author: CONNER, C. J.

text:
    POLLARD v. SPEER, Judge, et al.
    (No. 9114.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 26, 1918.)
    1. Mandamus <S=16(1) — Nature- and Ground — Writ Ineffectual.
    The court will not grant the mandamus sought by relator, where the writ would be unavailing and useless.
    2. Mandamus <§=^31 — Jurisdiction—Scope-District Judge.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1595, the Court of Civil Appeals may, by mandamus, compel a judge of the district court to proceed to trial and judgment in a cause “agreeable to the principles and usages of law,” but cannot direct the character or kind of his decision.
    3. Evidence <®=^41 — Judicial Knowledge-Terms of Court.
    The Court of Civil Appeals must take judicial knowledge of the time for holding sessions of the district court in Montague county, in the Sixteenth judicial district (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 30, subd. 16), and also that a determination of a primary election contest cannot take place at a regular session thereof until after the November election.
    4. Mandamus <©=>30 — Acts op Judge — Holding Special Teem.
    Mandamus will not lie to compel the district judge to hold a special term of court under provisions of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1720, since the statute clearly leaves the matter of calling such sessions to the discretion of the district judge.
    6. COURTS <©=>207(3) — ORIGINAL JURISDICTION — Injunction.
    Since Court of Civil Appeals, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3156, has no appellate jurisdiction of election contest for precinct office, such court has no power to issue an injunction restraining officers from placing respondent’s name on official ballot in a primary election contest pending in district court, in view of article 1592, permitting issuance of writs only in aid of appellate jurisdiction.
    Proceeding by C. O. Pollard, relator, by original application for writ of mandamus against John Speer, Judge of the Sixteenth Judicial District of Texas, and another.
    Application denied.
    Benson & Benson, of Bowie, and Capps, Cantey, Hanger & Short, of Ft. Worth, for relator.
    Paul Donald, of Bowie, and C. F. Spencer, of Wichita Falls, for respondents.
   CONNER, C. J.

C. O. Pollard, relator, instituted this proceeding by an original application in this court for a writ of mandamus against the respondent, the Honorable John Speer, judge of the Sixteenth judicial district of Texas. It is alleged in the application the relator was a candidate before the democratic primary held by law for the office of commissioner of precinct No. 2, Montague county, Tex., one of the counties of which the Sixteenth judicial district is composed; that one H. E. Overstreet was also a candidate for said office before said primary; that said Overstreet was, on August 31, 191S, declared by the Democratic executive committee of Montague county to be the nominee of said party for said office; that on September 5, 1918, in the manner and time required by law, the relator filed with the chairman of said Democratic committee his complaint and notice for a contest of said nomination; that said contest was legally heard by said committee on September 18, 1918, and decided in favor of said H. E. Overstreet; that on the date last named the relator gave notice in writing of his appeal from the decision of said executive committee to the district court of Montague county, Tex.; that in the time and manner required by law the secretary of said executive committee filed with the said district court his certificate in the form required by law to perfect said appeal; that thereafter, on October 8, 1918, the said John Speer, district judge as aforesaid, at a time when the district court was not in either regular or special session, in vacation, over the written protest and objection of the relator, called said contest for trial, and, regardless of the said written objection to the effect that said judge was without jurisdiction to try said cause in vacation, entered an order and judgment purporting and attempting to dismiss said case, contrary to and in disregard of the relator’s right to have said cause tried by the district court of Montague county, and not by the judge thereof in vacation; that although said appeal is now pending in said court said district judge refuses to recognize it as a pending suit, and illegally refuses to set same down fpr trial at a time when it could be legally tried. It is further alleged that the relator is a Democrat, regularly affiliated with the Democratic party, and is a candidate as a Democrat before the general election to be held on the first Tuesday after the first Monday in November, 1918, for the said office of county commissioner of precinct No. 2, Montague county; and that, although said appeal is now legally pending in. said district court, and notwithstanding that there is no legal certificate of nomination issued for any one as the Democratic nominee for the said office, and notwithstanding that there is no legal nominee for said office, I. L. Chandler, county clerk of Montague county, Tex., acting in obedience to said void order and judgment, has ordered the name of the said H. E. Over-street, as the Democratic nominee, placed on the official ballot for the said general election; that said Chandler, county clerk, E. W. Perryman, sheriff, and Homer B. Latham, county judge, of Montague county, who under the law compose the county election board to provide and furnish supplies to presiding judges of the said general election, also in obedience to said void order and judgment, will deliver to the presiding judges of the election ballots containing the name of said Overstreet as the Democratic nominee of said office of commissioner of precinct No. 2.

It is further alleged that if the said district judge is not commanded and required to set down said cause for trial at a time when it could be legally disposed of, and the other parties named are not restrained, official ballots containing the name of H. E. Overstreet as a nominee of the Democratic party for said office of commissioner would be delivered to the presiding judges of said election, and that such delivery would be equivalent to the election of the said Over-street, and preclude the relator from being a candidate for said office; that, but for said order and judgment, the name of said Over-street would not have been placed upon said official ballots. It is further alleged that the precinct named is overwhelmingly Democratic, and that if a delivery of the official ballots with the name of the said Overstreet printed thereon as the Democratic nominee was not prevented, tire relator would be deprived of a legal and valuable right, and the prayer in substance was that said district judge be commanded to set the contest down for a hearing at a time when the court of Montague county was in session, and that the said county clerk, sheriff, and county judge be enjoined from delivering or causing to be delivered to any of the presiding judges of the election any official ballots for use in said November election containing the name of said Overstreet as the nominee of the Democratic party for the office in question.

The application was duly set down for a hearing, and the matter submitted to us for a determination on Monday of the present week, and a prompt announcement of our conclusions requested, inasmuch as the election officers, of necessity, must soon issue the official ballots for the coming general election in November.

By our primary election laws (Vernon’s Sayles’ Stat. art. 3086) party nomination of candidates for office must be made at a primary election ordered by the party executive committee, and contests of nominations so made before the proper executive committee are expressly provided for (Vernon’s Sayles’ Stat. art. 3147). After indicating the procedure of the committee in determining the contest, it is further provided that:

•‘When the committee has decided the contest, unless notice of appeal to the • district court is given, the executive chairman shall certify its findings to the officers charged with the duty of providing the official ballots; and the name of the candidate in whose favor the executive, committee shall find shall be printed on the official ballot for the general election.” 2 Vernon’s Sayles’ Stat. art. 3151.

The next article provides that:

“Where contests are originally filed with the executive committee, either party shall have the right to appeal from the final decision of the executive committee to the district court having jurisdiction; and said contest shall there be tried de novo.”

The article last quoted prescribes the steps necessary to perfect the appeal to the district court, and directs that appellant shall file all papers filed in the contest “in the district court, or with the district judge, in vacation, of the district having jurisdiction of such appeal, within ten days after the decision of the executive committee is rendered.” 2 Vernon’s Sayles’ Stat. art. 3153. The next article (article 3154) provides that, when | the appeal from the decision of the executive committee is perfected, “the judge of the district court shall set same down for hearing, either in term time or vacation, at the earliest practical time,” etc. The statute further provides that the decision of “said court or judge” shall be final as to all district, county, precinct, or municipal offices, and that a certified copy of the judgment of “said court or judge” shall be transmitted to the clerk thereof to the officers charged with the duty of providing the official ballots;

Several interesting questions have been presented, which for reasons hereinafter stated will not be discussed or determined. It may not be amiss, however, to say that the contest, both before the executive committee and as presented to the district court, was resisted by the respondent, H. E. Over-street, on the ground, principally, that the notice of the contest, setting forth the grounds of objections to the election, had not been filed with the county clerk as provided by 2 Vernon’s Sayles’ Stat. art. 3131. This ground, it appears from the record before us, was sustained, both by the executive committee and by the district judge in vacation upon appeal. The relator resists this contention for several reasons that we need not recite, and insists, as the principal ground for the relief sought in this proceeding, that under the Constitution the district judge was without jurisdiction or power to determine the appeal taken from the executive committee; that this order declaring the respondent Overstreet the nominee of the Democratic party for commissioner, precinct No. 2, Montague county, was a nullity; and that said order was insufficient as a matter of law to' authorize the officers whose duty it is to provide the official ballots to place Overstreet’s name thereon.

It seems to have been determined by our Supreme Court in-the case of Ashford v. Goodwin, 103 Tex. 491, 131 S. W. 535, Ann. Cas. 1913A, 699, that under the Constitution a district judge has no power in vacation to determine a contest appealed from an executive committee, and that the Legislature exceeded its authority in undertaking to so provide. As before indicated, however, we have not found it necessary to decide the questions presented, for, in the view we have taken of the ease, the mandamus sought by the relator would be wholly unavailing, and it has been frequently decided that a court will not proceed to do or cause to be done a useless thing. See Lacoste v. Duffy, 49 Tex. 767, 30 Am. Rep. 122; Testard v. Brooks, 70 S. W. 240; Fuller v. Brown, 10 Tex. Civ. App. 64, 30 S. W. 506; Potts v. Tuttle, 79 Iowa, 253, 44 N. W. 374; People v. Kohlsaat, 168 Ill. 37, 48 N. E. 81; People v. Chicago, 99 Ill. App. 489; 12 Dec. Dig. 2081 (jj); Duvall v. Swann, 94 Md. 608, 51 Atl. 617; Hatch v. Frazer, 138 Mich. 184, 101 N. W. 228.

In prescribing the power oí Courts oí Civil Appeals to issue writs of mandamus, it is declared in 1 Yernon’s Sayles’ Stat. art. 1595, that:

“The said courts, or any judge thereof, in vacation, may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause, agreeably to the principles and usages of law, returnable on or before the first day of the next term or during the session of the same, or before any judge of the said court, as the nature of the case may require.”

It seems clear under this article that this court could only compel the responding district judge to proceed to trial and judgment of the appeal filed in the district court of Montague county agreeably to the principles of law.' We have no power to direct him further. In other words, we have no power to direct the character or kind of decision that he shall render, and if it is true, as relator insists, and as we will now assume, in view of the decision of the Supreme Court referred to, that the appeal of the relator from the determination of the Democratic executive committee of Montague county can only be lawfully determined by the district court of said county when in session, then we must know judicially that such determination cannot take place until after the coming general election in November, 1918, too late for the decision to direct the election officers whose duty it is to provide official ballots to put relator’s name, if successful, thereon. Montague county, by law, is one of three counties composing the Sixteenth judicial district of Texas. See 1 Vernon’s Sayles’ Texas Civil Statutes, tit. 5, p. 49, par. 16. The district court is held in the county of Montague on the second Monday in January and July, and may continue in session six' weeks; in the county of Denton, on the sixth Monday after the second Monday in January and July, and may continue in session eight weeks; in the county of Cooke, on the sixteenth Monday after the first Monday in January and the second Monday in July, and may continue in session until the business is disposed of. So that, as stated, no legal trial and determination of relator’s contest can be had until in January, 1919, unless it may be said that this court has the power to direct said judge to forthwith call a special term of the district court in Montague county, but which, as we conceive it, we may not do. The statute relating to this subject reads as follows:

“Whenever it may become advisable, in the opinion of a district judge, to hold a special term or terms of the district court in any county in his district, such special term or terms may be held; and such district judge may convene such special term at any time which may be fixed by him. Such’district judge may appoint jury commissioners, 'who may select and draw grand and petit jurors in accordance with the law. Such jurors may be summoned to appear before such district court at such time as may be designated by the judge thereof: Provided, that in the discretion of the district judge, a grand jury need not be drawn or impaneled.” 1 Vernon’s Sayles’ Stat. art. 1720.

The statute quoted seems to make it clearly a matter of discretion on the part of the district judge as to when and under what circumstances he will hold a special term of his court in any given county of his district. Under the law, his court in one of the other counties of his district is now in session, and we cannot know the state of the business in such county, or determine the relative importance of such cases as he may now be trying. For aught that this record shows, it might amount to an abuse of discretion vested in him by the article of the statute quoted to now suspend any and all other business of his court, and forthwith order and hold a special term of the district court in Montague county, in order to determine in time the relative rights of the relator and respondent Overstreet in the matter of having their names upon the official ballots at the coming general election. It is a familiar principle of law relating to the issuance of writs of mandamus that such writs will not issue to command an officer to perform a duty left to his discretion. See Jefferson v. Scott, 135 S. W. 705; Glasscock v. Commissioner of the General Land Office, 3 Tex. 51; Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302, and numerous other cases that might be cited.

It may be said, and indeed relator insists, that in view of his said appeal, now properly pending in the district court of Montague county, we should issue a writ of injunction restraining the officers whose du,ty it is to provide official ballots from presenting the respondent Overstreet’s name thereon. To this we must reply that this court has no appellate jurisdiction over a contested election for a precinct office. 2 Vernon’s Sayles’ Stat. art. 3156. Nor have we power to issue original writs of injunction. We can only issue such writs in aid of our appellate jurisdiction. See article 1592, Vernon’s Sayles’ Texas Civil Statutes, which reads:

“The said courts and the judges thereof have power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”

See, also, Dunn v. St. L. S. W. Ry. Co. of Tex., 40 Tex. Civ. App. 242, 88 S. W. 532, and cases therein cited.

This opinion has been hastily prepared, but we think perhaps enough has been said to warrant our final conclusion, which is that the relief sought in the proceeding which we have power to give will be altogether unavailing, and that it is not our duty,, to direct the performance of a wholly useless thing. It is accordingly ordered that the application herein be denied.
      ©=»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      jgrsoEor other cases see same topic and KEY-NUMBEE In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    SPINNER-HAY LUMBER CO. v. APPLEBAUM et al.
    (No. 7637.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 18, 1918.)
    1. Contracts <S=»322(1) — Action Under Building Contract — Burden or Proof.
    Under a contract to settle a controversy under a building construction contract, whereby part of the agreed price was placed in escrow subject to completion of the contract by plaintiff, and which provided that if the tin work was not done the owner might complete the work and recover for it as itemized statements from competent workmen showed actual cost, the burden was on the owner to show the cost of completing the tin work in order to recover therefor.
    2. Contracts <®=o!98(2) — Building Contracts — Construction.
    Under a building contract expressly providing that tin work must be properly done with proper fall, the duty rested on the contractor of leveling the building if such action was necessary to give the guttering the proper fall.
    Appeal from Harris County Court; W. E. Monteith, Judge.
    Action by the Spinner-Hay Lumber Company against J. Applebaum and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    See, also, 186 S. W. 810.
    Love & Fouts, of Houston, for appellant.
   PLEASANTS, C. J.

This suit was brought by appellant against the appellees to recover the sum of $224, with 8 per cent, interest from October 1, 1913. Plaintiffs cause of action is based upon a contract executed by the parties on September 17, 1913, the substance of which is as follows:

It recited that appellant had constructed certain improvements for Applebaum and wife, under a contract which provided for the payment of $2,790, and that differences had arisen between the parties as to whether said houses had been completed in accordance with the contract and plans and specifications, and that the parties, in order to settle the difference thus arising, agreed:

(1)That Applebaum and wife would pay to the appellant the sum of $2,790, as follows : $2,566 to be paid upon the execution of the contract, and which sum was receipted for thereby, “and the remaining sum of $224.00 to be placed with Meyer O. Wagner to be held in escrow until the .first party (appellant) has completed the work herein recited to be done by said first party.”
(2) Appellant agreed to have the water pipes properly placed and tapped with the city main in such manner as to bring water into said houses, and cost and expense therefor to be paid by appellant, and the work to be completed not later than September 22, 1913, and appellant agreed, in the event of the failure to so complete said water connections within the time specified, to pay Applebaum and wife $3 for each day’s delay until the work was done, and for the purpose of further protecting the said Apple-baum and wife the sum of $224 placed in escrow should be held until the completion thereof.
(3) Appellant agreed to repair three windows at an estimated value of $3, and on failure to fix said windows by September 19, 1913, Applebaum and wife were authorized to do that work and receive the sum of $3 therefor.
(4) Appellants agreed to furnish four keys for inside rooms, and upon their failure to furnish said keys by the evening of September 18, 1913, the sum of $4 should be retained to secure payment thereof by Applebaum and wife, who were then authorized to have-keys fitted.
(5) Appellants obligated themselves to have all the tin work on said houses “properly done with proper fall and in proper workmanlike manner,” which work was to be-done by September 24th; said contract with reference to the tin work continuing as follows:
“And failing to do said work by that date, second party is authorized to contract for said work to be done, and all costs and expenses therefor will be paid by first party; that of the amount placed in escrow $71.00 is to protect against claim now outstanding by tinner for payment for his work, and which work has not been accepted by second party, and a controversy has arisen between second party and first party and between tinner and first party as to proper work. It is distinctly understood that the tin work must be properly done with proper fall and in a first-class workmanlike manner. Should first party fail to do and perform and complete said tin work as required by September 24, 1913, second party is authorized to proceed to contract for such work to be done, and the sum held in escrow shall be applied in payment therefor, and should amount not be sufficient, then first party hereby admits liability for any deficiency in amount in escrow to cover payment for all obligations herein undertaken by first party, and' such amount shall be paid as itemized statements from competent workmen show actual' cost.”
(6) The last and. final provision of said-escrow agreement was as follows:
“First party upon execution hereof binds himself to deliver possession of said houses to second party, and such possession and occupancy shall not be a waiver of any legal rights as to the items herein specified, but shall be an acceptance of all other portions thereof, and as to items herein mentioned acceptance thereof is not made by- second party and so expressly understood.'’

Appellants alleged the construction and completion of the houses under the original contract, the difference arising over the acceptance of the work and the execution of the subsequent or escrow agreement, and alleging that appellants had fully complied with said escrow agreement, and that the escrow agent Wagner had refused to pay plaintiffs said sum of $224 deposited with him under the terms of said escrow agreement, and prayed judgment for said sum with interest.

Appellees Applebaum and wife, in their answer, admitted the execution of the contracts pleaded by plaintiffs and admitted that the sum of $224 was placed with Meyer C. Wagner to be held in escrow under the terms of the contract of September 17, 1918. They also admitted that the water pipes provided for in the contract had been connected up as required by said contract, except that plaintiffs had failed to place a cut-off as provided for in the original contract, and that the cost of replacing said cut-off was $5. They denied that plaintiffs had repaired the three windows as required, and alleged that defendants did the work at an expense of $2.60. They admitted that plaintiffs furnished the keys to the houses as alleged in plaintiffs’ petition.

Said defendants, in paragraph 10 of their answer, alleged that plaintiffs had refused to have all the tin work on said houses properly done with proper fall and in a proper, workmanlike manner, and that said defendants had made demand on plaintiffs for the performance of said work, which was refused, and that the reasonable cost of having the tin work on said houses properly done with proper fall and in a proper and workmanlike manner would be the sum of $120, “and which sum these defendants are entitled to receive for the purpose of having said tin work on said houses properly done with proper fall, and in a proper and workmanlike manner, and which sum is the reasonable cost for the performance of said work.”

In paragraph 11 of said answer said defendants admitted that the sum of $71 was placed in escrow to protect against claims outstanding by the tinner for the payment for his work, and that said defendants did not know whether said claim had been paid or not, and, if the same had not been paid, said defendants were entitled to recover the sum of $71 held in escrow in payment of said tinner’s claim.

Paragraph 13 of said defendants’ answer is as follows:

“These defendants further allege under the terms of said contract it was provided that he, the first party (meaning plaintiffs herein), failed to do or perform and complete said tin work as required by September 24, 1913, that these defendants were authorized to proceed to contract for such work to be done, and the sum held in escrow to be applied in payment therefor; that said work was not done, and that these defendants notified Meyer 0. Wagner that they desired to contract to have said work done and receive from the said Meyer O. Wagner such sum as would be required to do and perform such work, and the said Meyer O. Wagner refused to pay said sum unless consent was obtained from the first parties in order to relieve him from any personal liability by virtue of said payment.”

Paragraph 15 of said answer is as follows:

“Defendants deny that plaintiffs fully complied with the terms and requirements of said contract, and these defendants say they notified the said Meyer O. Wagner not to deliver said money held in escrow to the said plaintiffs herein, and to hold said sum until compliance with the terms of said contract.
“Wherefore, these defendants pray that said plaintiffs take nothing by their said suit, and these defendants go hence without day and recover their costs in this behalf expended, but in the event the court finds for plaintiffs, then that defendants be credited with such amount as defendants are entitled to, together with costs of court.”

The defendant Wagner answered, admitting that he is holding in escrow the sum of $224 under the terms of the contract here-inbefore referred to, and further alleged that Applebaum and wife had notified him not to pay said sum of money, “because of said claim or claims made by them for certain work, consisting of a cut-off to be placed, costs of window pane, and failure of plaintiffs herein to have the tin work on said houses properly done, with proper fall, and in a proper and workmanlike manner, and because of notice of lien by Tinner’s Supply Company.” He further alleged that he was still holding the sum of $224 in escrow until it should be determined to whom said money is due, and concluded with the prayer that the court determine to whom said money “is due and owing.”

By way of replication to the pleadings of the defendant, appellants denied that they had failed to perform the work required by the terms of the escrow agreement, and specially alleged that they had had said tin work done in accordance with the said contract of settlement, and that defendants had failed to have any work claimed by them to be defective or insufficient or omitted, done, and an itemized statement of competent workmen showing the actual cost of doing said work, as required by said contract, and therefore they were not entitled to have, receive, or further hold the money so placed in escrow under the terms of said supplemental contract.

' This is the second appeal in this case. See Applebaum v. Spinner-Hay Lumber Co., 186 S. W. 810. Upon the first trial of the case the defendants Applebaum and wife, having admitted that they had not had any of the work done which they claimed in their answer was not properly done by appellants, the court instructed the jury to return a verdict for appellants, from which judgment 'Applebaum and wife appealed, and the Court of Civil Appeals at San Antonio reversed said judgment, holding that this action of the court was erroneous. A second trial was had upon the same pleadings on October 5, 1917, upon wl\ich trial the court submitted •the ease to the jury upon three special issues : First, as to whether or not the tin work on the houses mentioned in the contract was completed in a proper, workmanlike manner, and with proper fall, and according to- the specifications in the original contract; second, whether or not said tin work could have been completed so as to comply with the specifications in a proper, workmanlike manner and with proper fall. The jury having answered both of said issues in the negative, the court rendered judgment on the verdict in favor of all the defendants, and that plaintiffs take nothing against them.

The undisputed evidence adduced upon the trial shows that the claim of the tin-ner who did the tin work on the building for $71 had been paid by the appellant. Upon this state of the pleadings and evidence, there is no theory on which judgment in favor of defendants for the whole of the $221 can be sustained. The finding of the jury that the tin work upon the buildings could not have been completed in compliance with the specifications of the contract is without support in the pleadings or evidence, and that issue was not in the case. The answer of defendants avers that the tin work could be completed for the sum of $120, and they only claim that amount for the failure of appellant to complete said work. Upon the pleading and undisputed evidence no judgment could be rendered in favor of ap-pellees upon this claim for more than the $120, and in addition thereto for items of $5 for the cut-off and $2.60 for repair of the windows. But the evidence is not sufficient to show the cost of the completion of the tin work, and since, under the terms of the contract, it devolved upon appellees to show such cost, the judgment must be reversed. As presented by this record, this was the only issue in the case, and there was apparently little effort to develop the evidence thereon.

The man who undertook to correct the defects in the tin work testified that the guttering could not be given the proper fall to carry off the water because the houses were not level, and that, not being a carpenter, he could not tell what it would cost to “jack” the houses up and make them level. That the cost of such work could have been easily ascertained is apparent, but it was not shown.

We cannot agree with appellant in the contention that the contract did not require it to remedy this defect in the houses which prevented the tin work from having the proper fall to carry off the water which fell on the roofs of the buildings. The contract expressly provides that the tin work “must be properly done with proper fall.” The evidence shows that the tin work mentioned in the contract was the guttering placed under the eaves of the houses to catch and carry off the water from rains which fell upon the roofs, and that this guttering could not be given the proper fall without leveling the houses. Appellant cannot relieve itself of its obligation to give the proper fall to this tin work on the ground that ■ the defect is in the house and not in the tin work. The contract cannot be properly so construed.

For the reasons indicated, the judgment is reversed, and 'the cause remanded.

Reversed and remanded.
      <S=jPor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    SAMUELL v. BROOKS et al.
    (No. 8016.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 9, 1918.
    On Rehearing, Jan. 11, 1919.)
    1. Trusts <⅞=>359(2) — Enforcement—Equity Jurisdiction.
    Perfect or complete voluntary trusts are enforceable in equity, but executory, incomplete, or promissory trusts are not.
    2. Trusts <®=>20, 25(1) — Creation.
    Trusts may be created by conveyance or assignment to the donee, or by transfer to third persons upon declared terms, or upon declarations which fasten a beneficial interest, but retain the legal title in the donor; language showing unequivocally an intention on his part to create a trust being essential under the first method, but not under the second and third.
    3. Trusts @=»114 — Creation of Trust — Executed or Executory.
    A written declaration by grantor that a deed absolute, already given, was in fact a mortgage, and that the grantee should sell the property, pay off the incumbrances, and set aside $5,000 in trust for grantor’s daughter, created a complete and executed trust as to the $5,000 enforceable in equity, although grantor could delay funds becoming available until his death by refusing to execute a deed for the property when sold.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

      Suits by Berta V. Samuell against S. B. Brooks and others, and by S. B. Brooks against Berta V. Samuell and another, consolidated. From an adverse judgment, Berta Y. Samuell appeals.
    Affirmed.
    J. G. Matthews, of Greeniville, for appellant.
    Clark & Sweeton and Geo. S. Perkins, all of Greenville, and W. B. Hamilton, of Dallas, for appellees.
   RASBURY, J.

Appellant sued appellee S. B. Brooks to recover principal, interest, and attorney’s fees upon a past-due promissory note for $5,000, payable to Zora Sam-uell or order, executed in part payment of 210 acres of land in Hunt county, conveyed by appellant to appellee S. B. Brooks, and to foreclose the vendor’s lien retained. in said conveyance to secure payment of same. A. M. Samuell, to whom appellee Brooks subsequently conveyed the land, was made a defendant, as was Zora Samuell, the payee. Against A. M. Samuell a foreclosure of the lien was sought, and against Zora Samuell judgment decreeing she was without interest in the note, etc. In support of her right to maintain suit upon the note, appellant alleged that the note was made payable to Zora Samuell, her daughter, by mistake on her part, and through fraud, accident, or mistake on the part of the said Brooks and A. M. Samuell, in that the said A. M. Samuell, brother of her deceased husband, advised her to sell the land to Brooks, pay existing debts against it, and send him the surplus, with which he would speculate and make her large returns, and for which purpose he could use a note payable to Zora, and that when she concluded the sale to appellee Brooks she delivered the note to Clark & Leddy, attorneys, with instructions to forward same to A. M. Samuell, at Dallas, Tex., which they did immediately, but that A. M. Samuell, instead of using the note for the purpose agreed upon, without the knowledge or consent of appellant, forwarded it to appellee Brooks, who was his agent, and who placed it with the private papers of A. M. Samuell, of.which he had charge, and concerning which appellant knew nothing until she called upon A. M. Samuell and learned that he had refused to use the note, but had delivered same to appellee Brooks as aforesaid. Appellant further alleged that she never intended the note to be a gift to her daughter Zora, and never delivered it to her, or to another for her use, and when she learned the disposition made of it she immediately and continuously demanded possession and payment of same from the appel-lee Brooks, which he refused, and as a consequence appellant was compelled to employ counsel, to whom said Brooks finally delivered the note.

| After appellant filed Her suit, but before I service of citation was had upon appellee Brooks, he filed a suit in the same court against appellant and her daughter Zora, alleging in substance that he was and always had been willing to pay the note since its maturity, but that both appellant and her daughter Zora claimed the fund. He tendered the principal and interest of the note into court, and prayed that it be adjudged to the real owner, and that he be discharged, with his costs. In answer to appellant’s suit, appellee Brooks alleged in substance that appellant’s conveyance of the land and the taking of the note payable to her daughter Zora was the culmination of appellant’s plan and purpose to set aside to her daughter Zora the slim of $5,000 in trust, to be administered by appellee Brooks, who was directed to pay the income derived therefrom to said Zora for her maintenance and education, but that, due to the controversy relating to the ownership of the fund, he desired to resign, his trust and as maker of the note to pay same, but could not pay it to Zora, because of her minority, and could not pay it to appellant, because it was by its terms payable to Zora. Prayer was that appellant and her daughter be required to litigate the ownership of the note and fund, that he be relieved from further duties as trustee, and for his costs.

At this point in the controversy, on motion of appellee Brooks, the causes were consolidated. After consolidation appellant amended her pleading to meet the new phase of the proceeding, but made no substantial change in her cause of action. Subsequently Zora Samuell, by her guardian ad litem, answered the suit of appellant, and after adopting certain pleadings of appellee Brooks, among them the allegations that it was appellant’s purpose to create a trust fund for her use and benefit by the sale of the land, pleaded that the note was her individual property, and that she owned, by inheritance from her father, an undivided one-sixth interest in the land in part payment of which said note was given, of which appellant was cognizant at the time she conveyed same. Appellee A. M. Samuell, in effect, adopted the pleading of appellee Brooks in the suit he filed, and in the answer to the suit brought by appellant.

By supplemental petition appellant replied to the pleadings of the parties just recited, raising issues of law and fact, and specially pleading other facts. It is not necessary, however, to recite the pleading in order to understandingly discuss the issues presented in the brief. Jury was waived, and trial was had before the court, who adjudged that appellee Zora Samuell was the legal and equitable owner and holder of the note, and entitled to the fund tendered into court against all parties to the suit, and that appellant was entitled to nothing by her suit, and that all parties, as to her suit, go thence and recover costs, etc. Prom such Judgment this appeal was taken.

Upon request of the appellant the court filed conclusions of fact and law. The facts found are, in substance, these: On March 10, 1915, appellant, Mrs. Berta V. Samuell was indebted to First National Bank of Greenville and its cashier, appellee S. B. Brooks, in an amount aggregating $5,534.80. On that date Mrs. Samuell conveyed to Brooks 210 acres of land in Hunt county by general warranty deed absolute in form, but intended as security for her indebtedness. Thereafter, on October 12, 1915, Mrs. Samuell signed, acknowledged, and delivered to Brooks another instrument, in the nature of a declaration, which recited in substance that the conveyance of March 10, 1915, to Brooks, while absolute in form, was intended to secure Brooks and the bank in the sum •of $5,534.80; also that against said land so conveyed there was a prior lien securing the British American Mortgage Company in payment of a debt of $8,000; and that it was her desire to sell the land and pay the debts enumerated, and, in addition, to create, out of the proceeds of the sale^ a trust fund of $5,000 for the benefit of her daughter Zora. For the purposes enumerated she authorized and empowered Brooks to speedily sell the land for not less than $100 an acre, and with the proceeds, first, pay all indebtedness due British American Mortgage Company, or permit the purchaser to assume such indebtedness ; second, pay the debt due by her to the First National Bank of Greenville and Brooks, including any additional sums advanced; third, to retain, as trustee for Zora Samuell, $5,000, which should be invested and reinvested in her behalf, paying to her, for her maintenance and education, the income from said fund as it accrued, whether annually, semiannually, or monthly, said trust to continue for - years, after which the entire fund was to be paid to Zora; fourth, the remainder of the proceeds from said sale, if any, to be paid over to said Mrs. Berta V. Samuell. Thereafter, on November 29, 1915, appellant, Mrs. Berta V. Samuell, signed, acknowledged, and delivered to appellee Brooks a general warranty deed to the 210 acres of land referred to in the former instruments. The consideration was $21,000, paid iby Brooks assuming the $8,000 cfue British American Mortgage Company, $8,000 in cash, and appellee Brooks’ note for $5,000, payable to Zora Samuell, and due January 1, 1916, being the note in controversy. The deed to Brooks referred to the former conveyance to Brooks, and declared it was but a mortgage to secure the debts enumerated in the trust declaration subsequently recorded.

Prior to signing and recording the declaration of October 12, 1915, it was the desire of appellant, Mrs. Samuell, to sell the land and pay the incumbrances thereon, and appellee Brooks, at the request of A. M. Samuell, suggested to her that it would be .advisable to sell the land and place $5,000 of the proceeds in trust for her daughter Zora, and Mrs. Samuell made the declaration for the purpose of creating a fund of $5,000 in trust for her daughter. After the delivery of the trust declaration, and before delivery of the deed of November 29, 1915, Mrs. Samuell was informed by her son that appellee A. M. Samuell would accept a note payable to Zora and taken in part payment of said land, and use it as collateral in speculating in cotton futures for the benefit of Mrs. Samuell, and immediately upon delivery of the last deed to appellee Brooks Mrs. ■ Samuell directed that it be sent to appellee A. M. Samuell, which was done. Samuell immediately returned it to appellee Brooks. When the ■ note was forwarded to A. M. Samuell, appellant intended that he should use it as collateral in speculating for her and her children, and did not intend that it should be returned or delivered' to Zora Samuell, or appellee Brooks for her, and understood from what her son had told her that it would be used to speculate on, although appellee A. M. Samuell had not so agreed. Nor did appellee A. M. Samuell advise appellant that he had returned it to appellee Brooks until some time afterward, when she called upon him at Dallas, at which time she immediately demanded the note, which appellee Brooks refused to deliver. There was no agreement between appellee A. M. Samuell and appellee Brooks, at the time the latter purchased the land, that the former would take the land from Brooks at the price he paid for it, although Brooks did so convey the land to Samuell. Samuell did advise Brooks to buy the land, and guaranteed him against loss in the transaction. At the time Mrs. Samuell delivered the deed to Brooks and accepted his note in part payment thereof, Zora Sam-uell was attending school at Dallas and living with her unde, A. M. Samuell, as she also was at the time of the trial of the case.

The trial judge reached the conclusion, in effect, that the instrument of October 12, 1915, which may be designated a declaration of trust, created or set aside a fund of $5,000 for the benefit of appellee Zora Samuell, the right to the use of which vested when appellant, Berta V. Samuell, signed, acknowledged, and delivered the deed of November 29, 1915, to appellee Brooks. Appellant challenges the correctness of the court’s conclusion in the respect stated, and since the issue so raised is, in our opinion, controlling, we will consider it first.

Appellant contends that the declaration is incomplete, executory, and at most a promise to create a trust, for the reason that it does not convey the land to Brooks in trust for Zora, nor does it empower him to convey the land and apply the proceeds as directed, but merely 'authorizes him to sell, which as a consequence leaves the trust revocable, and that appellant did revoke same when she executed the deed. The foregoing, while in our own language, fairly and in substance states the attitude of counsel for appellant, Mrs. Samuell.

In determining the issue thus .presented, we omit discussion of any elements of the subject of trusts other than the precise question involved, and will attempt even in what we do say to confine ourselves to the application of the rule to the particular facts disclosed by the record in the present case. Using in substance the language of another:

The general rule is that perfect or complete voluntary trusts are, and executory, incomplete, or promissory trusts are not, enforceable in equity. Trusts may be created in real or personal property by conveyance or assignment to the donee, or by such transfer to third persons upon declared terms, or by declaration which fastens a beneficial interest in or upon property and retains the legal title in the donor. If the donor adopts either the “second or third mode, he need not use any technical words or language in express terms creating or declaring a trust; but he must employ language which shows unequivocally an intention on his part to create a trust in a third person or to declare a trust in himself.” Pome-roy, Eq. Juris. § 997.

“Where the donor has the legal title, and, the property is of such a nature that a legal estate can be transferred — that is, is land, chattels, money, and some species of things in action — an imperfect conveyance or assignment, which does not pass the legal title, will not be aided or enforced in equity. But if the property is not of such a nature that the legal title can be transferred, then, if nothing more remains to be done or can be done by the grantor or donor — if, as far as he is concerned, the conveyance or assignment is complete, and he has done all that is necessary to be done, having regard to the nature of the property — the conveyance or assignment will be effectual in equity, and will be enforced on behalf of the donee.” Pomeroy, Eq. Juris. § 998.

What, then, is the status of the declaration of appellant of October 12, 1915, when applied to the very clear and uninvolved rules announced by Mr. Pomeroy? We conclude that said instrument alone and within itself is a complete or executed trust enforceable in equity. The instrument declares the donor to be the owner of land which is incumbered with certain mortgages, and that it is-her desire to) sell the land for a fixed sum, and out of said sum pay the incumbrances and set aside to her daughter Zora $5,000 as a trust fund to be administered by the trustee named. She directs the trustee to sell the land at the figure named, and when sold to apply the proceeds as directed, any balance to be paid to her. The trust does not come within the class enumerated in the first rule announced, since it is clear, and may not be denied, that there was no purpose on the part of Mrs. Samuell to convey any interest in the land. If that had been her purpose, it is equally clear that the declaration would have been insufficient in that respect, since by that rule, when such is the purpose, the donor must do “all that is necessary, according to the nature of the property, to pass and vest the title,” which would have been by deed executed in the manner required by statute. Obviously Mrs. Samuell’s purpose at that time was to set aside $5,000 out of the proceeds derived from the- sale of the land, when sold, to be held in trust for the maintenance and education of her daughter. To import less to the language would be to declare the instrument meaningless and to assert that she had no purpose in view.

It may be conceded that the fund could not became available until Mrs. Samuell actually sold and conveyed the land. That would not affect or change the fact, however, that she did set aside the sum stipulated. No more certainty would have been added to what she actually did declare and do, if she had gone further and added that the use of the fund was available only upon her conveyance of the land. Such was obviously true whatever was said. She was not transferring an interest in lands, and hence deed was not necessary to complete the trust. She did not have the fund in possession; hence assignment or corporeal delivery for the same reason was unnecessary and could not be made. Nothing in fact remained for her to do to complete the transaction, for, as we have shown, when the property or thing sought to be bestowed is of such nature that legal title cannot be passed or the thing actually delivered, “the conveyance or assignment is complete.” It must only appear that there is an unequivocal intention on the part of the donor to make the bestowal; and in that connection technical words or language expressly creating the trust are not necessary. And while the beneficial use of the fund may have been postponed by the refusal of Mrs. Samuell to convey to Brooks, or at all, whenever she did sell or upon her death, equity would enforce same, unless, of course, the proceeds from the sale of the property were insufficient to pay the incumbrances, or .the trust was in some manner defeated, as by taking a negotiable promissory note, similar to the one in controversy, in the name of Mrs. Samuell or another, and its acquisition for value by one without notice of the trust, or by unlawfully using the money for another purpose. However, those are conditions which never arose, for appellant did sell the land and voluntarily set aside the $5,000, by taking the note in the name of her daughter. The fact that she intended to use the note or fund unlawfully, by which we mean the fund was not hers to. use, is of no consequence in determining to whom same lawfully belonged. We concede and believe that she intended, and in utmost good faith believed she had the right, to divert the fund, and that it would have been wisely invested for all; yet such facts are without force to change the result of her declaration or the status of the fund when, the land was sold.

There are several other issues presented in the appellant’s brief, including one of whether the declaration constituted a gift inter vivos, whether there was a delivery of the note to Zora, so as to pass ownership out of Mrs. Samuell, and the question of attorney’s fees in the event Mrs. Samuell was the true owner of the note. In our opinion such issues are never reached under our holding that the declaration of trust was a complete conveyance of fund, and for that reason will not be discussed.

The judgment is affirmed.

On Rehearing.

Counsel for appellees courteously insists, on motion for rehearing that it is not clear from our opinion which of the several instruments discussed therein and disclosed by the evidence we hold creates the trust. As is shown by our opinion, we base our conclusion upon the declaration of October 12, 1915. It is true that the subsequent conveyance of the land made the trust fund available to the donee, but that fact did not, in our opinion, constitute the instrument an executory trust. It is said that—

“A trust is executory when some further act is directed to be done in order to complete and perfect the trust intended to be created. A misconception should here be guarded against. When by the terms of the trust as created, and for the purpose of carying it into effect, the trustee is directed to do some act with the property, the trust is not thereby executory. Giving property to a trustee upon trust to convey to a person, or upon trust to convey it upon certain specified trusts, does not render the trust executory. * * * If the scheme has been imperfectly declared at the outset,” and the donor has imposed upon the trustee or the court the duty of effectuating it, “the trust is called executory. All trusts are in a sense executory, because a trust cannot ba executed, except by conveyance, and therefore there is something always to be done.” The test is: Has the donor “left it to the court to make out from, general expressions what his intention is, or has he so defined that intention that you have nothing to do but to take 'the limitations he has given you, and to convert them into legal estates?” Pom. Eq. Juris. § 1001.

In our opinion the declaration of October 12, 1915, clearly set aside to the donee the sum stipulated to be paid when the land was sold, and hence when the land was sold the amount was converted thereby into a legal estate. Of course, as said in the original opinion, the trust or estate could have been defeated, but that fact does not, in our opinion, destroy what would otherwise constitute a complete trust.

The, motion for rehearing is overruled.
      <S=oFor other oases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    RODGERS v. BELL et al.
    (No. 2059.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 2, 1919.
    Rehearing Denied Jan. 9, 1919.)
    Evidence 3=186(4), 317(4) — Heaksay—Sub-scribing Witness.
    In trespass to try title, depending upon whether a deed was forged, where it appeared that the deed was destroyed, and the parties, witnesses, and notary had died, declaration by a witness that an attesting witness said he had seen the grantor sign the deed, in corroboration of other testimony, was not inadmissible as hearsay.
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Trespass to try title by W. C. Rodgers against J. H. Bell and others, with cross-bill by defendants. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Rube S. Wells and B. B. Sturgeon, both of Paris, for appellant.
    Moore & Hardison and W. A. Hutchinson, all of Paris, for appellees.
   LEVY, J.

The appellant brought the suit against the appellees in trespass to try title to a certain tract of land. The appellees pleaded not guilty, and by cross-bill sought to recover title to the land. Appellees also filed an affidavit that a certain deed was a forged instrument. The main issue in the case was that respecting the alleged forged deed. In a trial before the court without a jury the following finding and conclusion were filed:

“Defendants having filed an affidavit charging that a deed purporting to have been executed by B. E. Kennedy and wife to Zora Kennedy, of date August 27, 1896-, is a forgery, and the plaintiff having failed to prove the execution of said deed, I find that said deed was not executed by B. F. Kennedy and N. J. Kennedy. I therefore conclude that the defendants are entitled to judgment for the land in controversy.”

The alleged makers as well as the witnesses to the deed in issue were dead at the time of the suit. The notary public purporting to take the acknowledgments of the grantors in the deed died some time before the trial, and it was shown that the original instrument in controversy was offered in evidence. On the deed appeared the names of two attesting witnesses, John B. Davis and J. E. Homer; and the plaintiff offered to-prove by the son-in-law of John B. Davis the following:

“In the winter before Mr. Davis died in June we were sitting before the fire talking about the old people in the country who used to live out there, and he remarked that he witnessed a deed from Ben Kennedy to his niece, and that Mr. Horner, as I understood him, also witnessed it.”

The court, on objection that it was hearsay evidence, reiused to permit this testimony, and the appellant predicates error upon the ruling.

The original deed being destroyed, and the grantors and witnesses being dead, it would be a difficult thing to make any proof of the handwriting of these parties to the instrument; and in these circumstances the next best evidence is proof of declarations of the attesting witness. The declaration here in hand is circumstantially relevant to show that Mr. Davis did, as the deed showed, witness the signing of the deed by the purported grantors, and that he did not subscribe his name to a false attestation. This, when shown, is a circumstance of corroboration of other testimony in the record. It is believed that the rule of hearsay evidence has in this particular case no application. 16 Cyc. p. 1146; 10 R. C. L. 300; 1 R. C. L. 41.

The error, it is concluded, is sufficient to cause a reversal of the judgment, and to remand the cause for another trial.

Reversed and remanded.
      <§=For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    MILLER v. FENTON et al.
    (No. 2051.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 19, 1918.)
    1. Replevin <S=>60 — Pleading.
    To entitle one to recover in replevin, he must allege either that defendant wrongfully deprived him of possession of property, or that he wrongfully withholds possession from plaintiff.
    2. Pleading <S=»212 — Demurrer—Waiver-Duty or Court.
    Where petition in replevin action did not allege that defendant wrongfully deprived plaintiff of possession, or wrongfully withheld possession of the property, and defendant’s answer contained a general demurrer, it was duty of court of its own motion, if demurrer was not called to its attention, to hold that petition did not state cause of action.
    3. Husband and Wife <®=>257 — -Community Property.
    Where wife bought ginning machinery, paid for it out of her separate estate, sold one-half interest to a son, and then repurchased the half interest, paying for it out of money earned by operating the mill, the half interest which she repurchased became a part of the community estate between her and her husband, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622.
    4. Tenancy in Common ⅞=»38(2) — Actions Between Tenants — Possession.
    Where a part owner wrongfully withheld personal property, another part owner could not bring action for the property, but should sue for a partition thereof.
    5.Courts ®=»163 — County Courts — Jurisdiction.
    The county court has no jurisdiction of an action to recover or partition real property.
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Action by Mrs. Dora Belle Fenton and another against J. L. Miller. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
    In 1907 appellee Mrs. Dora Belle Fenton, a married woman, purchased certain mill and gin machinery of one Jones, paying him $1,-000 therefor out of her separate estate and agreeing to pay him $400 more in accordance with the terms of her two promissory notes for $200 each which she then made and delivered to him. She afterwards sold an undivided one-half interest in the property to her son J. R. Fenton in consideration of his undertaking to pay said notes and operate the mill and gin on their joint account. Thereafterwards J. R. Fenton built a gin-house, into which, it seems, he moved the machinery, and where, .it seems, he operated the mill and gin during the seasons of 1908, 1909, and 1910. It does not appear from the record sent to this court whether the house was built on land belonging to J. R. Fenton, or to his mother, or to her husband, or to some other person, nor whether it was attached to the . land otherwise than by its own weight, nor whether it was placed on the land with or without an agreement as to its removal, etc. In 1910 J.' R. Fenton sold the interest he had acquired in the machinery and gin-house back to his mother for $400, $247 of which she then paid to him with money acquired by her in the operation of the gin and mill, and the remainder of which had not been paid to said J. R. Fenton at the date of the trial, to wit, May 31, 1918. When she purchased the interest of J. R. Fenton, Mrs. Fenton placed another one of her sons in charge of the property and thereafterwards to the date of the trial, it seems continued to operate the mill and gin. March 22, 1918, the sheriff of Upshur county levied upon the mill and gin machinery by virtue of an execution on a judgment in favor of appellant against appellee R. Fenton, who was Mrs. Dora Belle Fenton’s husband. April 24,1918, said sheriff, by virtue of another execution on said judgment, levied upon the ginhoiise. At sales made under the executions appellant was the purchaser of said machinery and ginhouse. This suit was by Mrs. Fenton,-joined by her said husband, against appellant. She alleged that she was the owner of the machinery and ginhouse at the times the executions -were respectively levied as stated, and that the levy théreori and sale thereof By the sheriff therefore was unlawful. She did not allege that she was not herself in possession of the property at the time she commenced her suit, nor did she allege that appellant then, or ever, was in possession thereof. She prayed judgment for the property, or, in the alternative, for its value, which she alleged to be $900. Appellant’s answer consisted of a general demurrer, a general denial and a special plea that the property belonged to the community estate between Mrs. Fenton and R. Fenton, and therefore was subject to seizure and sale for the purpose of satisfying his (appellant’s) judgment against said R. Fen-ton. The trial was by the court without a jury, and he found the facts to be as we have stated them. There is no statement of facts with the record sent to this court. The appeal is from a judgment in favor of Mrs. Fen-ton for the property in controversy.
    T. H. Briggs, of Gilmer, for appellant.
    Briggs & Florence, of Gilmer, for appellees.
   WILLSON, C. J.

(after stating the facts as above). The judgment is fundamentally wrong, because not warranted by either Mrs. Fenton’s pleadings or the facts found by the trial court.

To entitle her to recover, as she did, Mrs. Fenton must have alleged, and she did not, either that appellant had wrongfully deprived her of the possession of the property, or that he then wrongfully withheld possession thereof from her. 14 Cyc. 258, 265; 34 Cyc. 1386, 1464 ; 38 Cyc. 2044, 2068. For anything to the contrary appearing in the pleadings, appellant was never in possession of the property, and Mrs. Fenton was herself in possession thereof at the time she commenced her suit. The general demurrer in appellant’s answer, if called to the attention of the court, should have been sustained; and if it was not called to his attention, the court should of his own motion have held that the petition did not state a cause of action.

As shown in the statement above, the court found that Mrs. Fenton repurchased of J. R. Fenton the half interest she sold him in the property, agreeing to pay him therefor $400; that of that amount she paid him $247 with money earned by operating the mill and gin; and that the remainder of said $400 remained unpaid at the date of the trial. The effect of those findings was to show that the half interest in the property owned by J. R. Fenton became a part of the community estate between Mrs. Fenton and her husband, R. Fenton. Yernon’s Statutes, arts. 4621, 4622; Bank v. McWhorter, 179 S. W. 1147; Epperson v. Jones, 65 Tex. 425; Short v. Short, 12 Tex. Civ. App. 86, 33 S. W. 682. Such being the legal effect of the facts found by the court, of course he erred when he rendered judgment in favor of Mrs. Fenton for all the property. According to those findings, she at most owned only an undivided one-half interest in it. Assuming the facts to be as the court found them to be, Mrs. Fen-ton’s suit should not have been for the property, but should, instead, have been for a partition thereof.

The judgment will be reversed, and the cause will be remanded for such further proceedings in the court below as the facts warrant. With reference to such proceedings attention is called to the fact that it does not affirmatively appear from the pleadings of the parties or the findings of the court whether the ginhouse in controversy was personal or real property. 19 Cyc. 1036, 1047. The inference from the description of the property as a “house” probably is that it was real property, in which event, of course, the county court was without power to hear and determine its ownership, or to partition it.
      (SxaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    G. M. H. WAGNER & SONS v. HARRIS.
    (No. 6112.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Accokd and Satisfaction <®=»1 — What Constitutes.
    When a statement is received by one party to a controversy from the other, showing the balance due, and payment of that balance is accepted, it constitutes “accord and satisfaction,” and is settlement of the claims between the parties.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accord and Satisfaction.]
    2. Accord and Satisfaction <S=>1 — What Constitutes.
    In an action to recover from defendants commissions which they had retained as brokers for effecting a sale, etc., held, that plaintiff’s acceptance of a payment by defendant, with which was sent a statement of the accounts between the parties, constituted an accord and satisfaction, precluding plaintiff’s subsequent recovery.
    Appeal from District Court, Dimmit County; J. F. Mullally, Judge.
    Action by C. O. Harris against G. M. H. Wagner & Sons. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    T. O. Mann, of Laredo, for appellants.
    Matt Cramer, of Bay City, for appellee.
   FLY, C. J.

This is a second appeal of this case; the result of the first being reported in 195 S. W. 351. A second amended petition was filed after the cause reached the district court. In the original pleadings, as stated in the opinion on the former appeal, it was sought by the present appellee to recover, not only the sum of $723.14 commissions which appellants herein had held out on a sale by them, as brokers, to themselves, but also an attorney’s fee for $250, and $1,000 deposited by appellants with the Asherton Bank, which was to be forfeited to appellee if the contract for the sale of the onions was not performed. By the amended pleadings, on which the last trial was had, appellee sought to recover the commissions, amounting to $768.04, and, in the alternative, the $1,000 forfeit money. The cause was tried by the jury, resulting in a verdict and judgment in favor of appellee for $723.14.

Appellants pleaded accord and satisfaction, and the uncontroverted facts show that there was a controversy between the parties as to how much appellants owed appellee on the sale of his onions;’ the former claiming a right to certain commissions, and the latter denying that right. Appellants claimed that they sent a statement of the account between themselves and appellee, together with a check for the balance due appellee, and that appellee accepted the same and cashed the check, and that he is thereby estopped from claiming any further sum. This is the statement of appellee:

“On May 20th I received a letter and statement from Wagner & Sons, and also a check. I have the statement they sent me. I looked over it when I received it. That statement showed $4,150 advanced, but that included payments made me along on shipments. I think the amount is correct. This statement which was sent me advised me of the number of crates in each car and the price and all. I checked over the statement at the time, and I think it checked out all right. I had a talk with Murl O’Keefe soon after getting the statement; I think it was the next day. I suppose I got this statement about May 21st. Murl O’Keefe called, me over the telephone from the bank at Asher-ton. I received a letter with that statement. The copy you have shown me, I think, is a cops of the letter I received. It is my recollection that it was right after I received the letter and statement, that day or the next day, that Murl O’Keefe called me over the telephone. I know I thought he was rushing things pretty badly. I -did not reply to that letter and statement, except over the telephone to Murl O’Keefe. I never answered it at all. Murl O’Keefe just called me up and asked me to release that $1,-000, and I told him I would not do it; that he had not complied with the contract and I would not release it. This talk was right after I received said statement. I think it was the 21st or the 22d. The statement showed one car was out and what car it was. * * * After that, I got another statement for the last car; I do not remember how much money was in that. I received the cheek that was sent with the letter of May 20th, for $2,000, and cashed it, and I kept the money. I did not reply to those letters. They happened up on the telephone just about the time I gpt that letter, and it was not necessary.”

The first check was for $2,030.32 and the last was for $139.36, and both were cashed by appellee. Appellee did not reply to the letters containing the checks, but in a conversation over the telephone he refused to release the $1,000 forfeit; the ground of refusal not being caused by the commissions being reserved, but because appellants had failed to receive certain onions, their office being closed before the onion harvest was over.

It is the settled rule that, when a statement is received by one party to a controversy from the other, that statement showing the balance due, and payment of that balance is accepted, it constitutes accord and satisfaction, and is a settlement of the claims between the two parties. In other states it has been held that where a debtor sends a certain sum in full satisfaction of an un-liquidated demand, and the creditor accepts and retains the money, his claim is canceled, and no protest, declaration, or denial on his part, so long as the condition is insisted on by the debtor, can vary the result. Elliott on Contracts, § 2078; Hamilton v. Stewart, 105 Ga. 300, 31 S. E. 184; Hull v. Johnson, 22 R. I. 66, 46 Atl. 182; Wilson v. Wilson, 49 Ind. App. 109, 96 N. E. 791; Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785.

In the New York case, last cited, it was said:

“It is of no significance in this case that the remittance was by check. Both parties treated it as money, and upon the receipt of this letter the plaintiff had but a single alternative presented for his action — the prompt restoration of the money to his debtor or the complete extin-guishment of the debt by its retention. The tender and the condition could not be dissevered. The one could not be taken and the other rejected. The acceptance of the money involved the acceptance of the condition, and the law will not permit any other inference to be drawn from the transaction. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of his act.”

The condition clearly expressed in the letters accompanying the statements and checks was that acceptance would be full payment. In the first letter appellants said:

“We are inclosing statement to cover everything shipped by you, except the one car of wax seconds which was consigned, and on which we had no report. * * * We trust that you will find the statement correct ⅛ every way. If not, please advise.”

He did not advise.

In the second letter was the statement as to the car of “wax seconds,” and in that letter it was said:

“This, we believe, settles with you in full, and we would request that you instruct the bank to release the $1.,000 deposited to guarantee fulfillment of our contract with you.”

It is suggestive that appellee, directly after the time he cashed the checks, made no objection whatever to the charge for commissions; his only objection was that appellants had not been at their office, so he could deliver certain onions to them. The statements sent with the checks showed the deduction of 11 cents per crate as 'commissions, but no objections were urged to that charge. The law as herein set forth is sustained by Texas decisions. Stetson v. Dodson, 103 S. W. 685; Hunt v. Ogden, 58 Tex. Civ. App. 443, 125 S. W. 386; Hollinger v. Granite Co., 173 S. W. 603.

Under our view of the case, it becomes unnecessary to discuss the different assignments of error. The matter we have considered is fully decisive of the case.

The judgment is reversed, and judgment here rendered, that appellee recover nothing by his suit and pay all costs in this behalf expended.
      <S=3kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    SCHULZ et al. v. DAVIS, County Judge, et al.
    (No. 6094.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Appeal and Error <§=>773(4) — Failure to File Briefs — Plea fob Affirmance — Fundamental Error.
    On appellee’s plea for affirmance of judgment, Court of Civil Appeals is required to search the record for fundamental error, and a ruling sustaining exceptions to a petition and dismissing action, which in effect is a ruling that petition states no cause of action, if error, is fundamental error.
    2. Schools and School Districts <§=>39— Changing Districts — Supervisory Power of Courts.
    Acts 34th Leg. c. 36, § 4a (Vernon’s Ann. Civ. St. Supp. 1918, art. 2749d), gives district courts supervisory control of action of board of county school trustees in creating and changing school districts, which control will be exercised to prevent or correct their action only when they have exercised that power in a harsh and arbitrary manner amounting to an abuse of discretion.
    3. Schools and School Districts <§=>20— Control of Schools — Supervisory Power of Courts.
    Acts 34th Leg. c. 36, % 4a (Vernon’s Ann. Civ. St. Supp. 1918, art. 2749d), does not give district courts supervisory control of management or abolition of elementary schools within established districts, nor of establishment or maintenance of rural high schools; such duties, under the law, resting on district school trustees, with successive appeals to county trustees, to state superintendent of public instruction, and to state board of education.
    4. Schools and School Districts <§=>39 — Division of District Action.
    In suit to require county school trustees to divide a school district, where it was alleged that the two-mill tax was sufficient to maintain both elementary schools in district without a division,' allegations that maintenance tax rate was to be raised, or the fact that one elementary school had the money and the other the children, was no reason for a division.
    5. Schools and School Districts <§=>iv0— Taxes — Increase of Revenue.
    That one of the two elementary schools in a district needed repairs and ornamentation justified an increase of the revenue from the district within the legal limits.
    6. Schools and School Districts <§=>34— Division of District>--Gro'unds — Discretion of Trustees.
    Neither the fact that rural high school in part of a district would enhance values and trade of that part, nor that children of other part could not attend high school, nor that majority of school trustees would be elected by majority of district voters, tended to show that trustees’ refusal to divide district was an abuse of power.
    7. Schools and School Districts <§=>39 — Division of District — Judicial Supervision.
    Without an allegation, in suit to require trustees to divide a district, that any official action was being taken to inaugurate a system of transportation in a school district, it could not be anticipated that officials might attempt a wrongful act, where, if attempted, a division of district was not the remedy.
    8. Schools and School Districts <§=>34 — Division of District — Discretion of Trustees — Abuse.
    That the surplus of three-fifths of the taxes in part of a district would be used for benefit of the three-fourths of the children in another part thereof would not indicate any abuse of power by board of county trustees in refusing to divide district.
    Appeal from District Court, Bexar County.
    Suit by M. Schulz and others against J. R. Davis, County Judge, and others. Special exceptions to petition sustained and cause dismissed, and plaintiffs appeal.
    Affirmed.
    See, also, 196 S. W. 727.
    Chambers & Watson and D. A. McAskill, all of San Antonio, for appellants.
    Lewright & Douglas, of San Antonio, for appellees.
   SWEARINGEN, J.

By this suit the supervisory control given the district court is invoked by M. Schulz, A. W. Streich, Adolph Lambrecht, O. J. Weller, and Albert Woess-ner to require the Bexar county school trustees to change th!e lines of school district No. 23 in Bexar county, Tex., in such manner as will create a new school district out of the northern end. An injunction is also sought to prevent an election for increasing the special school tax from 2 mills to 5 mills, and to prevent an election for the issuance of $15,000 of bonds with which to erect a rural high school within the district, at 'Elmendorf. The parties defendant, who are appellees herein, are J. R. Davis, county judge; Jacob Rubiola, O. X. Gutzeit, Jacob Klaus, and J. II. Covington, county commissioners; the Bexar county school board, a corporation; G. G. Carter, president of said county school board; T. B. Applewhite, August Liebe, T. P. Dashiell, and H. E. Beck, members of said Bexar county school board; P. F. Stewart, secretary of said county school board; K. J. Smith, Fred Gotari, and A. F. Jacobs, trustees of said school district No. 23; II. W. Ball, appointed by the county judge and commissioners’ court of Bexar county to hold an election for increased special school tax in said school district No. 23; and J. C. Schulz, appointed by said county judge and commissioners to hold election in said district No. 23, for issuance of high school bonds for the purpose of erecting a rural high school at Elmendorf in said school district No. 23; and John W. Tobin — all of Bexar county, Tex.

The trial court sustained eight special exceptions to the petition, and refusing to hear testimony in support of those allegations, exceptions to which had been overruled, dismissed the cause.

The effect of this ruling of the trial court was to decree that the petition stated no cause of action. If the objections to the consideration of appellants’ assignments be sustained, still we are required by appellees’ plea for an affirmance of the judgment to review the record for fundamental error, and if the ruling of the court, to the effect that the petition stated no cause of action, was error, the error is fundamental. Rishworth v. Moss, 159 S. W. 122.

The petition alleges that on the 1st day of January, 1917, there existed a lawful and duly constituted and existing common school district known as “common school district No. 23” of Bexar county, Tex., containing an area of more than 24 square miles, in all things legal and valid. The petition alleges that two elementary schools are maintained in the district, one in the southern end of the district, at Elmendorf, the other in the northern end, known.as the Tablito school; and that there is ample valuation in the district to maintain the two schools; and that these two schools are convenient for school purposes of the district, though' the Tablito schoolhouse is in need of repair and ornamentation. It is alleged that one-fourth of the school children of the district attend the Tablito school and three-fourths the Elmen-dorf school, and that three-fifths of the maintenance taxes are paid by the Tablito neighborhood inhabitants and two-fifths by those near Elmendorf. It is alleged that the refusal of the board of county school trustees to divide district 23 was an arbitrary exercise of power and an abuse of discretion. The facts alleged in support of this conclusion of the pleader are that the district is about seven miles long and that the school children living in the northern end of the district are unable to travel to the southern end to attend school because of the distance, the mud, and swollen streams when it rains, the cold when it freezes, and the sand encountered after leaving the northern end of the district. The petition alleges no facts that require the children of th'e northern end to attend the school in the southern end, save that in the opinion of the pleader the elementary school in the Tablito school will be abolished. It is alleged that, if the district is bonded for a rural high school, no division can be had. There is an allegation that the construction of a building for and the maintenance of a rural high school, as is contemplated, will require such a proportion of the revenues that the Tablito elementary school cannot be maintained. Thle inconvenience and inadvisability of a rural high school is alleged. The expense and insufficiency of a possible system of transportation is alleged in considerable detail. It is also alleged that, of the $15,000 proposed to be obtained from high school bonds, $6,000 will come from property owners in the northern end. These are substantially the allegations relevant to wrongs of appellants and to the relief sought, culled from the voluminous petition.

As we understand the statute enacted by the 34th Legislature, c. 36, p. 68, § 4a (Vernon’s Ann. Civ. • St. Supp. 1918, art. 2749d), the district court is given the supervisory control of the actions of the board of county school trustees in creating, changing, and modifying school districts. This supervisory control will be exercised by the courts to prevent or correct tb'e action of the county school trustees only when the county school trustees have exercised their power of dis-tricting in a harsh and arbitrary manner that amounts to an abuse of discretion. McLaughlin v. Smith, 105 Tex. 333, 148 S. W. 288; McLaughlin v. Smith, 140 S. W. 248; Minear v. McVea, 185 S. W. 1049; Collin County School Trustees v. Stiff, 190 S. W. 216; Price v. School Trustees, 192 S. W. 1140. The section 4a of the statute does not authorize the courts to exercise a supervisory control of the management, establishment, or abolishment of the elementary schools within established districts, nor of the establishment or maintenance and management of rural high schools. All these duties are by the law required of the district school trustees, with an appeal to the county school trus tees, thence to the state superintendent of public instruction, thence to the state hoard of education. If it were alleged that official action was being taken or had been taken to abolish the Tablito elementary school and to use the revenue for the rural high school such allegations would not tend to show that the county school trustees abused their power by the refusal to subdivide the district. Such facts could mean only that the management of the schools within the district was detrimental, to correct which there is a remedy provided by the statute, by appeal to the state board of education. This mismanagement could be corrected without a division of the district. The facts alleged, that the Tablito school will be abolished and that the children cannot travel seven miles to Elmendorf because of distance and obstructions, have no bearing upon the refusal to divide the district.

It is alleged that a 2-mill tax is sufficient to maintain both the Tablito and Elmendorf elementary schools even without a division of the district. The allegation that this maintenance tax rate is to be raised to 5 mills does not lessen the resources for two elementary schools. There are children and money enough in the district, undivided, for the two elementary schools. The fact that Tablito has the money and Elmendorf the children is no reason for a division.

If the petition alleged facts that tended to show that the refusal to divide the district was such an arbitrary, harsh action of the board of county school trustees as to amount to a willful abuse of the power, then in that event the allegation that official action was being taken to incumber the district with bonds would justify the granting of an injunction, because the division of a bonded school district is forbidden by the statute. But in the present action no facts are alleged that tend to show any abuse of discretion by the board in its refusal to divide the district, hence there is no ground for the ancillary relief by injunction.

No facts are alleged that would justify an order to restrain an election to increase the revenue from the district within the legal limitation of 5 mills. On the contrary, the fact that the Tabilto school needs repairs and ornamentation justifies the increase. ■

Neither the fact that a rural high school in Elmendorf will enhance the values and enlarge the trade in that town, nor the fact that the children of the northern end of the district cannot attend the high school, nor the fact that the majority of the district school trustees will be elected by the majority of the voters of the district, can be considered as allegations tending to show that the refusal to divide the district was an abuse of power. The first assault made upon the common school system was that the unfortunate childless property owner would be forced to pay for the education of the children of the more fortunate penniless parents; but this contention did not prevail.

The imaginary system of transportation, upon schedules which the Tablito neighborhood children are said- to be unable to meet because of speed or lack of speed, is purely hypothetical, for it is not alleged that any official action is being inaugurated for such system. In the absence of an allegation that such action has been taken, it cannot be anticipated that officials might attempt a wrongful act; but, even if attempted, there is a remedy, as heretofore indicated. A division of the district is not the remedy.

It appears from the petition- that the petitioners are sorely displeased to have the surplus of their three-fifths of the taxes used for the benefit of the three-fourths of the children that are not theirs. Such facts, as well as all other facts, alleged, fail to indicate any abuse of power by the board of county trustees in its refusal to divide the district, and hence fail to show any cause for a division, or for an injunction restraining the bond election, and the petition wholly fails to show any justification for an order restraining the vote for increase of the maintenance tax.

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


text:
    STATE v. HUNT.
    (No. 1973.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 31, 1918.
    Rehearing Denied Nov. 7, 1918.)
    1. Taxation <S=^637 — Delinquent Taxes— Proceedings for Judgment — Condition Precedent.
    Under Acts 34th Leg. c. 147, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7687a), the tax collector must mail to the address of the record owner of land which was delinquent a notice showing the amount of taxes appearing delinquent according to the records before the state can maintain an action to recover such taxes.
    2. Taxation <§=o637 — Delinquent Taxes — Recovery — Notice as Prerequisite.
    Under Acts 34th Leg. c. 147, § 2 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7687b), declaring that it shall be the duty of tax collectors to rely on the delinquent tax record, it is sufficient for tax collector, in mailing notice of delinquent taxes, to send notice to one who appeared to be owner of land in delinquent records, and it is no defense, in action to recover such delinquent taxes from one who subsequently became owner of land, that his title appeared upon county records.
    3. Taxation <⅜=»501 — Liens.
    The general rule is that taxes are never a lien on property, unless expressly made so.

      4. .Taxation <§=507 — Poll and Personal Property Tax — Lien on Realty.
    Under Const, art. 8, § 15, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7528, poll taxes and personal property taxes do not become a lien on the real property of the person against whom they were assessed, and cannot be enforced against a subsequent grantee of such property.
    Appeal from District Court, Cass County.
    Action by the State of Texas against Goode Hunt. Prom a judgment for defendant, plaintiff appeals.
    Reversed and remanded, with instructions.
    This was a suit by the state of Texas to recover of appellee $29.45, alleged to be the amount of taxes, together with interest and penalties thereon, and costs, assessed against Bill Williams for the year 1888, and against Rachael Williams for the year 1893, and to foreclose a lien to secure said taxes, interest, penalties, and costs, assessed against 60 acres of the D. Dyer survey in Cass county, owned by said Bill Williams and Rachael Williams in 1888 and 1893, and conveyed by them to appellee in 1903.
    Prom findings made by the trial court it appears that $3.50 of the amount sued for represented poll taxes assessed against the Williamses for the years 1888 and 1893, $1 thereof represented taxes assessed against them as the owners during said years of certain personal property, and $4.46 thereof represented taxes for said years assessed against them as the owners of said 50 acres of land. The remainder of the amount sued for represented interest and penalties on said taxes and costs, which the state asserted it was entitled to recover.
    Other findings made by said court were, quoting from the record:
    (1) “That the 50 acres of land upon which plaintiff is seeking to foreclose a tax lien was legally assessed against Bill Williams for the year 1888 and against Rachael Williams for the year 1893; that said parties failed to pay the taxes for each of said years, and the same went delinquent and was regularly reported delinquent for each of said years; that everything in regard to assessing, rendering, listing, recording, and reporting was regularly done, and as required by law, except giving the required notice of the delinquency of said land.”
    (2) “That Goode Hunt acquired said 50 acres of land by a deed from said Bill Williams and Rachael Williams, dated February 24, 1903, and duly recorded in the county clerk’s office, Cass county, on March 6, 1903, and that said Hunt has paid all taxes on said land for each and every year since he purchased the same, and has occupied the same all of said time.”
    (3) “That the tax collector of Oass county never gave Goode Hunt any notice of the delinquency of his said land for taxes, but in due time mailed a notice of such delinquency to Bill Williams and Rachael Williams, who owned
    the land when it went delinquent for the years 1888 and 1893.”
    (4)“That Cass county has a population of less than 50,000 inhabitants.”
    Having found facts as stated, the trial court concluded as matter of law:
    (1) “That the giving of the notice by the tax collector to the record owner of delinquent lands by the 1st day of May, 1916, as provided by the Laws of the 34th Legislature, was a condition precedent to the bringing of a suit by the state, and collector of taxes for Cass county having failed to give such notice to said defendant Goode Hunt, the record owner of the land, the plaintiff cannot maintain this suit.”
    (2) “That the state has no lien on land which has gone delinquent for poll taxes, nor for taxes due by the delinquent on personal property.”
    In conformity to the conclusions reached by him, the trial court rendered judgment that appellant take nothing by its suit against appellee. Thereupon the state prosecuted this appeal.
    Elmer L. Lincoln, of Linden, for the State.
    O’Neal & Allday, of Atlanta, for appellee.
   WILLSON, C. J.

(after stating the facts as above).

Section 1 of Act April 3, 1915 (Gen. Laws, p. 250, c. 147 [Vernon’s Ann. Civ. St. Supp. 1918, art. 7687a]), made it the duty of the tax collector of Cass county, not later than May 1, 1916, to mail to the address of the “record owner” of the 50 acres of land referred to in the statement above “a notice showing the amount of taxes appearing delinquent or past due and unpaid against” said land, according to the delinquent tax records of said county on file in his office. We agree with the trial court that a discharge by the tax collector of the duty thus imposed upon him was a prerequisite to the existence of a right in the state to maintain its suit against appellee. State v. Seidell, 194 S. W. 1118. But we do not agree that it did not appear that the tax collector had not discharged the duty. The conclusion of the trial court that it did not so appear was predicated on his finding that the Williamses were not the “record owners” of the land within the meaning of the act. We think they were, and that the tax collector complied with the requirement of the law when he mailed notices to them as found by the trial court As we view it, there is nothing in the language of the act which indicates that the Legislature meant by “record owner” the owner as shown, by the deed records of the county, and not the owner as shown by the tax collector’s records. On the contrary, we think the declaration in section 2 of the act (Vernon’s Ann. Civ. St. Supp. 1918, art, 7687b) that “in making up the notices * * * provided for in section 1 of this act it shall be the duty of the tax collectors of the various counties in the state to rely upon the delinquent tax records” compiled as specified, and the provision in the said section 2 that, “to enable the tax collector to comply with the provisions of section 1 of this act, it shall be the duty of the tax assessors of the various counties of the state to hereafter enter the post office address of each and every taxpayer after his name on the tax rolls” indicate that the Legislature meant by “record owner,” as used in section 1, the owner as shown by the delinquent tax records kept in the tax collector’s office. Therefore we are of opinion the trial court erred when he concluded that the state was not entitled to maintain the suit against appellee so far as it was for the taxes assessed against the 50 acres of land, together with interest and penalties which accrued thereon, and costs, and so far as it was to foreclose a lien on the said land existing to secure the payment of same.

But we agree with the trial court ■that the state did not have a lien on the land to secure the payment of either the poll taxes assessed against the Williamses or the taxes assessed against them on account of their ownership of personal property. The general rule is that taxes are never a lien on property unless expressly made so. 2 Cooley, Tax’n, p. 865. The lien created by section 15 of article 8 of the Constitution upon “landed property” is only for taxes assessed against such property; and so of the lien upon real property provided for by article 7528, Vernon’s Statutes.

The judgment will be reversed, and the cause remanded, with instructions to the court below to ascertain the amount unpaid of the taxes assessed against the 50 acres of land for the years 1888 and 1803, together with the interest and penalties which have accrued on same, and the costs, and, having done so, to render judgment for the amount, and foreclosing the lien on said land in favor of the state, and directing the sale thereof to satisfy such taxes, interest, penalties, and costs.
      <§=nFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

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