text:
    SORRELL v. STATE.
    (No. 3931.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.
    On Motion for Rehearing, May 31, 1916.)
    1. Ceiminal Law c&wkey; 1144(18) — Appeal — Scope op Review—Presumptions.
    Where motion for new trial was denied five days after verdict and judgment, after the court heard evidence on the grounds alleged, and the record does not contain proper bill or statement of facts filed during term time, the court on appeal must presume that the evidence justified the court’s action.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036; Dec. Dig. <&wkey;> 1144(18).]
    2. Criminal Law <&wkey;llll(3)—Appeal—Rec-ord— OONCLUSIVENESS.
    Where defendant in no way contested the court’s qualification to his bill, he is bound by the qualification.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2894; Dec. Dig. &wkey;llll(3).]
    3. Criminal Law <&wkey;586 — Continuance — Discretion op Court.
    Under Code Or. Proc. 1911, art. 608, subd. 6, providing that no application for a continuance shall be granted as a matter of right, but its truth is addressed to the sound discretion of the court, and it is the judicial, but not arbitrary, power of the judge to grant or refuse a continuance.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1311; Dec. Dig. <&wkey;586.1

      4. Ceiminai Law &wkey;59S(l) — Continuance-Diligence.
    The law requires of a defendant a rigid compliance with the exact terms prescribed, for applications for continuance, and if there is a lack of diligence, apparent from the application or otherwise, its mandate is inexorable, and the trial must proceed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1335, 1340; Dec. Dig. 4&wkey; 598(1).]
    5. Criminal Law &wkey;608 — Continuance — Diligence — Burden oe Proof.
    The state need not show want of diligence in opposition to an application for a continuance, but the defendant must show, affirmatively and distinctly, that he has used all the diligence to obtain his witnesses required by law.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. <&wkey;>608.]
    0. Criminal Law <&wkey;603(3), 1144(7) — Continuance — Application — Sufficiency — Presumptions.
    Neither the trial nor the appellate court will supply, by inference and presumption, allegations not contained in an application for continuance which should be stated therein, but the application must be complete in itself; and presumptions, when indulged, will be in favor of the rulings of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1350, 2739, 2740, 2901, 3022; Dec. Dig. &wkey;603(3), 1144(7).]
    7. Criminal Law <&wkey;598(2) — Continuance-Diligence — Sufficiency.
    The accused cannot cease his diligence to secure witnesses when the trial begins, but must continue it up to conclusion of the arguments.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1336, 1341; Dec. Dig. &wkey;> 598(2).]
    81 Criminal Law <&wkey;1151 — Appeal — Scope of Review.
    The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance, and the overruling of the motion for new trial based upon the application for continuance, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3045-3049; Dec. Dig. &wkey;llol.]
    9. Criminal Law <&wkey;598(6) — Continuance-Diligence — Sufficiency of Showing.
    Facts held not to show diligence of defendant in procuring a witness so as to entitle him to continuance, where he knew, or could have known, for three weeks that the witness would be absent, and had no process issued until three days after lie learned the witness was absent and his motion for continuance was overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1337; Dec. Dig. <®=>598(6).]
    10. Criminal Law <&wkey;396(2) — Evidence—Admissibility.
    Where defendant produced witnesses who testified that deceased threatened the defendant, the state could introduce the balance of the conversation had at the time of the threats.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 862; Dec. Dig. <@=>396(2).]
    11. Criminal Law <&wkey;1168(l) — Appeal — Scope of Review.
    No error is presented by bills which merely show that some questions were asked witnesses, but defendant’s objections thereto were sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3129; Dec. Dig. &wkey;>1168(l).]
    12. Criminal Law <&wkey;730(l) — Trial—Cure of Error.
    Error, if any, in permitting alleged improper argument of counsel is cured by express charge to the jury not to consider the argument excepted to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <&wkey;>730(l).]
    13. Criminal Law <&wkey;829(l) — Trial — Instructions — Repetition.
    Defendant’s requested charges, if covered by the court’s main charge or by other given at defendant’s request, are properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829(l).]
    On Motion for Rehearing.
    14. Criminal Law <&wkey;1109(2) — Appeal and Error — Perfection of Record — Rights OF' Defendant.
    Where the work of perfecting the case on appeal is left by defendant to one of several attorneys employed by him, he is bound by such attorney’s acts, and cannot complain of a defect in the record caused thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2902; Dec. Dig. <&wkey;>1109(2)J
    15. Criminal Law <&wkey;1092(ll), 1099(10) — Appeal — Perfection of Record.
    The judge who tries the ease, whether a regular or special judge, and regardless of whether the term has adjourned or he has been succeeded by another, must sign the bills of exceptions, statements of fact, and other documents for appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2837, 2841, 2873; Dec. Dig. &wkey;1092(ll), 1099(10); Judges, Cent. Dig. § 157.]
    16. Criminal Law <&wkey;1092(13), 1099(10) — Appeal — Scope of Review — Sufficiency of Record.
    Ordinarily no statement of facts or bills can or will be considered on appeal unless properly approved and signed by some judge authorized to do so, and the parties cannot, by agreement, dispense with the judge’s signature.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S36, 2842, 2845, 2873; Dec. Dig. &wkey;1092(13), 1099(10); Judges, Cent. Dig. § 157.]
    17. Criminal Law <&wkey; 1092(8), 1099(7) — Appeal — Scope of Review — Sufficiency of Record. '
    If the failure to have a statement of facts or bills filed in time is due to neglect of defendant, or if he fails to show diligence or fails to exhaust the means provided by law to obtain these documents, they will not be considered, nor in such event will the judgment be reversed for failure to obtain them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2855, 2856, 2S61, 2876, 2878-2880; Dec. Dig. &wkey;1092(8), 1099(7).]
    18. Criminal Law <&wkey; 1099(10) — Appeal — Scope of Review — Sufficiency and Perfection of Record.
    Where the special judge who tried the case dies before signing the statement of facts, the regular judge who succeeds him is competent to sign it, and he could be compelled to do so by mandamus if he refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2873; Dec. Dig. <@=>1099 (K>)J

      19. Criminal Raw <&wkey;1099(l) — Appeal — Scope op Review— Sufficiency op Rec-oed.
    All the rules applying to preparation of a hill of exceptions also apply to the statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2868, 2874; Dec. Dig. &wkey;1099(l).]
    20. CRIMINAL Law &wkey;>1092(9), 1099(6) — appeal— Scope op Review — Sufficiency op Record.
    An order, granting additional time for the court and attorneys to pass on statements of fact and bill of exceptions, may be made by the successor of the deceased trial judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2857-2860, 2877; Dec. Dig. &wkey;1092(9), 1099(6).]
    21. Criminal Law <&wkey; 1092(8), 1099(7) — Appeal — Reversal—Defect in Record.
    If defendant negligently delays to have his bill of exceptions and statement of facts signed by the trial judge before his death, he cannot have reversal of a conviction on the ground that he was deprived of the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2855, 2856, 2861, 2876, 2878-2880; Dec. Dig. &wkey;1092(8), 1099(7).]
    22. Criminal Law &wkey;>1092(12), 1099(1) — Appeal — Perfection op Record.
    If approval of statement of facts and bill of exceptions by the judge is held invalid, it is appellant’s duty to prove them up by bystanders.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2840, 2866-2868, 2874; Dec. Dig. &wkey;1092(12), 1099(1).]
    23. Criminal Law <&wkey;1092(l), 1099(1) — Appeal — Reversal—Defect in Record.
    Defendant is estopped to have reversal of a conviction on the ground that he was deprived of the bill of exceptions and statements of fact, when in fact they were fully considered and the only objection was that they were not properly signed.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2839, 2866-2868, 2874, 2919; Dec. Dig. &wkey;1092(l), 1099(1).]
    Appeal from District Court, Smith County; J. S. Mcllwaine, Special Judge.
    Pearl Sorrell was convicted of murder, and he appeals. Affirmed. On motion for rehearing.
    Motion overruled.
    Simpson, Lasseter & Gentry, of Tyler, W. M. Imboden and B. B. Perkins, both of Rusk, Geo. S. King, of Houston, and Thos. Shearon, for appellant. M. G. Sanders, Dist. Atty., of Canton, Norman <& Shook, of Rusk, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at five years’ confinement in the penitentiary. ’

This is the second appeal. The first is reported in 74 Tex. Cr. R. 505, 169 S. W. 299. A sufficient statement was there made, so that the questions now decided can be understood. If any additional statement on any question becomes necessary, we will make it. There is no substantial difference of the material facts or testimony on this trial from what was shown on the other appeal. The case this time was tried substantially in accordance with the opinion on the other appeal, and all questions therein held error were avoided on this trial.

This is at least the third trial and conviction. The trial court granted a new trial after the first, and this court reversed the judgment on the second trial. All the previous trials were in Cherokee county, where the homicide occurred in July, 1910. After the reversal by this court, the venue was changed to Smith county, where this trial occurred.

Appellant made a motion for a continuance. This was at least his fourth application for a continuance. The state contends, and reasonably showed, that by his action appellant secured two other continuances. The application this time was made because of the absence of three witnesses. The bill, as qualified, shows that pending the trial two of these witnesses appeared and testified. The record does not disclose how their attendance was secured.

The absent witness who did not appear and testify was Louis Jennings. The state vigorously and properly contested appellant’s application on the grounds: Of lack of diligence; that the witness was a transient person; that the testimony appellant claimed he would give was not probably true; and that, even if present, he would not testify as claimed; and on other grounds. The appellant replied to the state’s contest. The record discloses that the court heard evidence on this contest. Whether there was additional evidence from the affidavits filed by the respective parties is not definitely disclosed. If there was additional testimony heard, the record does not disclose what it was. The overruling of said application and the absence of the witness was made a ground for a new trial by appellant in his motion therefor. The state again contested that ground of this motion. The appellant replied thereto. This motion was acted upon by the court five days after the verdict and judgment. The record discloses with certainty that the court heard evidence at that time on said ground of appellant’s motion. What that evidence was is not disclosed by this record. Under these circumstances, in accordance with the long line of uniform decisions of this court, we must presume that the evidence heard clearly justified the action of the court, and that in the absence of a proper bill or statement of facts of the evidence introduced, filed during term time, we cannot do otherwise than hold that the action of the court presents no error. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 59, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 550, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 615, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996. See, also, Jordan v. State, 10 Tex. 479; Sharp v. State, 6 Tex. App. 650. It is unnecessary to collate the large number oí decisions by this court down to this very date following these decisions.

However, we will discuss the question further on its merits. The claimed testimony of the absent witness, upon consideration of all the other testimony in the case, evidently if he would have testified at all as claimed by appellant, is not all of what he would have testified. Perhaps it was not necessary for appellant in his application to state all the witness would have testified, but merely to state, as he did, such part of what he claims he would have testified which would tend to be in his favor. We think, without stating it, that as stated by appellant, if he would have so sworn, it would be considered as material in his favor. Appellant’s bill on this subject was not presented to, nor acted upon by, the trial judge, until nearly two months after the term of court had adjourned. The court, as stated, had heard the motion for a continuance and the motion for a new trial on that ground, and had heard all the evidence on the trial and, of course, whatever evidence was introduced in the contest of both motions, and from all this was prepared to make, and did make, his explanation and qualification of the bill, which is quite lengthy, so that it could be understood by this court. We will not give all of it, but the substance of it. Appellant in no way contested the court’s qualification, and is therefor under all the authorities, bound thereby. The substance of the court’s qualification was: (1) That the case had been pending over five years, and the appellant had obtained three previous continuances, the first on account of the absence of his brother, who never afterwards attended any of the terms of court, and never testified. That about 200 witnesses attended the trial at each term, and he deemed it probable that at no time could the attendance of all witnesses be had. That said witness Jennings was served with a subpoena in Cherokee county before the July term, 1915, and attended that term. The motion for a continuance itself shows that no process had ever been issued or served for said witness by appellant until for said July term. (2) That the court believed said witness was a transient person, and not likely to be had at any term of court, unless he was then in Navarro county. While that point was contested, the testimony was amply sufficient to authorize the court to conclude as he did. (3) That the testimony expected to be had from said witness, under the circumstances of its discovery, induced the court to believe that the witness would probably not testify as claimed in the application; and that if he did so, his testimony would be untrue. This also was a contested issue, but the record was sufficient to justify the court in his conclusions. (4) That it was known that it would take five or six days to try the case, and he believed, with proper diligence, if the witness was in Navarro county,-as the application alleged, his attendance could be secured. (5) That appellant had no process issued to Navarro county until the third day of the trial. In the meantime, the state had process issued to Dallas county for the witness. (6) That the evidence of Brown and Charley Jennings, together with their affidavits to appellant’s answer to the contest of his motion for a continuance, showed that the absent witness told them he was going west to pick cotton, and would remain until after cotton picking time. That the court knows this would have been as late as December 1st, and the application showed that one or both of these parties, Brown or Jennings, communicated with defendant, and that they had the information two or three weeks before the trial, and their testimony did not exclude the idea that they told defendant that the witness would be absent until after adjournment of this court, and defendant made no effort to prevent the witness from leaving or to have him returned. (7) That no affidavit of the absent witness accompanied the motion for a new trial, although the hearing on the motion was five days after the verdict was rendered. (8) That, on Saturday morning, before the court charged the jury and arguments had begun, and some 34 hours before the verdict was returned, one of the attorneys for the state informed one of the attorneys for appellant that said witness was in Collin county, between Plano and McKinney, and the defendant did not then have any process issued for said witness, and made no motion to postpone to procure him, either at the conclusion of the evidence Friday night, or when he got this information. That, in addition to this, no witness on the trial testified that said absent witness was anywhere about the scene of the homicide, or in the neighborhood thereof, when it occurred.

The statute (article 608, subd. 6, C. C. P.) expressly provides that an application for a continuance “shall not be granted as a matter of right” ; that the truth as well as the merits thereof and its sufficiency “shall be addressed to the sound discretion of the court called to pass upon the same,” but that if a defendant is convicted, and it appears on the trial that the absent witness’ evidence was of a material character, and the facts set forth in his application were probably true, a new trial should be granted. All this, as the decisions uniformly hold, must necessarily be left to the trial judge, who sees and hears the whole proceeding and all the witnesses. It is true his discretion is not an arbitrary, but a judicial, one. In addition to the statute, the rules applicable to a continuance have been laid down by many of the decisions of this court, and have been announced by Judge White in his An. O. O. P. We will restate some of them.

“The law requires of a defendant a rigid compliance with the exact terms prescribed for such applications, and if there is a lack of diligence, apparent from the application or otherwise, * * * its mandate is inexorable and the trial must proceed.” Skipworth v. State, 8 Tex. App. 139.
“We know of no rule of law which requires the state to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law.” Walker v. State, 13 Tex. App. 618, 44 Am. Rep. 716, note.
“The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. * * * The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact, and certain averments.” Long v. State, 17 Tex. App. 129.
“Neither will this court, nor the trial court, supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption, when indulged, will and must be in favor of the rulings of the court in reference to the matter complained of, and not against same.” Massie v. State, 30 Tex. App. 67, 16 S. W. 770.

The cases unquestionably establish the rule that an accused cannot cease his diligence to secure his witness when, the trial begins,„ but must continue it up to the very time, at least, till the arguments are concluded. Mitchell v. State, 36 Tex. Cr. R. 307, 33 S. W. 367, 36 S. W. 456.

“The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance, * * * and the overruling of the motion for new trial based upon the application for continuance, * * * unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true.” Section 647, White’s An. O. O. P., citing a large number of cases.

We think a'll these rules are clearly' applicable herein. Appellant claims: That he never discovered this witness, or his purported testimony, until about five years after the homicide, although he claimed the witness lived in the neighborhood where the killing occurred, and claimed to have been present and, heard and saw what occurred at the time of the killing. He had had at least two trials of his case before he claimed to have discovered this witness, and there had been several , continuances besides. That a large number, some 200 witnesses, attended the trials and the court when the case was not tried. The evidence heard by the judge clearly justified him to believe that, even if the witness had been obtained, he probably would not have testified as appellant claims he would, and that, if he had so testified, his testimony would have been untrue. In addition, the evidence clearly justified the judge to find, as he did, that the diligence was not sufficient to entitle him to a continuance. That he actually learned some two or three weeks before the trial, or by any sort of diligence could have so learned, that the witness would be absent aud not attend the trial when it was tried, and, after ¡learning this, he used no process or diligence whatever to prevent the witness! going off, nor to secure his attendance at the proper time. Also, that he waited three days after he learned that the witness was not present, and his motion for a continuance had been overruled before he had any process whatever issued to where he claimed his information was the witness could then be found. The record in no way excludes the idea that, if he had then had process promptly issued for the witness, he could not have been found witliin that three days and his at-tendancq secured. And, further, that at least a day or longer before the trial was finally concluded, he was informed that said witness was in Collin county, yet he then had no process issued for him, and made no application to postpone the case until he could ascertain whether or not he could then procure him. And the evidence substantially shows, and the trial judge so held, that the witness was a transient. And, further, that, although five days elapsed from the time the verdict was rendered until the court acted on his motion for new trial, he did not procure the affidavit of his absent witness to show that he would testify as claimed by him. So that, under no contingency, did the court err in overruling his motion for a continuance, nor in refusing him a new trial on that ground.

Appellant has some 35 other bills. Several of them are to the admission of some testimony; others, to questions asked by the state, but not answered by the witnesses; some others to very brief statements in arguments by the different attorneys representing. the state, they consisting of only from one to three lines of typewritten matter; still others, to objections to the court’s charge, and to the refusal of the court to give some of bis special charges asked. The court, before approving many of his bills, explained and qualified them. We have considered each and all of his bills. It will be unnecessary to now take them up separately and discuss them. We think none of them present reversible error.

The record in this, and also on the previous, appeal shows that an array of able, experienced, and skillful attorneys were engaged on each side, and every point, from start to finish, was hotly contested. Appellant’s attorneys undertook to, and doubtless did, save every point which they thought squinted at error, and guarded in every conceivable way what they regarded as the rights of their client, which was their duty.

Appellant introduced some witnesses and had them testify to a part of a conversation they had with deceased shortly before the homicide, and therein of threats he had made against appellant. On cross-examination, the state asked the, witnesses and had them testify to the balance of the conversation of the deceased at the time at which they claimed he made said threats. Some of appellant’s bills show that he objected to this testimony on cross-examination. In our opinion, it was clearly admissible under the decisions and our statute itself. Article 811, Vernon’s O. C. P., and decisions noted thereunder.

Some other of his bills were to the mere asking of some questions by the state’s side, to which he objected, and the court sustained his objections. The witnesses were not permitted and did not answer the questions. It is unnecessary to particularize these. These bills show no error. Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Morrow v. State, 56 Tex. Cr. R. 521, 120 S. W. 491; Phillips v. State, 59 Tex. Cr. R. 534, 128 S. W. 1100; Hart v. State, 57 Tex. Cr. R. 24, 121 S. W. 508; Warthan v. State, 41 Tex. Cr. R. 387, 55 S. W. 55; Sweeney v. State, 65 Tex. Cr. R. 598, 146 S. W. 883. In some of the bills, we think the court incorrectly sustained appellant’s objections to the questions and refused to permit the witnesses to answer; the testimony being admissible. But as the court sustained appellant’s objections and did not permit the witness to answer, this would be to his advantage, and not his injury.

Bills to the argument of the prosecuting attorneys, which is claimed by appellant to be objectionable, are frequently before us, and have been before the court from its foundation. The rules pertaining thereto were laid down by this court long ago in such cases as Bass v. State, 16 Tex. App. 69, Pierson v. State, 18 Tex. App. 524, House v. State, 19 Tex. App. 227, Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544, and many other cases. In more recent cases, such as Mooney v. State, 176 S. W. 56, Bittie v. State, 178 S. W. 326, Miller v. State, 185 S. W. 29, not yet officially reported, and many others, we have had occasion to discuss the earlier cases, and reiterate and reaffirm the rules established therein pertaining thereto. We see no necessity of again reviewing this question or the authorities. Clearly, none, nor all together, of appellant’s bills on this subject show any error. In most instances, if not all, the prosecuting attorney’s arguments were not out of the record, and the record gave them a basis for their argument. But, whether it did or not in every instance, the court, as a matter of precaution, expressly charged the jury not to consider the argument of counsel to which appellant excepted. So that, in any event, if the argument was objectionable, it was cured by the action of the court.

The court’s main charge, together with the special charges of appellant which he gave, we think, correctly announce the law applicable in this case, and submitted every issue properly raised by the testimony in appellant’s behalf. Some of appellant’s requested charges which were refused were correctly refused, because the points were either covered by the court’s main charge, dr by those of appellant which the court gave. The bills show'that when the court prepared his main charge, and at the proper time submitted it to appellant’s attorneys, they then made quite a number of objections thereto, both of omission and commission. The court explained and qualified his bill, where all these matters are presented, by stating:

“Certain changes were made in the court’s main charge to meet the objections contained and set out in this bill. Reference is made to the main charge to show wherein same was changed, and some of the defendant’s special charges were given, at defendant’s request, covering the matters complained of, and after said changes were made the general charge was resubmitted to the attorneys for defendant, and no further objection was made thereto.”

On the former appeal, it was held by this court that provoking the difficulty was raised, and that it was the duty of the court to charge thereon. The testimony raising this issue is substantially the same now as it was on the former trial, and there is no such change therein as to not require a charge on that subject. The court’s charge, in connection with those of appellant’s which he gave, correctly presented the issue to the jury on the question of what other means appellant must resort to before killing deceased, both under the statute and the decisions pertaining thereto. We see no necessity now of taking up these various objections to the court’s charge and the refusal of appellant’s special charges and discussing them separately.

Tlie record discloses that the ease was tried by the lower court with great care, and in every way appellant had a fair and impartial trial, and his rights were in every proper way guarded by the court, the issues properly submitted, and the evidence amply sufficient to sustain the conviction. There is no reversible error presented.

The judgment will therefore be affirmed.

On Motion for Rehearing.

The motion for rehearing was filed and submitted several weeks ago. A decision on it was deferred to give each side an opportunity, and they were invited to do so, to file whatever answer, affidavits, and brief they desired. Each side has fully availed itself of this opportunity, and has filed affidavits, original letters, documents, and briefs, presenting their respective sides and opposing the other. We have carefully considered all these matters and made a careful and thorough investigation of the question.

The original opinion was delivered April 5, 1916, affirming the case. After its original submission by briefs and oral arguments for both sides, the court held the case some two months under consideration before delivering the opinion. Each member of the court personal^ read and studied the record and the questions and briefs of both sides. The case was tried in the lower court in October, 1915, and the motion for new trial was overruled on October 15, 1915, at which time appellant duly gave notice of appeal to this court, and the trial court at the time, at his instance, entered an order allowing 60 days thereafter within which to file bills of exceptions and a statement of facts. There appears in the record a large number of bills of exceptions, each of which on its face appears to have been properly allowed and signed by the trial judge. There also accompanies the record a full statement of facts, which shows on its face to have been agreed to and signed by all of appellant’s attorneys — one firm of three members and three other individual attorneys, as attorneys for appellant — and also signed by the district attorney and two other attorneys in behalf of the state. This also appears on its face to have been regularly and properly approved and signed by the trial judge. These documents were filed in the lower court December 11, 1915, and in this court January 12,1916. No intimation in any way by either side, or any attorney for either side, was then made to this court that the approval of said bills and statement of facts was other than in every way regular, and so approved, allowed, and signed by the trial judge before they were filed in the lower court. Of course, under these circumstances, this court fully considered all of them in deciding the case and rendering the opinion. The first time any intimation was made to this court that said documents were other than as stated was April 19, 1916, when appellant filed his motion for rehearing. The sole ground of that motion is to strike out said bills and statement of facts because they were not approved and signed by the trial judge, and reverse this case because he was deprived of them without fault on his part, and after he had used all the diligence to properly procure them required of him by law.

It is unnecessary to detail the several affidavits, letters, etc., which are attached and made part of the respective pleadings of the parties constituting the motion for rehearing and resistance thereof. Instead, we will succinctly give the conclusions we have reached therefrom, and the record, other than said documents.

Hon. R. M. Smith was the judge of the judicial district of which Smith county, where this trial occurred, was a part. Eor reasons satisfactory to himself and the attorneys, he did not hold the court at the time this trial was had, but 1-Ion. J. S. Mcllwaine was duly elected and qualified as special judge, before whom the trial occurred. It seems he held the whole term of this court, which eonsum-ed some five weeks, and the term adjourned the next day after he overruled the motion for a new trial. During this trial, he became nervous and somewhat ill, of which all of the attorneys and appellant himself had actual notice and knowledge. Shortly after the court adjourned, Judge Mcllwaine and his wife went to Mineral Wells, where they remained two weeks on account of his illness. They returned to Tyler therefrom on November 17th, and he was in his office two days transacting his business. Date in the afternoon of November 18th, in company with his brother, he went to a sanitarium at Arlington Heights, near Et. Worth, where he remained until his death, which occurred December 25, 1915. For a while after reaching that sanitarium, he did well — received and read his mail and magazines. After he had been there some two weeks, his wife went to him, staying a day or two, and, finding he was doing well, returned home in Tyler. While in the sanitarium, for a while he would have worse days than others, and one day, while in his worse condition, one of appellant’s attorneys, Judge Simpson, who had the bills and statement of facts in charge, phoned to the attending physican to know if the judge was in condition to consider and pass upon them. The doctor at that time told the attorney he was in no condition to attend to such matter on that day. A day or two later, when in better condition, appellant’s attorney again phoned the attending physician, and had him state the matter to the judge and to know if he would authorize the district clerk at Tyler to sign his name, allowing and approving said documents, and the judge thereupon stated that, while it was somewhat irregular, he would consent that the clerk sign his name thereto, which appellant’s attorneys thereupon had the clerk to do. Right after this, his wife visited him in the sanitarium, to whom he mentioned the matter of authorizing and directing the clerk to sign his name to said documents and of the conversation between the attending physician and himself about the matter, and she says he then seemed to understand it. Soon after this he became much worse, unconscious, and remained in that condition until he died at the time stated.

Neither appellant nor his attorneys at any time ever sought to have Judge Mcllwaine, or the regular judge either, to extend the time for filing the bills of exceptions to 90 days, or other than the 60 days allowed, as stated. The law, without any order whatever, gave him the right to procure and file a statement of facts at any time within 90 days from the overruling of his motion for a new trial. Nor did appellant or his attorneys at any time ever attempt to get the regular judge of the court to act upon or approve either their bills or the statement of facts, nor other than as hereinbefore stated. Neither did they attempt at any time to procure bills of exceptions by' bystanders. Nor did they attempt to show at any time that they could not have done so.

Two of appellant’s attorneys only sign the motion for rehearing. They and appellant himself show that they had no personal knowledge how Judge Mcllwaine’s signature was procured to said documents, and that they did not learn it until some time after-wards. But it is clearly shown that the preparation of the bills and the agreement to the statement of facts was left to Judge Simpson and one of his partners, who attended to the whole thing for all attorneys and appellant. It was they, and especially Judge Simpson, who procured the approval and signature of the judge. Under the circumstances, unquestionably the appellant himself and the other attorneys can claim no advantage whatever because of any lack of knowledge on their part, but appellant and they are as equally bound thereby as Judge Simpson and his partner could, or would, be. Practically the universal practice in criminal cases is for the attorney for the appellant, and not appellant, himself, to prepare all bills of exceptions and a statement of facts, and never at any time submit them to the appellant himself, but all such matters are settled exclusively between the attorneys for the respective sides and the trial judge, or judge of the court, so that whatever was done in this case by appellant’s attorneys is in law and in conscience the same as if done by himself. The law and the principles applicable to what judge must approve and sign bills and' statements in ordinary cases where the trial judge, whether special or regular, is still alive and mentally and physically able to act are so well settled that we will not attempt to cite the authorities on the subject, but we will state some of the rules:

Under the circumstances just stated, it is necessary for the judge before whom the trial was had to approve and sign these documents ; and, if the term of the regular judge ends before he acts upon them and he is succeeded by another regular judge, or when the trial occurs before a special judge, the bills must be signed by the judge who tried the case, even though his term of office expires and he is succeeded by another regular judge, or if the term of court at which the trial was had before a special judge ends, or the regular judge succeeds him on the court, such special judge, though after his term expires, must approve and sign such documents.

Ordinarily, no statement of facts or bills can or will be considered by this court, unless properly approved and signed by some judge authorized to do so; in other words, the attorneys, or the parties themselves, cannot, by agreement, dispense with the approval and signature of some judge authorized to act in such matters.

If an appellant is deprived of either his bills or a statement by the opposite side or the trial judge, without any fault on his part, and when he has used all the diligence necessary on his part to procure such documents, he is entitled to a reversal; but, as stated, he must use all diligence necessary to procure these documents, and the fault for failing to procure them must not lie at his door. If he fails and the fault is his or his attorney’s, then he is not entitled to a reversal, even though he gets neither bills of exceptions nor a statement of facts, nor both. Mr. Branch lays down the correct rule, and cites some 40 cases establishing it: If the failure to have a statement of facts or bills filed in time is due to neglect of defendant, or if he fails to show diligence, or fails to exhaust the means provided by law to obtain these documents, they will not be considered, nor in such event will the judgment be reversed for failure to obtain them. Branch’s Annotated P. O. § 597, p. 306.

Strange as it may seem, after the most diligent search, we have been unable to find any case, in either this court or the civil courts of this state, and neither side has cited any where it has arisen and been decided, whether or not the regular or succeeding judge can approve such documents in case of the death or insanity of the judge who tried the cause. The courts of other states and jurisdictions are not in harmony on the subject. All the cases and authorities on the subject discuss bills of exceptions, not statements of facts. The rules, however, that would apply to the one would equally apply to the other. The late work of Stand. Ency. of Pro. vol. 4, page 333, says:

“Many courts hold that where the judge dies or goes out of office by resignation or because of expiration of his term, the bill must be signed by his successor” (citing New York Life, etc., Co. v. Wilson, 8 Pet. 291, 8 L. Ed. 949, and the decisions of some 13 states establishing this rule).

To the same effect is 1 Thompson on Trials, § 214, and other sections in that chapter, and also 3 Ency. P. & P.' 455. The United States Supreme Court in the case cited supra says of the judge succeeding the judge who tried the cause:

“He, as the successor of his predecessor, can exercise the same powers, and has a right to act on every case that remains undecided upon the docket, as fully as his predecessor could have done. The court remains the same, and the change of the incumbents cannot and ought not, in any respect, to injure the rights of litigant parties.”

In that case, the court awarded a writ of mandamus, compelling the successor of the trial judge to sign the judgment rendered by his predecessor. We refer also and approve the reasoning and decision in Conway v. Smith Merc. Co., 6 Wyo. 327, 44 Pac. 940, 49 L. R. A. 201. See, also, Hays v. McNealy, 16 Pla. 408; Bullock v. Neal, 42 Ark. 278; Watkins v. State, 37 Ark. 370; Cowall v. Altchul, 40 Ark. 172; Schields v. Horbach, 40 Neb. 103, 58 N. W. 720; Turner v. Hearst, 115 Cal. 394, 47 Pac. 129; Railway v. Rogers, 48 Ind. 427. Wd .think it clear that Judge Smith, the regular judge, was, in law as well as in fact, the successor of Judge Mcllwaine as to everything pertaining to this case when the latter judge died, and that he had the power, and it would have been his duty, had the appellant applied to him for that purpose, to have passed upon the said bills and statement 'of facts; and, if he had refused, this court, upon proper application to it for that purpose, would, by mandamus, have compelled him to do so. But none of this was done, or attempted to be done, by appellant, or his attorneys. There would have been no difficulty whatever in Judge Smith intelligently and with full information passing upon all these documents. A regular court stenographer reported the case fully under the law. From this report, Judge Smith could unquestionably have ascertained all of the testimony introduced on the trial, and in addition could have thereby passed upon every bill and made every qualification thereto that was made to the bills herein. In addition to this, the attorneys for both sides agreed in writing and signed and approved the statement of facts as the true statement of all of the testimony introduced on the trial, and the attorneys for both sides agreed to all the bills and the qualifications thereof which were made; and Judge Smith also could have granted, if necessary, 30 days longer for the attorneys or himself to have passed upon said bills of exceptions. This court has always recognized as valid such an order made by the regular judge when a special judge or another judge whom he succeeds tried the cause. Such an order is not one which the trial judge alone could have made. Of course, under the statute, if Judge Mc-llwaine had not died or become wholly mentally incapable to pass upon said documents, then he alone, under the statute, w'ould have had the right to have passed upon them. Our decision herein is in no way in conflict with Richardson v. State, 71 Tex. Cr. R. 111, 158 S. W. 517, Porter v. State, 72 Tex. Cr. R. 71, 160 S. W. 1194, Allen v. State, 72 Tex. Cr. R. 277, 162 S. W. 868, Kaufman v. State, 72 Tex. Cr. R. 455, 163 S. W. 74, or McGee v. State, 182 S. W. 309. In the Richardson Case, just cited, we purposely said:

“If such a contingency should arise where it would be impossible to secure the signature and approval of the trial judge, such as his death, permanent removal beyond the limits of the state, or other cause rendering it impossible to secure his approval, a different question might be presented.”

That different question is here presented, and we decide it in accordance with authority and reason. Besides this, without detailing it, there was much other delay and negligence of the appellant even while Judge Mcllwaine lived, which would have prevented a reversal because he did not sooner present the bills and statement of facts and have Judge Mcllwaine sign the same before he became incapacitated or died. Many decisions of this court so hold. We cite some of them: Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Henderson v. State, 20 Tex. App. 304; Bryant v. State, 35 Tex. Cr. R. 395, 33 S. W. 978, 36 S. W. 79; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 259; Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; George v. State, 25 Tex. App. 229, 8 S. W. 25; Monk v. State, 38 Tex. Cr. R. 602, 44 S. W. 158; Dennis v. State, 41 Tex. Cr. R. 160, 53 S. W; 111; Adams v. State, 60 S. W. 255; Shaffer v. State, 65 S. W. 1072; Ashman v. State, 74 S. W. 317; Murphy v. State, 45 S. W. 719; Bracy v. State, 49 S. W. 598; Farris v. State, 26 Tex. App. 107, 9 S. W. 487; Aistrop v. State, 31 Tex. Cr. R. 467, 20 S. W. 989; Jones v. State, 74 Tex. Cr. R. 350, 163 S. W. 75; Gowan v. State, 73 Tex. Cr. R. 227, 164 S. W. 6; Laws v. State, 73 Tex. Cr. R. 287, 164 S. W. 1015.

So that if we should strike out said bills and statement of facts and not consider them, appellant would not be entitled to a rehearing herein, nor to the reversal of this cause because he failed to get them, his failure being due to his own neglect, as shown.

Again, so far as the bills are concerned, if the approval of them by Judge Mcll-waine should be held invalid, it would have been appellant’s duty, and the proper diligence would require him, to prove up such bills by bystanders. 1-Ie in no way attempted to do this. Nor does he in any way intimate that he was unable to do so.

Further, the state contends that, under the circumstances of this case, appellant is estopped to now, at this late day, have said hills and statement struck out and claim a reversal because he was deprived of them, claiming that he .was deprived of neither, because he got the full benefit of all of them, and he does not claim that any of them are in any particular wrong, or did not correctly and fully state the facts and the matters therein. We are inclined to believe that the state’s contention is correct.

Again, the state contends, not without show, that the signature of Judge Mcllwaine to said documents, under the circumstances, should be held sufficient to properly. authenticate them, but it is unnecessary for us to decide that question now.

For years now every district court has had a sworn official court stenographer, whose duty it is to, and who does, take down in shorthand and transcribe all the testimony and all the proceedings of every trial. Such reports by stenographers are relied- upon by the attorneys for both sides and the judges for complete, full, and accurate information and knowledge of everything that occurred on the trial. From this data, practically, exclusively all statements of facts and bills of exceptions are prepared, and the judge gets therefrom whatever is necessary to explain and qualify bills of exceptions, and it is practically procured from no other source. Hence it is the case that all statements of facts and hills of exceptions, when cases are appealed, are prepared and filed after the adjournment of the court and within the time authorized by law or the order of the court. If appellant’s contention should be sustained, then the inevitable effect of it would be, if any judge who held a whole term of court or tried any particular case should die or become insane, and his successor could not pass upon statements of facts and bills of exceptions if the trial judge had not done so before, that the whole work of the term or of the particular case would practically be a nullity. This would result in such an injustice to every litigant in every case that no such doctrine should be held, unless it is imperative under the law that it should be. We think that neither the law nor justice requires or would justify such a holding by this court. In fact, we are thoroughly convinced that under the law the successor of such judge dying or becoming insane would unquestionably have the power and authority, and it would be his duty, to complete the work of such deceased or insane judge.

Under the circumstances of this case, we are clearly of the opinion that the appellant is not entitled to a rehearing, nor to a reversal of this case, whether said bills and statement of facts were properly procured or not, and whether or not they should be struck out and not considered, and the order will be accordingly entered, overruling his motion.
      <2&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      É=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    BABER et al. v. GALBRAITH.
    (No. 7174.)
    (Court of Civil Appeals of Texas. Galveston.
    April 28, 1916.
    Rehearing Denied May 18, 1916.)
    1. Appeal and Error <&wkey;275 — Exceptions to Pleading — Waiver.
    Where pleas of misjoinder, in the form of special exceptions, were not acted upon by the court, they will be regarded by the appellate court as having been waived.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1566, 1567, 1647; Dec. Dig. <&wkey;>275.]
    2. Abatement and Revival <&wkey;84r — Pleas in Abatement — Time fob Filing.
    Pleas of misjoinder, in abatement, set up for the first time in an amended answer filed by defendants after answering to the merits, came too late.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. § 176; Dec. Dig. <&wkey; 84.]
    3.Divoece &wkey;?322 — Property Not Divided-Rights of Wife — Election.
    AVhero a husband, after divorce, in which no partition of the community property was made and none attempted, sold land of the community, he held the proceeds one-half in trust for his wife, and she could sue in a court of common-law jurisdiction to recover her half of the money from the bank into which the buyers had paid it for the husband, though administration had been taken out on his estate and was still pending, and the claims of all creditors and debtors had not been finally adjusted, as she had an election to recover the trust fund from the party in whose possession she found it.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 822-825; Dec. Dig'. <§^322.]
    4. Interpleader <&wkey;32 — Recovery—Title.
    Where a bank, claiming only to be a stakeholder of the fund, interpleaded the parties claiming to own it, each of said parties occupied the position of plaintiff in the claim for the fund, and became entitled to it only upon showing good title; it not being enough that the adversary party had no right of recovery.
    [Ed. Note — For other cases, see Interpleader, Cent. Dig. §§ 72, 73; Dec. Dig. &wkey;32.]
    5. Interpleader <&wkey;26 — Suit by Legatees and Heirs — Pleading.
    In suit by a divorced wife to recover from a’ bank half of sum of money which the buyers of community property from the husband paid in for him, the legatees and heirs of the husband, interpleaded by the bank, who failed to make the necessary allegations and proof to authorize them to maintain suit, that there was no administration upon his estate in Texas, and that there was no necessity for administration, could not recover nor complain of the judgment rendered.
    [Ed. Note. — For other cases, see Interpleader, Cent. Dig. §§ 50, 53, 54; Dec. Dig. &wkey;26J
    6. Executors and Administrators <&wkey;524 (1) — Standing to Claim Fund.
    In suit by a divorced wife to recover funds paid into bank for her husband in payment of community property sold by him, the executors named in such husband’s will, one of whom qualified in another state, but neither of them in Texas, had no standing to claim the fund, since a foreign executor can neither sue nor bo sued in the courts of Texas.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2330-2333; Dec. Dig. &wkey;524(l)J
    7. Appeal and Error <&wkey;984(5) — Review-Allowance of Fee — Reasonableness.
    A fee of $500 allowed an attorney ad litem will not be held excessive, in view of the better position of the trial court to determine the sum that would fairly compensate the services.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3886; Dec. Dig. <5&wkey; 984(5).]
    8. Banks and Banking <&wkey;139 — Payment of Checks — Double Payment — Protection of Bank.
    In suit by a divorced wife to recover of a bank funds paid it for her deceased husband for community property sold by him, where the check, given the husband by the bank, when the buyers of the land sued out injunction restraining payment thereof, had written across its face the words, “Payment stopped by injunction,” the act of the court in refusing to require the husband’s executors to surrender the check to the bank for cancellation was proper, since the bank was adequately protected against double payment by the writing on its face.
    [Ed. Note. — For other cases, see Banks and Banldng, Cent. Dig. §§ 406-409; Dec. Dig. <&wkey;>139.]
    Appeal from District Court, Harris County; John A..Read, Judge.
    Suit by Bessie Campbell Galbraith against John F. Baber and another, executors, and others. From a judgment for plaintiff for a sum of money, and for Street & Graves, defendants, and their assigns, for the land in suit, etc., plaintiffs, the executors, and others appeal.
    Reformed and affirmed.

      C. R. Wharton and S. H. Philbin, both oí Houston, for appellants. Moody & Boyles and Ed. S. & L. 0. Phelps, all o£ Houston, for appellee.
   McMEANS, J.

On June 27, 189S, J. E. Galbraith and Bessie Campbell were married in Galveston, Tex. Thereafter, on May 16, 1898, J. E. Galbraith bought from Sam Allen a tract of land in Harris county, and it thereupon became the community property of Galbraith and his said wife. In 1903 Galbraith and wife removed from Texas to New .York, where they resided as husband and wife until 1909, when they were divorced, and thereafter both continued to reside in New York until 1913, when Galbraith died. After their divorce and in 1910, Galbraith sold the land to Street & Graves of Harris county, by general warranty deed, for $14,-172, one half of which was paid in cash, which he appropriated to his own. use, and the other half for two promissory notes of the said Street & Graves in equal amount, payable in one and two years, respectively, from their dates, and bearing 8 per cent, per annum interest, the payment of which was secured by a vendor’s lien on the land. These notes were by Galbraith paid into the Houston National Exchange Bank. Street & Graves paid to the bank the amount of said notes at their maturity, and, after the payment of the last maturing, Galbraith executed a release of the vendor’s lien, which was duly delivered and recorded. The bank aft-erwards executed to Galbraith its cashier’s check for the amount paid, which was held by Galbraith until he died, and it then passed into the hands of his executors, where it still remains. Galbraith left a will, in which he bequeathed all his estate to certain named persons, and in which he appointed John F. Baber, of New York City, and George B. Hobson, of Galveston, Tex., executors. The will was admitted to probate in the city of New York, and Baber duly qualified as executor, but Dobson never qualified as such. On June 25, 1913, the appellee, Bessie Campbell Galbraith, brought thia suit against Street & Graves to recover an undivided one-half of the land, claiming the same by reason of her community interest therein. Street & Graves answered, pleading, among other defenses, that they were purchasers of the land for value without notice of Mrs. Galbraith’s claim or title. They impleaded the bank, alleging that it still held the identical money paid by Street & Graves to it in satisfaction of said notes, and prayed for an injunction, restraining the bank from paying out the same during the pendency of the suit, so that they might be in a position to enforce the liability of their vendor, J. E. Galbraith, to them upon his general warranty, alleging that the money in the bank belonged to him. The injunction was granted. Thereafter the bank paid the money in question into the registry of the court, stating that it had issued a cashier’s check covering the same; that it was a stakeholder only, and had no interest in it, and that the executors, legatees and heirs of J. E. Galbraith, were interested in the fund, and should be made parties. These parties were duly cited by publication, except Dobson, who was named in the will as the Texas executor, but who had never qualified, who answered separately from the rest. O. R. Wharton, Esq., was appointed by the court attorney ad litem for the executor, legatees, and heirs cited by publication, and filed an answer for them, pleading the statute of limitation of two years against Mrs. Galbraith’s right of recovery of the fund in the bank, and asking that those represented by him be awarded the title and possession of money in question. He also asked that in the event the court should find that Mrs. Galbraith was entitled to the money, the es-* tate of Galbraith recover one-half of the amount that had been expended by Galbraith out of his separate estate for the protection and benefit of the land, in the way of perfecting the title, etc., which should be debited against her recovery. There was no allegation in the answer of the attorney ad litem, or of either of the executors, that there was no administration on Galbraith’s estate in Texas, and no necessity therefor. Other allegations in the answer will be referred to further on in this opinion. After the bank filed its answer, alleging that it still held the identical money paid by Street & Graves in satisfaction of said notes, Mrs. Galbraith amended her petition, setting up this fact, and alleged that the money, being the proceeds of the sale of her one-half of the land, belonged to her, and asked for judgment therefor against the bank. The case was tried before the court without a jury, and resulted in a judgment for Street & Graves and their assigns for the land, in. favor of the bank, declaring that it was discharged of further responsibility by the payment of the money into court, and that it should recover $250 as attorney’s fees, and in favor of Mrs. Galbraith for $7,117.42, less the costs of court, including allowances for attorney’s fees, that John F. Baber and George B. Dobson executors of J. E. Galbraith, recover out of the fund so deposited in the registry of the court by the bank the sum of $818.90, to be paid to C. R. Wharton as attorney for the executors on account of the expenditures made by Galbraith for the benefit and protection of the land, and that the other parties to the suit should have no relief except that O. R. Wharton was allowed the sum of $500 for his services as attorney ad litem for the nonresident defendants. From this judgment Mrs. Galbraith and the executors, legatees, and heirs of Galbraith have appealed.

The court did not file conclusions of fact and law, and was not requested to do so. There was no motion for a new trial filed, but tbe ease is presented on assignments of error filed by tbe appellants in tbe court below and by cross-assignments filed by tbe appellee. Tbe judgment in favor of Street & Graves for tbe land is not complained of by any of tbe parties.

Appellants’ first assignment of error complains of tbe action of tbe court in overruling tbe defendants’ plea of misjoinder of parties and of causes of action. Tbe pleas of misjoinder were in tbe form of special exceptions. Tbe record does not show tbat tbe-pleas were ever called to tbe attention of the court, or that any ruling was sought or obtained thereon. It has been often held tbat an exception to a pleading not acted upon by tbe court will be regarded by the appellate court as having been waived. But even if tbe objection of misjoinder should be deemed to be a plea in abatement instead of a special exception, it came too late, for tbe reason tbat it is set up for tbe first time in an amended answer filed by defendants after answering to tbe merits.

Tbe second assignment complains tbat tbe court erred in awarding plaintiff judgment for tbe money sued for, for the reason that a court of common-law jurisdiction cannot decree that a creditor of tbe estate of a deceased person is entitled to be paid her claim by a debtor of said estate when administration has been taken out, and is still pending on said estate, and the claims of all creditors and debtors of said estate have not been finally adjusted. Under this assignment appellants advance tbe proposition that:

“A creditor or one bolding a claim against the estate of a deceased person must enforce the debt or claim. through an administration, and cannot do so by direct suit.”

Tbe vice in the position taken by the appellants is in the assumption that Mrs. Galbraith was a creditor of J. E. Galbraith’s estate, and tbat as such creditor she was seeking to subject funds of tbe estate held by the bank to the payment of her debt, whereas it is her contention that such* funds belonged to her and not to tbe estate, and that she was seeking to recover tbe funds as her own from the bank, which was holding the same as a stakeholder. The proof shows that the will of Galbraith was probated in New York, and that Baber bad qualified as executor of bis estate, and that the administration is still pending. An admission was made and entered by tbe parties at the trial, wherein it is stated that the money which was in tbe bank and which was paid by tbe bank into the registry of tbe court is the identical money which was paid to the bank by Street & Graves. Tbat the land sold to Street & Graves was tbe community property of Galbraith and the plaintiff is not controverted by appellants in their brief, but was admitted in oral argument. No partition of their community property was made in tbe divorce proceedings in New York, and none attempted. Tbe title to tbe land as conveyed by Allen, standing in the name of J. E. Galbraith, lodged the legal title to all of it in him, but he held the legal title to an undivided interest to a half thereof in trust for Mrs. Galbraith. Upon the conveyance by Galbraith, in whose name the record title stood, of the entire tract of land, including the plaintiff’s undivided one-half interest therein, the title to which had theretofore been held by Galbraith for plaintiff’s benefit, and therefore in trust for her, she became equitably entitled to receive the purchase money for her one-half of said land, and if said trust fund was attempted to be wrongfully diverted by him, she was not required by law to treat him as a debtor, but could elect as to whether she would do so, or whether she would pursue, identify, and recover the trust fund itself, either in its original form or in a substituted form, and, having discovered and identified the trust fund itself, she elected by this action to recover said trust fund from the party in whose possession she found it. In 39 Oyc. p. 528 et seq., it is said:

“It is well settled that a cestui que trust lias the right in equity to follow and recover or impress the trust upon the trust fund or property which has been wrongfully diverted into whatsoever form or hands it may come, so long as it may be distinctly traced and identified, until it comes into the hands of a bona fide purchaser for value without notice, or the rights of innocent third parties have intervened, and until the means of ascertaining the property fails. The general proposition is maintained that if any property in its original state and form is impressed with a trust, no change of that state and form can divest it of such trust, or give the trustee converting it, or those who represent him in right, not being bona fide purchasers for value without notice, any more valid claim in respect to it than they had before such change, and it is immaterial whether the property with which the trust funds are mingled is money or whether it is bills, notes, securities, lands or other property. These rules apply to personal, as well as real, property in trust, and to trust property or funds mingled with property or funds of the trustee or to proceeds of the trust property in the hands of the trustee, or to trust property transferred to third persons. * * * It is well settled that in order that a trust fund or trust property which has been misapplied or wrongfully dissipated may be followed in equity, and the trust enforced as against the trustee or one who has acquired the property with knowledge of its character, it is necessary that it be clearly traced and identified either in its original or a substituted form. * * * According to the more modern authorities, however, the identity of a sum of money does not consist in the pieces of coin, but in the fund, and although the identical pieces of coin or kinds of money cannot be ascertained, yet if the money can be traced as a fund into a general mass of private and trust funds, it can be followed and impressed as a trust on the mixed fund, such as a deposit in bank to the trustee’s individual credit; and this doctrine is further aided by the presumption that, where a trustee withdraws funds from a mixed fund, consisting of private and trust funds, he will be presumed to have withdrawn his own funds. In an action to follow trust property and to enforce the trust thereon, the burden of proof in the first instance, is on the cestui que trust to trace and identify his property, either in its original or substituted form; but when he has shown that property of the trust is represented in the property sought to be impressed with the trust, the burden is then on the trustee or purchaser with notice to show what his interest is. Where the trust fund or property has been wrongfully diverted, the cestui que trust may elect either to pursue and recover the property in its original or converted form, on the terms of the original trust, so long as it is traceable, or to pursue some other proper remedy. Where a trustee diverts or misappropriates the trust funds or property, the cestui que trust may elect to treat him either as a debtor or as a trespasser. * >!■ s- Where a trustee in violation of his trust invests the trust funds or property in other property, into which it can be distinctly traced, the cestui que trust may either follow the same into its original or substituted form and claim it as hold on the original trust, or he may hold the trustee personally liable for his breach of trust.”

On page 668 the following is said concerning bank deposits:

“The doctrine that so long as trust property can be followed the property into which it has been converted remains subject to the trust applies to money specially deposited in a bank and to the debt thereby created, and as long as such money can be traced and identified, either in its original or substituted form, it may be followed and the trust enforced as against the bank which takes it with notice of its trust character, or as against a transferee with such notice, from the bank.”

In the footnote on the same page, supported by a large number of authorities, is the fM-lowing statement of the rule:

“Although the relation between a bank and its depositor is that merely of debtor and creditor, yet the fund does not change its character from the fact that the money has been deposited in the bank to the credit of the depositor, and if the money in his hands was impressed with a trust in favor of another, the deposit will remain subject to the same trust.”

In the case of National Bank v. Insurance Co., 104 U. S. 66, 26 L. Ed. 693, which was a suit brought by the insurance company against bank to recover money which had been dejwsited in the bank by the agent of the insurance company in his own name,.the Supreme Court of the United States said:

“But although the relation between the bank and its depositor is that merely of debtor and creditor, and the balance due on the account is only a debt, yet the question is always open, To whom in equity does it beneficially belong? If the money deposited belonged to a third person, and was held by the depositor in a fiduciary capacity, its character is not changed by being placed to his credit in his bank account.”

In the same case the court quotes with approval from Farmers’ & Mechanics’ National Bank v. King, 57 Pa. 202, 98 Am. Dec. 215, as follows:

“It is undeniable that equity will follow a fund through any number of transmutations, and preserve it for the owner so long as it can be identified. And it does not matter in whose name the legal right stands. If money has been converted by a trustee or agent into a chose in action, the legal right to it may have been changed, but equity regards the beneficial ownership. It is conceded, for the cases abundantly show it, that when the bank received the deposits, it thereby became a debtor to the depositor. The debt might have been paid in answer to his checks, and thus the liability extinguished, in the absence of interference by his principals, to whom the money belonged. But surely it cannot be maintained that when the principals asserted their right to the money before its repayment, and gave notice to the hank of their ownership, and of their unwillingness that the money should be paid to the agent, Ms right to reclaim it had not ceased. A bank can be in no better situation than any other debtor.”

The court also quotes with approval from the case of Van Alen v. Am. Nat. Bank, 52 N.' X. 1, in which case it was decided that when an agent deposits in a bank to his own account the proceeds of property sold by him for his principal under instructions thus to keep it, a trust is impressed upon the deposit in favor of the principal, and his right thereto is not affected by the fact that the agent at the same time deposits other moneys belonging to himself, nor is it affected by the fact that the agent, instead of depositing the identical moneys received hy him on account of his principal, substitutes other moneys therefor. The quotation from the opinion is as follows:

_ “It was suggested on the argument that notice to the bank by the depositor was necessary to protect the rights of the plaintiff; but this is not so. The title of the plaintiff does not depend upon whether the bank knew he had a title or not. That rested upon other facts. A notice to the bank might have prevented any transfer or the creation of a lien by the depositor, or prevented the bank from taking or acquiring such lien in good faith, but could not otherwise be necessary or important.”

In the case of Third Nat. Bank of St. Paul v. Stillwater Gas Co., 36 Minn. 75, 30 N. W. 440, which was a suit by the gas company to recover from the bank money belonging to it which had been deposited in said bank by a third person, the Supreme Court of Minnesota said:

“So long as the trust property can be traced and followed into other property into which it has been converted, that remains subject to the trust. The product or substitute has the nature of the original imparted to it. The depositing of trust money in a bank, although it creates the relation of debtor and creditor between the bank and the depositor, does not change its character, or relieve the deposit from the trust. It is not the identity of the form, but the substantial identity of the fund itself, which is the important thing.”

See, also, Thompson v. Bank, 4 Cal. App. 660, 88 Pac. 987.

As the one-half of the proceeds of the sale had never been paid to Galbraith, hut was held by the bank, and as Mrs. Galbraith’s suit was against the hank for its recovery, Galbraith never became her debtor for the amount of her interest, and therefore she did not, after his death, become a creditor of his estate. In this view it was not necessary for her to enforce her claim for the money through the administration pending in New York. The assignment is overruled, as is also the third assignment, which is also based upon the assumption that Mrs. Galbraith is a creditor of J. E. Galbraith’s estate.

Under the fourth assignment, which sufficiently raises the points, appellants urge:

(1) “That a creditor does not garnish property of his debtor by a direct suit against one indebted to his debtor;” and (2) “a creditor cannot recover in a proceeding against one indebted to the debtor of the creditor when the indebtedness of the defendant in the action is represented by a negotiable instrument.”

If.we assume that these contentions, abstractly considered, accurately state the law as applied to one state of facts, they do not apply to the facts of this case if our conclusions hereinbefore stated are correct. The assignment is overruled.

The fifth assignment is as follows:

“The court erred in awarding plaintiff title to and possession of said money, in that it was represented by a negotiable cashier’s check in the possession of James E. Galbraith at the time of his death in New York, there resident, and was personal property, and descended by virtue of the law of descent and distribution of the state of New York, and was not subject to claims by his divorced wife of the character asserted in this suit.”

Under this assignment we have the following proposition:

“Where a resident of New York state dies there, leaving by will all his property, real, personal, and mixed, to executors, one of whom qualified and acted as such, and the laws of the state of New York provide that divorced wives have not an interest in the estate of their former husbands, such laws control the distribution of the estate of such decedents, and a former wife cannot recover such an interest in the courts of the state of Texas.”

In answer to the foregoing assignment and proposition, as well as to all the assignments presented in appellants’ brief, the appellee makes the following counter proposition:

“In interpleaders each claimant is in a position similar to that of plaintiff in other posses-sory actions where the recovery must bo on the strength of their own title rather than on the weakness of their adversary’s title; and, none of the appellants having shown any right to recover any judgment for any part of the money in controversy, they can have no further concern in the matter.”

The first part of the counter proposition is copied literally from an opinion of the Supreme Court of Georgia in the case of Conway v. Caswell, 121 Ga. 254, 48 S. E. 956, 2 Ann. Cas. 269, and the latter portion is from a decision of the Circuit Court of Appeals in McNamara v. Provident Sav., etc., Society, 114 Fed. 913, 52 C. C. A. 530.

It will be remembered that the bank, claiming to be only a stakeholder of the fund, interpleaded the parties claiming to own it. Each then occupied the position of plaintiff in the claim for the fund, and would have become entitled to it only upon showing a good title thereto. It was not enough that the adversary party had no right of recovery. The sole claim of appellants is based on the ground that they are the executors and dev-isees of Galbraith. It is not alleged in their pleadings that there is no administration upon his estate in Texas, nor is it alleged by them that there is no necessity for administration. It was admitted at the trial that no administration upon his estate had ever been opened in Texas, and that his will had not been probated in Texas. In Hynes v. Winston, 54 S. W. 1069, it is held that the allegations of plaintiffs, suing as heirs, that there was no administration upon the estate of Hynes in Texas, and that there was no necessity for such administration, were sufficient to authorize the parties suing as heirs to maintain the suit. But in Western Union Tel. Co. v. Kauffman, 107 S. W. 630, it is said:

“By the terms of the statute, the heir is authorized to maintain the suit only in the event there is no administration and no necessity therefor. It is well settled that the heir’s petition should contain allegations to this effect, showing his right to sue. G., H. & S. A. Ry. Co. v. Kelley, 26 S. W. 470; H. & T. C. Ry. Co. v. Rogers [15 Tex. Civ. App. 680] 39 S. W. 1112. And it is equally true that the proof must sustain such allegations. In the present case there was neither allegation nor proof upon the subject.”

It follows that the legatees and heirs of Galbraith, having failed to make the necessary allegations and proof to authorize them to maintain this suit, cannot recover, nor are they in a position to complain of the judgment that was rendered.

It is equally clear, we think, that neither Baber nor Dobson, as executors, have any standing in the courts of this state to maintain any claim for the fund. It is admitted that neither of them has ever qualified as executor or administrator in Texas, and, indeed, Dobson has never qualified as such executor anywhere. It seems to be well settled that a foreign executor can neither sue nor be sued in the courts of this state. Clarke v. Webster, 94 S. W. 1088. This seems to be practically conceded by appellants, where in their briefs, referring to the authority above cited, they say:

“The case is practically identical with the present one, with reference to the right of an executor under a New York will to sue or be sued in Texas, deciding that he has not the power of suing or being sued. If this is the situation, then the act of the ’executors in receiving the money (the $818.90 directed to be paid to the executors on account of the expenditures of Galbraith for the protection and benefit of the land) was a nullity, and most certainly cannot bar such rights as the legatees or heirs may have to the property of the vendor or ancestor.”

If we are correct in bolding that the appellants have no standing in court because of want of the necessary allegations to entitle them to maintain the suit as executors, legatees, and heirs, it follows that none of the assignments hereinbefore discussed, nor the sixth and seventh, which urge the question of estoppel on the part of plaintiff, nor of the eighth, which pleads the statute of limitation of two years to her right of recovery, however well taken they might be under other circumstances, present, as to them, any ground for a reversal of the judgment, and they are severally overruled.

We come now to a consideration of the cross-assignments presented by Mrs. Galbraith, thé appellee. The first complains that the court erred in refusing to render judgment in her favor for the entire amount of m'oney, less court costs, paid into the registry of tide court by tlie bank, and by the second she contends that the court erred in rendering judgment in favor of the executors for $818.90 out of the money so deposited by the bank. It follows from the conclusions hereinbefore stated that the executors were without power to sue and be sued in this state, having neither authority nor liability. This being true, no judgment should have been, or can be, entered in their favor for the fund, or any part of it. The assignment is sustained.

The third cross-assignment complains that the fee of $500 allowed C. R. Wharton, Esq., as attorney ad litem is excessive. We are not prepared to so hold. The court knew the amount of work, as well as the responsibility assumed and performed by Mr. Wharton, and was in better position to determine the sum that would fairly compensate him for his services than this court can possibly be. We overrule the assignment.

The Houston National Exchange Bank by a cross-assignment of error complains that the court erred in refusing to render judgment against the executors, requiring them to surrender the cashier’s check issued by the bank to Galbraith and canceling the same. If our conclusion that the foreign executors could not sue or be sued in this state is correct, the court had no power over the executors to require them to surrender the check for cancellation. But independently 'of this question, we think the action of the court in this regard was not error, for these reasons: It was shown that the check was in Galbraith’s possession until he died, and that from that time until about the date of the trial it was in the possession of John P. Baber, the New York executor, and that at the trial it was in the possession of Mr. O. R. Wharton, the attorney ad litem for the nonresident defendants. It is clear that at the time of the trial it had not been acquired by an innocent purchaser for value from either Galbraith or his executor. It was stated in oral argument by Mrs. Galbraith’s counsel, and not controverted, that when the executor, Baber, undertook to collect the check from the bank, which was after Street & Graves had sued out the injunction restraining the bank from paying the same, there was written across the face of the check in red ink the words “Payment stopped by injunction.” We think that with the notice thus given by the language on the face of the check it would hardly be possible for any one who might hereafter purchase the same to contend in good faith that he was an innocent purchaser. It seems to us that this affords the bank adequate protection against a double payment.

The judgment of the court below will be reformed so as to deny to the executor of Galbraith any recovery, and so as to award to the appellee, Bessie Campbell Galbraith, the amount awarded to her in the court below, plus the sum awarded to the executors, and, as so reformed, is affirmed.

Reformed and affirmed.
      <§z^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    CALDWELL, HUGHES & PATTERSON v. YARBROUGH.
    (No. 1611.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 27, 1916.
    Rehearing Denied May 11, 1916.)
    1. Vendob and Purchaser &wkey;s50 — Pubchase-Monet Notes — Mortgage—Construction.
    Defendant, who gave a bond to convey a tract of land, and who at the same time and to secure payment of part of the purchase-money notes took a mortgage on certain bales of cotton which the purchaser expected to grow on the land during certain years, was not a vendor of the crops to be grown on the land, but a vendor of land alone, and the indebtedness was for the purchase money, and not for the crops the purchaser contemplated growing thereon.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 81; Dec. Dig. (&wkey;> 50.]
    2. Chattel Mortgages <&wkey;144 — Record—Priority.
    In such case the plaintiffs who had taken mortgage of the crops which the purchasers expected to grow on the land, which were recorded _ prior to the vendor’s mortgage, had a prior lien.
    [Ed. Note. — For other cases, see Chattel Mort.gages, Cent. Dig. § 241; Dec. Dig. &wkey;>144.]
    3. Chattel Mortgages &wkey;>12 — Aeter-Ac-quired Property — Crops.
    A chattel mortgage on crops not in existence and to be grown on land of the mortgagor will be enforced as a lien on the crops when they come into the possession of the mortgagor, when their acquisition from the land was contemplated when the mortgage was made.
    [Ed. Note.- — For other cases, see Chattel Mortgages, Cent. Dig. §§ 59, 60; Doc. Dig. &wkey;> 12.]
    Appeal from Henderson County Court; C. D. Owens, Judge.
    Action by Caldwell, Hughes & Patterson against C. R. Yarbrough. Judgment for defendant, and plaintiff appeals.
    Reversed, and judgment .rendered for plaintiff against defendant.
    Appellee owned a tract of land in Henderson county, and, it seems from his testimony, in September or October, 1912, verbally agreed with Tom'Dewberry and Sam McDonald to sell same to them. Dewberry and McDonald, according to the understanding then reached, were to give appellee a mortgage on the crop, or a part of it, they expected to grow on the land, to secure the payment of a part of the sum they were to pay for it. Dewberry and McDonald were indebted to appellants, and to secure their indebtedness and $320 which they borrowed of appellants November 18, 1912, to pay to appellee on the land, they on that date mortgaged to appellants the cotton, corn, and cane crops they might grow during the years 1913, 1914, and 1915 on a farm described as belonging to them situated in Henderson county about three miles northwest from Chandler, or on any other lands cultivated by them in said county.
    November 20, 1912, the mortgages were filed for registration in the office of the county clerk of Henderson county. At the time the mortgages were made, to wit, November 18, 1912, appellants delivered to Dewberry and McDonald their check payable to appel-lee’s order for $320. Dewberry and McDonald delivered the check to appellee — when does not appear from the record except by inference — and the amount thereof was paid to him by the bank on which it was drawn.
    Appellant Caldwell, who acted for his firm in the negotiations resulting in the loan to Dewberry and McDonald, testified that before agreeing to make the loan he called ap-pellee over the telephone and explained .to him that Dewberry and McDonald “wanted us — that is, Caldwell, Hughes & Patterson— to advance to them $320 to make a cash payment on a certain tract of land which they were to buy from him. I asked Mr. Yar-brough if he was going to make McDonald and Dewberry a deed reserving a vendor’s lien and look to that solely for his pay, and he said, ‘That is the understanding.’ I then said to him, ‘We will send you a check for the money.’ ” Appellee’s account of the conversation over the telephone was as follows:
    “I did not tell Mr. Caldwell in the phone conversation that I was going to take a mortgage on any of the crops. I did not know what security they were taking to secure them for the money which they advanced, but I presumed they would take a mortgage. I did tell Mr. Caldwell in the phone conversation that I was going to retain a vendor’s lien to secure the purchase money on the land, and that is all I said to him. X did not tell him that I intended to take a mortgage to further secure my debt. He did not ask me that question. If he had asked me I would have told him that X was going to do so.”
    November 30, 1912, appellee made and delivered to Dewberry and McDonald a bond in which, in consideration, it recited, of $300 paid to him by them and the execution and delivery by them to him of six promissory notes for $283.33, payable December 1, 1913, 1914, 1915, 1916, 1917, and 1918, respectively, he bound himself to convey to them a tract of 106% acres, described by metes and bounds and as being situated in Henderson county. At the same time, to wit, November 30, 1912, Dewberry and McDonald, to secure the payment of the three of their notes maturing December 1, 1913, 1914, and 1915, respectively, and the interest as it accrued on the other three notes, made and delivered to appellee a mortgage on nine bales of cotton they expected to grow on the land during the year 1913, and on a like quantity they expected to grow thereon for each of the years 1914 and 1915. This mortgage was filed for registration on December 2, 1912.
    December 25, 1913, the note due December 1, 1913, being unpaid, Dewberry and McDonald, in consideration of appellee’s agreeing to extend the time for the payment thereof to December 1, 1914, to further secure the payment thereof and also the payment of the second of the six notes and “all matured interest,” made and delivered to appellee a mortgage on their entire crops grown on the land during the year 1914. This mortgage was filed for registration January 6, 1914.
    January 6, 1914, appellants for Dewberry and McDonald paid appellee on account of interest due on the notes $170.
    This suit was by appellants against ap-pellee to recover $195, the damages appellants alleged they suffered because of the conversion by appellee in October, 1914, they charged, of four bales of cotton covered, they alleged, by the mortgage made to them by Dewberry and McDonald. In both the justice court and the county court, to which the cause was appealed, judgment was rendered in favor of appellee. On the trial in the county court the record recites:
    “It was agreed by the parties that the defendant O. R. Yarbrough got four bales of cotton raised by the negroes, McDonald and Dewberry, and that the cotton was raised on the land which defendant Yarbrough sold to them; that the four bales cotton averaged 500 pounds each and was of the value of seven cents per pound.”
    Simpson, Lasseter & Gentry, of Tyler, for appellant. Richardson & Watkins, of Athens, for appellee.
   WILLSON, O. J.

(after stating the facts as above). Notwithstanding it appeared from testimony that the mortgages from McDonald and Dewberry to appellants were made and duly registered as required by law before the time when said McDonald and Dewberry made the mortgages to appellee, and further appeared that the indebtedness of McDonald and' Dewberry to appellants which the mortgages to them were made to secure was unsatisfied; notwithstanding the admission in appellee’s pleadings that he had “taken charge of and converted four bales of cotton raised by said Dewberry and McDonald,” and the agreement of the parties at the trial that appellee “got four bales of •cotton raised by the negroes McDonald and Dewberry on the land which defendant Yar-brough sold to them,” the trial court thought appellants were not entitled to recover as sought by them, unless appellee was in the attitude of being estopped by the conversation over the telephone, set out in the statement above, from claiming as against them a lien on the cotton superior to the lien they claimed. Therefore that court refused appellant’s request to instruct the jury to find in their favor, and, instead, instructed the jury to find against them, unless they believed that in the conversation referred' to appellee agreed or led appellants to believe he would not take a lien on the crops to he grown by McDonald and Dewberry during the years 1913, 1914, and 1915 on the land lie sold to them. Appellee insists, and the trial court doubtless thought, that he was the vendor of the crops, that the lien asserted by him was for the purchase price thereof, and therefore that his lien was superior to that of appellants, notwithstanding theirs was prior in point of time. Had it appeared that appellee was the vendor of the crops the view the trial court seems to have taken of the case would have been correct, for, as is said in 5 R. O. L. § 2T, p. 404:

“Where a mortgage is given to cover after-acquired property it covers such property only in the condition in which it comes into the hands of the mortgagor. . If that property is already subject to mortgages or other liens at that time the general mortgage does not displace them, though they may be junior to it in point of time. It attaches only to such interest as the mortgagor acquires; and if he purchases property and gives a mortgage for the purchase money the bill of sale which he receives and the mortgage which he gives are regarded as one transaction, and the prior mortgage cannot displace such mortgage for the purchase money.”

But appellee was not the vendor of crops to be grown on the land. He was the vendor of the land alone, and the indebtedness of McDonald and Dewberry to him secured by the mortgages was for purchase money of the land, and not of crops they contemplated growing thereon. League v. Sanger, 25 Tex. Civ. App. 347, 60 S. W. 898. This being true, no reason is apparent why, if valid, appellants’ mortgages should not have been held to be superior to those of appellee. If they should have been, then the judgment should have been for appellants instead of for appellee. The question then is: Were the mortgages made to appellants valid? In Richardson v. Washington, 88 Tex. 339, 31 S. W. 614, the Supreme Court held, quoting the syllabus:

“When a mortgage is given on crops, not yet in existence, and to be grown on land to which the mortgagor has no lease at the time, equity will enforce the mortgage as a lien on the crops when they do come into the possession of the mortgagor, when their acquisition was contemplated at the time the mortgage was made.”

As it cannot be doubted from testimony in the record that appellants and McDonald and Dewberry contemplated at the time the latter made the mortgages to the former that the latter would acquire from appellee the right to grow crops on the land he sold to them, and would grow crops thereon, it must be held that the mortgages to appellant were valid within the rule recognized by the Supreme Court. If they were, then they became a lien on the crops when grown, and entitled to enforcement as against the junior mortgages to appellee.

It follows we are of opinion the court erred when he refused to charge the jury to find for appellants. Therefore the judgment will be reversed, and judgment will be here rendered in appellants’ favor against appel-lee for $140 — the value of the four bales of cotton, averaging in weight 500 pounds each, at 7 cents a pound — together with interest thereon from April 20, 1915, at the rate of 6 per cent, per annum.
      cgu^sEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes