no setting apart of exemptions, and the probate court had no authority after the death of Dominga Quintana because it did not have charge of the administration of her estate. The remaining cited article, 3549, has no reference whatever to homestead or other exemptions. The decisions cited refer to cases where the exemptions have been set apart or to insolvent estates, neither of which can be applied to the estate in controversy.

The judgment did not attempt to have appellant account for the rent of the premises only from its date, leaving the premises free to her for all the time prior to the date of the judgment. She collected rents and appropriated them, and because she desires still to appropriate the rents and use the property she strenuously resisted a partition, not even being willing to meet the taxes on .the property. The court found that, if she was left in possession of the property, it would be lost to her and the other heirs. She denied the rights of the other heirs to the use and benefit of the property, and the other heirs would not have been permitted to enter into possession of the land with appellant, but that is what she is contending against when she opposes a partition. She should be satisfied with the rents she has already appropriated. The ease of Autry v. Reasor, 102 Tex. 123, 108 S. W. 1162, 113 S. W. 748, cited by appellant, sustains exactly the opposite contended for by appellant, and holds that under the facts appearing in this case she should be held liable for the rents.

It is provided in the state Constitution (article T6, § 52) that—

“On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.”

No provision is made in that section of the Constitution for an unmarried adult daughter living with her widowed mother at the time of the latter’s death to occupy the homestead and prevent a partition of it among the heirs of the deceased parents. By providing that the homestead shall not be partitioned among the heirs during the lifetime of the surviving wife or husband, it plainly indicates that the homestead may be partitioned unless the guardian of minor children has been permitted by the proper court to occupy it. If it be true that the homestead is protected, in favor of an unmarried adult daughter, against creditors, the Constitution does not protect it from partition among the heirs, but clearly contemplates that it may be partitioned, for the only persons whose interests are to be protected as against partition of the homestead are the surviving husband or wife or minor children. As said by the Supreme Court in Hudgins v. Sansom, 72 Tex. 229, 10 S. W. 104:

“The purpose of the constitutional provision quoted evidently was to secure to the surviving wife or husband the right to use the homestead as he or she might elect to do so, and to protect minor children in a home so long as in the opinion of the court having jurisdiction over the property and minors it was necessary that they should use the homestead. It was the right of such persons to occupy the homestead which it was the purpose of the Constitution to protect, and it therefore forbids the partition * ⅜ * so long as given conditions continue.”

In regard to minor children, in Osborn v. Osborn, 76 Tex. 494, it lias been held:

“In our opinion this provision admits of but one construction in so far as it applies to this ease. After the death of both parents the use and occupation of the homestead by the minor children, to protect it from partition at the suit of other tenants in common, must be through the agency of a guardian under authority and by permission of an order of the probate court having jurisdiction.”

In other words, the Constitution will not be construed so as to include any one except those definitely and clearly named therein. Roots v. Robertson, 93 Tex. 365, 55 S. W. 308,

When Dominga Quintana acquired the /new home, no one lived with her except appellant, an adult unmarried daughter, who was not dependent upon her, and unless her mother was the head of a family when she acquired the new'home, the homestead right ¡ did not attach. There was no obligation resting upon the mother to support the adult daughter, and the evidence fails to disclose 1 any such dependency on the mother. The ‘ latter could have held the homestead she and . her husband had, but there is a difference between the right to hold the old homestead and to acquire a new homestead. Blum v. Gaines, 57 Tex. 119; First Nat. Bank v. Sokolski, 62 Tex. Civ. App. 324, 131 S. W. 818; Ramey v. Allison, 64 Tex. 697.

"The property was not devised by the will of Dominga Quintana to appellant. The will is clear on that point.

The administration of the estate was not pending in the county court, and the district court alone had jurisdiction to partition the property. The estate was solvent, and provision was made in the will that no action should be taken in the county court in regard to the estate. Appellant was an independent executrix. She was asserting adverse claims to the other heirs, and the district court alone had the authority to determine their rights. Jerrard v. McKenzie, 61 Tex. 40.

The appointment of a receiver under the facts of this case is clearly authorized by the first, subdivision of article 2128, Revised Statutes. The parties are jointly interested in the property, and the facts showed that appellant was appropriating the proceeds thereof to her own benefit. The rents were in imminent danger of being lost to the heirs and taxes were accumulating. Stone v. Stone, 18 Tex. Civ. App. 80, 43 S. W. 567; Cotton v. Rand, 92 S. W. 266.

The remaining assignments of error are not meritorious, and are overruled.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: 'WILLSON, C. J.

text:
    GULF, C. & S. F. RY. CO. v. STEED et ux.
    (No. 2074.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1919.
    On Appellee’s Motion for Rehearing, March 20, 1919.)
    1. Cabbiebs <§=3302(1) — Carriage of Passengers — Duty of Cabe.
    A conductor of a railroad passenger train must use the care a very cautious, prudent, and competent person would use for safety of a woman walking toward him in aisle of a moving car.
    2. Cabbiebs <§=3302(1) — Cabbiage of Passen-gees — Negligence.
    Conductor of passenger train was' not negligent in standing in aisle about middle of a car, bent over talking to some one, as plaintiff, a woman, approached, walking to rear, and became overbalanced while attempting to stop to wait until conductor would let her pass.
    On Appellee’s Motion for Rehearing.
    3. Evidence <§=500 — Opinion Evidence-Hypothetical Case.
    ■ In action against carrier for injuries occasioned by fall in aisle of a moving car, testimony of conductor that a woman walking to rear of a car in motion might become overbalanced while attempting to stop to wait while one obstructing the aisle should let her pass, was a mere opinion on a hypothetical case, and incompetent.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by S. A. Steed and wife against the Gulf, Colorado & Santa Fé Railway Compa-' ny. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    On the afternoon of April 25, 1916, appel-lee Mrs. Steed, then a passenger on one of appellant’s trains, while walking from the front end to the rear end of the ear she was in, fell to the floor thereof, and thereby, was injured. Her account of the accident was, substantially, as follows: The conductor was at about the middle of the car, standing in the aisle, bent over, talking' to some one, as slie approached him. When she got near to him he straightened up, looked at her, and then again bent over toward the person he was talking to, thereby obstructing the aisle, she said, so that she could not pass on. She endeavored to stop, intending to wait in the aisle until the conductor “got ready to let her pass,” but, instead, because the train was moving rapidly in a direction opposite to the one in which she was moving, lost her balance and fell to the floor. At the time she fell she was so close to the conductor, she said, that she “could have touched him.” If he had not stooped over as he did, she further said, she could have gone “around him and scrouged by him.” On the theory that the conductor, in obstructing the aisle as he did, was guilty of negligence which proximately caused Mrs. Steed to fall as she did, appellees sued and recovered the judgment for $4,000, from which the appeal is prosecuted.
    Terry, Cavin & Mills, of Galveston, Dins-more, McMahon & Dinsmore, of Greenville, and Jno. G. Gregg, of Ft. Worth, for appellant.
    B. Q. Evans, of Greenville, W. A. Shields, of Houston, and Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellees.
   'WILLSON, C. J.

(after stating the facts as above). Keeping in mind the rule that required appellant’s conductor to use the care a very cautious, prudent, and competent person would have used for Mrs. Steed’s safety when he saw her walking toward him in the aisle of the car (Railway Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; St. John v. Ry. Co., 80 S. W. 235), we nevertheless are of the opinion the trial court erred when he refused appellant’s request that he instruct the jury to return a verdict in its favor; for we do not think the facts proven warranted a finding that said conductor acted as such a person would not have acted. We think a very cautious, prudent, and competent person reasonably would not have expected or foreseen that injury to Mrs. Steed would result from his obstructing the aisle as the conductor did, and therefore we think that the injury she suffered should have been regarded as due to an accident for which appellant was not responsible. Railway Co. v. Brown, 75 S. W. 807. As supporting a contrary view appellees cite City of Ft. Worth v. Patterson, 196 S. W. 251, Houston Chronicle Pub. Co. v. Lemmon, 193 S. W. 347, Railway Co. v. Barrett, 46 Tex. Civ. App. 14, 101 S. W. 1025, 121 S. W. 570, and Beiser v. Railway Co., 152 Ky. 522, 153 S. W. 742, 43 L. R. A. (N. S.) 1050. In the Patterson Case the question was not one as to whether the city jvas negligent, but as to whether its negligence was the proximate cause of the injury to the plaintiff or not. And so in the Barrett Case the question decided was one as to proximate cause, the court saying, “the injurious, proximate, and natural consequences of an act of negligence are deemed to be foreseen.” In the Lemmon Case it appeared that the carrier for a newspaper threw “a tightly rolled paper, so as to make it a compact body,” among women and children, injuring one of them. The court properly held, we think, that the jury had a right to say that in the exercise of ordinary care the carrier should have anticipated that injury would result from his act, and therefore that he was negligent. In the Beiser Case, decided by the Kentucky Court of Appeals, it appeared that the plaintiff was tripped and thereby caused to fall by a suit case left by a passenger in the aisle of the ear she was riding in. On the ground that the railway company was not guilty of negligence in not discovering the suit case in the aisle and removing it before the plaintiff stumbled over it, the trial court instructed the jury to return a verdict for the railway company. The appellate court thought this was error, and reversed the judgment, not because the testimony warranted a finding of negligence on the part of the company for not discovering and removing the suit case, but because of testimony which would have warranted a finding that the railway company was guilty of negligence in that it did not have the car properly lighted so that plaintiff could see the suit case in time to avoid stumbling over it. It is obvious, we think, that the rulings made in the eases specified are not inconsistent with the conclusion reached by us in this one.

The judgment will be reversed, and judgment will be here rendered that appellees take nothing by their suit against appellant.

On Appellee’s Motion for Rehearing.

The judgment was reversed because we thought a very prudent person obstructing the aisle as appellant’s conductor did would not have anticipated that his doing so would result in injury to appellee’s wife, and that the conductor therefore should not be held to have been guilty of negligence. Combating this view of the case, appellee insists it appeared that the conductor did anticipate injury might result as it did to appellee’s wife from his act, and as supporting his contention calls attention to testimony of the conductor as .follows:

“At the time this woman fell, * * * I was right slap in the aisle, but not quite all of the aisle was taken up by me. The distance across that aisle was 27 or 28 inches. As to whether or not if I was standing there in that aisle as I said I was she didn’t have an inch to get by me on, I would have stepped out of the way and let her by, yes, sir; that is proper, and it is my duty to do that. If a lady is coming down the aisle it is my duty to step out and let the lady go by, and it is safer for our passengers for me to do that. No, sir; it is not my purpose to block the aisle when people arc walking on it, and that would be dangerous if I did. If a person should bo coming right on to where I am standing, if a lady should be walking in the opposite direction from the way the train is going and meeting me, I would not block the aisle. I would be liable to unbalance the woman. Yes, sir; I would be liable to cause the woman to lose her balance, and she might fall. I have been a conductor a long time, and have done that.”

The writer thinks the jury had a right to find from the testimony of appellee’s wife that the conductor looked at her as she approached him in the aisle; that he saw her, notwithstanding his testimony to the contrary; and is inclined to think that the jury, having found so much, had a right to further find from the testimony (not objected to) set out above that the conductor anticipated that injury might result to appellee’s wife if he obstructed the aisle as he did. If they might have so found, the writer thinks the conclusion the jury reached that the conductor was guilty of negligence was warranted, and, therefore, that the act of this court in reversing the judgment on the ground it did reverse it on was erroneous. However, the other members of the court think the testimony set out was without probative value on the issue of negligence vel non of the conductor, because a mere opinion of the witness on a hypothetical case, and for that reason incompetent as evidence. Henry v. Phillips, 105 Tex. 459, 151 S. W. 533. Therefore the motion is overruled.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    HOLLAND v. WOOD.
    (No. 939.)
    (Court of Civil Appeals of Texas. El Paso.
    March 6, 1919.)
    Rills and Notes <©=3496(3) — Burden of Proof.
    Where plaintiff in suit on note is payee, that the note is indorsed by him in blank does not make it necessary that plaintiff allege and prove ownership of note; such indorsement not raising a presumption against title of holder.
    Appeal from Palo Pinto County Court; J. T. Ranspot, Judge.
    Action by M. F. Wood against E. R. Holland and others. Judgment for plaintiff, and defendant Holland appeals.
    Affirmed.
    S. C. Rowe, of Ft. Worth, for appellant.
    W. Percy Smith, of Ft. Worth, for appel-lee.
   WALTHALL, J.

M. F. Wood brought this suit against S. R. Varner, Mrs. F. M. Watson and her husband, F. M. Watson (the latter joined pro forma), and E. R. Holland to recover on a promissory note, executed by Varner, Mrs. Watson, and Holland, and made payable to the order of appellee, Wood, in the sum of $600, interest, and attorney’s fees, less admitted credits. Varner filed no answer. On a plea of coverture of Mrs. Watson, the suit was dismissed as to both of the Watsons. Holland answered by general demurrer, general denial, arid by plea of noiA esit factum, alleging that he signed the note, but that since doing so the note had been materially altered, in that the note, when signed by him, was for the sum of $500, and that since he had signed it, without his consent or authority, the note was so changed as to read $600. By supplemental pleading Wood denied that any change had been made in the note since Holland signed it. The issue of the change in the amount of the note was the only issue raised on the trial. The jury, on special issues submitted, found that the change in the amount of the note was made before Holland signed it. Judgment was entered in favor of Wood against Holland for the unpaid balance on the note, interest, and attorney’s fees. On a former appeal of this case, judgment was affirmed as to all parties, except as to Holland, and as to him was reversed for want of service. Holland v. Wood, 196 S. W. 309.

Appellant presents two assignments of error that we may consider: First, to the overruling of a special charge directing a verdict in his favor; second, that the verdict and judgment is contrary to the law and evidence, in that the pleading does not allege nor the proof show his ownership of the note' to be in Wood, hence no right to recover. Appellant’s contention under the two assignments is substantially the same. The note is made payable to the order of appellee, Wood, an'd the petition so alleges. The note is indorsed in blank by appellee, but of which indorsement neither the petition, nor answer, nor the issues submitted, nor the evidence, except as it appears on the note, make mention.

It is the contention of appellant that, where the plaintiff in the suit is the payee of the note and the note is indorsed by the payee in blank, it becomes necessary that plaintiff allege and prove ownership of the note. The contention is not sustained by the authorities. It has been long and well established that the bare fact that a negotiable note, still in the hands of the payee, though it bears an indorsement to another, does not even raise a presumption against the title of such holder. House v. Security Mortgage and Trust Co., 38 S. W. 227. Here there is neither allegation nor proof that the blank indorsement was to another, nor that his note had ever been in the hands of another than the payee. In Texas L. & C. Co. v. Carroll & Iler, 63 Tex. at page 53, the Supreme Court says that—

“If nothing further than the indorsement had appeared, the presumption would be, when the paper was found in the hands of the payees, that the transfer had not been completed by delivery, that it had been returned to thorn as tlieir own property, or that it had been transferred only for collection.”

It was not necessary for Wood to allege ownership. The burden was on appellant to allege and prove that Wood was not the owner of the note. Griffin v. Parrish et al., 38 S. W. 383. This he did not do.

There is no merit in the third assignment.

The judgment is affirmed.
      <S£^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    MISTROT-CALAHAN CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.
    (No. 6005.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 15, 1919.
    On Motion for Rehearing, Feb. 12, 1910.
    Rehearing Denied March 19, 1919.)
    1. Carriers <©=3119 — Liability for Loss oaf Goods — “Act of God.”
    An act of God, which releases a carrier of goods from its liability for loss, is one resulting from such force in nature as could not reasonably have been foreseen and provided against (Words & Phrases, vol. 1, p. 118).
    . [Ed. Note. — For other- definitions, see Words and Phrases, First and Second Series, Act of God.]
    2. Contracts <⅜^66 — Consideration — Assumption o-f Liability.
    A mere promise by a carrier to pay for goods lost, for which it was not liable, not in the nature of a compromise, is not binding upon carrier, because without consideration.
    On Motion for Rehearing.
    3. Carriers <⅜=>108 — Carrier of Goods — Liability.
    When a common carrier receives goods for shipment, it insures their delivery in accordance with bill of lading, unless the loss is occasioned by act of God, or of a public enemy, or by reason of inherent defect or vice of goods or animals, or on account of fault of consignee.
    4. Carriers <©=3132 — Carriers of Goods — Liability — Burden of Proof.
    When plaintiff proves delivery of goods to common carrier, and failure of carrier to deliver goods at point of destination, he makes prima facie case, and burden is upon carrier to prove that loss was occasioned by act of God or of the public enemy, or by reason of inherent defect, or on account of fault of consignee.
    5. Carriers <©=^132 — Carriers o-f Goods — Negligence — Burden of Proof.
    In action against carrier for goods lost, where carrier proves that loss occurred by act of God, burden shifts to plaintiff to prove that, notwithstanding such act of God, negligence of carrier was proximate cause of loss.
    6. Carriers <⅜=>123 — Liability — Acts of God — Negligence.
    The fact that a storm was unprecedented would not relieve a carrier from liability for loss of goods, where, after storm had begun and water was rising in docks so that there was apparent danger that they would reach and injure the goods, the carrier could by use of reasonable diligence have removed goods to a place of safety.
    7. Trial <©=3203(3) — Instructions.
    A plaintiff is entitled to an affirmative presentation of a material issue raised by the pleadings and the evidence.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Suit by the Mistrot-Calahan Company against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    W. B. Carrington, of Waco, for appellant.
    W. E. Spell, G. I-I. Penland, and Spell, Bog-gess, Ñaman & Penland, all of Waco, for ap-pellee Missouri, K. & T. Ry. Co. of Texas.
    Stribling & Stribling, of Waco, for appel-lee Southern Pac. Go.
   JENKINS, J.

This suit was brought to recover the value of four cases of shoes shipped to appellant from Boston, Mass., three cases of which were lost in the Galveston storm of 1915, and the other damaged so as to render it worthless to appellant. The defense was that the loss was occasioned by the act of God.

The appellant contends that the shipment was a through shipment to Waco. The ap-pellees insist that the shipment was to Galveston.

Whether it was the one or the other, it was an interstate shipment. The loss occurred while the goods were in the possession of appellee, the Southern Pacific Company. If the shipment was to Galveston, the appel-lee the M., K. & T. Ry. Co. is not responsible for the loss. On the other hand, if the shipment was to Waco, the M., K. <& T. Ry. Co., being a connecting carrier for the transportation of said goods, if the Southern Pacific Company is liable under the facts of the case, the M., K. & T. Ry. Co. is also liable under the Carmack Amendment, unless its failure to receive and forward the goods was due to the fault of appellant.

The court instructed a verdict for the M., K. <& T. Ry. Co. We do not know whether this instruction was based upon the finding of the court, as a matter of law, that the shipment was not sent to Waco, or that the goods were detained at Galveston from August 4th, the time of their arrival until August 16th, the day the storm reached Galveston, by reason of the fault or negligence of Seifer, the agent of appellant. The evidence would have justified a finding in favor of the M., IV & T. Ry. Co. upon either of these theories, but we do not think it was sufficient to establish either theory as a matter of law. Hence, if judgment should have been rendered against the Southern Pacific Company, it was error to peremptorily instruct the jury to return a .verdict in favor of the appellee the M., K. & T. Ry. Co.

The court submitted to the jury, under appropriate instruction, the issue as to whether the loss was occasioned by the act of God. The verdict of the jury, being for the defendants, shows that they found in favor of appellees on this issue. Thd evidence is sufficient to support such finding. Such being the case, judgment was properly entered for appellees unless the loss was occasioned by the negligence of the Southern Pacific Company. The only negligence on the part of the Southern Pacific Company suggested by the evidence was in not having the floor of its warehouse elevated sufficiently to have kept the goods above the water during the storm. If such contingency might reasonably have been anticipated, and was not provided against, the loss did not occur from the act of God. The act of God is when the result is from such forces in nature as could not reasonably have been foreseen and provided against. Irrigation Co. v. Dodd, 162 S. W. 946; Words & Phrases, vol. 1, p. 118.

The evidence shows that appellees, in common with all people in Galveston, had warning from the weather bureau that a storm was approaching. Such warnings were frequent at that season of the year. In none of the previous storms, unless in that of 1900, had the water been high enough in Galveston to have injured the goods in the manner in which they had been stored. Subsequent to the storm of 1900, the sea wall was erected oh the Gulf side of the island, some 17 feet in height. In the light of the facts in reference to the storm of 1900, this was deemed sufficient to protect Galveston from the waters of the Gulf. It proved insufficient for this purpose in the storm of 1915, which would indicate that this storm was of greater violence than that of 1900. The testimony of several witnesses indicates that such was the fact. The storm of 1915 threw a schooner of 800 or 900 tons capacity over the wall, and did serious damage to property behind the sea wall, and caused the loss of at least 150 lives.

The loss having been occasioned by the act of God, without negligence on the part of the Southern Pacific Company, it is immaterial whether such company was in possession of the goods as a common carrier or as a warehouseman.

There is one other issue presented by the pleadings, the evidence, and the offer of evidence. The appellant alleged that it presented its claim to the receiver of the M., K. & T. Ry.’ Co., and that it stamped the same “Vouchered,” which meant that the claim had been passed upon, approved, and ordered paid by said receiver, acting through the claim department. Appellant offered to prove by a witness, who qualified as an expert in such matters, that such was the meaning of the word “Vouchered.” The court sustained an objection to this testimony, and appellant assigns error on such action of the court.

We overrule this assignment for the reason that, if the M., K. & T. Ry. Co. was not liable on said claim, its promise to pay the same was without consideration, and therefore not binding upon it. There is nothing in the pleadings or evidence to indicate that such promise, if made, partook in any respect of the nature of a compromise.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

We have reached the conclusion that appellant’s assignment of error as to the refusal of the trial court to give the special charge hereinafter set out should be sustained, and, as this case is to be reversed on that account we announce the following propositions of law for the guidance of the court upon another trial hereof:

1. When a common carrier receives goods for shipment, it insures their delivery in accordance with the bill of lading,- unless the loss is occasioned by the act of God, or of a public enemy, or by reason of the inherent defect or vice of the good^ or animals, or on account of the fault of the consignee.

This proposition is too well established to require citation of authorities in its support.

2. When a plaintiff proves delivery of-goods to a common carrier, and the failure of the carrier to deliver the goods at the point of destination, he makes a prima facie case, and the burden of proof is upon the defendant to prove, if it can, that the loss occurred by reason of one of the foregoing exceptions.

3. If the defendant proves that the loss occurred by the act of God, as is alleged in the instant case (or by reason of either of the above-named exceptions), the burden shifts to the plaintiff to prove that, notwithstanding such act of God, the negligence of the defendant was the proximate cause of the loss. Ry. Co. v. Bergman, 64 S. W. 999; Elam v. Ry. Co., 117 Mo. App. 453, 93 S. W. 852; Express Co. v. Duncan, 193 S. W. 411; Davis v. Ry. Co., 89 Mo. 340, 1 S. W. 327; Ry. Co. v. Reeves, 10 Wall. 189 (77 U. S.) 19 L. Ed. 909.

This is true for tlie reason that, if the loss does not occur by reason of one of the excepted causes, the carrier is an insurer, and negligence on its part is not an issue. But, by proving that the loss occurred by reason of an act of God, it takes itself out of the class of insurer, and the plaintiff must then, as in ordinary cases, prove that the loss occurred by reason of the negligence of the carrier.

The special charge above referred to is as follows:

“At the request of the plaintiff you are instructed that, if you believe from the evidence that defendant Southern Pacific Company received warnings of the approach of the 1915 storm in question in time to have removed [italics ours] the lost and damaged goods in question to a place of safety, and that it failed to do so, and that such failure was negligence on its part, and that said negligence was the direct and proximate cause of plaintiff’s loss of the three cases of shoes in question, and damage of the. one case to such an extent as to he rendered worthless to it, you will find for plaintiff against said defendant for the amount of ¡f.250.67, and interest at 6 per cent, thereon from September 13, 1915.”

Appellant alleged that the Southern Pacific Railway Company was negligent in not removing the goods from a place of danger (its docks), after it had sufficient warning of the approach of the storm, and in not making an effort to save said goods from the consequences of such storm.

We have concluded that the evidence was such as to require this issue to be submitted to the jury. The only charge given by the court on this subject was in connection with the charge as to the act of God, wherein the court instructed the jury that if they found that the destruction of said goods by such storm, if any, was not the proximate result of any negligence on the part of the steamship company, its agents or employés, then they would find for the plaintiff.

If after the storm had begun and the waters were rising in the docks, so that there was apparent danger that they would reach and injure the goods, and the appellant could by the use of reasonable diligence have re moved the goods to a place of safety, its failure to do so was negligence of such character as would render it liable for the damage occasioned by such waters continuing to rise until they reached the goods. Ry. Co. v. Madden, 46 Tex. Civ. App. 597, 103 S. W. 1195; Ry. Co. v. Bland, 34 S. W. 676. In the case last above cited it was said: “The fact that the flood was extraordinary and unprecedented would not relieve the appellant from liability, if, by the exercise of diligence, its effects could have been prevented.”

The requested charge was an affirmative presentation of a material issue raised by the pleadings and the evidence, and it was reversible error to refuse the same. Ry. Co. v. Hill, 171 S. W. 1029; Bean v. Hall, 185 S. W. 1054; Bangle v. Ry. Co., 140 S. W. 375; Traction Co. v. Adams, 107 Tex. 612, 183 S. W. 155.

Appellant filed 17 assignments of error. We have not thought it necessary to discuss them separately.

For the reason stated the appellant’s motion for a rehearing is granted, the judgment of the trial court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.
      <&=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    JONES et al. v. FINK et al.
    (No. 7661.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 11, 1919.
    Rehearing Denied March 6, 1919.)
    1. Appeal and Error 1011(1) — Review— Conflicting Evidence — Province op Coijbt.
    It is for the trial court to resolve a conflict in the evidence; the province of the Court of Civil Appeals being limited to a determination of legal sufficiency of the evidence to support the findings.
    2. Homestead <®=»96 — Enforcement op Vendor’s Lien.
    Purchasers could not defeat foreclosure of vendor’s lien on ground that land was a homestead because of having lived on land prior to execution of vendors’ lien notes, where, prior to the execution of such notes, the purchasers had, by a conveyance made in good faith and fully consummated, conveyed land to vendors, notwithstanding Const, art. 16, § 50.
    3. Homestead <S=»94 — Foreclosure oe Vendor’s Lien — Acquisition op Homestead Bights Against Moetgagee.
    Makers of vendors’ lien notes could not defeat foreclosure of lien by claiming land as homestead, where makers had joined mother in executing mortgage on land to vendors at time when the property was mother’s exclusively, and where mortgage was unpaid at time of conveyance of land to vendors and reconveyance to makers.
    4. Homestead <§=oll8(4) — Deeds—Signature op Wipe.
    Where mortgagee canceled mortgage in consideration of conveyance to him of land, and thereafter reconveyed land to mortgagors, and accepted vendors’ lien notes to secure purchase money, the fact that wife of one of the mortgagors did not acknowledge deed until after re-conveyance did not, in the absence of fraud, affect its validity, even though it conveyed the homestead.
    5. Appeal and Eeeob <S=>518(4) — Record— Tbansoeipt — Original Petition.
    In view of Court of Civil Appeals rules 14, 84 (142 S. W. xviii, xxiii), where case was tried and judgment rendered on amended petition, the original petition was improperly included in the transcript.
    6. Appeal and Error <®=H95 — Presentation oe Error — Discrepancies in Pleading.
    Discrepancies between original and amended petitions will not be considered as fundamental error on appeal, where attention of trial court was not called thereto by defendants in their second amended original answer.
    7. Pleading <@^>250 — Petition—Amendment —Different Cause of Action.
    In vendor’s action against purchaser, there was no fundamental repugnance nor irremedial inconsistency between original petition, praying, in the alternative, for foreclosure of lien and for judgment against defendants on the notes, and amended petition seeking foreclosure of lien and a judgment for the debt.
    Appeal from District Court, Burleson County; R. J. Alexander, Judge.
    Action by Sam Eink and others against Thomas Jones and another, in which defendants in answering impleaded P. L. Levinson. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    E. J. Fountain, Jr., of Houston, for appellants.
    Mathis, Teague & Mathis, of Brenham, Bowers & Bowers, of Caldwell, and Lawrence So chat, of Houston, for appellees.
   GRAVES, J.

This suit was tried below upon the amended petition of plaintiff Fink, one of the appellees here, which declared upon some vendor’s lien notes in the aggregate sum of $2,500, together with interest and attorney’s fees, alleged to have been executed by the appellants Thomas and Joseph Jones, and sought foreclosure of such lien upon two tracts of land described in the notes. The notes had been originally given to B. L. Lev-inson, who contemporaneously therewith had deeded the land to appellants, retaining the vendor’s lien in both the deed and notes; Fink acquired the notes and the lien from Levinson. ⅝

In answering Fink’s suit appellants im-pleaded Levinson, in effect alleging that on, before, and since the date of his deed to them and of their notes to him, October 15, 1915, they were each living upon and occupying with their families one of the two tracts of land as a homestead; that, although they both were then indebted to Levinson, no part of it was secured by any valid lien upon these lands; that on the date given Levinson induced them and their wives to convey the lands to him in cancellation of their preexisting indebtedness, upon the representation that such plan would rid them of some heirs who had been claiming the property adversely to them, and under agreement that if they would do so, he would then at once sell the land back to them, giving them eight years within which to pay for it; that on the same day he did make the reconveyance to and exact of them the vendor’s lien notes herein sued upon by Fink; that the sale by appellants to Levinson and his reconveyance to them were not real, but simulated transactions, and amounted merely to a devise for ingrafting an apparent lien upon the homestead in violation of the Constitution. Further averments were that Fink had notice of all the facts pleaded at the time the notes and alleged lien were transferred to him by Levinson, but if not, and he should be found to be an innocent purchaser, that under the facts Levinson became a trustee, and they sought recovery of their resulting damages from him. Levinson answered and joined issue upon the matters pleaded as to him.

The case was tried without a jury. The trial court found the sale and reconveyance to be bona fide transactions, rendered judgment against appellants for the principal, interest, and attorney’s fees provided for in the notes, for foreclosure of the lien therein retained upon the land, and decreed that appellants take nothing by their cross-action against Levinson. From that judgment this appeal is prosecuted.

Under the first two assignments it is contended that the court erred in decreeing a foreclosure of the vendor’s lien declared upon, because it is said the undisputed evidence, or at least its great weight and preponderance, “showed that the land covered thereby was the homestead of the defendants; that no part of the debt claimed to be secured by said lien was for taxes, improvemfents, or purchase money of or on said land; and that the sale and reconveyance by which such lien was apparently fixed upon said land was merely a device by which the codefendant Levinson, to the knowledge of the plaintiff Fink, attempted to ingraft an apparent lien upon appellants’ homestead, in violation of section 50 of article 16 of the Constitution of Texas.”

Upon the issue thus raised the trial court found these facts: That Sally Early, the mother of appellants, who died intestate prior to the institution of this suit, some time before her death, while a widow and when she owned the lands here involved as her individual property, gave a deed of trust thereon to a Mr. Hitchcock to secure a note for $1,075, which instrument her sons, the appellants here, executed with her. The findings then continue:

“That in the fall of 1915,' said Tom Jones and Joe Jones were indebted to said B. L. Levin-son in the sum of $1,075, with a year’s interest and attorney’s fees, and that this indebtedness was secured by a deed of trust on the two tracts of land involved herein, being the trust deed given by the defendants and their mother, during her lifetime, to Hitchcock, and transferred by Hitchcock to Levinson. In addition tó the indebtedness, tbe defendant Tom Jones was indebted to said Levinson for supplies furnished him, this indebtedness being evidenced by a note for $505; that in the fall of 1015, said B. L. Levinson was pressing the defendants for a settlement of both of these debts, and the defendants were unable to pay either of said debts; that as a result these defendants and said B. L. Levinson met in the office of Messrs. Bowers & Bowers, attorneys, at Caldwell, Tex., which meeting took place at about 9 o’clock a. m. on October 15, 1915; that the defendants at that time agreed to make a deed to the two tracts of land involved herein, to the said B. L. Levinson, in full settlement of the two debts as above set out; that the question of making such deed with the understanding that it was to be retransferred was broached by defendants, but that the said B. L. Levinson refused to take the deed with any agreement to retransfer; that the deed was made, executed, and delivered by the two defendants and their wives to said B. L. Levinson, without any conditions or agreements to hold same in trust, or to reconvey; that it was a straight warranty deed, conveying without reservation, either written or parol, the two tracts of land involved herein; that this transaction took place in the forenoon, about 9 o’clock, and when the deed was passed the transaction was closed and complete; that the consideration in said deed was the cancellation of the notes, as stated, and the notes were actually delivered to the defendants for cancellation; and that it was a valuable and adequate consideration for said transfer.
“That after the passing of the deed above stated, the defendants approached said B. L. Levinson and asked him to sell said land back to them, and that they make a trade with Levin-son for him to sell said two tracts' of land to them for a consideration of $2,500; that this trade was made in the afternoon of the same day that transfer was made to Levinson, but the two were separate and distinct transactions; that the parties met in the office of the attorneys, and Levinson made, executed, and delivered his general warranty deed, conveying said two tracts of land to the defendants; that the consideration expressed in said deed was $3,000, $500 in cash, and the series of notes upon which foreclosure is sought herein; that said $500 in cash was in fact never passed, but the true consideration was the series of notes mentioned and described in the plaintiff’s petition; that this transaction was not simulated, but that each transaction was distinct and separate, and complete within itself; that said transactions were not made for the purpose of taking the land in trust for the use of defendants, but that said deeds were bona fide transactions, and that each conveyed the lands as stated; that under the last-mentioned deed, and in the notes upon which the foreclosure is sought herein, the defendants became indebted to said B. L. Levinson in the sum of $2,500.”

After á careful examination of the statement of facts, we are unable to agree with appellants, concluding rather that these findings had ample support in the testimony. It is true there was a pronounced conflict, but the authority to resolve that lay with the trial court, and this court’s province is limited to a determination of the legal sufficiency of the evidence to support the findings there made. Nor is it deemed necessary to further review the record here. Appellants testified one way, Levinson and the attorneys another, the court below chose between them, and in such circumstances this court is not at liberty to find otherwise.

With much ability appellants insist, however, that since each of them was, throughout the course of the proceedings above detailed, shown to be living with his family upon one of the tracts of land and claiming it as his homestead, they could not be deprived of their homestead rights therein through this foreclosure decree. That position could in no event be tenable under the court’s finding that the conveyance they made to Levinson was in good faith fully consummated before he agreed to resell the lands to them; but even if it were another consideration strips it of force here, and that is, appellants were in no position to acquire homestead rights in these two tracts of land against Levinson and his assignee Fink, because the latter held prior unpaid equities and incumbrances against the lands, which were superior to the homestead claim. Recurrence to the findings shows that appellants themselves joined their mother, before her death and when the property was her’s individually and exclusively, in incumbering it with the Hitchcock deed of trust, which was never satisfied until the cancellation of the note it secured and of the $505 note formed the consideration to them from Levinson, who then owned both notes, for their deed to him of October 15, 1915. While the $505 note seems to have been the obligation of Tom Jones alone, and carried no lien, there can be no question that the Hitchcock note was secured by a valid lien upon both tracts of land; indeed, Tom Jones himself so testified. In return for their deed, which was then delivered to him, Levinson canceled and gave these two notes to appellants. Against this state of facts, it is not thought their homestead claim could prevail. Clements v. Lacy, 51 Tex. 150; Baker v. Collins, 4 Tex. Civ. App. 520, 23 S. W. 495; Cahill v. Dickson, 77 S. W. 289; De Bruhl v. Maas, 54 Tex. 473.

Notwithstanding this situation, it is still said, however, that the wife of Joe Jones did not acknowledge the deed conveying the land to Levinson until the next day after he had reconveyed it to appellants in ostensible consideration of the $2,500 in vendor’s lien notes, thereby making it inoperative as to her, and at the same time demonstrating that the two transfers could not have been separate and distinct transactions in the sequence found by the court; but here again, we think, the facts stand in the way, the court finding:

“That prior to her death said Sallie Early borrowed money from one F. H. Hitchcock, and to secure its payment executed and delivered a deed of trust on the two' tracts of land involved in this suit; that said Sallie Early died intestate, and the two tracts of land in controversy were inherited by the two defendants herein; and that the land passed to them, charged with the Hitchcock debt and deed of trust.”

It thus appears that these lands came to appellants by1 inheritance, that is, as their separate property, charged with an admittedly valid incumbrance they had themselves' joined in placing thereon before their interest attached. Moreover, the record does not disclose whether at that- time they were even possessed of the better halves, their wives. Surely, in such circumstances, the fact, if such it be, that one of the wives did not acknowledge the deed to Levinson until one day after its execution and delivery to him could not affect its validity. There is no contention here that Joe Jones did anything to defraud his wife, and in a case of that character the courts have gone so far as to hold that the husband, in adjusting a prior lien, may convey the homestead without join-der of the wife at all. Evans v. Marlow, 149 S. W. 347.

Under the third and fourth assignments the judgment is assailed as fundamentally erroneous, because, it is claimed, the record shows upon its face that appellee Fink, by his 'original petition, declared upon his right to recover the land described therein as a consequence of appellants’ failure to pay the notes, thereby electing to rescind his contract of sale to them and barring himself from thereafter standing upon and essaying to enforce it, as in effect he did in the amended petition by seeking a foreclosure of his lien.

As was recited at the outset, the case was tried and the judgment rendered upon the amended petition. While the original petition was included in the transcript, it does not appear to be properly there, since the statutes and rules provide that amended pleadings shall take the place of original ones, and the latter shall no longer be regarded as a part of the record of the ease, except under conditions not here presented. Rules 14 and 84 (142 S. W. xviii and xxiii).

Neither did the appellants in their trial pleading, which was their second amended original answer, in any manner set up the alleged discrepancies now presented as constituting fundamental error. In this state of the record, manifestly this court is unable to say that any such error appears upon the face thereof.

But even if the original petition could and should be looked to and compared with the amended one, there was neitner fundamental repugnance nor irremediable inconsistency; the former alleged the execution and delivery of the conveyance/by Levinson to appellants, that notes were given in payment therefor, that the vendor’s lien was reserved in both deed and notes to secure their payment, and prayed in the alternative-should the court be of opinion there was an equity in the land for defendants, or that it might sell for more than the debt — for a foreclosure of the lien upon the land, and for judgment against the defendants on the notes, whereas the amendment, filed before judgment, sought a foreclosure of the lien and a judgment for the debt. No advantage was gained by the one and no detriment visited upon the others of the litigants by such an ad interim change in the form of the pleading; it amounted at most, we think, to a choice between two remedies based upon the same substantial right, which has often been held to be permissible. Johnson v. Bank, 198 S. W. 991; Stone Cattle Co. v. Boon, 73 Tex. 555, 11 S. W. 544; Ufford v. Wells, 52 Tex. 617.

The conclusions stated require the ovei’rul-ing of all assignments and the affirmance of the judgment, which order has been entered.

Affirmed.
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author: HODGES, J.

text:
    LANCASTER et al. v. BOUDREAU.
    (No. 2048.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 6, 1919.
    Rehearing Denied March 13, 1919.)
    Master and Servant <&wkey;286(22) — Safe Place to Work — Questions for Jury.
    Whether a master operating a large shop was guilty of negligence in not covering a ditch dug for installation of a sewer at a dark place in shop near a forge, giving forth a glare which tended to bind one approaching, held for jury.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Action by O. P. Boudreau against J. L. Lancaster and another, receivers. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    F. H. Prendergast and Brown & Hall, all of Marshall, for appellants.
    T. W. Davidson, of Marshall, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for personal injuries. Appellee was employed in a building known as “the shop,” a large brick structure extending about 400 feet east and west and 300 feet north and south, and divided into two apartments by a brick wall running east and west about 100 feet from the north side. In this partition wall are two openings, through which the employés pass in going to different parts of the shop. At the time alleged in his petition the appellee was engaged in some kind of mechanical work in the extreme southwest portion of the building. It was necessary for him to go to the north, or northeast, side in ’order to sharpen a tool with which he was working. In passing through the opening in the partition wall he fell into an open ditch recently dug by other employés for the purpose of laying a sewer pipe, and received the injuries for which he sues. The negligence alleged was the failure of the appellants to provide a covering for the ditch, or to place some lights or signals sufficient to disclose its presence. In a trial before a jury a verdict was rendered assessing the value of the ap-pellee’s injuries at $2,500. Under the charge given by the court a deduction of $500 was made for contributory negligence on the part of the appellee. Quite a number of special charges were presented by counsel for the appellant, and those refused by the court are made the basis of the first group of assigned errors.

Appellants unquestionably had the right to dig the ditch at the time and place they did; but whether or not they were negligent in failing to provide some covering, or to display some light or signal to indicate its presence, in order to prevent the employés who were unaware of its existence from falling into it, were questions of fact for the jury to determine. The evidence showed that it was necessary during the daytime to have the building lighted, to enable the em-ployés to see how to perform their work. It was also shown that at the point where the injury occurred it was rather dark, and that the glare from a forge near by tended to blind one approaching from the direction traveled by the appellee. Whether or not the appellant should have anticipated that some one ignorant of the presence of the ditch might fall into it and be injured was a ■question of fact, and which we think was properly submitted to the jury.

It is-, unnecessary to discuss the various assigned errors in detail. Many of them raise practically the same questions in different forms.

It is also contended that the verdict of the jury was excessive, mainly upon the ground that the appellee was a very old man. We are not prepared to concur in that conclusion, and the judgment will therefore be affirmed.
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author: RAINEY, C. J.

text:
    CARWILE v. FRAZIER et al.
    (No. 8076.)
    (Court of Civil Appeals of Texas. Dallas.
    March 8, 1919.)
    1. Appeal and Error <&wkey;548(5) — Assignments oe Error — Exclusion of Evidence —Bills of Exception.
    Assignments of error, complaining of exclusion of evidence to require consideration by the Court of Civil Appeals, must be supported by bills of exception to the action of the trial court.
    2. Appeal and Error &wkey;655(2) — Bills of \Exception Filed Late — Striking.
    "Bills of exception, filed long after the time granted for filing, -cannot be considered by the Court of Civil Appeals, and will be stricken out.
    Appeal from District Court, Neill County; Horton B. Porter, Judge.
    Suit by W. L. Carwile against A. M. Frazier and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Will M. Martin, of Hillsboro, for appellant.
    W. C. Wear and J. J. Averitte, both of Hillsboro, for appellees.
   RAINEY, C. J.

Appellant brought this suit against appellees to' foreclose a lien on a certain town lot, and to recover a personal judgment against A. M. Frazier on a tax levy for paving a street in Hillsboro. A trial resulted in a judgment in favor of appellees, from which this appeal is taken.

The appellant has presented only three assignments of error, all of which complaint of the court for sustaining the objection to the introduction of evidence offered by appellant. These assignments, to require consideration by this court, must be supported by bills of exception to the court’s action. The records show that bills wfere filed below, but the appellees object to consideration of said bills, because same were not filed within the limit of extension of the time granted by the trial court for the filing of same. Upon examination we find that the record shows that said bills of exception were filed long after the time granted for filing same, and they cannot be considered, and same will be stricken out, and the assignments not considered, which leaves no assignments for this court to act upon; therefore the judgment is affirmed.

Affirmed.
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