text:
    ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. ROTH.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 10, 1913.
    On Motion for Additional Findings of Facts, June 7, 1913.)
    1. Apfeal and Error (§ 743) — Assignments op Error — Motion for New Trial — Reference.
    Under Rev. Civ. St. 1911, art. 1612, amended by Acts 33d Leg. c. 133, providing that a motion for a new trial, when one is filed, shall constitute in itself an assignment of error, where a motion for new trial was filed containing a distinct specification that the court erred in refusing to give a peremptory instruction in defendant’s favor, it was immaterial that an assignment, alleging the same error, did not refer to the portion of the motion for new trial in which the error attempted to be raised was complained of, as required by Court of Civil Appeals Rule 25 (142 S. W. xii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Insurance (§ 825)— Accident Policy — Cause of Death — External, Violent, or Accidental Means.
    In an action on an accident policy for the death of insured, caused by paralysis resulting from a blood clot on the brain, evidence held to require submission to the jury of the question whether such condition resulted from an accidental fall, and whether the death was therefore caused by external, violent, or accidental means within the policy, or was the result of prior disease.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § 825.]
    3. Evidence (§ 123) — Declaration of Persons Since Deceased — Res Gest®.
    In an action on an accident policy for the alleged death of insured, injured as the result of a fall on the ice of a skating pond, evidence that deceased, while returning from the pond, in response to an inquiry whether his fall had hurt him, answered: “No; not seriously; hurt my head and made it ache” — and at the same time raised his hand near or to his head, which declaration followed within a very few moments after the fall, was admissible, when properly qualified as res gestae.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.]
    4. Evidence (§ 553) — Hypothetical Questions — Assumed Facts.
    Counsel may embody in their hypothetical questions facts which, in their judgment, the evidence proves, and are not compelled to embrace therein facts which the opposing litigant contends have been established.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §,§ 2369-2374; Dec. Dig. § 553.]
    5. Trial (§ 260) — Requested Charge — Instructions Given.
    Refusal of requested charge is not error, where the instructions given fully and fairly present the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    On Motion for Additional Finding of Facts.
    6. Appeal and Error (§ 1122) — Intermediate Appellate Court — Facts—Findings. _
    _ It is not the duty of the Court of Civil Appeals, on a motion for additional findings of fact, to find facts that are undisputed, or recite evidence which may conflict with findings made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4420; Dec. Dig. § 1122.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Action by Mrs. Jennie Roth against the Order of United Commercial Travelers of America. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Orrick & Terrell, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, for appellee.

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

   CONNER, C. J.

On the 31st day of July, A. D. 1895, the Order of United Commercial Travelers of America, a fraternal organization, issued to Wm. Henry Roth its certificate of membership whereby the said Roth became a member in good standing, and whereby his beneficiary became entitled to receive, in event he should suffer, “during the continuance of his membership and while in good standing, bodily injury effected through external, violent, and accidental means, which alone should occasion death immediately or within six months from the happening thereof, a sum not exceeding $5,000, and the further sum of $1,300, the latter sum payable in weekly installments of $25 each, the constitution of the order providing ‘that payments authorized under the provisions’ of section 6 of said constitution ‘shall not cover or extend to any death, disability or loss * * * happening directly or indirectly in consequence of disease, or caused wholly or in part by bodily infirmities or disease * * * or by any surgical operation or medical or mechanical treatment * * * or to any case except where the injury is external, accidental, and the proximate and sole cause of the death, disability or loss.’ ” Roth died March 5, 1905, while a member in good standing, from paralysis caused by a blood clot in the fourth ventricle of his brain. Defendant having denied liability, this suit was instituted by appellee, Mrs. Jennie Roth, as surviving wife and beneficiary of W. H. Roth under his certificate of membership, and it was agreed that Mrs. Roth was entitled to recover, “providing she proves that he died as a result of accident, and in no other event.” A trial was had on the 2d day of February, 1912, before the court and a jury. Upon issues submitted to them, such jury returned a verdict in favor of appellee, and judgment was rendered thereon in her favor, and against said order of United Commercial Travelers of America for the sum of $8,707.-35, with interest at 6 per cent, from date of judgment, from which judgment appellant prosecutes this appeal.

Appellant’s first assignment is that “the court erred in that it refused to give special charge No. 1, requested by the defendant.” The special charge referred to in the assignment was a peremptory one in appellant’s favor. The assignment is objected to by appellee on the ground that it does not refer to that portion of the motion for a new trial in which the error attempted to be raised is complained of, as provided in rule 25 for the Courts of Civil Appeals (142 S. W. xii), but the objection under any construction of the rule seems now unavailing, in view of the amendment of Revised Statutes, article 1612, effective April 4, 1913 (Acts 33d Leg. e. 136), providing, among other things, that the motion for new trial itself, when one is filed, shall constitute the assignments of error. Here a motion for new trial was filed which contains a distinct specification of the error complained of, and which therefore is sufficient under the amendment.

This brings us to a consideration of the assignment, and in the conclusion reached we all agree. Appellant insists in effect that if the evidence is not conclusive against plaintiff’s contention that W. H. Roth’s death was caused through external, violent, of accidental means, which alone and independent of all other causes brought about his death, it at least does not affirmatively show this fact with reasonable certainty, that the cause of his death at best is conjectural under the evidence, and that therefore, the burden of proof being upon the plaintiff, the peremptory instruction should have been given.

Before reviewing the testimony, it will 'be well to have in mind the precise manner in which the court submitted the issues. The court gave the following general charge:

“Gentlemen of the jury, if you believe from the evidence that on January 14, 1905, plaintiff’s husband, William Roth, accidentally fell upon the ice while skating, and that by reason of such fall his head struck the ice and was thereby injured, and that said injury to his head, if any, alone caused him to die within six months from the date of the happening of said accident, then you will find for the plaintiff in any sum not exceeding $5,000 with interest on the same at the rate of 6 per cent, per annum from July 5, 1905, to the present time, and also the sum of $1,300, with interest on the same from July 5, 1906, to the present time at the rate of 6 per cent, per annum.

“The foregoing instruction is given subject to instructions hereinafter given you, in subsequent portions of this charge. If you do not believe from a preponderance of the evidence that William H. Roth sustained an accidental injury by his fall upon the ice, which alone caused his death within six months from the date of said accident, your verdict will be for the defendant.

“You are further instructed that if you believe from the evidence that the said William H. Roth died directly or indirectly or his death was caused, wholly or in part, in consequence of bodily infirmity or disease, you will find for the defendant.

“You are instructed that the burden is upon the plaintiff to make out her case by preponderance of the evidence, and unless she has done so, it will be your duty to find for the defendant. You are the exclusive judges of the weight of the evidence and the credibility of the witnesses, and of the fact proved, but the law you will receive from the court, as herein given you in the charge, and be governed thereby.”

The court also gave at appellant’s request the following special instruction:

“You are instructed if from the evidence you cannot say with reasonable certainty whether said W. H. Roth came to his death by reason of his alleged fall, if any, upon the ice, or that his death was caused by natural causes, or wholly or partially as the result of disease or bodily infirmity, then you will fiiid the verdict for the defendant.”

The evidence is quite voluminous, and we will not undertake to do more than to briefly give its substance as we find it. As stated in the beginning, Roth was a member of the appellant order in good standing, when on the 15th day of January, 1905, he, together with a friend, repaired to a frozen lake some half mile or more from the town of Henryetta in Oklahoma, for the purpose of skating on the ice. There were a number of others on the lake or pond at the time and W. H. Roth and his friend, G. E. White by name, started off skating across the pond side by side, holding each other’s hands, and after skating some little distance their feet became entangled, and both fell; W. H. Roth falling, as one witness testifies, full length on his head and shoulders, with hands outstretched. White recovered himself, and assisted Roth to get up, but whether assistance was necessary does not certainly appear. Roth at the time complained only of an injury to his wrist. The evidence is not entirely certain as to whether the parties continued their skating. Some of the testimony indicates that they did so for something like half an hour. Another witness, however, gave it as his best recollection that White, after assisting Roth to arise, took off his skates, and they immediately left the pond. At all events, shortly after the fall White and Roth returned to Henryetta. On their return they were met by Mr. Sulling, who testified that White said that Mr. Roth had fallen on the ice, and that he, the witness, then asked Mr. Roth if the fall had ’hurt him. “He answered: ‘No; not seriously; hurt my head and made it ache’— and at the same time he raised his hand near and to his head.” Mrs. H. 0. Emhrey, with whom Mr. Roth was boarding at the time, testified that prior to January 15th Mr. Roth was of a cheerful disposition and in good health, but that when he returned for the evening meal after his fall on the ice he had his left wrist bandaged and ate very little dinner, but went to his room uptown; that he was sick on that day; that he was very late coming to his breakfast next morning ; that he looked badly next morning, and that she had to assist him with his overcoat; that he boarded with her two weeks after he fell on the ice; that he was not so talkative as he had been; that he complained each day while he was with her, and said he was feeling badly; said his head was hurting him. John Bastible testified that on the Wednesday evening following the Sunday evening that Mr. Roth fell on the ice his manner and actions differed so much from the usual that it was noticeable; that he was irritable and in had temper; that as a rule Mr. Roth was cheerful, and a wholesome example of health, but on the occasion last mentioned his conduct and disposition were not the same. R. J. Dickson testified that on January 24, 1905, Mr. Roth came to his store, but that he did not discover on this occasion that he was in ill health, though he complained of pains in his head; that about 10 days later he was seized with a severe and painful attack at the witness’ office, which caused him (Roth) to stagger, and was assisted to a chair; that on this occasion he complained with a pain in his head, which caused dizziness and partial loss of the use of one of his arms and one leg; that his face was somewhat drawn to one side, and he was unable to articulate; that this attack lasted about one-half hour; that he remained in his office about two hours, from 8 to 10 in the morning, and then went to the Cotton Oil Company’s office, where he solicited the sale of some coal. Randolph Hinner testified: That on one evening in the latter part of February or the first of March, 1905, Roth came to his drug store, and complained of severe headache. That his face was flushed. The witness gave him some medicine, and that Roth then requested that Dr. Sanderson be called to his room. That his face was flushed almost purple, and that the witness hastened his call for Dr. Sanderson. The appellee, Mrs. Jennie Roth, testified that she was not in I-Ienryetta at the time of Mr.. Roth’s fall, but was on a visit to her parents in Iowa; that she came home in obedience to a telegram; that when she got home, the date of which she was not able to give, but which she thought was in the early part of February, Mr. Roth' was confined to his bed, and never got up afterwards; that after her return he improved considerably, and her physician thought he was going to recover, but that he finally got worse; that from early in February to the 5th of March he’ had paralysis on one entire side, which finally attacked the other side and became’ complete, when coma and death followed.

An autopsy was held several weeks after Mr. Roth’s burial, which was participated in by some six physicians, one of whom was the-chief medical director of the appellant order. No evidence of external violence was found on. the body at this time, and no diseased or abnormal condition of the body or brain were found, save that the walls of the left ventricle to the heart were very thin; that the’ walls of the right ventricle were thickened; that the valves guarding the right auricular ventricle opening were sclerotic, or thickened,, and that there was a clot of blood found on the fourth ventricle of the brain, which lies at the base of the skull. All of the physicians agreed that this clot of blood was the immediate cause of death, some of them, however, giving it as their opinion that the’ cerebral apoplexy, causing death, and brought about by the clot of blood, was “not due to external violence or accidental causes.” Others, however, declined to concur in this conclusion.

There was further testimony upon which, appellant also strongly relies. It was shown by Dr. Saunders, that some 10 or 12 years prior to the fall in question W. H. Roth was afflicted with a serious bodily ailment, the ordinary tendency and effect of which was to-cause degeneration of nerve and brain cells, and blood vessels, and which, if uncured, would result in manifestations as shown by Roth after his fall. It was further shown-that on the same day, or the day after Roth’s fall, he was in his office writing, and apparently attending to his business which was-that of a traveling salesman; that within the two weeks following the fall he visited a number of places and towns in the adjoining, territory, soliciting business; and a number of physicians testified that apoplexy, caused by hemorrhage of the brain, was of frequent occurrence, sometimes when no assignable-cause could be given, particularly in cases where the subject was of Roth’s age, 56 years at the time of his death; that some time in February he presented to the state agent of the association a claim for the temporary benefits provided by his certificate, and in which he reported himself as cured.

There was evidence, however, to the effect that the claim for temporary benefits was-soon thereafter recalled by Roth, and that the disease of which Dr. Saunders had testified had been entirely cured, leaving no visible effects to which his death could be assigned. For instance, the expert testimony of some of the physicians was to the effect that at the autopsy the brain had been very carefully examined, and that no evidence of tumors or disease of the brain cells or blood vessel was to be found; that preceding the fall during the period covered by the testimony Roth was of a lively, cheerful disposition, and apparently in the best of health. While the testimony all showed that, had the clot of blood .of the size found in the left ventricle immediately appeared after the fall, paralysis and death would have followed at once, it was a fair inference from other testimony that the hemorrhage proceeded very slowly, and thus caused the advancing steps of Roth’s final sickness and accumulation of blood found, and that such hemorrhage could be caused by an accident of the kind shown to have happened to Roth; one physician testifying that he had seen cases of hemorrhages under conditions of normal arteries, or arteries of normal strength, where there was no sign of any injury to the scalp.

We are of the opinion that the evidence raised the issue upon which appellee’s right of recovery depended, and that the court properly submitted it to the jury. If we could feel any hesitation in this conclusion, it is fortified by the fact that our Supreme Court, upon substantially the same testimony as was admitted upon the submission of this case, held that a peremptory instruction was properly refused. See Roth v. Travelers’ Protective Association of America, 102 Tex. 247, 115 S. W. 31, 132 Am. St. Rep. 871, 20 Ann. Cas. 97. Appellant’s first assignment is accordingly overruled.

Appellant further assigns error to the action of the court in admitting, over the objection that it was hearsay, the testimony of the witness Sullings, hereinbefore referred to, to the effect, when he inquired of W. H. Roth during his return from the skating pond whether his fall hurt him, that Roth answered : “ ‘Oh; not seriously; hurt my head and made it ache’—and at the same time raised his hand near or to his head.” This precise testimony was held by our Supreme Court, in the case already cited, to be admissible with the proper qualification, and we would in any view feel impelled to follow this ruling. In addition to this, if the testimony of the witness Hopkins, who it was admitted on the submission had not testified in the trial of the case of Roth v. Travelers’ Protective Association of America, is to be credited, Mr. Roth after his fall left the lake immediately, and the answer complained of must therefore have followed within a very few moments after the fall, so as to possibly bring the answer within the rule admitting declarations and exclamations constituting a part of the res gestea, rendering it difficult for this reason for us to now say that the ruling of the trial court is erroneous. But however this may be, as before stated, the Supreme Court ruled that the answer was admissible when properly qualified, and in the case now under consideration the court indisputably qualified the testimony at the time that it was given, and no complaint whatever has been made by the appellant as to the character of the qualification. The assignment, therefore, raising this question is overruled.

Objection was also made to several hypothetical questions submitted to experts, on the ground, in substance, that the questions fail to embody necessary facts shown by the evidence, but we think these objections are to be overruled. As we understand the rule on the subject, counsel have the right to embody in their questions the facts which in their judgment the evidence proves, and are not compelled to embrace therein the facts that the opposing litigant contends to be those established by the evidence. The principal objection which seems to be urged to the hypothetical questions referred to is that they did not embody the fact of Roth’s disease and condition, as testified to by Dr. Saunders; but, as already appears, there was evidence authorizing the conclusion that Roth had been entirely cured of such disease, and we think appellee’s counsel had the right to so assume, and to propound hypothetical questions in harmony with such assumption. The second and fifth assignments of error are accordingly overruled.

Error is also assigned to the court’s refusal to give several special instructions, but we think the special instruction given at appellant’s request, and hereinbefore noted, together with the court’s general charge, fully and fairly presented the case.

No other assignment requires consideration save that insisting that the motion for new trial should have been granted, because of the insufficiency of the evidence. The evidence and conclusions hereinbefore set out, however, sufficiently show that we cannot say that the trial court abused his discretion in refusing to do so.

The judgment is affirmed.

On Motion for Additional Findings of Fact.

Appellant insists upon additional findings of fact which, as set out in the motion therefor, and in so far as material, are either undisputed or mere recitations of evidence which support inferences in conflict with conclusions fairly inferable from other evidence upon which our original findings rest. It is our province to determine whether evidence exists sufficient to support the verdict and judgment, and not to pass upon the weight of conflicting testimony. In other words, it is never necessary, under our rules of practice, to find facts that are undisputed in the record, or recite evidence which may tend to conflict with findings made. Where the facts are undisputed our Supreme Court can, and often does, consider them, and in cases of conflict the material inquiry goes to the evidence, If any, which tends to support the ruling or verdict, and not to that in conflict therewith.

The motion is accordingly overruled.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    COLE et al. v. LEWIS et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 28, 1913.)
    1. Mortgages (§ 151) — Priority Between Mortgage and Judgment.
    A vendee of 480 acres of land subject to a vendor’s lien conveyed 200 acres, reserving a vendor’s lien thereon in his own favor. He subsequently assigned the vendor’s lien and notes to plaintiff. The original vendor thereafter obtained judgment for the amount due him, about $400, and a decree of foreclosure of his lien. On plaintiff’s intervention it was decreed that the 280 acres still owned by the original ven-dee should be first sold, and the 200 acres only in the event that the proceeds of the 280 acres should be found insufficient to satisfy the judgment. Plaintiff thereafter received a conveyance of the 200 acres in satisfaction of his notes, and reconveyed to other parties, reserving a vendor’s lien. The original vendee subsequently executed a mortgage on the 280 acres to a bank for the amount of an unsecured indebtedness due it, and the amount of the judgment in the foreclosure suit which it paid, taking a transfer of the judgment. After the original vendee’s death the hank procured an order of the probate court directing the sale of the 280 acres by the administrator for the purpose of satisfying, the note, and purchased such property for $1,400 at the sale. It thereafter procured an order of sale under the foreclosure judgment, purchased the property for $60, and then procured the sale of the 2Ó0 acres under that judgment for $100. Held that, the mortgage being subsequent to the decree, its lien did not destroy plaintiff’s right to have the 280 acres exhausted before the 200 acres could be subjected to the payment of the judgment, but was subordinate to such rights.
    [Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dee. Dig. § 151.]
    2. Executors and Administrators (§ 388)— Sales and Conveyances — Under Order of Court — Operation and Effect.
    Under Rev. Civ. St. 1911, art. 3488, providing that any creditor of a deceased person holding a claim secured by mortgage may obtain from the county court an order for the sale of the property, by such sale by the administrator, by order of the probate court, the purchaser acquired all the title owned by the original vendee in the land, but took it subject to plaintiff’s rights under the decree of foreclosure.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1573-1582; Dec. Dig. § 388.]
    3. Execution (§ 118) — Lien—Foreclosure-Sale.
    All the title owned by such original vendee having passed by the administrator’s sale, no title whatever passed by the sales under the judgment, especially in view of Rev. Civ. St. 1911, art. 3723, providing that where a sole defendant dies after judgment for money against him, execution shall, not issue thereon, but the judgment may be proved up and paid in due course of administration.

      CM. Note. — For other cases, see Execution, Cent. Dig. § 273; Dec. Dig. § 118.]
    4. Executors and Administrators (§ 402)— Sale — Application of Proceeds — Claims Against Property op Dipperent Persons.
    To accord to plaintiff and his vendees the rights decreed to him by the foreclosure judgment, equity would apply the proceeds of the administrator’s sale as decreed in the foreclosure, and hence, the amount received on such sale being in excess of the amount due on the judgment, the 200 acres was free from any claim under the judgment or mortgage.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1608; Dec. Dig. § 402.]
    5. Vendor and Purchaser (§ 281) — Foreclosure op Lien — Findings—Conformity to Evidence.
    Where it appeared that after a judgment foreclosing a vendor’s lien the judgment debtor executed a mortgage for an unsecured indebtedness and the amount of the judgment which the mortgagee paid, taking a transfer of the judgment, and that after the judgment debtor’s death the mortgagee applied for an order for the sale of the land for the payment of the note secured by the mortgage, it being undisputed that the note included the amount due under the judgment, a finding that the mortgagee asked such sale to satisfy the amount due under the judgment was not unsupported by evidence.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dee. Dig. § 281.]
    Appeal from District Court, Comanche County; J. I-I. Arnold, Judge.
    Suit to foreclose a vendor’s lien by W. B. Lewis against Mary H. Cole and others. From the judgment the defendant named and certain other defendants appeal.
    Affirmed.
    Crane & Bondies, of Sweetwater, for appellants. Kearby & Kearby, of Comanche, for appellees.

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

   DUNKLIN, J.

J. N. Brunson conveyed to J. H. Wilson 4S0 acres of land, reserving a vendor’s lien to secure the payment of two promissory notes given by Wilson for part of the purchase money. Wilson sold 200 acres of the tract to H. E. Green, and reserved a vendor’s lien to secure the payment of nine promissory notes in his favor executed by Green for part of the purchase money. These notes were purchased from Wilson by W. B. Lewis. Thereafter Brunson obtained a judgment against Wilson for $458.94, the amount due upon the two purchase-money notes executed by the latter, together with a decree of foreclosure of vendor’s lien on the entire 480-acre tract, but at the instance of Lewis, who had intervened in the suit, it was decreed that the 280 acres of the original tract still owned by Wilson should be first sold to satisfy the amount of Brunson’s judgment, and that the 200 acres which Wilson sold to Green be sold in the event only that the proceeds of the 280 acres should be found insufficient to satisfy the amount of the judgment. Green then conveyed the 200 acres purchased by him from Wilson to Lewis in satisfaction of the nine purchase-money notes executed to Wilson. Lewis then conveyed the 200 acres to H. 6. Schneider, who executed to Lewis fire promissory notes for $150 each. By mesne conveyances from Schneider, his vendee and subvendees, the 200 acres was sold to J. C. C. Martin and George W. Dingus. The date of the judgment in favor of Brunson was April 17, 1908. On August 29, 1908, Wilson, the defendant in the judgment, executed to the Farmers’ & Merchants’ State Bank & Trust Company his promissory note for $1,416.65, due 90 days after date, and to secure'the same, and on the same date executed to the bank a mortgage on the 280 acres of land, which by the decree of foreclosure in favor of Brunson was directed to be first sold to satisfy Brun-son’s judgment. The note so executed by Wilson to the bank included a pre-existing unsecured debt of $950, which Wilson owed the bank, and which was thus renewed and extended, also $466.65, the amount then due Brunson upon his judgment of foreclosure above mentioned. At the time of the execution ■ of the note and mortgage, and in part consideration therefor, the bank agreed with Wilson to set aside said sum of $466.65 as a special deposit with which to pay off said judgment in favor of Brunson, and this was done. On December 1, 1908, the bank paid to Brunson the amount of his judgment out of the special deposit mentioned, and by agreement with Wilson received from Brun-son a transfer of the judgment. On March 26, 1909, <T. H. Wilson died, and thereafter W. A. Hall was duly appointed administrator of his estate. At the date of his death Wilson still owned the 280 acres of the original tract purchased by him from Brunson, having never sold it to any one, and no order of sale having been issued to sell the same to satisfy the Brunson judgment. The bank proved up the note executed to it by Wilson, together with the mortgage given to secure it as a claim against Wilson’s estate, which was duly allowed by the administrator and approved by the probate court. The bank then made application to the probate court for an order directing the administrator to sell the 280-acre tract for the purpose of satisfying the debt evidenced by said note. In February, T911, the probate court granted said application, and ordered the administrator to sell the 280 acres for cash, granting permission to the bank to become a purchaser at such sale, and decreeing that if the amount of the bank’s bid should not exceed the amount due upon its note, then the full amount of the bid should be credited upon the note. At the sale made by the administrator in compliance with this order the bank purchased the 280 acres for $1,400, the full amount of which bid was credited on the note by the administrator, and, this sale having been reported to the court by the administrator and duly approved by the court, the administrator on June 6, 1911, in compliance with the order of said court, executed and delivered to the bank a deed to the 280 acres of land. Thereafter, on September 8, 1911, the bank procured an order of sale upon the Brunson judgment and a sale by the sheriff thereunder, first of the 280-acre tract for the sum of $60, and then of the 200 acres conveyed by Wilson to Green, as shown above, for the sum of $100, the bank being the purchaser at both of said sales. The sheriff then executed to the bank a deed to the 280-acre tract, and also the 200-acre tract, and thereafter the bank sold the 480 acres to Mary H. Cole and Bosa Sneed. At the time the Brunson judgment was rendered the 280-acre tract was worth $2,000, and ever since that date it has been worth more than sufficient to satisfy that judgment. Upon the date of that judgment and at all times since, the 200 acres was and has been worth $3,000.

This suit was instituted by W. B. Lewis to recover the amount due upon the five promissory notes in his favor for $150, executed by H. G. Schneider, and to foreclose his vendor’s lien upon the 200 acres originally sold to Green by Wilson. He recovered a judgment for the full amount of the notes sued on against Schneider, their maker, and H. E. Stewart, L. S. Rutherford, J. G. C. Martin, and G. W. Dingus, subsequent purchasers of the land, who assumed payment of the notes, and also for a foreclosure of his vendor’s lien against those defendants, and also against the Farmers’ & Merchants’ State Bank & Trust Company, Mary H. Cole and her husband, J. E. Cole, Rosa 'Sneed and her husband, Sam Sneed. From that judgment the bank and the Coles and Sneeds have appealed.

The trial was before the court without the aid of a jury, and the trial judge filed findings of fact and conclusions of law, the facts found including those stated above, which were proven beyond controversy.

The foreclosure decree in favor of Brunson was essentially a decree declaring that Brunson’s lien on the 200 acres was secondary to his lien upon the 280 acres then owned by Wilson. In other words, under and by virtue of that decree Lewis was accorded the right to have the 280 acres exhausted before the 200 acres could be subjected to the payment of the judgment, and if the 280 acres was sufficient to satisfy Brunson’s judgment, then the 200 acres, should be free of Brunson’s lien. The mortgage executed by Wilson to the bank was subsequent to this decree, and the lien acquired by the bank under the mortgage did not destroy the rights accorded Lewis by the decree, but was subordinate thereto.

It cannot be questioned that the probate court had jurisdiction over all the property owned by Wilson at the date of his death, and under article 3488, Revised Civil Statutes 1911, was clothed with authority to have the 280 acres sold for the payment of the mortgage indebtedness. The sale by the administrator certainly passed to the purchaser all title owned by Wilson in that land. Fourteen hundred dollars was the price paid by the bank for the property at that sale. The sale conveyed no greater title than was owned by Wilson in the land, and the bank purchased it subject to the rights of 'Lewis under the decree of foreclosure in favor of Brunson. Wilson was the sole defendant against whom the money judgment was rendered in the Brunson foreclosure suit, and after his death and after the administration upon his estate, no order of sale could legally issue upon the judgment. This is an additional reason why no title passed by the sales under that judgment. Lippincott v. Taylor, 135 S. W. 1070; Revised Statutes 1911, art. 3723.

In order to accord to Lewis and his vendees the rights decreed to him by the foreclosure judgment, equity would apply the proceeds of the sale by the administration in the same manner as decreed in the foreclosure, and in the same manner as would have been the duty of the sheriff to do had he sold under the foreclosure judgment. Any other course would result in giving the subsequent mortgage of the bank for an unsecured indebtedness of $950 priority over the rights of Lewis and his vendees previously fixed by the foreclosure. The amount for which the property was sold to the bank by the administrator was far in excess of the amount then due upon the Brunson judgment then held by the bank. Hence, the effect of that sale and the purchase by the bank at that price was to entirely free the 200 acres of land claimed by the vendees of Lewis from the lien fixed by the decree of foreclosure in favor of Brunson, and clearly it was superior to the mortgage lien for the additional sum of $950, which Wilson owed the bank at the time the mortgage was executed.

Several assignments have been presented which will be noticed briefly. The first is to the court’s finding that the sale by the administrator “was asked for by said bank and granted by said probate court to satisfy the amount due under said judgment.” Appellants interpret this finding to mean that the bank, in presenting its claim to the probate court and in applying for an order to sell the 280 acres of land, alleged that the same was secured by the decree of foreclosure in favor of Brunson, and afterwards purchased by the bank, and, so interpreting the finding, they insist that there was no evidence offered to support it. It is undisputed that the promissory note presented in the claim against the estate did include the amount due under the Brunson judgment. Hence the finding that the sale was asked for to satisfy the amount due under the judgment was strictly correct Besides, even if the evidence did show, as appellants insist, that in presenting the claim and in applying for the order of sale no mention was made of the judgment, that would make no difference.

Error has been assigned, also, to the court’s conclusion that by proceeding in the probate court to have the 280 acres sold to satisfy its debt, the bank was estopped from thereafter proceeding to sell the property under an order of sale issued on the foreclosure judgment. Whether the principles of estoppel would be applicable or not, the subsequent sale by the sheriff under the order of sale issued under the foreclosure judgment conveyed no title, as all title belonging to the estate of Wilson had originally passed to the bank under the sale by the administrator.

Complaint is made of another conclusion by the trial judge that equity would require the application of the proceeds of the sale first to the payment of the Brunson judgment, and thereafter to the payment of the $950 secured by the mortgage. In view of what we have said already a discussion of this assignment becomes unnecessary.

By other assignments complaint is made of rulings of the trial judge upon exceptions to pleadings, which rulings of the court reflect the same conclusions which we have reached, and have stated already upon the material issues. Hence this assignment is overruled.

The judgment is affirmed.


author: CONNER, C. J.

text:
    DOUTHITT et al. v. FARRAR.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 14, 1913.
    Rehearing Denied July 5, 1913.)
    1. Appeal and Eeeoe (§ 743) — Assignments op Erkoe — Repeeence to Motion poe a New Teial.
    Under Rev. Civ. St. 1911, art. 1612, as amended by Act April 4, 1913 (Acts 33d Leg. c. 136), providing that where a motion for a new trial has been filed, the assignments therein shall constitute the assignments of error and need not be repeated by filing assignments of error, etc., assignments contained in such motion cannot be disregarded because the assignments in the brief do not refer to the motion for new trial, as required by Court of Appeals Rule 25 (142 S. W. xii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Appeal and' Ereoe (§ 759) — Assignments op Eeeoe — Beiefs.
    Rev. Civ. St. 1911, art. 1612, as amended by Act April 4, 1913 (Acts 33d Leg. c. 136), providing that where a motion for a new trial has been filed, the assignments therein shall constitute the assignments of error, and need not be repeated, does not supplant Court of Appeals Rule 29 (142 S. W. xii), requiring that assignments of error as the same appear in the transcript, shall be copied in the brief; and hence, where the assignments in the brief are not substantial copies of the assignments filed in the trial court, they will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]

      3. Appeal and Error (§ 742) — Assignments of Error — Statement.
    An assignment of error, not followed by a statement as required by Court of Appeals Rule 31 (142 S. W. xiii), will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dee. § 742.]
    4. Appeal and Error (§ 759) — Assignments of Error — Copying Assignments in Brief.
    Court of Appeals Rule 29 (142 S. W. xii), requiring that the assignments of error, as the •same appear in the transcript, shall be copied in the brief, does not require a literal copy but is satisfied by a substantial copy thereof.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    5. Trial (§ 194) — Instructions—Weight of Evidence.
    An instruction, in an administrator’s action to recover certain property from the heirs of his intestate’s deceased wife, that the jury should treat a certain house and lot in 6. as the community property of the wife and her former husband, the undisputed evidence showing its acquisition during the marriage, and that its status as community property continued until the husband conveyed it to his wife, was erroneous as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    ■6. Appeal and Error (§ 1064) — Community Property — Separate Property of Wife-Secret Trust — Creditors.
    Certain real property standing in the name of a wife was presumptively community property when she applied to plaintiffs intestate for a loan, ostensibly to purchase her husband’s interest, they having become estranged. Intestate advanced the money without notice of a secret agreement between the husband and wife that the property should constitute her separate estate, she having agreed that intestate, in consideration of the advancement, should be the ■owner of the husband’s interest, though the deed obtained from the husband was taken in the wife’s name. Held, that since the wife’s separate interest was in the nature of a secret trust which, while operative between herself and her husband, was invalid as to creditors or persons advancing money on the theory of-the title being in the community, an instruction that the property should be treated as community property of the husband and wife, while erroneous as on the weight of the evidence, did not constitute prejudicial error under Court of Appeals Rule 62a (149 S. W. x), providing that & judgment shall not be reversed for error of law, unless it amounted to such a denial of appellant’s rights as was reasonably calculated to ■cause the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    Appeal from District Court, Comanche County.; J. H. Arnold, Judge.
    Suit by A. P. Farrar, as administrator de bonis non of the estate of T. J. Farrar, •deceased, against Dollie Douthitt and others, us heirs of Mattie Farrar, deceased. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Callaway & Callaway, of Comanche, for appellants. Goodson & Goodson, of Comanche, for appellee.

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

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

   CONNER, C. J.

This suit was instituted by A. P. Farrar as administrator de bonis non of the estate of T. J. Farrar, deceased, against appellants as heirs of Mrs. Mattie Farrar, also deceased. It was alleged that T. J. Farrar and Mattie Farrar as husband and wife jointly owned the north half of block 1, Pavilion Park addition to the city of Comanche, ánd also two notes for $200 each, and certain household furniture of the value of $500. It was charged that the defendants had taken possession of all of the property described, and the administrator sought to recover one-half for the benefit of the estate. The appellee, as administrator, further alleged as an alternative ground of-recovery, if for any reason it should be found that the lot and notes above described were not the community property of the said T. J. and Mattie Farrar at the date of their death, that the plaintiff was nevertheless entitled to recover $400 that had been advanced by T. J. Farrar to Mattie Farrar, under an agreement that Mattie Farrar would take title to certain property situated in Goldthwaite, Tex., in her own name, and hold it in trust to the extent of said $400, for the benefit of said T. J. Farrar; that the property first described had been purchased with the proceeds of the Goldthwaite property, after-wards sold; that the said Mattie Farrar had always recognized the trust alleged; and that the said T. J. Farrar after the purchase of the Comanche property had further paid thereon the sum of $113 out of his own separate estate. The plaintiff charged that the two said sums constituted an equitable lien upon the Comanche property, and he prayed in event he was denied a recovery of the undivided interest first sought that he have judgment for the said sums of $400 and $113, with a foreclosure of his equitable lien. The defendants present a number of demurrers, which it will not be necessary to notice, general and special denials, and specially pleaded that the Goldthwaite property had been owned and claimed by Mattie Farrar in her own separate right prior to her marriage with T. J. Farrar, and specially denied the agreement alleged by the plaintiff, under which it was charged T. J. Farrar had advanced -to Mattie Farrar $400, and charged, if any such agreement in fact had been made, that it was void as against the statute of frauds, and but constituted a debt barred by limitation. It was further specially pleaded that the said north half of block 1, Pavilion Park addition to Comanche, had been the homestead of the said T. J. and Mattie Farrar at the time of their several deaths, and that the personal property was household and kitchen furniture exempt under the statute, and that therefore neither homestead nor personal property were recoverable at the suit of the administrator. The trial resulted in a verdict and judgment for the appellee for an undivided half interest in the north half of said block 1, Pavilion Park addition to Comanche, and the said promissory notes and personal property, from which said judgment appellants have appealed, assigning various errors to the proceedings.

Appellee has objected to every assignment of error that has been presented for a violation of rules 25 and 29 (142 S. W. xii), relating to assignments. Rule 25, as amended and promulgated by the Supreme Court on January 24, 1912, provides, among other things, that in order to be a distinct assignment of error the assignment "must refer to that portion of the motion for a new trial in which the error is complained of.” Rule 29 requires that the assignment of error, as the same appears in the transcript, shall be copied in the brief. See 142 S. W. xii. While none of appellants’1 assignments refer to the motion for a new trial, where the error is complained of, as provided by rule 25, we must yet overrule this objection because (if for no other reason) of the effect, as we construe it, of the act of April 4, 1913 (Acts 33d Leg. c. 136), made immediately effective, amending article 1612, Revised Statutes 1911. The amended article provides, among other things, “where a motion for a new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error,” etc. This amended article, relating as it does to a mere matter of procedure, is now in force. We, therefore, hardly feel justified in refusing to consider an assignment in the brief merely because it does not refer to an assignment in the record of doubtful or no legal standing.

The amendment referred to, however, cannot be held to render rule 29 inapplicable, and, after careful comparison of appellants' several assignments of error as presented in the brief, we find but three that are even substantial copies of the assignments filed below. In one instance the assignment presented in the brief is made up of two of the assignments presented in the record. In other instances the assignments in the brief seem to be a general statement of the legal inference of the person preparing the brief, drawn from the several assignments in the transcript, intermixed with conclusions and arguments. We do not feel at liberty to disregard appellee’s objections to the assignments, and must therefore in accordance with rule 29, sustain appellee’s objections to appellants’ first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth assignments.

The eleventh and twentieth assignments must be disregarded because of an entire want of any statement following them, as is provided in rule 31 (142 S. W. xiii).

This leaves but appellants’ thirteenth assignment, which, while not a literal copy of the assignment in the record, is a substantial copy, which we think is all that should be required, and we will therefore consider it. The assignment is as follows: “The court erred in giving in charge to the jury the following instruction: ‘You are instructed, therefore, in your deliberations to treat the house and lot in Goldthwaite as the community property of J. H. Hart and Mattie Hart, the undisputed evidence showing its acquisition during the existence of the marriage relation between said parties, and its status as community property continued up until J. H. Hart conveyed it to Mrs. Mattie Hart’ This charge was erroneous, and wholly a charge upon the weight of the evidence, in that it told the jury that the house and lots in Goldthwaite was the community property of J. H. Hart and Mattie Hart, when in truth and in fact the undisputed evidence shows that the said house and lots were the separate property of Mrs. Mattie Hart, and it was error for the court to assume or decide that the said undisputed evidence was untrue, and instruct them as above.” We, think the assignment must be overruled as immaterial. It is undisputed in the evidence that the Goldthwaite property had been acquired during the marriage of J. H. Hart and Mattie Hart, the conveyance being made to the latter; J. H. Hart testifying that it was so done at his instance, and for the purpose of making it her separate property. It is further undisputed that later, and just prior to the marriage of T. J. Earrar, deceased, with Mrs. Mattie Hart, J. H. Hart and Mattie Hart had separated, and that. T. J. Earrar advanced to Mrs. Mattie Hart $400, which was forwarded to J. H. Hart in Oklahoma. J. H. Hart thereupon, for a recited consideration of $400, executed and transmitted to his wife, Mrs. Mattie Hart, a deed in terms conveying his interest in the Goldthwaite property, he testifying that the $400 was in fact for his interest in a certain photograph gallery operated by his wife, and not for his interest in the Goldthwaite lots, to which he never asserted any claim. In this condition of the evidence, and in continuation of the portion of the charge objected to, the court further instructed the jury as follows: “Now if you believe from the evidence in this case that at the time T. J. Farrar furnished to Mrs. Mattie Hart the $400 in question in this case, to pay J. H. Hart for Ms interest in the Goldthwaite house and lots, it was agreed and understood between the said T. J. Farrar and Mrs. Mattie Hart that he (T. J. Earrar) would thereby become the owner of J. H. Hart’s interest in said property, though the deed thereto was taken in Mrs. Hart’s name, and that thereafter said Goldthwaite house and lots were sold, and the proceeds of such sale invested in block 1, Pavilion Park addition in Comanche, Tex., then in the event you so find you will find a verdict for the plaintiff and award him a one-half interest in the property out of the Pavilion Park addition in Comanche in controversy, and also award Mm a one-half interest in the proceeds of the R. O. Smith notes, and you may also award plaintiff a one-half interest in any personal property, household and kitchen furniture owned by Mr. T. J. Far-rar and Mrs. Mattie Farrar as their community property at the time of his death.”

The portion of the charge quoted in appellants’ assignment, and objected to, we think very clearly upon the weight of the testimony, but we cannot say that the error is material under the issues submitted, and under the verdict of the jury. It must be noted that under the charge quoted the jury were in no event authorized to find for the plaintiff, as they did, for an undivided one-half interest in the Comanche lot, unless it was further found that at the time T. J. Farrar advanced to Mrs. Mattie Hart the $400, it was then “agreed and understood” between them that he, “T. J. Farrar, would thereby become the owner of J. H. Hart’s interest in said property, though the deed thereto was taken in Mrs. Hart’s name.” The title to the Goldthwaite property was presumptively the community property of J. H. 1-Iart and his wife, Mattie Hart, notwithstanding the fact that the deed had been made in her name, and there is nothing in the evidence tending to show that T. J. Farrar, at the time he made the advance of $400, had notice (if such was the fact) that J. H. Hart had caused the conveyance of the Goldthwaite property to be made to his wife with an intent that it should vest in her a separate interest in the property. Mrs. Hart’s separate interest, therefore, was in the nature of a secret trust or equity that would, it is true, be fully operative as between herself and husband and others having notice, but which ought not to be held to bind a creditor, or one who advanced money upon the faith of the title being where the law apparently put it. See Stiles v. Japhet, 84 Tex. 91, 19 S. W. 450; Wallace v. Campbell, 54 Tex. 87. The verdict, as must be implied therefrom, establishes the agreement as alleged by appellee, at the time T. J. Farrar advanced to Mrs. Mattie Hart the $400 specified in the pleadings, that it was then agreed and understood between them that he should become the owner of J. H. Hart’s interest in the Goldthwaite property, which was thereafter in terms conveyed to Mrs. Hart; and, it not appearing that T. J. Farrar at the time had any notice of the fact, if it was a fact, that Mrs. Mattie Hart had any separate interest in the Goldthwaite property, and, no other complaint of the judgment, or of the submission of the case, which we can notice having been made, we are unable to say that the error in the charge complained of constitutes reversible error under amended rule 62a (149 S. W. x), which provides that: “No judgment shall be reversed on appeal, and. a new trial ordered in any cause on the ground that the trial court, has committed an error of law in the course-of a trial unless the appellate court shall be of opinion that the error complained of' amounted to such a denial of the rights of the appellant as was reasonably calculated, to cause, and probably did cause, the rendition of an improper judgment in the case.”

It is accordingly ordered that the judgment be affirmed.


author: WILLSON, C. J.

text:
    WAUHOP v. SAUVAGE’S HEIRS.
    (Court of Civil Appeals of Texas. Texarkana.
    June 12, 1913.
    Rehearing Denied June 19, 1913.)
    1. Appeal and Ereob (§ 501) — Recoed—Ex-ceptions — Peesentation to Cotjet.
    Assignments of error to the sustaining of exceptions to portions of defendant’s answer will not be considered on appeal, where the record does not show that the exceptions were-ever presented to or ruled on by the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig'. §§ 2300-2305; Dec. Dig. §. 501.]
    2. Continuance (§ 46) — Application—Absence op Witness — Mateeiality op Testimony.
    Where an application for continuance because of the absence of a witness did not state that the testimony expected was material, and: that the applicant had used due diligence to procure it, it did not comply with Rev. Civ. St. 1911, art. 1918, and it was therefore within the discretion of the court to grant it or not.
    [Ed. Note. — For other cases, see Continuance,. Cent. Dig. §§ 132-140; Dec. Dig. § 46.]
    3. Evidence (§ 208) — Statements in Pleading — Admissions Against Inteeest.
    Where, in a suit for partition, plaintiff prayed that defendant be required to show an account for all her personal property on hand at the death of the life tenant belonging to the community estate of herself and husband and to her separate estate, and defendant alleged that the land was cultivated during 1907 by tenants under agreement between himself and the life tenant, whereby he was to manage the place and look after all business affairs and divide equally with her the balance remaining of sums received as rents, after paying all expenses and indebtedness previously incurred under similar agreements covering previous years,, and that he received as rent $608.50, the expenses and indebtedness amounting- to $743.66,. the court properly allowed plaintiffs to read the-part of the answer with reference to the receipts as an admission against interest, but refused to permit the admission of defendant’s allegations with reference to the agreement between himself and the life tenant and the disposition of the sums received as rent for the-year 1907 as self-serving.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 713-725; Dec. Dig. § 208.]
    4. Evidence (§ 471) — Opinion Evidence— Declaeations — Title to Real Peopeety.
    On an issue as to whether land in controversy belonged to the separate estate of decedent or the community estate of decedent and his-wife, declarations of both, since deceased, that the property was the separate estate of the husband, were inadmissible as legal conclusions.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]

      6. Judgment (§ 743) — Conclusiveness — Proof of Title.
    Where, in trespass to try title against decedent under whom plaintiffs claimed, judgment was rendered that defendant go hence without day and recover his costs, such judgment did not vest any ■ title in the defendant, and hence the pleadings, charge, and judgment were not subsequently admissible in partition as a muniment of title in such defendant or those claiming under him.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1252, 1253, 1275-1277, 1284; Dec. Dig. § 743.]
    6. Appeal and Error (§ 757) — Brief—Statements of Record.
    Assignments of error will not be reviewed on appeal where the brief does not contain statements from the record showing that the court erred as claimed, as contemplated by Court of Civil Appeals rule 31 (142 S. W. xiii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    7. Partition (§ 86) — Accounting—Lien.
    Where, in a suit for partition and an accounting of rents and profits, the court found for plaintiff for $829.98 as their part of the rents collected by defendant, the court properly charged such sum as a lien on defendant’s interest in the land.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 247-249, 252; Dec. Dig. § 86.]
    8. Husband and Wife (§ 262) — Community Property — Presumptions.
    A husband owning an undivided interest in certain land in his own separate right and with his wife as a part of the community estate between them, owning the remainder thereof, both joined in an absolute conveyance’ of all the land to B. which contained no recital as the retention of the vendor’s lien to secure payment of notes for the unpaid portion of the price. Five years later in consideration of $5,000 and the surrender and discharge of the unpaid notes, B. reconveyed the land to the husband. There was no showing that the husband did not appropriate the cash payment made by B. to pay him in full for his undivided one-fourth interest in the land. Held, that, the reconveyance having been made during the marriage, it would be presumed that the land became community property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.]
    9. Appeal and Error (§ 1172) — Cross-Assignments.
    Where, in a suit for partition, plaintiffs sought to recover an undivided half interest in the land and part of the rents thereof as tenants in common with defendant, and that in the partition the amount adjudged in their favor as rent should be made a charge on part of the land set apart to defendant, the court having granted such relief, plaintiffs were not entitled to have the judgment affirmed in so far as it decreed partition and reversed on cross-assignments of error because of alleged improper findings' with reference to the rents and other personal property.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4555-4561; Dec. Dig. § 1172.]
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Action by Will A. Wauhop against the heirs of Kate D. Sauvage. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Chambers & Black, of Clarksville, for appellant. Lennox & Lennox, of Clarksville, for appellees.

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

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

   WILLSON, C. J.

It appears from the record on this appeal, as it did from the record on the first appeal of the case (Sauvage v. Wauhop, 143 S. W. 259), that John W. Wau-hop and Mary J. Wauhop were husband and wife at the date of his death September 24, 1903, and that they then owned the land in controversy. John W. Wauhop bequeathed the property owned by him at the date of his death to his wife, who survived him, “so long,” quoting from his will, “as she shall live, with remainder on her decease to my adopted son William A. Wauhop.” Mary J. Wauhop died October 21, 1907, intestate, leaving as her only heir her sister Kate D. Sauvage, who was the original plaintiff in this suit. She having died pending her suit, appellees, who were her only heirs, as such prosecuted it to the judgment in their favor now before us for review. The main contention between the parties was as to whether the land belonged to the separate estate owned by John W. Wauhop, as claimed by appellant, or to the community estate between said John W. Wauhop and his wife Mary J. Wauhop, as claimed by appellees. The court found that the land belonged to the community estate between John W. Wau-hop and his wife, and that appellees as the heirs of Kate D. Sauvage owned an undivided one-half of same. The court further found that, after the death of Mary J. Wauhop, appellant took and held possession of the land to the exclusion of Kate Sauvage during her life and of appellees after her death, and that appellees were entitled to recover of him as their part of rents collected by him while he so held possession of the land the sum of $829.98. Thereupon the court’ adjudged a recovery in favor of appellees against appellant of one-half the land, and said sum of $829.98. He provided in his judgment for a partition of the land, and declared the $829.98 he had found in favor of appellees for rents to be a lien on the part of the land to be set apart to appellant. The findings of the court are, we think, supported by testimony in the record.

In his first, second, third, and fourth assignments appellant complains of the action of the court in sustaining, as he asserts, exceptions to portions of his answer; and in his seventh assignment he complains ol the action of the court in overruling, as he asserts, exceptions interposed by him to appellees’ petition. Appellant’s assertions as to the action of the court are not sustained by the record; for it does not appear that any of the exceptions referred to were ever called to the attention of and acted upon by the court. In conformity to a well-established rule these assignments are overruled. Chambers v. Miller, 9 Tex. 236; Moore v. Woodson, 44 Tex. Civ. App. 503, 99 S. W. 118.

The action of the court in overruling his application to continue the case until he ■could procure the testimony of the witness Hooser is made the basis of appellant’s fifth assignment. In his application appellant failed to state that the testimony was material, and that he had used due diligence to procure it. As it therefore was not a statutory application (article 1918, R. S. 1911), it was within the discretion of the court to grant it or not. Appellant has not pointed to anything in the record which shows that the court abused the discretion he possessed with reference to the matter. Carver Bros. v. Merrett, 155 S. W. 633, and authorities there cited; Railway Co. v. Hardin, 62 Tex. 367; Little v. State, 75 Tex. 620, 12 S. W. 965; Railway Co. v. Shuford, 72 Tex. 165, 10 S. W. 408. The assignment is overruled.

In their petition appellees alleged that ■at the date of the death of John W. Wauhop the 231.33 acres of the C. A. Ballard survey was his, and his wife’s homestead, and that, after his death, it was continuously occupied and used by his wife as her homestead until her death on October 21, 1907. Appellees then alleged that the crops grown on the land during said year 1907 were fully 'matured, and had ceased to be a part of the realty at the date of Mrs. Wauhop’s death, ■and were a part of her separate estate. They then alleged that said crops “consisted,” quoting from the petition, “of corn,' cotton, ■cotton seed, and other farm products, the value and exact amount of each the plaintiffs •are unable to definitely state, as all the information in reference to same is peculiarly within the knowledge of defendant, who took possession of all of said crops and the proceeds thereof and appropriated the same to his own use and benefit, without the knowledge and consent of the said Kate D. Sauvage, or these plaintiffs, but they here allege and aver that there were 197 acres of said land in a fine state of cultivation, and so cultivated for the year 1907 that the crops so raised thereon and to which the said Mary J. Wauhop was entitled as her separate property were of the cash market value •of at least $1,000.” A part of appellees’ prayer was that appellant be required “to show (quoting) and account for all personal property on hand at the death of the said Mary J. Wauhop belonging to the community estate of herself and J. W. Wauhop and her separate estate.” In his answer, after denying the truth of the allegations in the petition, appellant alleged that the land was cultivated during the year 1907 by tenants under an agreement between himself and Mary J. Wauhop, whereby he was “to manage the. place and look after all business affairs,” and divide equally with her the balance remaining of sums received as rents, after paying all expenses and indebtedness previously incurred under similar agreements covering previous years. He then alleged that the sums received as rent for said year 1907 aggregated only the sum of $608.50, whereas the expenses and indebtedness referred to aggregated $743.66. Over appellant’s objection on the ground that it was “an alternative pleading,” quoting his language, “and that he had a right to plead contrary and alternative pleadings,” the court permitted appellees to read as evidence the allegation in the answer showing the sums received by appellant as rent for said year 1907, and on appellees’ objection thereto, on the ground that same was “immaterial, incompetent, and irrelevant,” refused to permit appellant to read as evidence his allegations in regard to an agreement between himself and Mary J. Wauhop and the disposition to be made of sums received as rent for said year 1907. We do not think the court erred in the rulings complained of, and therefore overrule the sixth assignment. The part of the answer showing appellant had received $608.50 as rent of the land was an admission appellees were entitled to the benefit of and the part excluded was incompetent because self-(Serving. Graham v. Henry, 17 Tex. 169; Ogden v. Bosse, 86 Tex. 344, 24 S. W. 798; Barnes v. Bank, 153 S. W. 1174. It may be remarked, however, that, if the action of the court in excluding the part of his answer offered by appellant was error, it was harmless, because he was permitted as a witness to testify fully in regard to the matters covered by said part of his answer.

As relevant to the issue between the parties as to whether the land belonged to the separate estate of John W. Wauhop or the community estate between him and his wife, said Mary J. Wauhop, appellant offered to prove by the witness Pope that he had heard said Mary J. Wauhop declare that same was a part of John W. Wauhop’s separate estate; and by the witness Durram that he had heard both Mary J. Wauhop and John W. Wauhop so declare. On appellees’ objection thereto on the ground that such declarations, if made, were mere legal conclusions on the part of the declarants, and not competent as evidence of title, the testimony offered was excluded, and we think properly so; for title to land cannot be shown in that way. Gilbert v. Odum, 69 Tex. 670, 7 S. W. 510; Mooring v. McBride, 62 Tex. 309. Therefore the eighth and ninth assignments are overruled.

The court refused to permit appellant to read as evidence the pleadings of the parties and the charge and judgment of the court in the suit of W. B. and N. W. Guinn against B. G. Bledsoe and John W. Wauhop, disposed of by the district court of Red River county in 1874. Eor reasons stated in the opinion then filed, this court held on the former appeal of this case that the record in that suit was not admissible as evidence on behalf of appellant. We adhere to the ruling then made, and overrule the tenth and eleventh assignments. On the same appeal, construing the will of John W. Wauhop, we held that it showed the intention of the testator to be to pass to his devisee only his interest in the property in controversy, and therefore that Mary J. Wauhop was not put to an election whether she would take under the will or not. Ás we are still of the same opinion, we overrule the eighteenth assignment, in which appellant complains that the court erred in holding that said Mary J. Wauhop and those claiming under her were not estopped from claiming otherwise than under the will.

Special issues were submitted to the jury, but the court refused to submit and require them to answer 10 questions which appellant requested the court to propound to them. In his twelfth assignment appellant complains of the refusal of the court to submit eight of the questions, and in his thirteenth assignment he complains of the refusal of the court to submit the other two. The two assignments are set out in appellant’s brief, but the brief does not contain statements from the record showing that the court erred as claimed, as contemplated by rule 31 for the government of Courts of Civil Appeals. Therefore appellant is not entitled to have the assignments considered. Railway Co. v. Furber, 45 Tex. Civ. App. 348, 100 S. W. 1042; Burke v. Holmes, 80 S. W. 565; Davidson v. Jefferson, 76 S. W. 765; Railway Co. v. Stewart, 101 S. W. 283; Laing v. Hanson, 36 S. W. 118; Railroad Co. v. Beattie, 88 S. W. 367. For a like reason, the fourteenth and fifteenth assignments are not entitled to be and have not been considered. We will state, however, with reference to the fifteenth assignment, that unless the $608.50, which, it is asserted, the court rendered judgment for as rent of the land for the year 1907, is included in the sum of $829.98 adjudged ■ in appellees’ favor, the contention presented by the assignment is not supported by the record.

Appellees’ suit was for a partition of land they alleged they owned, in common with appellant, and for an accounting as to rent which they alleged he, while excluding them from possession with him of the land, had collected and used for his own benefit. On testimony warranting it the court found in appellees’ favor for the sum of $829.98 as their part of rents so collected by appellant, and adjudged same to be an equitable lien against the part of the land to be set apart to appellant in the partition he ordered. It is claimed that the court erred in adjudging the recovery he allowed for rent to be a charge on appellant’s interest in the land. We do not think he did. Wipff v. Heder, 41 S. W. 166; Kalteyer v. Wipff, 92 Tex. 683, 52 S. W. 63. In the case first cited the court said: “It is well settled that, where rents have been collected by one cotenant, he is-accountable to the other in reference thereto, and the latter in partition is entitled to-an equitable lien on the other’s interest in-respect thereto.” The sixteenth assignment is overruled.

The seventeenth assignment is as follows: “The court erred in rendering judgment in favor of plaintiffs for one-half of the land described in their petition when the-undisputed evidence showed that a portion of said land was undisputedly the separate-property of John W. Wauhop, and that portion should have been adjudged to defendant.” The statement from the record in-support of the assignment is as follows: “Deed from Barkley M. Ballard to James W. Wauhop, dated September 23, 1843 (S. F. p. 73). James W. Wauhop, John W. Wauhop, W. A. Wauhop and Sallie A. Tomlin were the only heirs of James W. Wauhop (S. F. p. 49). W. A. Wauhop died, leaving as his heirs his brother and sister, John W. Wauhop and Sallie Tomlin.” From other portions of the record it appears that Barkley M. Ballard owned an undivided one-half interest in the Bartley survey at the time he made the conveyance to James Wauhop. Assuming that said James Wauhop died intestate, it may be said to have sufficiently appeared that John-W. Wauhop as one of his heirs owned an undivided one-sixth interest in the land; and, assuming that his brother, W. A. Wauhop, also died intestate, it may be said that as one of W. A. Wauhop’s heirs he owned a one-twelfth undivided interest therein; or, as an. heir of both his father and brother, a one-fourth undivided interest in the land. But it further appears from other portions of the record that John W. Wauhop, owning said undivided interest in his own separate right, and with his wife, as a part of the community estate between them, owning the remainder thereof, on, to wit, December 27, 1869, joined by his wife, conveyed all the-land to one B. G. Bledsoe, in consideration,, as recited in the deed, of the payment by Bled-soe of $1,700 in cash and his two promissory, notes, one for $2,500 and the other for $500. The deed to Bledsoe was an absolute one, and contained no recital of the retention of a vendor’s lien to secure the payment of the-notes. It further appears that said Bledsoe-by his deed dated January 21, 1875, in consideration, as recited therein, of $5,000 paid to him by John W. Wauhop, and “the surrender and discharge” of the notes for $2,500 and $500, respectively, he had made to said John W. Wauhop and his wife December 27, 1869, conveyed the land to said John W. Wau-hop. Such being the state of the record, it cannot be said that it appeared as a matter of law that John W. Wauhop in his own separate right owned an interest in the land after the conveyance thereof to him by Bledsoe. That conveyance having been made at a time when said John W. Wauhop and Mary J. Wauhop were husband and wife, the presumption was that the land became a part of the community estate between them. ’The $1,700 cash paid by Bledsoe at the time the land was conveyed to him was more than ■one-fourth of the price he was to pay for the land, and, if so applied by John W. Wauhop, was more than sufficient to pay in full the sum due him on account of the one-fourth undivided interest owned by him in the land in his own separate right. It was not shown he •did not so apply it. It would seem, therefore, that the presumption the law indulges was not rebutted, and that the court did not err In holding that the land was a part of the community estate beweeen John W. and Mary J. Wauhop.

The testimony of Dr. Pat B. Clark set out in the statement under the nineteenth assignment was inadmissible for any purpose, and the court did not err in excluding it. Therefore said assignment is overruled.

Having reached the conclusion that appellant has shown no reason why the judgment should be reversed, it remains for us to determine whether appellees are entitled to the relief they ask. In cross-assignments they complain of findings of the jury on issues ■submitted to them in regard to rents collected by appellant during the time he had exclusive possession and control of the land, and in regard to certain other personal property, and of the admission of certain testimony as relevant to said issues, and ask that the judgment “in reference,” quoting, “to the lands be in all things affirmed, and as to the personal property and rents be reversed and remanded.” But we are of the •opinion that appellees are not entitled to have the judgment affirmed in part and reversed in part as they ask here. They sought to recover an undivided one-half interest in the land and part of the rents thereof they were ■entitled to as owners in common with appellant. Their prayer was for a partition of the land, for an accounting as to the rents, and that in the partition to be made the amount adjudged in their favor as rents should be made a charge on the part of the land set apart to appellant. In a separate suit for the rents they would not have been entitled to have their recovery therefor made a charge on appellant’s interest in the land. They were entitled to that relief only in a proceeding like the one they prosecuted; that is, in a proceeding to partition and adjust accounts and equities growing out of or referable to the property they owned in common with appellant. Kalteyer v. Wipff, 92 Tex. 683, 52 S. W. 63. It would seem, therefore, that their suit for rents and the relief they sought on account of same was not independent of their suit for a partition of the land, but, at least to the extent of a part of the relief sought, dependent on it. We are ■of the opinion, therefore, that the judgment should not be reversed in part and affirmed in part as prayed for by appellees. Unless that can be done, appellees are in the attitude of waiving their cross-assignments. They do not wish the judgment reversed, so far as it determined the controversy as to the land, and in their brief ask that it be affirmed in its entirety, if it cannot be'affirmed as to the land and reversed as to the rents.

The judgment is affirmed.


text:
    NOCONA NAT. BANK v. GOIN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 12, 1913.
    Rehearing Denied May 24, 1913.)
    1. Judgment (§ 217) — Finality—Inteevention.
    Where, in a suit to foreclose a chattel mortgage in the county court, another mortgagee of the same property intervened and sought to recover on a note for $1,521, and to enforce an alleged prior lien against the property, such claim was beyond the jurisdiction of the court, and the plea on file was insufficient to prevent a judgment in favor of plaintiff from being final.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 394; Dec. Dig. § 217.]
    2. Judgment (§ 335) — Bill on Review.
    While a motion for a new trial filed at a 'subsequent term cannot be sustained as an ordinary motion for a new trial because not filed within the time prescribed by Rev. Civ. St. 1911, art. 2023, it may nevertheless be considered to determine whether it states facts sufficient to be sustainable as a bill of review to set aside the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. § 335.]
    3. Judgment (§ 335) — Bill op Review — Puk-pose.
    Where an intervention was filed in a suit to foreclose a chattel mortgage solely that the intervener might assert the priority of his own lien to that claimed by plaintiff, plaintiff having recovered judgment in his favor notwithstanding the intervention, it would not be set aside on a bill of review merely to determine the question of the priority of liens.
    [Ed. Note. — For other cabes, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. § 335.]
    Error to Montague County Court; A. W. Ritchie, Judge.
    Action by the Nocona National Bank against A. F. L. Goin and others, in which W. W. Jones intervened. From a judgment for plaintiff and intervener for their respective debts against defendant Goin, together with foreclosure of the respective liens, but giving intervener’s claim priority over plaintiff’s lien, plaintiff brings error.
    Reversed.
    W. T. Russell, of Nocona, for plaintiff in error. Jameson & Spencer, of Montague, and J. A. Templeton, of Ft. Worth, for defendants in error.

      j?or oxiier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

On June 22, 1910, in a suit by the Nocona Nat Bank of Nocona, Tex., against A. F. L. Goin in the county court of Montague county, judgment was rendered in favor of the plaintiff against the defendant npon certain promissory notes, together with a foreclosure of mortgage liens upon personal property. The judgment recites that the defendant had made default, although duly served with citation, but according to a further recital therein it appears that the notes and. mortgages upon which the suit was based were introduced in evidence. At the time this judgment was rendered the defendant Goin had filed an answer, which was then on file, but which was overlooked by the court rendering the judgment. There was also on file at that time a plea of intervention by W. W. Jones, in which the intervener also sought a judgment against the defendant Goin upon certain promissory notes, and also for a foreclosure of alleged liens on the same property covered by plaintiff’s mortgages, which were alleged to be superior to the plaintiff’s mortgages, but this plea of intervention was not called to the attention of the court, and no disposition of the intervener’s suit was made in the judgment. After adjournment of the court during which this judgment was rendered, the defendant and intervener both filed motions for a new trial, and which motions were granted at the next succeeding term of court. The case then proceeded to trial, resulting in a judgment in favor of the inter-vener and plaintiff for their respective debts against the defendant, together with foreclosure of the respective liens claimed by plaintiff and intervener, but giving priority to intervener’s lien over plaintiff’s lien. Erom that judgment the plaintiff has prosecuted this writ of error.

To the action of the trial court granting the motion for new trial, and in setting aside the previous judgment, error has been assigned. Defendants in error insist that, as the first judgment did not dispose of intervener’s plea, it was not a final judgment, and hence it was proper at all events to try the issue of priority of liens between plaintiff and intervener at the subsequent term of court. As appears from the record before us, this was the only contested issue that was tried. In the plea of intervention intervener sought judgment upon a promissory note executed by defendant for the principal sum of $1,521, and upon the last trial he was awarded judgment for $1,494. It thus appears that the claim asserted in the plea of intervention was beyond the jurisdiction of the county court, and the court was not bound to take any notice thereof. In other words, the plea was a nullity, and the fact that it was on file did not prevent the judgment rendered in favor of the plaintiff against the defendant from being a final judgment.

The defendant Goin’s motion for a new trial, having been filed at a subsequent term of court, cannot be viewed as an ordinary motion for new trial because not filed within the time prescribed by the statutes. Revised Statutes, art. 2023. But regardless, of the fact that it is designated as a motion for new trial, it may be looked to for the purpose of determining whether or not it was sufficient as a bill of review to set aside the judgment. Considered from this standpoint, it was wholly insufficient, because it asserts no defense to the notes and liens alleged in plaintiff’s petition upon which the judgment was rendered; the only purpose for which the new trial was sought, as appears in the motion being to enable the intervener Jones to assert the superiority of his lien to that of the liens claimed by the plaintiff. It is well settled that, for a bill of review to be sufficient as against a general demurrer, it must appear that some substantial injustice has been done to the complainant which will be obviated by another trial, and that, in absence of such showing the court will not do a useless thing by setting aside a judgment merely for the purpose of giving the complainant an opportunity to appear upon the trial, even though he presents a suffi-' cient excuse for failure to appear at the former trial. Johnson v. Templeton, 60 Tex. 238; Masterson v. Ashcom, 54 Tex. 324.

It follows from the conclusion already noted that the judgment from which the appeal is prosecuted must be reversed and motions of defendants Goin and intervener Jones dismissed, leaving the original judgment rendered and referred to in full force and effect, and it is so ordered.


text:
    PUTNAM LAND & DEVELOPMENT CO. v. ELSER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 14, 1913.
    Rehearing Denied July 5, 1913.)
    1. Beokees (§ 85) —-Employment — Termination— Evidence.
    Where, in a suit for broker’s services in selling lots in a town plat, the evidence showed many sales during 1910, and defendant claimed that it had elected to terminate plaintiff’s employment under the contract, because he had failed to diligently prosecute the sale of the lots as required, evidence of defendant’s president that some time during the summer of 1910 either the witness himself or B., at the witness’ direction, informed plaintiff that his contract was at an end was admissible.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.]
    2. Depositions (§ 111) — Objections to Evidence-Waiver.
    The statutory provision that objections to depositions going to the manner and form of taking, not made by motion to suppress prior to the trial, are waived cannot be invoked against one who is offering the evidence.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 329-338; Dee. Dig. § 111.]
    3. Brokers (§ 44) — Contract — Termination-Notice.
    Where a broker’s contract of employment stipulated that, if he should fail to diligently, industriously, and continuously prosecute the sale of the lots in question, the contract should be void at defendant’s objection, it was necessary, in order to take advantage of the objee- ■ tion, for defendant to give notice thereof to plaintiff.
    [Ed. Note.—Eor other cases, see Brokers, Cent. Dig. §i 45; Dec. Dig. § 44.]
    4. Evidence (§ 471)—Opinion.
    , In an action for broker’s services, testimony for defendant that plaintiff did not carry out his contract was inadmissible as opinion.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    Appeal from District Court, Callahan County; Thos. L. Blanton, Judge.
    Action by Max Elser against the Putnam Land & Development Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    F. S. Bell and Otis Bowyer, both of Baird, and B. L. Russell, of Flainview, for appellant. J. J. Butts, of Cisco, and J. Rupert Jackson, of Baird, for appellee.

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

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

   DUNKLIN, J.

The Putnam Land & Development Company has appealed from á judgment in favor of Max Elser for real estate commissions, alleged to be due him by the company. The suit by Elser was upon a written contract, proven upon the trial, by the terms of which the defendant company employed plaintiff as its exclusive agent to sell certain lots and blocks of land in the town of Putnam, and agreed to pay him a certain per cent, realized from all sales by whomsoever made during the life of the contract. The contract contained a stipulation that, if Elser should fail “to diligently, industriously, and continuously push and prosecute the sale of said lots as herein provided, then this contract shall be void at the option of said company.”

As a special defense to the suit, defendant alleged that, after the execution of the contract, plaintiff breached his obligation contained in the stipulation just quoted by devoting all his time and energies to other business, and that, after such abandonment of his undertaking, defendant exercised its option to terminate the contract, and so notified plaintiff. After introducing evidence in support of this allegation of the abandonment of the contract, defendant offered the following interrogatory, propounded to W. D. Carter, its president, together with his answer thereto; the question and answer appearing in the deposition on file: “Q. State if the defendant did or did not exercise its option under said contract, and if so, how and when was such done. State fully. A. I am not certain I told plaintiff or had J. Y. Burke to tell him that our contract with him was at an end; this was some time in the summer of 1910. I cannot say what month.” The objection to the question and answer reads: “We object to what he told J. Y. Burke without having made a preliminary motion to quash said deposition; this being the first term of court, and the deposition having been on file .for more than a month.” This objection was sustained, 'and the question and answer excluded. The evidence showed many sales of lots during the year 1910. The dates of some of these sales appear in the statement of facts, while the dates of other sales are not given. Evidently, under the court’s charge, plaintiff was allowed commissions on all of these sales. The evidence so excluded should have been admitted, as in view of other circumstances the jury might have found that the defendant did exercise its option to terminate the contract, and that some of the sales at least were made thereafter.

We can undersand how the statute, which requires objection to depositions going to the manner and form of taking shall be made by motion prior to the trial, under certain circumstances, will destroy an objection not made in compliance with its requirements; but we are unable to perceive how this statute can be invoked against one who is offering the evidence. For this error, the judgment must be reversed.

In view of another trial, we will say that we think the court was correct in instructing the jury that, in order for the defendant to effectually exercise its option to terminate the contract, it was necessary to so notify the plaintiff. This conclusion necessarily requires that the first and second assignments of error should be overruled; those assignments being predicated upon the refusal of instructions that, if the plaintiff failed to prosecute the sale of the lots in accordance with his obligation, such failure would ipso facto forfeit his rights under the contract, even though the defendant did not exercise its option to forfeit the contract in accordance with the stipulations therein contained.

The two instruments signed by the president and directors of the company of date June 27th and set out in the fourth assignment of error we think were properly admitted, as the same tended to refute the contention made by the defendant that at that time the defendant had already exercised its option to terminate the contract, and had so notified the plaintiff.

There was no error in excluding the testimony of B. L. Russell and W. D. Carter, in effect, that the plaintiff did not carry out his contract, as such testimony was clearly the opinions of the witnesses upon an issue which was exclusively for the determination of the jury from all the facts and circumstances in evidence, some of which tended to show that the plaintiff did perform the obligation required of him by the terms of the contract.

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


author: SPEER, J.

text:
    PORTER v. BROOKS et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 14, 1913.)
    1. Insane Persons (§ 61) — !Deed.
    The deed of an insane person is not void but only voidable, since it may have been executed during a lucid interval, or ratified on •the incompetent’s regaining sanity.
    [Ed. Note. — Eor other cases, see Insane Persons, Cent. Dig. §§ 93-99; Dec. Dig. § 61.)
    ■2. Insane Persons (§ 66) — Deed—Right to Attack — Person in Privity oe Title.
    One who was only in privity of estate to an alleged insane grantor, who was the common source of title, and was neither his executor, administrator, committee, guardian, or ward, could not attack such grantor’s deed for alleged incapacity.
    TEd. Note. — Eor other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dec. Dig. § 66.]
    Appeal from District Court, Callahan County; Thos. L. Blanton, Judge.
    Trespass to try title by J. N. Porter against E. H. Brooks and others. Judgment for defendants, and plaintiff appeals.
    Reversed •and remanded.
    Eugene De Bogory, of Abilene, W. L. Gro-gan, of Jefferson, and J. W. Moffett, of Abilene, for appellant. W. B. Morris, of Albany, and Otis Bowyer, of Baird, for appellees.

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

   SPEER, J.

This is an action of trespass to try title, brought by appellant J. N. Porter to recover from the appellees a part of the W. G. Anderson Survey No. 777 in Callahan county. The defendants pleaded the general denial, not guilty, the statutes of three and five years limitations, and answered specially, alleging they had bought the land at sheriff’s sale upon a tax foreclosure, and prayed in the alternative to recover double the amount of their hid at such sheriff’s sale, and further to recover' for the improvements made in good faith. The ease was tried by the court, who made findings of fact, upon which Judgment was rendered for the defendants.

The findings of fact are quite lengthy, and in many respects are attacked by proper assignments. It is unnecessary to notice these attacks, however, in view of the fact that the ■case must be reversed for the court’s rulings on evidence. A cursory examination of the record indicates that some of the findings complained of have no support whatever in the evidence. But, as already indicated, this is immaterial. Appellant claims through a deed from John R. Yarborough the common source of title. When he offered this instrument in evidence, it was objected that its execution had not been proven, an affidavit of forgery having been filed, whereupon appellant introduced several witnesses who testified to its execution. The trial court, nevertheless, still refused to admit it, and his reasons therefor perhaps appear in .his findings of fact, to the effect that, at the time the said Yarborough executed the deed, he was in such a condition by reason of advanced age and serious illness as to be utterly incapable of executing a valid instrument.

There is abundant evidence to sustain this finding of fact; but the admission of this exidenee is itself complained of, and we think the complaints must be sustained. It probably is true that appellees, under their plea of not guilty, would be entitled to attack the conveyance through which appellant claims upon the ground of mental incapacity of the grantor, if they themselves sustained the proper relation to the grantor. Barth v. Green, 78 Tex. 678, 15 S. W. 112. Now it is well settled that the deed of an insane person is not void (as held by the trial court in this case) but only voidable. Pearson v. Cox, 71 Tex. 248, 9 S. W. 124, 10 Am. St. Rep. 740; Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115. It may have been executed during a lucid interval, or may be ratified upon the incompetent’s regaining his sanity.

But this distinction is itself, perhaps, unimportant, if appellees are in a position to assert the invalidity of appellant’s deed. Mr. Devlin, in his work on Deeds, vol. 2, par. 75, says: “Strangers and persons who are merely the privies in estate of the grantor have not the right of avoiding a voidable deed. But it may be rescinded by the grantor himself, when restored to reason, or by his executor, administrator, committee, guardian, or his heirs.” The text appears to be supported by the authorities cited, to which might be added Vogel v. Zuercher, 135 S. W. 737, and Hunt v. Rabitoay, 125 Mich. 137, 84 N. W. 59, 84 Am. St. Rep. 563, in which latter case it is said: “They (complainants) are neither privies in blood, nor are they the legal representatives of Marie Louise Viger, and only these two classes can avoid the deed of an insane grantor.”

The court erred in admitting the evidence of various witnesses tending to show the mental incapacity of appellant’s grantor, for the reason that such evidence was immaterial and irrelevant to any issue in the case; ap-pellees, being at most only privies in estate to the grantor, were not in a position to assert the invalidity of such deed. It, of course, necessarily follows that the court also erred in excluding the deed. Its execution was proved, it was sufficient in form, it appeared to pass the legal title to appellant, and its exclusion could not be other than harmful to appellant.

Since the trial court based his judgment expressly upon the plaintiff’s failure to show title, and since, as already intimated, the evidence does not support some of his findings upon the issues of limitations, upon which, however, he refused to predicate his judgment, the cause will be remanded for another trial upon all issues.

Reversed and remanded.