author: PHTDDIPS, J.

text:
    WISEMAN v. WATTERS et al.
    (No. 2391.)
    (Supreme Court of Texas.
    March 24, 1915.)
    1. Vendor and Purchaser <§=>229 — Bona Eide Purchasers — Record—Notice.
    A debtor, owning in a county a single tract of land consisting of several hundred acres, gave a deed of trust on 101 acres which wholly misdescribed the property. The deed of trust, for a more particular description, referred to the conveyance by which the debtor took title. Sold-, that the purchaser of a portion of the parcel which the debtor actually owned did not have constructive notice of the deed of trust, for it and the conveyance referred to, when taken together, did not show that the property subject to the trust deed was the same that the purchaser acquired.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477-494; Dee. Dig. <©=>229.]
    2. Arpead and Error <§=>1175 — Review — Determination.
    Where a case was fully developed and turned on a question, of law on reversal, judgment will be finally rendered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dee. Dig. <§=> 1175.}
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by C. B. Watters against R. A. Wiseman and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (142 S. W. 134), and defendant named brings error.
    Reversed and rendered.
    Emmett B. Cocke, of San Antonio, for plaintiff in error. Carl & Kercheville, of San Antonio, for defendants in error.
   PHTDDIPS, J.

To secure the payment of two notes in the sum of $500 each, payable to W. E. Wright, C. 0. Maddox executed and delivered his deed of trust, wherein the property mortgaged was described as follows:

“All and singular the following described property, situated, lying and being in the county of Guadalupe and state of Texas, viz.: Being a tract of 101% acres of land, a part of the Y. H. Mannus survey, and being ⅜ of the II. Sulise tract, the north third, lying and situate one and % miles north of the town of Lavernia on the New Berlin and Seguin road, and being more particularly described in a certain deed from H. Frederich to C. O. Maddox of record in Guadalupe county, to which reference is here made for more particular description.”

This deed of trust was duly recorded in Guadalupe county on December 20, 1907. The first of the notes was paid, the other, with the lien, was transferred in due course to J. O. Lamkin, and by him, before maturity, to O. B. Watters, one of the defendants in error. The suit was brought by Watters, upon this last-named note, against Maddox as principal and Lamkin and Wright as in-dorsers, and for the foreclosure of the deed of trust lien, in which connection it was alleged that there was a mistake in the description of the land as given in the deed of trust, in which it was incorrectly described as being a part of the “Y. H. Mannus” grant in Guadalupe county, whereas it should have been described as a part of the “E. Smith and M. Ximines” survey in that county, of which it was in fact a part, as appeared from the description of the land given in the deed from H. Frederich to O. O. Maddox, referred to in the deed of trust. Foreclosure of the lien was also sought against R. A. Wiseman, who answered that on December 23, 1908, he purchased from Maddox and his wife a tract of about 151Vio acres in Guadalupe county out of the E. Smith grant, for which he paid them $1,500 in cash, without any knowledge, actual or constructive, that it had been. previously mortgaged, and that if the property upon which the foreclosure was sought was a part of that which he had purchased, it constituted, at the time of the execution of the deed of trust given by Maddox to Wright, the homestead of Maddox and wife, and was therefore incapable of being 'mortgaged. The trial court found against the homestead contention, rendered judgment in favor of Watters against Maddox, Lamkin, and Wright upon the note, and, correcting the description of the land as contained in the deed of trust in accordance with the prayer of Watters, decreed a foreclosure of the lien against all defendants. Wiseman alone prosecuted a writ of error from this judgment. It was affirmed by the honorable Court of Civil Appeals, reformed so as to give Wiseman a judgment against Maddox and wife for the ¡£1,500 paid them by the former in his purchase, with interest.

The field notes of the tract of 15ls/10 acres purchased by Wiseman from Maddox and wife include tte 1012/a acres in controversy and upon which the lien of the deed of trust, as reformed in its description by the judgment, was foreclosed. Upon the trial it was admitted that Wiseman was a purchaser for value of the 1518/io-acre tract, without any actual notice of the deed of trust. He was accordingly entitled to prevail upon his defense as an innocent purchaser, unless the record of that instrument, under its terms of description of the land therein mortgaged, afforded constructive notice of the lien. Whether it had such effect is the question presented for decision.

Upon principle, it would seem to be plain that the record of an instrument whose terms of -description require a complete reformation in order to express the intention of the parties and subject certain land to its oi>eration, its recitals in themselves indicating no ambiguity of description, does not impart to a subsequent purchaser of such land any constructive notice of its effect. This deed of trust upon its face failed to in any wise suggest that the land which Wiseman purchased was intended as the subject of its lien. Its reference was to lánd in an entirely different survey, namely, “1012/% acres, a part of the T. H. Mannus survey,” whereas the land purchased by Wiseman was 151»/io acres, “a part of the E. Smith survey number six.” Nor did its recitals in themselves give any indication of a misdescription of the land. For it to possess any force at all with respect to Wiseman’s land, it was necessary to vitalize it, in the same proceeding where the foreclosure was sought, by a judgment decreeing an entire reformation of its description. Under these conditions, can it be said to have afforded constructive notice of its operation upon that land?

It is the settled general rule that for the record of an instrument to constitute constructive notice of its effect upon certain land, its description must be such as to reasonably identify the land. It is usual, and of course permissible, to incorporate, by reference, the description contained in other recorded deeds or instruments; and in such case, their description will be considered as set out in the record of the particular instrument. But where this1 is done, the deed referred to and the deed which contains the reference must, when taken together, be certain in description as to the land intended to be affected. Devlin on Deeds, § 1020.

The general rule that under the doctrine of constructive notice there is imputed to the subsequent purchaser or incumbrancer notice only of that which appears on the face of the recorded instrument, and that where there is a substantial discrepancy between the property Intended to be conveyed or mortgaged and that described in the instrument, the record will not .operate as notice, is subject to the qualification ⅝ that where the description in the instrument is ambiguous, inconsistent in its parts, or correct in one particular and false in another, the record is such as to naturally excite inquiry, and under such circumstances it therefore becomes' the duty of the subsequent purchaser or incumbrancer to make inquiry for the purpose of ascertaining what property was actually the subject of the instrument. This qualification of the general rule was announced in Carter v. Hawkins, 62 Tex. 393. It involved a state of case where a recorded mortgage described the property as “the east half” of a certain tract, followed by three certain calls which failed to inclose any land, and, as far as they went,» bounded entirely different land. Later, the grantor in the mortgage conveyed the “east half” of the tract referred to by proper field notes. It was held that a substantial variance between the land described and that actually mortgaged could not be said to exist, doubtless because tbe mortgage distinctly referred to it as “the east half” of the certain tract, its true description; that the lines called for in the mortgage would not include that half or any part of the tract; and an examination of the record would naturally have raised the doubt whether the mortgage embraced the one tract or the other, exciting inquiry as to which it was actually intended to cover. There, in other words, tbe recorded mortgage contained upon its face two descriptions of different tracts of land. It was held that under such conditions the subsequent purchaser should not be permitted to repudiate the notice imparted by the first and appropriate the other, and thereby constitute himself an innocent purchaser, but that he was under the duty of making inquiry.

With the qualification announced in Carter v. Hawkins, the rule is established, at least in this state and in others, that the record of instruments provided or permitted by law to be recorded operates as notice only of the facts' actually exhibited by the record, and not those which might have been ascertained by such inquiries as an examination of the record might have induced a prudent man to make. Taylor v. Harrison, 47 Tex. 454, 26 Am. Rep. 304; McLouth v. Hurt, 51 Tex. 115; Clementz v. Jones Lumber Co., 82 Tex. 424, 18 S. W. 599; Railway Co. v. Gill, 86 Tex. 284, 24 S. W. 502; White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St. Rep. 875; Laughlin v. Tips, 8 Tex. Civ. App. 649, 28 S. W. 551; Neyland v. Lumber Co., 26 Tex. Civ. App. 417, 64 S. W. 696; Simmons v. Fuller, 17 Minn. 485 (Gil. 462); Bailey v. Galpin, 40 Minn. 319, 41 N. W. 1054; Bank v. Gullikson, 64 Minn. 91, 66 N. W. 131; Cass County v. Oldham, 75 Mo. 50; Land & Lumber Co. v. Franks, 156 Mo. 673, 57 S. W. 540; Slocum v. O’Day, 174 Ill. 215, 51 N. E. 243; Simmons v. Hutchinson, 81 Miss. 351, 33 South. 21.

In his purchase, therefore, Wiseman was affected with notice of only that which 'the deed of trust recited, and not what he might have learned upon inquiry had he in fact seen the record of the instrument. Did it recite any fact touching the land he bought, or in any wise suggest that it was the land mortgaged or intended to be mortgaged? No such effect can be given it. There is no feature of the description, on its face, which indicates any purpose to mortgage any other land than IOI2/3 acres- in the “Y. H. Mannus survey.” There is the allusion to the deed from H. Prederich to C. O. Maddox, in which, it was stated, the 1012/s-acre tract was “more particularly described.” But that deed did not describe, nor purport to describe, any 1012/3 acres of land. It only described an entire tract of 806½ acres, out of “the E. Smith and and M. Ximines- grant,” with nothing in the field notes to suggest that they included the IOI2/3 acres designated. It made no mention of any “H. Sulise tract.” Assuming that the effect of the reference to that deed was to import its description of the land it embraced, the description in the mortgage would stand about thus:

“Being a tract of 101% acres of land, a part of the X. H. Mannus survey, and being ⅜ of the H. Sulise tract, the north third, lying and situate 1⅜ miles north of the town of Lavernia on the New Berlin and Seguin road, and being more particularly described in a certain deed from H. Prederich to 0. O. Maddox of record in Guadalupe county, namely, a deed which described by its own field notes a tract of 306½ acres out of the E. Smith and M. Xim-ines grant.”

This would indicate uncertainty as to the survey or grant in which the 101% acres actually lay, whether .the Y. H. Mannus survey, or the E. Smith and M. Ximines grant; but it would suggest in itself no intention to include part of the particular 151Vio acres purchased by Wiseman of the 306½ acres described in the Prederich deed out of the latter grant. If, under such a description, the distinct statement that the land was in the Y. H. Mannus survey be entirely discarded, and the land be regarded as a part of the E. Smith and M. Ximines grant, a mortgage of a “101%-acre tract out of a tract of 306½ acres in such grant,” with no further identification of the tract mortgaged, or anything to show where it lay in the 306½-acre tract, would not of itself indicate that it was included in a particular 1518/io-acre tract out of such 306%-acre tract, or be inconsistent with the idea that it was excluded from it; for they might well constitute distinct parts of the larger tract. Such a description — -and that is all this description amounts to, taken most favorably for the plaintiff in the suit — would simply present a case of failure under the description of the particular instrument and that of the deed included by reference, when taken together, to identify the mortgaged land with any reasonable certainty. Under the established rule it could not operate as constructive notice to a subsequent purchaser.

Wiseman testified that he was not acquainted with any tract known as the “H. Sulise tract,” and that he did not know that the tract he purchased was the only land owned by Maddox in Guadalupe county, or all that he owned of land purchased from Prederich. The case is not one, therefore, of a purchaser in possession Of sufficient actual knowledge to put him upon inquiry. It is governed solely by the determination of the effect of the record of the deed of trust as affording constructive notice of the lien.

The case is clearly not within the rule announced in Garter v. Hawkins. There, as has been stated, in one part of the description the land intended to be mortgaged was in fact described, while here the land purchased by Wiseman was not described anywhere on the face of the record, nor identified in the description included by reference. Neither was the tract actually described in any way designated so as to reveal that it was a part of that land.

The record is of no value unless parties may rely upon what it recites. It was within the power of the mortgagee to record an instrument identifying the land in dispute as that embraced in the mortgage; and the consequence of his failure to do so should be visited upon the defendant in error claiming under him, rather than upon one who, under the record of the case, was an innocent purchaser of an unincumbered title to the land.

The case appears to have been,, fully developed, and turns upon the question of law discussed. The judgments of the district court and the Court of Civil Appeals are accordingly reversed, and judgment will be here entered in favor of the defendant in error Watters, upon the note declared on in his petition against Maddox as principal and Lamkin and Wright as- indorsers, but denying a foreclosure of the deed of trust lien upon the land in controversy, and in favor of the plaintiff in error, Wiseman, except as to any recovery over against Maddox and wife on their warranty.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROWN, C. J.

license: Public Domain

text:
    COX v. PAYNE.
    (No. 2400.)
    (Supreme Court of Texas.
    March 31, 1915.)
    1. Deeds <⅜^59 — Deliveey — What Constitutes.
    Where a grantor made a deed and left it with the notary, and the notary., contrary to instructions, and without authority, recorded it, there was no delivery; for the instrument should not only be placed in the control of the grantee, but it should be'done with the intention that it should become operative as a conveyance.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 136-139; Dec. Dig. <®=>59.]
    2. Public Lands <§=^178 — Entex —Eoebei-tube.
    The rights of an entryman on public land are not forfeited because, before they were perfected by an affidavit 'of settlement required by Acts 29th Leg. c. 103, the notary, with whom was left a conveyance not intended to be delivered until after the filing of such affidavit, without authority, recorded it.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 570-582; Dec. Dig. <g=»178.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Frank Payne against G. C. Cox. A judgment for defendant was reversed by the Court of Civil Appeals (143 S. W. 336), and defendant brings error.
    Affirmed.
    E. R. Pedigo, of Austin, G. B. Fenley, of Uvalde, Claude Lawrence, of Corpus Christi, and W. F. Ramsey, of Austin, for plaintiff in error. Joseph Jones and Geo. M. Thurmond, both of Del Rio, and Charles Rogan, of Austin, for defendant in error.
   BROWN, C. J.

The land in controversy belonged to the public school fund of the state of Texas, and was subject to sale under chapter 103, General Laws of 1905. W. N. Fleming, in compliance with the requirements of said statute, made a purchase of the land, and settled upon the same within the time required by law. However, before he made a return of his affidavit of settlement in compliance with the statute, he contracted to sell his right to Frank Payne, the plaintiff in error, and, in pursuance of that contract, Fleming executed a deed to Payne acknowledging the same before F. W. Church, a notary public, and left the deed in the hands of Church, with instructions not to deliver it until after his' affidavit of settlement should be filed in accordance with the requirements of the statute. Fleming left home — that is, the city of San Antonio, which was also the residence of the notary — and after he had departed the notary, contrary to instructions, and without any authority, sent the deed to the county clerk of the county in which the land was situated, and it was placed upon the records of that county., After this was done the affidavit required by law was forwarded to, and filed in, the general land office, and thereafter the transaction between the parties was completed by the execution of Payne’s note to Fleming and the delivery of possession by Fleming to Payne of the land in suit.

The correctness of the judgment of the Court of Civil Appeals in this case depends upon a proper construction of the facts and circumstances under which Fleming made the deed transferring the land in controversy to the plaintiff in error. It is unnecessary for us- to rehearse the facts other than those that concern the question directly involved. It is sufficient to say that the evidence contained in the agreed statement of facts established the proposition that Fleming had acquired the right to perfect his purchase of the land in controversy, having complied with the law up to the .time of his transfer of the land to Payne. The issue of law is properly presented by the statement of the substance of the evidence. Fleming and Payne had an agreement by which Fleming sold to Payne the right to acquire the land in controversy under his settlement, and there was an agreement as to the sum to be paid and all conditions of the sale. This occurred before Fleming had filed in the general land office the affidavit of settlement in compliance with the requirements of the statute. Fleming executed a deed conveying his right in the land and deposited it with the notary public in escrow; that is, with instructions to hold -it until the transaction was completed. The notary having, contrary to instructions, caused the deed to be recorded before the return of the affidavit of Fleming, presents the question for consideration: Did such act contrary to the instructions of Fleming constitute a delivery to the vendee so as to convey Fleming’s right? In other words, Was this a sale by Fleming to Payne, when, in fact, it was not intended by Fleming that it should be so made? Under the facts of the case, Did the deed transfer the right of Fleming to Payne notwithstanding it was not the intention of Fleming or Payne that it would be so delivered and should operate as a transfer at that time?

There is no question of fact involved in this case, but simply a question as to the legal effect of the action of the notary public in causing the deed to be recorded without the consent of the vendor.

We are of opinion that the question in this case is very clearly and distinctly decided in Steffian v. Bank, 69 Tex. at page 518, 6 S. W. at page 824, in which Justice Gaines defines a sale as follows:

“It is elementary law that the delivery of a deed is requisite to its validity as a conveyance. To take effect, it is quite as necessary that it should be delivered as that it should be signed. To complete a delivery, in its legal sense, two elements are also essential: The instrument must not only be placed within control of the grantee, but this' must be done by the grantor with the intention that it shall become operative as a conveyance.”

The contention of the defendant in error in this case is clearly met and overturned by the following language used by Judge Williams, expressing the law applicable to the facts of this case:

“The fact which operates as a forfeiture is not the filing of a deed bearing a date anterior to -that of filing the affidavit of settlement, but the transfer or attempted transfer of the land in one of the methods mentioned prior to the filing of such affidavit, that act, nothing less, is the cause of forfeiture. The date of a deed is only evidence, and not conclusive evidence, of the date of the transaction.” Patton v. Terrell, 101 Tex. 221, 105 S. W. 1115.

It appears beyond question that it was not the intention of the parties that the deed should be delivered before the completion of the transaction by returning the affidavit of settlement required by the statute, and, as stated by Judge Williams, the date of the deed does not govern, and the unauthorized act of the notary public in having the deed recorded does not constitute a delivery by the vendor. The title did not pass to Payne by the record of the deed in the county in which the land was situated. The affidavit required by law was afterwards filed in the land office, and thereafter the transaction was completed by the parties and possession delivered.

We would violate that fundamental principle of construction of statutes that terms of forfeiture are to be strictly construed if we should hold to the contrary, and construe as a delivery the act which was not intended by either party to have been performed, but was wholly unauthorized by either the purchaser or the vendor.

We therefore are of opinion that the district court erred in rendering judgment against Payne in this action, and that the Court of Civil Appeals correctly reversed and rendered the judgment in the said case.

Therefore it is ordered that the judgment of the Court of Civil Appeals be, and the same is, in all things ailirmed.
      egusFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=}3Tor' other cases see same topic and KEY-NUMBER in all Key-Numbered-Digests and Indexes


text:
    J. T. BURGHER & CO. v. FLOORE.
    (No. 2389.)
    (Supreme Court of Texas.
    March 31, 1915.)
    1. Beokees <®=^51 — Right to Compensation —SOMTCIENCY OF SEBVICE.
    A broker engaged to find a tenant for his principal for a commission, who introduced one who rented the premises, and whose services in procuring a tenant were accepted by the owner, was entitled 'to recover a reasonable compensation therefor.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 09; Dec. Dig. <S=s>51.)
    2. Appeal and Ebbob @^1031 — Revebsal— Conflicting Instbuctions.
    Where the court gives two contradictory instructions, one of which is erroneous, and it cannot be told on which the jury based its verdict, the judgment must be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. 1031.]
    Error to Court of Civil Appeals of 'Fifth Supreme Judicial District.
    Action by J. T. Burgher & Company against John W. Floore. Judgment for plaintiff was reversed by the Court of Civil Appeals (142 S. W. 939), and plaintiff brings error.
    Affirmed, and cause remanded.
    Wm. Poindexter and J. B. Haynes, both of Cleburne, and R. C. Fuller, of Ft. Worth, for plaintiff in error. Walker & Baker and Mitchell Davis, all of Cleburne, for defendant in error.
   BROWN, C. J.

This cause was decided in the Court of Civil Appeals of the Fifth District, and the judgment of the district court was reversed and the cause remanded by the majority of the court, Chief Justice Rainey dissenting from the said action. The application for writ of error was granted because of that dissent. We cannot better state the matter in issue than to copy from the opinion the statement made therein with reference to the facts of the case and the opinions of the majority and of the minority.

The action was brought by Burgher & Co. against Floore to recover compensation for procuring a renter for a certain building which belonged to Floore. It was claimed by Burgher ■& Co. that they furnished to Floore a person who was ready and willing to rent the building on the terms stipulated by the owner, and that subsequently such person so presented did consummate the contract, and rented'the building as said Burgher & Co. had induced him to do.

We copy from the opinion of the court as follows:

“A majority of this court, however, are of the opinion that the case should be reversed for error in the following charge, which reads: ‘If yon believe from the evidence that the plaintiffs, J. T. Burgher & Co., made and entered into a contract with the defendant, John W. Floore, to find him a renter for the lower floor of his three-story brick building, situated on Houston street in the city of Ft. Worth, Tex., and you believe from the evidence that the defendant, John W. Floore, agreed and consented to pay the plaintiffs a reasonable and usual commission for said services, and that afterwards the plaintiffs, or J: tí. Caruthers for them, secured William Reeves and introduced him to the defendant, John W. Floore, for the purpose and with the intent of leasing the lower floor of defendant’s said building for a period of 10 years at $175 per month, and that afterwards John W. Floore did rent said lower floor to said William Reeves, or if you find that no contract was made between Caruthers and Floore, but you believe from the evidence that J. T. Burgher & Co., with the consent of the defendant, Floore, procured the said William Reeves as a tenant for the ground floor of said building, and defendant accepted said services, then in either event you will find for the plaintiff such sum of money as you may believe from the evidence is a reasonable and fair compensation to the plaintiffs for such services.’ They are of the opinion that the language there, ‘for the purposes and with the intent of leasing the building to him for the period of 10 years,’ is misleading, for the reason that the intent of ap-pellees in introducing Reeves was not a sufficient basis for a recovery against appellant, in the absence of a contract between them that appellant would pay a commission, and the party introduced was able and willing to make a lease for 10 years. That appellant had entered into a contract with Reeves for a 3-year lease was not sufficient upon which to base a recovery, as the appellees were not entitled to recover unless there was an understanding between appellees and Floore that appellees were to procure a tenant for ten years.”

The dissenting opinion by Chief Justice Rainey we copy as follows:

“The writer hereof is of opinion that while the charge is not as definite and explicit as ⅛ should be, yet the case should not be reversed for the reason stated. The idea in the trial court’s mind, I take it, was that the broker was acting in good faith in presenting Reeves, believing Floore desired to enter into a lease contract, and that such presentation was made with no other object in view. I think if this was error it was harmless in view of the full charge of the court. The recovery was predicated on appellant’s having contracted for the services of appellees in procuring a tenant for the period of 10 years. Appellees produced testimony, if believed by the jury, to establish their cause of' action. Appellant’s testimony was diametrically opposite. The court charged the jury to find for plaintiffs if they believed said contract was made and such party was presented by plaintiffs. On the other hand, the court charged the jury to find‘for the defendant as follows: ‘If you believe from the evidence that plaintiffs, through J. S. Caruthers, induced and procured William Reeves to see John W. Eloore, and that said Caruthers did introduce Reeves to Eloore, but you further believe that John W. Eloore did not agree and consent to pay any commission to the plaintiffs or to Caruthers'for them for the finding of said lease, and did not accept the services of J. T. Burgher & Co. to secure said Reeves as a tenant, then you will find for the defendant, although you may believe from the evidence that the defendant afterwards did lease said property to William Reeves.’ Erom this charge it will be seen that defendant would not be liable unless the contract was entered into as alleged and testified to by Caruth-ers, one of the plaintiffs, or appellant accepted their services. It is evident to my mind that the jury, under this change, believed that the contract for commissions as stated by Caruth-ers, or the services of plaintiffs, had been accepted by defendant, and did not take into consideration the fact that a lease had been made for 3 years with an option of 10 years longer, as the jury had been instructed not to consider the 3-year contract. So it appears, I think, that the language considered error by the majority of this court could not have proved prejudicial.”

The charges of the court as given in the opinion of Chief Justice Rainey show that there is a conflict in this: The court first charges the jury correctly as to the law in case there was an agreement between the parties that the plaintiff below should seek and procure for the defendant a renter for his building, and upon that issue the testimony was conflicting. The plaintiff in the case testified that he had such an agreement, and that he procured the renter in pursuance of the agreement, with the understanding that he was to receive compensation for his services. Upon that phase of the testimony the charge was properly submitted as to the liability of the defendant. However, the defendant testified that he had no such agreement with the plaintiff in the case, and that he made no promise of compensation to the plaintiff. The court charged the jury, in substance, that if they believed from the evidence the plaintiff presented to the defendant a renter for his house, without any agreement on the part of the defendant that he should do so, or that he should receive compensation, and if they believed that the defendant afterwards made a lease contract to the person so presented, then they would find for the plaintiff a fair compensation for the services rendered. The charges are in direct conflict with each other. The charge last referred to is evidently not a correct statement of the law, because if the plaintiff on his own initiative sought and presented the party desiring to rent the building, without any solicitation by or contract with the party defendant, then the defendant would not be liable for any compensation to him for that act. Warwick v. N. American lnv. Co. of United States, 112 Mo. App. 033, 87 S. W. 78; Cyc. vol. 31, § 1488 (ii); Am. & Eng. Ency. of Law (2d Ed.) page 1097.

We have then the two conflicting charges, and it is not a case in which a verdict upon either one of the issues submitted would be correct as against the defendant, but the jury might have found a verdict against the defendant upon the charge last stated above or upon the first, so that it is impossible for the court to determine whether the verdict was based upon the one or the other; and, as the charge last cited was erroneous, the verdict may have been based thereon, making the defendant liable for compensation to the plaintiff for his voluntary action in securing and presenting one who desired to rent his house, without any solicitation or agreement on the part of the owners of the house. In this condition of the record we must hold that the majority of the Court of Civil Appeals was correct in reversing the case, and correctly stated the law to he that if the defendant did not employ the plaintiff in error to procure the tenant, nor agree to pay anything for his act in so doing, then the defendant in error would not he liable, although he did make a contract of rental with the person who was so presented by the plaintiff in error.' In other words, it was a voluntary act on the part of the plaintiff to present the applicant for the renting of the house, for which the defendant in this case was not liable.

it is therefore ordered that the judgment of the Court of Civil Appeals in reversing and remanding the case for another trial be and the same is hereby affirmed, and it is ordered that this canse he remanded to the district court for further proceedings according to law.
      <&5>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PHILLIPS, J.

text:
    BLACKSTONE v. KANSAS CITY LIFE INS. CO.
    (No. 2411.)
    (Supreme Court of Texas.
    March, 1915.)
    1. Insurance <®=295 — Application fob Insurance — Misbepbesentations—Residence and Birthplace.
    A printed form of application furnished by a life insurance company contained a question as to the applicant’s residence, followed by the words “Street,” “City,” “County,” and “State,” after each of which words was a blank space. The blank spaces did not afford room for a detailed statement of the exact location of a rural residence. Another part of the application called for his residence without adding the headings mentioned. A question as to his place of birth was followed by the words “Town,” “County,” and “State,” after each of which was a blank space. The applicant was born and resided on a farm about seven miles from B., which was his post office address and trading point, and he wrote B. in the space for the city of his residence and the town of his birthplace, and also stated his residence as B. where it was asked for the second time. Held that, while his answers were not literally accurate, they were substantially true, and did not invalidate the policy as the form of the application was such as easily to mislead a person in his effort to answer the questions truthfully, and, where his residence was asked for without the headings mentioned, he was entitled to assume that it called for the same answer as in the other question.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 673; Dec. Dig. <S=295.]
    2. Insurance <©=293 — Application for Insurance — Misrepresentations — Family History.
    Where, in a printed form of application for life insurance, a question calling for the applicant’s full family history was followed with the words, among others, “Brothers” and “Sisters,” with spaces for indicating the number of each, living and dead, a policy was not invalidated by an applicant’s statement that there were three brothers living, when, in fact, he had only two brothers, as, though not technically correct, he might reasonably have concluded that it called for the number of boys in the family, including himself.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 693; Dec. Dig. <S=293J
    3. Insurance <©=>293 — Application for Insurance — Misrepresentations — Family History.
    Where an application for life insurance asked only for the number of the applicant’s brothers and sisters, living and dead, the applicant’s failure to include his half-brothers and half-sisters did not invalidate the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 693; Dec. Dig. <¿=293.]
    4. Insurance <©=296 — Application por Insurance — Misrepresentations — Occupations.
    A statement in an application for life insurance that the applicant had never been engaged in, or connected with, the manufacture or sale of malt or spirituous liquors, was not untrue so as to invalidate the policy, though, when a small boy, the applicant had worked about his father’s still in a minor way.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 674; Dec. Dig. <S=296.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by James E. Blaekstone against the Kansas City Life Insurance Company. A judgment for plaintiff was reversed by the Court of Civil Appeals (143 S. W. 702), and plaintiff brings error.
    Reversed, and judgment of the district court affirmed.
    J. S. Barnwell and Warren & Briggs, all of Gilmer, for plaintiff in error. Locke & Locke, of Dallas, for defendant in error.
   PHILLIPS, J.

The suit was one by the plaintiff in error upon two policies of life insurance issued June 23, 1909, by the defendant in error upon the life of his son, Harvey A. Blaekstone. In the trial court the case was submitted to a jury on special issues, resulting in a verdict and judgment for the plaintiff in the sum of $6,300. The judgment was reversed by the honorable Court of Civil Appeals upon the ground that certain statements made by the insured in his application for the insurance which amounted to warranties were, untrue, and judgment was rendered for the defendant in error.

Each of the policies contained a clause declaring it to be incontestible after one year from the date of issue. The act of 1903 (articles 4947-4951, R. S. 1911) providing that the falsity of statements made in the application for insurance shall constitute no defense to a suit to recover upon the policy, unless the misrepresentation was in relation to a matter material to the risk or contributing to the contingency or event rendering the policy due and payable, has, therefore, no application, and the case turns upon the question whether the statements in question are to be regarded as untrue. An issue was made by the defendant in respect to a fraudulent procurement of the policies, but it was one purely of fact, and is therefore settled by the verdict. The statements referred to involve the answers made by Harvey A. Blaekstone to questions contained in the application in respect to: (1) 1-Iis place of birth and residence; (2) the number of his brothers and sisters, living and dead; and (3) whether he was then or had ever been engaged- in, or Connected with, the manufacture or sale of malt or spirituous liquors. The questions to which the answers related were a part of a printed form in the application. The question in respect to residence, in part 1 of the application, was propounded for answer as to “Street,” “City,” “County,” and “State,” a blank space being left after each of these respective headings for the insertion of the answer. Blackstone’s answer to the question was: “City, Big Sandy; County, Up-shur ; State, Tex.” In part 2 of the application he was asked to give his “residence,” and his answer was, “Big Sandy, Texas.”

In respect to the place of birth, the form was thus printed: “Give place of birth. Town,-; County,-; State-.” The answer of Blaekstone was made so as to state that he was born in the town of Big Sandy, Upshur county, Tex. He was, in fact, born on tbe farm of bis father, situated about seven miles from Big Sandy, in Up-shur county, and had continuously resided there to the date of his death, August 5, 1909 •; Big Sandy being the post office address of his father and himself, and their trading point.

The .form in the application calling for a statement of family history as to brothers and sisters was in part as follows:

“Give full family history as accurately as possible. ⅜ ⅜ ⅜
“Family History.
Father,
Mother,
Brothers
Sisters
Name -
Name -
(Number living (Number dead -
(Number living (Number dead -

Blaekstone’s answer was: “Brothers living, three; dead, one; sisters living, two; dead, none.” He had at the time two full brothers living. He had also two full sisters, both living. His father was married three times; Harvey A. Blaekstone being a child of the second marriage. At the time of making the answer he had five half-brothers living, and one half-sister was dead.

The further statement made by him in the application was that “he was not then and had never been engaged in or connected with the manufacture or sale of malt or spirituous liquors.” It appears that his father at one time maintained a still, and the testimony was that, when a small boy, Harvey Blaekstone was at« times about the still, and “sometimes worked there as a hand; that he did not know anything about making whisky, but helped with the peaches and apples.”

When the form of the questions and the construction of which they admitted are considered, it seems to us that it requires a very technical construction to say that any of these statements was untrue. In part 1 of the blank printed form prepared by the insurance company, and to be therefore most favorably construed for the beneficiary in the policy, the applicant was required to state his place of residence. The question called for a statement, not only as to the county and state, but the city and street as well. No provision was made for an answer stating a rural residence, except by merely giving the name of the county and state, or by the addition of qualifying words, the use of which the form does not appear to have contemplated. Any one residing in the country endeavoring to truly answer the question might reasonably conclude from its form that a more definite statement of his residence was expected than merely the name of the county and state in which he lived; and the presence in the printed form of the heading “Oity,” with the blank space following for the insertion of an answer, might reasonably suggest to him the advisability of stating the name of the city or town nearest to which he lived and constituting his address, and prompt him to do so under an honest belief that it was desired. The answer given was not technically true; but neither was the form of the question technically accurate in its application to one not having a city residence, and might easily mislead such a person in his effort to answer it. It may be said that the form in which the question was propounded invited the form in which the answer was given. It was at least open to the construction of inviting such an answer by one not having a city residence. In the light of the question, therefore, the answer is not, in our opinion, to ba regarded as substantially untrue, though not literally accurate. This form was plainly not adapted to a literally exact answer by one having only a rural residence. Its heading, arrangement, and the size of the blank spaces left for the insertion of answers indicate that its use by such an applicant was not in mind when it was framed. Room was not afforded in the spaces left blank for a detailed statement of the exact location of a rural residence such as would be required in order to be literally true and. at the same time technically accurate. The form carries to our minds no suggestion of the necessity of such an answer. If the company desired an answer of that precision, it ought to have provided a form which indicated such a requirement, and admitted of such an answer being conveniently written. Where it is apparent, as it is here, that the form of an answer was influenced by the form of the question propounded, and, under an admissible construction of the question, was not substantially untrue, it is difficult to impart to it the character of a positive misrepresentation; and we do not believe the law requires that it should be given any such effect.

Blaekstone’s answer concerning his place of birth was made in the same way and upon practically the same character of form. It should be regarded, we think, as substantially true in the light of the form in which the question was propounded.

In part 2 of the application a second statement of “residence” was required. Here the question was not put in the same form as in part 1 of the application, above discussed: but in the printed form only the heading “Residence” appeared, followed by a blank space for the answer. In this space the answer was inserted “Big Sandy, Texas.” We think this question was entitled to be construed by the applicant with the question asked in the other part of the application on the same subject, and as indicating that an answer in the same form was desired.

The case of Hutchison v. Insurance Co., 39 S. W. 325, in which a writ of error was denied by this court, is cited in support of the contention that these answers should be regarded as avoiding the policy. ' There the assured stated in his application for insurance that his place of residence was Kyle, Hays county, Tex., when he, in fact, resided in the country, about 12 miles from Kyle. The Court of Civil Appeals for the Third District held that, because his statement was not literally true, a breach of the warranty in the policy resulted. It does not appear from the record of the case in this court that the answer was there made in response to a question in the form of that contained in part 1 of this application. If so, it was a feature of the case not noticed in the opinion, and not presented to this court in the petition for writ of error. But it should not be overlooked here, for it is apparent to us that it was purely the form of these questions which determined the form of the answers given; and it is equally evident that the answers are in the form that any honest applicant desiring to state only the truth might conclude was intended by the questions propounded. However considered, that decision is an extreme one, and it is doubtful whether it should ever have been approved. Under its reasoning, in a similar case one living within the general confines of a city, in what was commonly regarded as the city, but immediately without the corporate line, would be equally guilty of a misrepresentation if he stated that the city was his place of residence, on the ground that the statement was not literally true.

It is urged by the defendant in error that Blaekstone’s answers in the application in relation'to his family history were untrufe, for the reason that he had at the time living two full brothers and five half-brothers, and one half-sister dead; whereas his answer was, “Brothers living, three; sisters living, two; none dead.” The question was, in our opinion, open to the construction which Blackstone doubtless placed upon it in making his answer, and under that construction the answer was accurate. 1-Ie was asked to give his family history; first his father’s name, then his mother’s name, and then the number of brothers and sisters living and dead. It is a common form of expression, though perhaps not technically correct, to speak of the number of brothers or sisters in a family when the number of sons or daughters is intended; and Blackstone, in making answer to the question, may reasonably have concluded that it called for the number of brothers in the family, living, including himself. There were three of the brothers living, including himself, as his answer stated.

The question in respect to both brothers and sisters was likewise open to the construction that only those of the full blood were meant, and his answers are not to be regard-sd as untrue because they failed to embrace those of the half blood. If' he had included the latter, his answers would have been as fully subject to cavil and the charge of technical inaccuracy as the replies actually made; for then it might have been said that the terms “brothers” and “sisters” did not mean half-brothers and half-sisters, since it

is not necessarily true that the terms at all times and under all circumstances include those of the half blood.

was the answer of the assured “that he was not then and had never been engaged in or connected with the manufac-manufacor sale of malt or spirituous liquors” shown to have been untrue. "We have already repeated the substance of the evidence upon this feature of the case. It is, in our opin-opinidle to say that one casually around his father’s still while a mere child, as a child might resort to his parent’s place of business, though sometimes working in the capacity of a helper, in necessarily a minor way — in this case “helping with the peaches and apples”— is proven to have been at one time “engaged in,” or “connected with,” the manufacture of spirituous liquors.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed.
      @=ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    Ex parte CRAIG.
    (No. 3495.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Bail <S=o43 — Bailable Offenses — Negligent Homicide.
    Where the evidence raises the issue of negligent homicide of the second degree, the defendant is entitled to bail.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. <⅜==43.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Habeas corpus for bail by D. H. Craig. Writ denied, and petitioner appeals.
    Reversed, and bail fixed.
    Clarence Kendall and Kahn & Williams, all of Houston, for- appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for murder. He sued out a writ of habeas corpus for bail, which was denied by the district judge after hearing the evidence; hence this appeal.

We have carefully read the evidence adduced on the hearing. Appellant earnestly contends that the evidence raises the issue of negligent homicide of the second degree, and presents authorities on that subject As the record appears before us, it seems that issue is raised. At any rate, wo are clearly of the opinion that appellant was entitled to bail. Russell v. State, 71 Tex. Cr. R. 377, 160 S. W. 75; Stephens v. State, 170 S. W. 718.

The judgment of the district judge denying bail is therefore reversed, and his bond fixed by this court at $10,000. Upon the execution of -bond in accordance with the law, the sheriff is directed to release appellant.

The judgment is reversed, and bail fixed at $10,000.
      (gssE'or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    HOWARD v. STATE.
    (No. 3471.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Laboeny <©=>88 — Theft of Automobile — Punishment — Statute.
    The theft of an automobile valued at $300 is punishable under Acts 33d Leg. c. 100, § 1, providing that one stealing any motor vehicle worth over $35 shall be imprisoned in the county jail for not less than six months and not more than one year, and not under the statute relating to the theft of property valued at more than $50, for which a penitentiary sentence is authorized.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 214; Dec. Dig. <®=>88.]
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    A. L. Howard was convicted of the theft of an automobile, and he appeals.
    Reversed and remanded.
    J. T. Hightower, of Dallas, for appellant. C. G. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged by indictment with theft of an automobile of the value of $300. He was tried in the district court and given two years in the penitentiary.

Under the recent act of the Legislature, theft of an automobile is made a misdemeanor. This matter was reviewed in the recent case of Sparks v. State, 174 S. W. 351, from Clay county, in an opinion by Judge Harper. Under the authority of that case, this judgment will be reversed, and the cause remanded.


text:
    DAVIS v. STATE.
    (No. 3470.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Cbiminal Law <©=>1086, 1090 — Appeal—Bill of Exceptions.
    Without a statement of facts qr bill of exceptions, and where there is no motion for a new trial in the record, nothing is raised that can be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2736-2770, 2772,2789, 2794, 2803-2822, 2825-2827, 2927, 2928, 2948. 3204; Dec. Dig. <©=51086, Í090J
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.'
    Leroy Davis was convicted of burglary, and he appeals.
    Affirmed. .
    C. C. McDonald, Asst. Atty. Gen., for the State;
   PRENDERGAST, P. J.

Appellant was convicted of burglary. There is no statement of facts nor bills of exceptions. There is even no motion for new trial in the record. Therefore nothing is raised that can be reviewed.

The judgment is affirmed.


author: HARPER, J.

text:
    BROWN v. STATE.
    (No. 3472.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Ceiminal Law <©=>1090 — Appeal — Bill of Exceptions.
    Without bills of exception or a statement of facts accompanying the record, no grounds in the motion for a new trial can be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. Dig. <©=> 1090.]
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Goodman Brown was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault with intent to rape, and his punishment assessed at 21 years’ confinement in the penitentiary. As no bills of exception nor statement of facts accompanies the record, there is no ground in the motion for a new trial we can review.

The judgment is affirmed.


text:
    SMITH v. STATE.
    (No. 3473.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Ceiminal Law <©=>1097 — Appeal — Statement of Facts.
    In the • absence of a statement of facts, grounds in a motion for new trial that the verdict was contrary to the law and evidence cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dee. Dig. <©=> 1097.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Edna Smith was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    Q. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of keeping a disorderly house, and her punishment assessed at a fine of $200 and 20 days’ imprisonment in the county jail.

The only grounds in the motion allege: (1) The verdict is contrary to the law; (2) the

verdict is contrary to the evidence. As no statement of facts accompanies the record, such grounds cannot be considered.

The judgment ,is affirmed.


text:
    RUBY v. STATE.
    (No. 3461.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Criminal Law <©=>1095, 1102 — Bill of Exceptions — Time fob Filing — Stbikng.
    A statement of facts and bills of exception not filed until 30 days after adjournment of the term at which accused was tried was too late, and would be stricken on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. 1>⅛. § 2847; Dec. Dig. <©^1095, 1102.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    B. F. Ruby was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an aggravated assault. The term of court at which he was tried adjourned January 2, 1915. The statement of facts and bills of exceptions herein were not filed until February 1, 1915, 80 days after the court adjourned. The motion of the Assistant Attorney General to strike out and not consider the bills and statement of facts, because filed too late, must therefore be sustained. In the absence of these, no question is raised which can be reviewed. However, we might say that we have read his bills and statement of facts, although- filed too late, and, if they had been filed in time, they present no error for which this case could be reversed.

The judgment is therefore affirmed.
      <©=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■ PLEASANTS, C. J.

text:
    MURRAY CO. v. RANDOLPH et al.
    (No. 6764.)
    (Court of Civil Appeals of Texas. Galveston.
    March 12, 1915.)
    1. Chattel Mortgages <©=277 — Foreclosure — Defenses—Bona Fide Purchaser.
    Where, in a suit to foreclose a chattel mortgage covering property transferred by the mortgagor to defendant and by him transferred to codefendant, defendant alleged that before the suit it sold all of his interest in the property to codefendant, who did not make the defense of innocent purchaser or the acquisition of title from an innocent purchaser, plaintiff was entitled to a foreclosure of his mortgage, for the defense of innocent purchasers, to be available, must be pleaded.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 564M566; Dec. Dig. <©=277.]
    2. Vendor and Purchaser <®=231 — Notice-Chattel Mortgages.
    A purchaser of real estate need only take notice of the record title of the land, and is unaffected by a recorded chattel mortgage on a fixture which has become a part of the realty.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Dec. Dig. <®=231.]
    3. Chattel Mortgages <©=90 — Record—Mistake of Clerk — Effect.
    Where a copy of a chattel mortgage was duly filed in the office of the county clerk, who erroneously indexed the mortgage by placing the name of the mortgagee under the heading “Mortgagor,” and the name of the mortgagor under the heading “Mortgagee,” the registration of the mortgage was effectual as notice, notwithstanding the mistake.
    [Ed. Note. — For other cases, see Chattel Mortgagees, Cent. Dig. §§ 168-173; Dec. Dig. <©=
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by the Murray Company against Clyde Randolph and others. From a judgment granting insufficient relief, plaintiff appeals.
    Reversed and rendered.
    W. C. Carpenter, of Bay City, and J. J. Eckford, of Dallas, for appellant. E. E. Bateman and Gordon Lawson, both of Pa-lacios, for appellees.
   ■ PLEASANTS, C. J.

This suit was brought by appellant against appellee Clyde Randolph to recover the amount due upon a promissory note for $400, executed by said appellee on July 27, 1908, and payable to appellant, or order, on December 1, 1909, with interest fromi date at the rat.e of 8 per cent, pel’ an-num until maturity, and 10 per cent, thereafter, and 10 per cent, attorney’s fee, if collected by suit or placed in the hands of an attorney for collection. Plaintiff further sought to foreclose a chattel mortgage upon certain gin and mill machinery, fixtures, and appliances, sold by appellant to appellee, for a portion of the purchase money of which the note in question was executed. The petition alleges the execution of the mortgage on July 27, 1908, and its registration ⅛ Mata-gorda county, where the property, which is fully described in the petition, is situated. It further alleged that W. J. Gover and D. C. Deal are asserting some claim to the property, and they are made parties defendant. Judgment is asked against defendant Randolph for the amount due upon the note, with interest and attorney’s fees, and against all of the defendants foreclosing the mortgage upon the property described in the petition.

The defendant Randolph did not answer. The defendant W. J. Gover filed a general demurrer and general denial. Defendant D. C. Deal answered by general demurrer, special exception, and general denial, and by special plea in which he alleges, in substance, that he purchased from defendant Clyde Randolph certain lands and premises described in his answer, and that the machinery and fixtures described in plaintiff’s petition were situated in a building on said land, and were at the time of his purchase so attached to the realty as to be a part thereof; that said premises and improvements were conveyed to him by Clyde Randolph by warranty deed, and that he purchased said property without any knowledge or notice of the fact that plaintiff had or claimed any lien thereon. It is further alleged that plaintiff’s mortgage was not duly filed and registered as a chattel mortgage, because it was not properly indexed on the mortgage index of Matagorda county, in that the name of Clyde Randolph, the mortgagor, appears upon said index as “mortgagee,” and the mortgagee, the Murray Company, as “mortgagor.” It is further alleged:

“And for further answer herein, if such answer is necessary, this defendant would further show to the court tnat he took possession of the lands and premises in ‘Exhibit B’ described on the 1st day of November, A. D. 1910, and continued to hold the same in peaceable adverse possession and without notice, either actual or constructive, of the claim of the plaintiff herein, until on or about the 1st day of October, A. D. 1912, when he transferred all his right, title, and interest in and to the property in ‘Exhibit B’ described to one W. J. Gover; and_ that thereafter, to wit, on the 7th day of April, A. I). 1913, the said W. J. Gover received a letter from the plaintiff herein, and this defendant then received his first knowledge of the said lien or mortgage; the said letter stating that they held a mortgage on the property of this-defendant (the property described in their original petition) and that they desired to collect the same. And this defendant would further represent that he again went to the office of the county clerk of Matagorda county, Texas, and 'diligently searched for, but failed to find, the said mortgage, and so advised the plaintiff, and that he had the certificate of W. O. Lloyd, the then county clerk, made, showing how the said mortgage was recorded, which said certificate is hereto attached, marked ‘Exhibit C,’ and made a part hereof, and reference is here made to the same for contents thereof.
“This defendánt further represents that under the terms of the instrument held by plaintiff and denominated a chattel mortgage, and under which such rights as it pretends to have are claimed, it contains a clause showing that said machinery, on the 27th day of July, 1908, was at Palacios, in Matagorda county, Texas, and was to be located at or near Palacios, in Mata-gorda county, Texas, and furthermore stipulates that if the said machinery shall be located on lot or lots the homestead of the said Clyde Randolph, then and in that event the said Murray Company should be and become entitled to a mechanic’s lien, not only upon said machinery, but upon said lot or lots upon which the same are situated; the said instrument reciting that it was agreed that said machinery constituted an improvement upon said lot or lots, and said instrument likewise contained a provision that plaintiff, the Murray Company, should have the right to treat the same as personal property, and remove said property from said premises within 12 months; that said property was not removed from the premises upon which it was finally located within said 12 months; that the lot or lots upon which said machinery was located constituted the homestead of the said Clyde Randolph at the time the location of said machinery upon said lots, and that said lots thus remained the homestead of the said Clyde Randolph for a period of more than 12 months after such time; that by election of the plaintiff, and by the terms of the instrument aforesaid, upon the locating of said machinery upon said homestead, and the failure of the plaintiff to remove the same within a period of 12 months from such time, the property described in plaintiff’s petition became an improvement upon the said homestead lot or lots, and that thereupon the same ceased to be personal property, and the chattel mortgage claimed by the plaintiff ceased to operate or exist upon or against said property as a chattel mortgage, said property having by the circumstances above recited, and the election of the plaintiff, as set forth in said instrument, become realty; that said property became affixed to and became a permanent part of the improvements on said lot or lots; that the said instrument executed by Clyde Randolph to the Murray Company, under which it claims its rights herein and which is hereinbefore referred to, was never recorded in the mechanic’s or materialman’s lien records of Matagorda county,- state of Texas, nor was it indexed in the index books thereof, nor was said instrument ever filed for record in said lien books, or in any lien books pertaining to real estate in Matagorda county, state of Texas, nor indexed in the indexes thereof, and this defendant further says that said instrument was not recorded, nor asked, demanded, required, or permitted to be recorded by the county clerk of Matagorda county, Texas, in any real estate lien book of said county, or indexed in the indexes thereof; that at the time of the purchase by this defendant from the said Clyde Randolph, and for a long time after this plaintiff had made final settlement with the said Clyde Randolph, and for a long time after the said Clyde Randolph had left the state of Texas and become insolvent, the said Randolph being still insolvent, this defendant had no notice or knowledge, actual or constructive, of any right, claim, lien, estate, or interest held or pretended to be held by the plaintiff against the property purchased by this defendant from the said Clyde Randolph, which included the property described in said instrument; that had said instrument been filed for record in the mechanic’s or materialman’s lien records of Matagorda county, Texas, or recorded in one of the real estate lien records of Matagorda county, Texas, and indexed therein, as of right it should .have been, in order to have given this defendant constructive notice of the existence of the right and claim of the plaintiff, then said claim would have been discovered, and this defendant would not have purchased said property until and unless there had been a release or cancellation of said pretended lien; that this defendant at the time of the purchase of said property, and for more than 12 months thereafter, and for a long time after the said Clyde Randolph had left the state of Texas and become insolvent, believed that the property purchased by him from the said Clyde Randolph, including the property upon which the plaintiff claims a lien, was free and clear of all incumbrances of any nature whatsoever, except the William Williamson deed of trust lien, which was expressly assumed by this defendant, and which has since been paid off, satisfied, and discharged.”

The trial in the court below without a jury resulted in a judgment in favor of plaintiff against the defendant Clyde Randolph for the amount due upon the note, and in favor of defendants Gover and Deal, denying plaintiff a foreclosure of the mortgage lien upon any of the property described in his petition.

The record discloses the following facts: The property described in plaintiff’s petition was sold by appellant to appellee Randolph, and in part payment of the purchase money therefor Randolph executed and delivered to plaintiff the note sued on, and to secure the payment of said note executed a chattel mortgage upon said property. A true copy of this mortgage was duly filed in the office of the county clerk of Matagorda county on August 6, 1908. After the execution of the note and mortgage the property covered by the mortgage was placed by Randolph in a gin or mill house situated on premises owned by him in or near the town of Palacios, in Matagorda county. There is evidence to sustain the finding that a portion of the property upon which the mortgage was executed was so placed in the gin house as to be permanently attached to the land, and became apparently a part of the realty. Appellee Deal purchased the premises from Randolph after the machinery had been placed in the building as above stated. At the time of his purchase the chattel mortgage was on file in the office of the county clerk of Matagorda county, but Deal had no actual notice of the existence of the mortgage. In indexing this mortgage the county clerk erroneously placed the name of appellant under the heading “Mortgagor,” and that of appellee Randolph under the heading “Mortgagee,” upon the index record of chattel mortgages of said county. The mortgage contains the following provision:

“Said machinery is at Palacios, in car, in Matagorda county, Texas, and is to be located at or near Palacios, in Matagorda county, Texas, and to remain personalty, however and wheresoever located. And it is agreed and understood that if the said machinery shall be located on a lot or lots, the homestead of the grantors herein, then and in that event the said the Murray Company shall be and become entitled to a mechanic’s lien, not only upon the said machinery, but upon the lot or lots upon which the same is situated; it being agreed and understood that the said machinery constitutes an improvement on the said homestead lot or lots. But in the event that the Murray Company should elect at any time to sell the above-described personal property under the powers herein provided for. separate and apart from the lot or lots on which the same may be situated, and to treat the same as personal property, then, and in that event, the said the Murray Company, or the purchaser thereof, shall have the right within 12 months from the date of said sale to remove all of the above-described property from the lot or lots on which the same is situated, and no matter how the same may be situated, and shall not be liable for any damages, real or supposed, caused to the freehold or the buildings or any improvements in so removing the same.”

Prior to the institution of this suit, appel-lee Deal sold to appellee Gover all of his right, title, and interest in the property and premises purchased by him from appellee Randolph.

this state of the pleadings and evidence, we think the plaintiff was entitled to a foreclosure of his mortgage against all of the defendants, and the trial court erred in not so adjudging. Appellee Deal alleges in his answer that prior to the institution of this suit he had sold “all of his right, title, and interest” in the property to appellee Gover. There is no allegation that he war-warthe title to Gover, nor are any facts alleged which render him liable to Gover in any amount, if the property covered by the mortgage is sold to satisfy plaintiff’s debt. Appellee Gover does not make the defense of innocent purchaser, or that he acquired his title from one who held title as an innocent purchaser; nor does he ask any recovery against Deal in event the property is subject-subjectto plaintiff’s debt. Deal, having- in effect disclaimed ^ny interest in the property, and being under no obligation to defend the title of Gover, will not be permitted to defeat appellant’s right to a foreclosure of his lien by his plea of innocent purchaser. Gover made no such plea, and Deal’s plea is not available to him as a defense to plaintiff’s suit. In a suit of this kind, the defense of innocent purchaser is not available, unless it is pleaded.

As we have before stated, there is evi-evito sustain the finding that a portion of the machinery was so placed in the building as to be permanent fixtures and become a part of the realty. It is not clear from the testimony what portion of the machinery, other than the gin stand, was so attached to the realty; but there is some evidence that the press, lint flues, and line shaft were also placed in the building in such manner as to become permanent fixtures. The filing of the chattel mortgage would cease to be notice to a purchaser of the realty after the proper-propercovered by the mortgage had become a permanent fixture. A purchaser of realty is only required to take notice of the record ti-tiof the land, and is not affected by a chat-chatmortgage upon a fixture which has be-bea part of the realty. Many of the au-auupon this question are cited and discussed in the well-considered opinion of Judge Lightfoot, of the Court of Civil Ap-Apfor the Fifth District, in the case of Ice Co. v. Lone Star Engine & Boiler Works, 15 Tex. Civ. App. 094, 694, S. W. 835. Under the rule above stated, if appellee Deal had not alleged in his answer that he had no interest in the property, he would have been entitled to a judgment denying plaintiff a foreclosure on his lien upon the portion of the machinery shown to have been perma-permafixtures at the time Deal purchased the premises; but he cannot make such defense for the benefit of his codefendant.

There is no merit in appellee’s conten-contenthat registration of the mortgage was ineffectual as notice, because of the mistake of the clerk in entering it upon the index rec-recThe point has been expressly decided against such contention. Vide Ames Iron Works v. Chinn, 15 Tex. Civ. App. 88, 38 S. W. 247, and cases there cited. It follows, from what we have above said, that the judg-judgof the court below should be reversed, and judgment here rendered for appellant, foreclosing his mortgage against all of the defendants; and it has been so ordered.

Reversed and rendered.
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author: LANE, J.

text:
    BRYAN v. WHARTON BANK & TRUST CO. et al.
    (No. 6757.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1915.
    Rehearing- Rehearing March 4, 1915.)
    1. Bills and Notes <®=»463 — Action by Payee — Petition.
    The petition in an action on notes need not allege plaintiff is the owner and holder thereof; but an allegation that they were executed and delivered to plaintiff by defendant is enough.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1474, 1475; Dec. Dig, <§=» 463.]

      2. Costs <S=o260 — Frivolous Appeal — Damages.
    The ground of appeal, that the petition in an action on notes by the payee must allege that plaintiff is the owner and holder thereof, is not so frivolous as to justify the conclusion that appeal was for delay only, as. regards award of damages.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dee. Dig. 260.]
    Error from District Court, Wharton County; Samuel J. Styles, Judge.
    Action by the Wharton Bank & Trust Company against' O. A. Bryan and another. Judgment for plaintiff, and defendant Bryan brings error.
    Affirmed.
    Guynes & Colgin, of Houston, for plaintiff in error. G. G. Kelley, of Wharton, for defendants in error.
   LANE, J.

Defendant in error, Wharton Bank & Trust Company, on the 8th day of November, 1913, filed its original petition in the district court of Wharton county, alleging that on the 30th day of December, 1912, W. T. Stokes, of Wharton county, and C. A. Bryan, of Harris county, executed and delivered to said Wharton Bank & Trust Company their joint and several promissory note, whereby they promised to pay to it, at its office in the town of Wharton, Wharton county, Tex., on the 1st day of June, 1913, the sum of $1,00Í), with interest thereon from maturity, at the rate of 10 per cent, per an-num,' and also 10 per cent, on the principal and interest thereof when due, if placed with an attorney for collection, or if collected by suit, or through probate court. It also alleges that by the making, execution, and delivery of said promissory note, by the said W. T. Stokes and the said C. A. Bryan, they became liable and promised to pay to the said Wharton Bank & Trust Company the sum of money in said note specified, according to its face, tenor, effect, and reading; that said note was not paid when due; that said Stokes and Bryan, though often requested so to do, had failed and refused to pay the principal and interest due on said note; and that the same was still due and unpaid. It is also alleged that said Wharton Bank & Trust Company had placed said note in the hands of an attorney for collection, to whom it had promised to pay the 10 per cent, provided for in said note as attorney’s fees, which is a reasonable charge, whereby defendants became liable and promised to pay the same. Said petition also makes allegations as to the execution and delivery of a chattel mortgage to said Wharton Bank & Trust Company by W. T. Stokes, which it is not necessary to notice for the decision of the issues presented. Prayer is then made for judgment for principal, interest, and attorney’s fees as provided for in said note, for foreclosure of the mortgage lien, and costs of suit.

Plaintiff in error C. A. Bryan and W. T. Stokes were served with citation in manner and form and for length of time as required by law. The case was called for trial on the 25th day of November, 1913. Neither W. T. Stokes nor plaintiff in error C. A. Bryan appeared, either in person or by counsel, nor did either of them file any answer in said cause. Whereupon judgment was duly entered by default against them, jointly and severally, as prayed for. Plaintiff in error C. A. Bryan alone brings this cause to this court on writ of error.

The only assignment of error presented by plaintiff in error is that the petition of-the Wharton Bank & Trust Company is bad on general demurrer, because it fails to allege that said Wharton Bank & Trust Company is the legal or equitable owner and holder of the note sued on, and therefore insufficient in law to support a judgment by default. We cannot agree to this proposition. In the case of Frank v. Brown Hardware Co., 10 Tex. Civ. App. 430, 31 S. W. 64, the court held that a petition alleging that the notes sued on were “executed and delivered” to plaintiff by the defendant is sufficient, and need not contain the allegation that plaintiff is the owner and holder of the notes. In the cases of Barnard v. Moseley, 28 Tex. 544, Wilson v. Hampton, 2 Posey Un-rep. Cas. 426, Bouvet v. Woodward, 2 Posey Unrep. Cas. 449, and Leal v. Woodhouse, 2 Willson, Civ. Cas. Ct. App. § 101, the same holding is made as in, the case of Frank v. Brown Hardware Co., supra.

The brief of counsel for plaintiff in' error cites several cases to support his proposition, but the cases referred to do not maintain the proposition contended for as applied to the facts alleged in the petition in this cause, as it is there alleged that the two defendants sued in the lower court did make, execute, and deliver the note sued upon to the Wharton Bank & Trust Company, plaintiff below, and such petition is held to be good on demurrer by the authorities above cited; and, there appearing no error in the record, it is ordered that the judgment below be affirmed.

We hardly think the questions presented on this appeal are so frivolous as to justify this court in concluding that the appeal was for delay only; therefore we deny defendant in error’s prayer for damages for delay.

Affirmed.
      <§=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cgssPor other cases see same topic and KEY-NUMBER in all Key-Numljered Digests and Indexes


author: HIGGINS, J..

text:
    NUNEZ v. McELROY.
    (No. 408.)
    (Court of Civil Appeals of Texas. El Paso.
    March 4, 1915.)
    1. Akpeal and Error @=548 — Reservation of Grounds of Review — Exceptions.
    In the absence of a bill of exceptions, the admission of evidence cannot be reviewed.
    [Ed. Note. — Eor other cases,, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. @= 548.]
    2. Evidence @=5590 — Weight and Sufficiency — Interested Witnesses.
    In trespass to try title to land which defendant claimed by adverse possession, as he was an interested witness, the trial court, in determining whether his possession was under a claim of right or title, was at liberty to disregard his testimony that he had for years claimed the land and surrounding lands under a Mexican land grant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2439; Dec. Dig. @=>590.]
    3. Trespass to Try Title @=41 — Hostile Character of Possession — Sufficiency of Evidence.
    In trespass to try title to land where, though it appeared that defendant took possession in ÍS97 and had occupied the land as a home with his wife and family up to the time of the trial, and he testified that he had for years claimed such land and surrounding lands under a Mexican land grant, it also appeared that he had rendered and paid taxes on personal property, but had made no rendition of lands and had paid no taxes thereon, that he accepted a lease from plaintiff’s grantor recognizing him as his landlord, that such grantor had for years exercised dominion over the tract which defendant claimed under his supposed Mexican grant, and that defendant at no time questioned such grantor’s right to such land, a finding that defendant did not occupy the land under a claim of right or title could not be disturbed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. ⅞= 41.]
    4. Adverse Possession @=112 — Presumptions and Burden of Proof.
    In trespass to try title where plaintiff connected himself with the sovereignty by a regular chain of title, the burden of establishing title by limitation rested upon defendant.
    [Ed. Note. — F'or other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666; Dec. Dig. @=112.]
    5. Trespass to Try Title @=27 — Necessary Parties — Wife of Party in Possession.
    In trespass to toy title to land occupied as a home by defendant and his family, defendant’s wife was not a necessary party, since the homestead right was not available as a defense.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 33; Dec. Dig. @=27.]
    Appeal from District Court, El Paso County; M. Nagle, Judge.
    Action by John T. McElroy against Jesus Nunez. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. L. Vowell and Beall & Kemp, all of El Paso, for appellant. Davis & Goggin, Paul D. Thomas, and Burges & Burges, all of El Paso, for appellee.
   HIGGINS, J..

Trespass to try title filed May 21, 1913, by McElroy against Nunez, involving five acres out of survey 110½. Upon trial before court, judgment was rendered in favor of McElroy. ' Defendant pleaded not guilty and three, five, and ten years’ statute of limitation.

Findings of Fact.

Findings of fact were filed by the trial court, from which it appears that title to the premises passed from the sovereignty of the soil to G. M. Dodge, who, in turn, conveyed to McElroy by deed dated June 25, 1909. By instrument dated May 22, 1909, Dodge leased the five acres to Nunez, which lease was accepted by the latter and his wife and was by them signed and duly acknowledged. Nunez built a house upon the premises in 1897 and occupied it as a home with his wife and family up to time of trial. Nunez and wife did not at any time occupy the premises under any claim of right or title other than as tenants of Dodge until a short time prior to institution of suit. Dodge and his assignee were in actual possession of all of survey 110½ from some time prior to 1897 to present time, rendering same for taxation and paying all taxes due thereon up to 1913. Nunez has never rendered the premises for taxation or paid any taxes thereon, but has rendered and paid taxes on personal property only.

Conclusions of Law.

1. In the absence of a bill of exception, the action of the trial court in admitting in evidence the lease contract of May 22, 1909, cannot be reviewed.

2. We cannot set aside the finding that Nunez and wife did not occupy‘the premises under any claim of right or title, other than as a tenant, of Dodge, at any time during the occupancy of the same, until shortly before institution of suit.

It is true Nunez testified he had for many years claimed the same and its surrounding lands under a grant from the Republic of Mexico, but he was an interested witness, and the court was at liberty to disregard" the same. Pridgen v. Walker, 40 Tex. 135; Bolt v. Bank, 145 S. W. 708; Bank v. Landa, 40 S. W. 406; Sovereign, etc., v. Jackson, 138 S. W. 1137; Domenico v. Ry. Co., 90 S. W. 60.

For quite a number of years Nunez rendered and paid taxes on certain personal property, but made no rendition of lands and paid no taxes thereon, and this omission is a circumstance tending to show that his possession was not adverse. Webb v. Lyerla, 43 Tex. Civ. App. 124, 94 S. W. 1096; Harris v. Wagnon, 148 S. W. 606; Abbott’s Trial Evidence, 905, 906.

The acceptance of the lease contract recognizing Dodge as his landlord is another circumstance. Dodge for many years exercised dominion .over the tract which Nunez claimed under his supposed Mexican grant, and at no time or in any way did Nunez question Dodge’s right, although Nunez testified that he claimed the premises in controversy and a large surrounding body of land under this grant from the Mexican government.

Plaintiff having connected himself with the sovereignty by regular chain of title, the burden of establishing his title by limitation then rested upon defendant, and under the circumstances detailed, this court would not be warranted in setting aside the finding that his possession was not adverse.

3. The evidence amply supports the finding that the premises were situate within the Annie Mason survey No. 110 ⅛.

4. The wife of Nunez was not a necessary party defendant, since the homestead right was in no wise available as a defense. Jergens v. Schiele, 61 Tex. 257; Childress v. Robinson, 161 S. W. 79; Brown v. Humphrey, 43 Tex. Civ. App. 23, 95 S. W. 23; City of San Antonio v. Berry, 92 Tex. 327, 48 S. W. 496; Central, etc., v. Henry, 47 S. W. 281; Breath v. Flowers, 43 Tex. Civ. App. 516, 95 S. W. 26; Mitchell v. Robinson, 162 S. W. 443; Cage v. Perry, 38 S. W. 543; Jackson v. Bradshaw, 28 Tex. Civ. App. 394, 67 S. W. 438; Adams v. Bartell, 46 Tex. Civ. App. 349, 102 S. W. 782.

5. From what has been said, it follows that the court did not err in finding against Nunez upon his plea of limitation, and in favor of McElroy for title and possession.

Affirmed.
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author: MeMEANS, J.

text:
    KIRKLAND et al. v. MATTHEWS et al.
    (No. 6769.)
    (Court of Civil Appeals of Texas. Galveston.
    March 5, 1915.
    Rehearing Denied March 25, 1915.)
    1. Parent and Child <S=>2 — Custody of Child — Right to.
    That the father of children is not so well able to give them comforts and advantages as relatives of their deceased mother is no ground for depriving him of their custody.
    [Ed. Note. — For other cases, see Parent and Child, Cent Dig. §§ 4-32; Dec. Dig. ®zz>2.]
    2. Parent and Guild <⅜=>2 — Custody or Children — Preeerenoes of Children.
    That minor children preferred to live with their maternal relatives, while entitled to some weight, is not conclusive as to the right to the custody of the children.
    [Ed. Note. — For other eases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. <⅜^>2.]
    3. Parent and Child <®=j2 — Custody—Presumption.
    There is a presumption that the best interest of a child will be subserved by placing it in the custody of its father, but in such cases the paramount consideration is the welfare and best interest of the child.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. <@=>2.]
    4. Parent and Child ⅞^2 — Actions—Evidence.
    In a suit involving the custody of infant children, the question whether it was better for them to be in the custody of their father or their maternal relatives, held for the jury.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. <⅞=>2.]
    Appeal from District Court, Tyler County; 'A. E. Davis, Judge.
    Action by Mrs. Alta Kirkland and others against George C. Matthews and others. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    Joe W. Thomas, of Woodville, for appellants. Robt. A. Shivers, of Woodville, for appellees.
   MeMEANS, J.

This is the second appeal of this case. The decision upon the first appeal is reported in 162 S. W. 375, to which we refer for a statement of the nature of the case and the issues involved. The last trial was had before a jury, but upon the conclusion of the testimony the court instructed the jury to return a verdict for defendants, which was done, and thereupon judgment was accordingly entered in favor of defendants awarding to them the care and custody of the four minor children of the defendant George C. Matthews. From this judgment the plaintiffs have appealed.

By an appropriate assignment of error appellants complain of the action of the court in instructing a verdict for the defendants.

By a careful consideration of the evidence in the record we think that it was indisputably shown on the trial that George C. Matthews, the father, and Mrs. Minu.ie Matthews, the stepmother, were not disqualified to have the control and custody of the minors. That they were honorable and upright people the evidence leaves no room for doubt. They are poor, and not as well able financially to support and give them the comforts and advantages that the plaintiffs are, but this is not of itself any lawful reason for depriving defendants of the custody of the minors and reposing such custody in the plaintiffs. Nor can the fact that, as the evidence shows, the minors prefer to live with the plaintiffs, control in this regard, though entitled to some weight. While it has been often decided, and is now settled in this state, that it is a presumption of the law that the best interest of a child' would be subserved by placing it in the custody of the father, nevertheless all the decided cases hold -that the paramount consideration in such case is the welfare and best interest of the child. State v. Deaton, 93 Tex. 243, 54 S. W. 901; Hall v. Whipple, 145 S. W. 310.

There was some evidence that the defendant George C. Matthews gave his children to the plaintiffs upon the death of his first wife, who was their mother, when they were of very tender age, and that he is now seeking to regain possession of them. There was also some evidence that subsequently, during a period of time in which the defendants had the custody of the children, they did. not receive that care and attention which their condition of life and health required, nor that the pecuniary circumstances of the father could have afforded them. We think that sufficient evidence of this character went before the jury to raise a fact issue as to whether it was for the best interest of the children to remain in the custody of the plaintiffs, who were the aunt and uncle, respectively, of the minors'. This being true, it was the duty of the court to permit the jury, under appropriate instructions, to pass upon the facts, and it was error to take the case from them by a peremptory instruction to find for the defendant. In McGowan v. Railway, 85 Tex. 280, 20 S. W. 80, it is held that, where there is testimony, although meager, tending to support a material issue, the issue should not be withdrawn from the jury; and in many cases, too numerous to cite, but to which reference is made on pages 1307 and 1308 of Vernon’s Say les’ Civil Statutes, it is held that it is only where there is an entire absence of testimony as to some allegation in plaintiff’s petition necessary to a recovery, or where the facts proven leave no room for ordinary minds to differ as to the conclusion to be drawn from them, that the court should peremptorily instruct the jury. In Choate v. Railway, 90 Tex. 88, 36 S. W. 247, 37 S. W. 319, Judge Brown of our Supreme Court, after discussing the rule above stated, adds:

“A different rule applies to granting of new trials by the trial courts-and Courts of Civil Appeals. Although there -may be sufficient evidence in a case to require the court to submit it to the jury, yet, if the verdict rendered thereon is against the preponderance of the evidence, to that degree which shows that manifest injustice has been done, the trial court may and should grant a new trial. The judge should not invade the province of the jury and take from it the decision of a question which properly belongs to it; neither should he abdicate the functions of his office and permit the prerogatives of the jury to be perverted to the accomplishment of a wrong.”

For the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
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