text:
    JANES et al. v. STRATTON et al.
    (No. 5833.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 6, 1918.
    On Motion for Rehearing, May 1, 1918.)
    1. Deeds <@=>120 — Effect.
    A deed, if not voidable on account of fraud, conveyed whatever interest, legal or equitable, the grantor had in the premises.
    2. Deeds <@=>70(1) — Fkatjd—Misrepbesentation.
    To cancel a deed or other contract on the ground of fraud, there must have been false representation of a material fact, which must have been believed to be true by the party deceived, who must have relied on the representation.

      3. Pleading @=5214(1) — Demukeeb — Admissions.
    Where, in cross-action, allegations of plaintiffs petition are adopted, the allegations must be taken as true on general demurrer.
    4. Husband and Wife @=>273(1) — Community Pbopebty — Descent — Homestead Rights.
    On death of a husband, a half interest in the community property of himself and wife descended to the nine children of the husband, subject to the homestead rights of the wife and her minor son.
    5. Deeds @=>64 — Necessity foe Acceptance.
    If a deed was never accepted by the grantee, it did not convey the grantor’s interest to her.
    6. Deeds @=>8 — Fobgeby.
    If a deed was a forgery, it conveyed no interest.
    7. Husband and Wife @=>249 — Community Pbopebty — Acquisition by Husband.
    Where a married man acquired realty by deed, the property became the community of himself and his wife.
    8. Husband and Wife @=>273(10) — Community Pbopebty — Conveyances by Wife and Otiiebs — Childbens’ Interest.
    Deeds executed by a widow in her own behalf and as survivor of the community estate, and by others, did not convey the interest of the minor children of the deceased husband, if they had any, aside from his community interest.
    9. Homestead @=128 — Conveyances by Husband Alone.
    If land was the homestead of a husband at the time of several conveyances from him, and such conveyances were intended as mortgages, and all the grantees had notice of the facts when they acquired their several interests, the conveyances were void.
    On Motion for Rehearing.
    10. Deeds @=>196(2) — Fbaud—Pleading.
    In a widow’s suit in the form of trespass to try title, to remove cloud from her title, and, in the alternative, to enforce her alleged equitable vendor’s lien, the petition, which alleged that she deeded away the land under representations and belief that certain fraudulent pretended deeds, mortgages, and transfers, previously set forth, were all valid debts and liens, and that, if she had known the true circumstances, she would not have signed her deed, sufficiently alleged fraud, avoiding her deed and giving her a cause of action.
    Appeal from District Court, McLennan County; J. W. Cocke, Special Judge.
    Suit by Mrs. Juliana Janes against Mrs. K. T. Stratton and others, and the minor children of Dan Janes, deceased; the children filing a cross-action. From judgment sustaining demurrers to the petition and cross-action, petitioner and cross-petitioners appeal. ’
    Reversed, and cause remanded for new trial.
    James E. Yeager, of Waco, for appellant Juliana H. Janes. Jas. R. Jenkins, of Waco, for minor appellants. Jas. D. Williamson, J. N. Gallagher, W. B. Carrington, T. G. Dil-worth, and Bebout & Penland, all of Waco, for appellees.
   JENKINS, J.

Appellant Mrs. Juliana Janes brought suit against appellees and appellants, the minor children of Dan Janes, deceased, in the form of trespass to try title to certain property in the city of Waco, and to remove cloud from her title, and in the alternative to enforce her alleged equitable vendor’s lien against said property. She alleged in substance that the lots were formerly the community property of herself and her deceased husband, who at his death left surviving him appellant Juliana Janes, his wife, and nine children, one of whom, Jessie Janes, was at the time a minor; that she and said minor then residing on said property as their homestead; that being without means of support, she executed to one of her sons, Dan Janes, a deed to said lots on July 13, 1907, for the consideration recited in said deed of $1, and that he would support her during her lifetime, and support and educate her minor son until he arrived at the age of 21 years; that four of the other children for a like consideration executed deeds to Dan Janes for their interest in said property; and that the other three executed deeds to him for their interest for an alleged money consideration; that Dan Janes and his wife, Regina Janes, immediately moved into the house with her, and that they and she continued to occupy the same as their homestead until the death of Dan Janes, February 10, 1912, and until she was unlawfully dispossessed .of same on July 8, 1912.

She alleged that Dan Janes, for the purpose of fraudulently obtaining relief from his obligation to support her and her minor son, on October 5, 1907, joined by his wife, executed a deed to her for said land for the recited consideration of 81, and love and affection, and the cancellation of said agreement to support her and her minor son, and procured said deed to be recorded in the deed records of McLennan county March 4, 1908. She alleges that said deed was never delivered to her, that she never accepted the same, and had no knowledge of its execution until a short time before the filing of this suit. She alleges that Dan Janes, on October 16, 1907, forged her name to a deed to himself for said lots. She then alleges that for the purpose of borrowing money on said lots in violation of the law which forbids the mortgaging of a homestead, Dan Janes executed certain deeds to said lots, pretending to take vendor’s lien notes, but that such deeds were in fact mortgages, and the holders of said notes took them with knowledge of such facts.

If the transactions had stopped here, there would have been merit in appellant’s claim. But she further alleges that after the death of Dan Janes, his wife, Regina Janes, qualified as the survivor of the community estate of herself and her deceased husband, and that the disability of Jessie Janes’ minority was removed by the district court of McLennan county, and thereafter, on July 8, 1912, Regina Janes, for herself and as survivor of the community estate of herself and her deceased husband, and Jesse Janes for himself, executed deeds to said property to Mrs. K. T. Stratton, the consideration to be paid to Regina Janes being $850; that upon learning said fact appellant went to the office of S. E. Stratton, husband of K. T. Stratton, to whom Regina had executed said deed, and was informed by S. E. Stratton that there was large indebtedness against said property, which appears from the allegations of her petition to have been true, though she alleges such indebtedness was not enforceable against said property by reason of the homestead rights of herself and of Dan Janes and his wife; that she then and there declared such indebtedness to be fraudulent, but that she accepted from Stratton '$85 of the money that was to be paid to Regina Janes, and executed a deed to Mrs. Stratton.

The court sustained a general demurrer to the petition of appellant Juliana Janes. In this there was no error. It is useless to consider what would have been her rights in the premises if she had not executed the deed to Mrs. Stratton. That deed, if not voidable on account of fraud, conveyed whatever interest, legal 'or equitable, she had in the premises.

In order to cancel a deed or other contract on the ground of fraud, thre^ things must concur, viz.: (1) False'representation of a material fact; (2) the representations must have been believed to have been true by the party deceived; and (3) he must have relied upon said representations. Cresap v. Manor, 63 Tex. 485; Calhoun v. Quinn, 21 S. W. 705; Bonzer v. Garrett, 162 S. W. 934; Luckie v. McGlasson, 22 Tex. 285; Carson v. Kelley, 57 Tex. 379; Webb v. Harris, 1 White & W. Civ. Cas. Ct. App. § 1289.

According to the allegations of appellants’ petition, the statement by Stratton that there was a large indebtedness against the land was true. It is only by intendment, if at all, that she alleges that 'Stratton represented that such indebtedness was legally binding on the land. If such representation had been made, it would be no ground for avoiding her deed, as she does not allege that she was deceived thereby, or relied upon the same. On the contrary, she alleges that she then knew, and so stated to Stratton, that the said indebtedness was fraudulent, but that she accepted the $85, and executed said deed, because she thought it was the best she could do. The demurrer to the petition of appellant Juliana Janes having been property sustained, and she having declined to further amend, the judgment as to her is affirmed.

The trial court also sustained a general demurrer to the cross-action of the minor children of Dan Janes, deceased. In this we think there was error. The guardian ad litem of the minors adopted the allegations in plaintiffs petition. If these allegations are true, as they must be taken to be for the purpose of the demurrer, the property in question was the community property of Juliana Janes and her deceased husband; and upon his death a half interest therein descended to the nine children of the deceased husband, subject to the homestead rights of Juliana Janes and her minor son. Dan Janes was one of the children, and inherited, as his separate property, one-eighteenth thereof. If the deed from Dan Janes was never accepted by Juliana Janes, it did not convey his interest; and if the deed from Juliana Janes back to Dan Janes was a forgery, it conveyed no interest. Excluding these two deeds, Dan Janes, by virtue of the deed from his mother and from seven of his brothers and sisters, became the owner of his mother’s community interest, and of seven-ninths of his father’s interest, subject to the support of his mother and minor brother. Dan Janes being a married man at the time these deeds were executed, the property thus acquired was community of himself and his wife, Regina Janes, and the same was conveyed to Mrs. Stratton by Regina Janes, who executed said deed in her own behalf and as survivor of the community estate of herself and her deceased husband, Dan. Janes. The deed from Jessie Janes and the deed from Juliana Janes to Mrs. Stratton conveyed their interest. None of these deeds, however, conveyed the interest of the minor children of Dan Janes, if any they had, aside from the community interest of their father. If it be true, as alleged, that the property was the homestead of Dan Janes at the time of the several alleged conveyances from him, and that these conveyances were intended as mortgages, and that all of the other defendants had notice of such facts at th'e time they acquired their several interests, such conveyances were void; and as none of the other conveyances purported to convey Dan Janes’ separate interest in said property, his minor children, appellants herein, were entitled to recover such interest on their cross-action.

For the reasons stated, the judgment of the trial court sustaining the demurrer to the cross-action of said minors is reversed, and this cause is remanded for a new trial in accordance with this opinion.

Affirmed in part, and in part reversed and remanded.

On Motion for Rehearing.

Upon a former day of the present term, we affirmed the judgment herein as to all of the appellants, except the minors. As to appellant Juliana Janes, our opinion was based upon the fact that her petition, as we construed it, did not contain sufficient allegations as to fraud. The allegations as to fraud in obtaining the deed from her to K. T. Stratton, as well as to the transactions leading up to the same, are numerous and emphatic in some portions of her petition, but we thought that they were neutralized by other portions thereof. In this we have concluded that we were in error. In paragraph 30 of appellant’s petition she alleges that:

“She had no knowledge of any of the said fraudulent pretended deeds, mortgages, and transfers [which were set forth with great particularity in previous portions of her petition], or their meaning, until just before filing this suit, as aforesaid, and that she signed the Strat-ton deed under the representations and belief that they were all valid debts and liens [which is denied in other portions of her petition], but if she had known the tru.e circumstances, she would not have signed such deed.”

While the petition is very lengthy and somewhat involved, after a careful review of the same we think the trial court erred in sustaining the general demurrer thereto. We think it better that all of the issues herein should be tried together, for which reason our former judgment herein is set aside, and the judgment of the trial court is here reversed as an entirety, and this cause is remanded for a new trial.

Reversed and remanded.
      <^=>For other cases see same topic and KKY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    SOUTHWESTERN SURETY INS. CO. et al. v. VICKSTROM et al.
    (No. 7549.)
    (Court of Civil Appeals of Texas. Galveston.
    March 20, 1918.
    Rehearing Denied March 28, 1918.)
    1. Aliens <@=14, 16 — Property Rights — Statute.
    Acts 5th Leg. e. 70, carried forward into Vernon’s Sayles’ Ann. Civ. St. 1914, art. 15, providing that no alien shall acquire title to or own any land in the state except as otherwise provided, but that they shall have such rights as to personal property as are accorded citizens of the United States by the laws of the nation to which the alien shall belong, or by treaties of such nation with the United States, except as the same may be affected by the act and the general laws of the state, is cumulative, and not. restrictive of the common and general laws of the state, permitting, aliens to inherit personal property and to sue therefor.
    2. Aliens @=10 — Property Rights — Statute.
    Under such statute the provisions of the state laws must first be looked to in determining the rights which would, in any event, accrue to an alien, regardless of whether or not his own country grants reciprocal rights to citizens, and if it did and accorded more, the state laws, in the absence of restrictive provisions, express or implied, would ipso facto expand to comprehend the additional benefits allowed by that of the alien’s domicile.
    3. Master and Servant <©=361 — Workmen’s Compensation Act — Right oe Nonresident Aliens.
    Under the Workmen’s Compensation Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), not excluding nonresident aliens from recovering the benefits thereby provided, and under Acts 5th Leg. c. 70, carried forward into Vernon’s Sayles’ Ann. Civ. St. 1914, art. 15, giving aliens such rights to personal property as are accorded citizens of the United States by the nation to which the alien may belong, or by treaties, etc., except as the same may be affected by the general laws of the state, nonresident •aliens are entitled to recover the benefits provided by the Workmen’s Compensation Act.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit under the Workmen’s Compensation Act by Gustava Viekstrom and another, as the surviving mother and sister of Peter Viekstrom, deceased, to obtain compensation for his death, opposed by C. Flanagan & Sons, employer, and by the Southwestern Surety Insurance Company, successor, as insurer. Demurrer to the petition overruled, and judgment for plaintiffs, and both surety companies appeal.
    Affirmed.
    Andrews, ‘Streetman, Burns & Logue, of Houston, for appellants. H. C. Hughes, of Galveston, for appellees.
   GRAVES, J.

This case presents but a single question, and, very broadly stated, that is: Are nonresident aliens entitled to recover the benefits provided by the Texas Workman’s Compensation Act?

Pteter Viekstrom suffered accidental injuries while in the course of his employment by'C. Flanagan & Sons, at Port Arthur, Tex., from which he later died. His employers at the time were subscribers, and carried an insurance policy for the benefit of their employes under the terms of the act, issued by appellant Southwestern Surety Insurance Company; this company subsequently quit business, all its assets and liabilities being taken over by its coappellant, Southern Surety Company. Compensation up to the time of his death, aggregating $145.20, was paid Viekstrom. After his death, liability to pay any further compensation was denied, primarily upon the ground that the claimants were nonresident aliens, and were neither beneficiaries under the Texas Compensation Act, nor otherwise entitled under the laws of Texas to receive its benefits. These claimants were appellees, Gustava and Irene Vick-strom, his mother and sister, respectively, who then sued appellants in the Tenth district court, at Galveston, setting up the facts stated, and claiming the compensation prescribed in the act as the legal beneficiaries of the deceased, Peter Viekstrom, their petition showing upon its face that they were residents of the Grand Duchy of Finland, Russia. The appellants first replied by general demurrer, which being overruled, they then specially alleged that the plaintiffs were nonresident aliens, and that, being, citizens of a foreign country and residing therein, they were not beneficiaries, and not entitled to the compensation, because citizens of the United •States were not accorded like privileges in their country. The trial court, after sustaining a demurrer to this last-mentioned allegation and specifically ordering that no proof of it be admitted or considered for any purpose, heard the case, and rendered judgment for the appellees against both surety companies for $726 and interest, reciting that it was the aggregate compensation to them under the terms of the statute in question at $13.20 per week, or 60 per cent, of his average weekly wages, arising by reason of Peter Vickstrom’s death, and accruing from the date thereof to the date of the judgment, and providing that any right to sue for such further sums as might thereafter become due should not be prejudiced thereby. From that judgment both surety companies have appealed.

No complaint is made here that one of the appellees, being a sister of the deceased employs was not as such a legal beneficiary under the Compensation Act, but, as first stated, the sole contention presented in different form's under the various assignments is that they could not recover on account of being nonresident aliens. We accordingly treat all the assignments as one, and determine th'e single question presented. The position of appellants is that, appellees having admitted themselves to be nonresident aliens, since the allegation that the laws of their home country, the Duchy of Finland, Russia, did not accord to residents of the United States and of Texas the same rights in personal property as appellees claimed in this suit must be taken as true, under the court’s action in sustaining the demurrer to it, appel-lees were concluded as a matter of law, could not become legal beneficiaries under the Compensation Act, and were also barred by the terms of our statute relating to aliens. Article 15, Revised Statutes of 1911. The trial court’s conclusion of law upon the issue thus raised was as follows:

. “The fact that the plaintiffs in this case are aliens constitutes no bar to^ their recovery, since neither under the Workman’s Compensation Act, nor under the general law of this state, are they denied the right to inherit. The cause or causes of action arising in their favor under the Workman’s Compensation Act constitute personal property, and both under this act and the common law and general laws of this state aliens may inherit same regardless of whether similar rights are accorded citizens of this country in the country or countries of such aliens. Acts of 1913, page 429, § 8, part 1; article 5246kk, Vernon’s Sayles’ Civil Statutes 1914; article 2461, Vernon’s Sayles’ Civil Statutes 1914; Franco-Texas Land Co. v. Chaptive (Sup.) 3 S. W. 31; McGovern v. Railway Co., 235 U. S. 389, 35 Sup. Ct. 127, 59 L. Ed. 283; Caliendo’s Case, 219 Mass. 498, 107 N. E. 370; Vujic v. Youngstown Sheet & Tube Co. (D. C.) 220 Fed. 290; State ex rel. Crookston Lbr. Co. v. District Court, 131 Minn. 27, 154 N. W. 509. Where there is no provision in .the Compensation Act denying benefit of such to aliens, resident, or nonresident, such aliens stand upon the same footing as citizens of this state, and are entitled to full benefits of such act. Bradberry on Workman’s Compensation, vol. 1, p. 582; Bonthron v. Light & Fuel Co., 8 Ariz. 129, 71 Pac. 941, 61 L. R. A. 563, specially in point; Anustasakas v. Contracting Co., 51 Wash. 119, 98 Pac. 93, 21 L. R. A. (N. S.) 267, 130 Am. St. Rep. 1089; Romano v. Brick & Pipe Co., 125 Iowa, 591, 101 N. W. 437, 68 L. R. A. 132, 106 Am. St. Rep. 323, 2 Ann. Cas. 678. The plea of alienage is not favored in law. Anustasakas v. Contracting Co., 51 Wash. 119, 98 Pac. 93, 21 L. R. A. (N. S.) 267, 130 Am. St. Rep. 1089, 8 Neg. & Com. Cas. 67; Hanrick v. Hanrick, 61 Tex. 604, 605. Article 15 of Vernon’s Sayles’ Civil Statutes, relating to aliens, has no application whatever to the Workman’s Compensation Act, and in no event can be construed to limit, abridge, or deny the rights of aliens to the benefit and the right to inherit under said Compensation Act.”

Without intending to approve every expression therein, we think this general conclusion of the court below was correct. Moreover, since the policy of our general laws has undoubtedly been not to discriminate against nonresident aliens, in relation to personal rights, and since our compensation act itself does not expressly disqualify them, it seems to us the only pertinent inquiry left is whether or not their rights as such are abridged by the provisions of article 15, Revised Statutes of Texas. Thu present form of that article is as follows:

“Article 15. Alien Ownership of Lands Inhibited. No alien or person who is not a citizen of the United States shall acquire title to or own any lands in the state of Texas, except as hereinafter provided; but he shall have and enjoy in the state of Texas such rights as to personal property as are or shall be accorded to citizens of the United States by the laws of the nation to which such alien shall belong, or by the treaties of such nation with the United States, except as the same may be affected by the provisions of this title and the general laws of the state.”

Appellees maintain that this exact language has never been enacted by the Legislature, but was without authority added by the codifiers in 1895 ; that, since the act of 1891 was held unconstitutional in Gunter v. Mortgage Co., 82 Tex. 496, 17 .S. W. 840, the rights of aliens in personal property were thus left dependent either upon the statute appearing in the codification of 1879, or upon the act of '1854. The trial court seems to have partly adopted this view, and to have concluded that, as the codification of 1879 made no specific mention of personal property, the act of 1854 really constitutes the present law upon the subject. While the latter statute contains practically the same language with reference to personal property as the present one, we do not regard the question of whether the one or the other is now the official act of the Legislature as material here, and do not decide it, because we think the rule of construction would be the same in either contingency.

Appellants insist, however, that the language of article 15 plainly limits and restricts the rights of nonresident aliens touching personal property in Texas to such only as are accorded our citizens by the laws of the alien’s country; but we are unable to agree with them, and here quote with approval this further portion of the trial court’s conclusions of law:

“The act of 1854, page 98, which purports to be carried forward in article 15, Vernon’s Sayles’ Giv. Stat., appears to be the only enactment in this state with reference to the rights of aliens as to personal property. But this statute can have no possible application, because the Supreme Court of this state has held that the act of 1854 is cumulative and not restrictive in its operations. Under the common law and general laws as well of this state, aliens are and have always been entitled to inherit personal property in this state and to sue for same. Franco-Texas Land Co. v. Chaptive, 3 S. W. 31; 2 Corpus Juris, 1069. With full knowledge of this statute relating to rights of aliens, the Supreme Court in the Chaptive Case decided in December, 1886, there was no question of the right of aliens to hold and sue for personal property in this state. As stated by the Supreme Court in Hanrick v. Hanrick, 61 Tex. 604: ‘If the Legislature had intended to adopt an entirely new and exclusive policy abrogating that which had prevailed from the organization of the Bepublic, it seems that we might as well anticipate that such intent would be expressed in plain and unmistakable terms. How very appropriately that intent might have been expressed by simply adding to the second section, “and in no other manner,”, or other equivalent expression.’ But there is no such expression used in the act as would necessarily imply that the intention was to make it exclusive and restrictive. But for another reason sai'd statute is not applicable; because, by the very terms of article 15, Vernon’s Sayles’ Civ. Stat., the operation of such article is expressly denied when affected by the general laws of the state. The general law of the state regulating and governing the payment of compensation under the Workman’s Compensation Act contains no limitation or provision whatever denying to aliens the benefits of such act. It is, moreover, a matter of common knowledge and a part of the judicial history of the state that the right of aliens, resident and nonresident, to inherit under the statutes of descent and distribution, as well as those regulating wills, has been recognized and upheld as to personal property, without question.”

In construing this statute of 1854, which, as we have stated, did not materially differ in its provisions concerning personal property from the present article 15, the Supreme Court in the Hanrick Case, after so declaring it to he an enlarging and not a restricting act, further declared that, under it, aliens would have such rights in real property as our laws allowed, unless the laws of their own country were more liberal, in which latter event our statutes would yield to those of the foreign country. Hanrick v. Hanrick, 61 Tex. 596. In other words, the provisions of our law must first be looked to in determining the rights which would in any event accrue to an alien, regardless of whether or not his own country granted reciprocal ones to our citizens; but if it did, and then went further and accorded more than we had first provided for, our law, in the absence of restrictive provisions, express or implied, would ipso facto become expanded until it comprehended the additional benefits allowed by that of the foreigner’s domicile.

These considerations apply, with equal force, we think, to the provisions of present article 15, concerning the rights of .aliens as to personal property. We cannot think with the surety companies here that our lawmakers intended for these rights to be entirely controlled by the law of the aliens’ domicile, but rather that our own should dominate in the manner just stated. That construction would seem to us much more consonant with the progressive and liberalized spirit of the times, and would leave no room for such injustice as might follow the adoption of the rule contended for by appellants. Under their view, an insurance company might first insure the employés of a subscriber against accidental injuries suffered during the course of their employment in the unrestricted manner prescribed in our Compensation Act, receive and accept the profits of that insurance in the premium paid it therefor, and then refuse payment on the policy because the law of Russia, which happened to be the home of the assured’s beneficiaries, did not have a compensation statute, or other legal provision, under which citizens of Texas could recover like benefits.

While that elusive something termed “the legislative intent” may be somewhat like Eugene Sue’s Wandering Jew, whose vanishing coattails are often seen turning corners just ahead, but whom you never meet face to face, still we are unwilling to wholly abandon the effort to attain it, as we feel would be the result here of accepting the construction contended for by appellants.

It is apparent from the conclusions stated that all assignments must be overruled, and the judgment below affirmed, and that order has been entered.

Affirmed.
      (g^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    STROBURG v. WALSH.
    (No. 5853.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 20, 1918.
    Rehearing Denied March 27, 1918.)
    1. Evidence <@=>460(4) — Paeol Evidence-Aiding C/ONTBACT DESCBIPTION OF LAND.
    Oral testimony, while inadmissible to supply a total want of description of land contracted for, is admissible to make more certain an imperfect description in the contract; that is, to identify the subject-matter, where the contract furnishes the key to such identification, it describing it as vendor’s “553-aere farm in A. county,” and the oral testimony showing he owned in such county a farm of that size, less 2 acres which he had conveyed for school purposes, and that he owned no other land in that county.
    2. Specific Pebfobmance <@=>116 — Pboof of Title — Waives of Issue.
    That defendant, in suit for specific performance of his contract to buy lots, waived the issue of title, is sufficiently shown by the facts, that though pleading the general denial, he did not allege as a defense want of title; did allege that he never made the contract, but simply signed it on the agreement that it should not be delivered, and should not take effect, except on a third person making an agreement, which ho failed to do; permitted plaintiff to testify without objection that he had good title; and while receiving the abstract, provided for by the contract, never had it examined, and never claimed it did not show good title in plaintiff. '

      3. Specific Pebeobmance <@^96 — Tendee of Deed Befoke Suit.
    Plaintiff before bringing suit for specific performance need not tender a deed¡ which he pleads and testifies he was at all times ready and willing to make, defendant having repudiated the contract, on the ground that he never made it, rendering it useless to make tender.
    Ai>peal from District Court, Travis County; Geo. Calhoun, Judge.
    Suit by Ed. J. Walsh against J. A. Stroburg. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. O. Sandbo, Jno. E. Shelton, and White, Cartledge & Graves, all of Austin, for appellant. Hart & Patterson, Dickens & Dickens and D. J. Pickle, all of Austin, for appel-lee.
   Findings of Fact;

JENKINS, J.

On March 19, 1915, appellant and appellee entered into the following written contract:

“Ed. J. Walsh will buy of Dr. Stroburg his 553-acre farm in Archer county, at $35 per acre, amounting to $19,355; and Dr. Stroburg will take of Ed. J. Walsh the following lots in the Walsh addition, hear the dam on the Colorado river, west of Austin, amounting to $20,355, to be figured at $19,355, as follows: * * * [Here follows a list of the lots, giving number of each lot, the size of same, the number of the block in which the same is situated, and the price of each]. Both parties to furnish abstracts up to date, guarantee good title, pay all taxes to January 1, 1915, and possession of the different tracts at closing of deal; deal to be closed as soon as possibly can be done. Said Ed. J. Walsh will also furnish Dr. Stroburg a separate printed abstract for each lot. as soon as this possibly can be done after closing the deal, one abstract being, furnished now to Dr. Stro-burg for examination.
“Witness our hands in triplicate, at Austin, Texas, this 19th day of March, 1915.
“J. A. Stroburg.
“Ed. J. Walsh.”

The Dr. Stroburg mentioned in said contract and the J. A. Stroburg who signed the same are one and the same person. Prior to signing said contract, and pending negotiations in reference thereto, appellant had furnished appellee an ink sketch of his land, showing the same to be in a parallelogram, containing 553 acres, all level, 440 acres in cultivation, 113 acres in pasture, and showing the location thereon of two houses, two barns, a large tank, a well, and a schoolhouse. On the margin of this sketch was written in pencil, “27 miles S. E. of Wichita Falls, 5 miles east of Dundee, the nearest station, black sandy loam, about 400 acres in cultivation.” Appellee, prior to signing the contract, had gone to Archer county and looked at the land.

The oral testimony identified the land men-.ioned in the contract to be conveyed by appellant. It was in substance that appellant owned 553 acres of land in Archer county, Tex., less two acres that he had conveyed for school purposes, and that he owned no other land in said county; that the land was a farm answering to the description given of the same in the sketch above referred to; that it was all of the 640-acre survey No. 5 in the name of Hooper and Wade, located by virtue of certificate No. 13, and patented to John N. Lyle, assignee, October 30, 1876, by patent No. 304, vol. 25, conveyed to appellant by L. Blaschka, January 24, 1906, as appears from the deed records of Archer county, Tex., vol. 38, p. 361, except about 87 acres thereof which had been lost by limitation prior to the purchase thereof by. appellant.

Appellee furnished appellant an abstract of title, which he never had examined, and which he has never returned. Appellant never made any objection to appellee’s title, and did not in his answer herein point out any objection to such title. Shortly after the contract was signed, appellant sought to change the same by requesting appellee to substitute a house and lot in Austin for a number of the lots. Appellee refused, to concede to this request. In addition to 'exceptions and a general denial, appellant in his answer repudiated the contract, alleging that the same was to take effect only on condition that one F. H. Smith would trade his house and lot in Austin for some of said lots, and that Smith had refused to make such trade.

The case was submitted on special issues, and the jury found against appellant on this and all other issues submitted. The court rendered judgment for specific performance, divesting title out of appellant to the 551 acres of land, and vesting the same in ap-pellee, and that appellant be required to accept a warranty deed to the lots.

Opinion.

Appellant has filed 30 assignments of error. Appellee has filed objections to the consideration of 22 of these, upon the ground that they are too general to meet the requirements of the statute and rules in reference to assignments. Taken in connection with the propositions and statements thereunder, we think that the assignments objected to are sufficiently specific and we therefore overrule said objections.

Some 20-odd of appellant’s assignments and the propositions raise substantially the following issues:

(1) That the petition does not sufficiently ’ describe the land as to which specific performance is sought.

(2) That the contract is not sufficiently certain as to the land to he conveyed by appellant to form the basis for a decree for specific performance.

(3) That it was error to admit oral testimony to identify said land.

(4) That the oral testimony, taken in connection with the written contract, is insufficient to support a judgment for specific performance.

1. Our findings of fact dispose of point No. 4, supra.

2. The petition sets out the contract, and contains other, averments of description. It is sufficient, if the contract is not void for uncertainty, and if oral testimony is admissible to aid the description of the land mentioned in the contract.

3. That oral testimony is admissible, in a proper case, to identify the subject-matter of a contract is too well settled to require the citation of authorities in support of the proposition. A conveyance of land, or a contract to convey the same, may contain a minute and accurate description of the land, and yet it may, and in many cases would, require oral testimony to identify the land. For example, a deed to a lot may describe the same as lot No. 2, in block No. 15, in Austin, Tex., as shown by the map of said city, giving volume and page where same is recorded, and yet such deed would not convey to any one not familiar with such city any idea as to the location of such lot. But no one denies that its location might be proven by the oral testimony of any one who was familiar with the location of such lot. The same would be true if the lot was described as being located at the intersection of certain named streets, or if a tract of land was described with reference to certain natural or artificial monuments.

Of the four points above mentioned, it remains to consider only whether the contract in the instant case is a proper one for the admission of oral testimony to identify the tract of land therein mentioned. It 'has been the recognized law since the day of Lord Bacon that a patent ambiguity cannot be cured by oral testimony. That is to say, where the terms or subject-matter of a written contract do not appear upon the face of the instrument, and no reference is made ’ therein to anything else from which the same might be ascertained, no evidence will be admitted to aid in rendering certain that which the contract leaves in doubt. For example, if the contract be to convey, “piece of land supposed to be 40 acres,” here there is nothing to indicate what 40 acres is to be conveyed, and no reference is made to anything which if followed up by oral testimony would show what land was intended to be conveyed. This is a patent ambiguity, and the contract is void. Jones v. Carver, 59 Tex. 294.

Oral testimony is not admissible to prove the terms of a contract required by law to be in writing, or which the parties have put in writing, but such evidence is admissible to apply the terms of the contract to the subject-matter; that is to say, to identify such Subject-matter where the contract itself furnishes the key to such identification. In other words, such is not admissible to supply a total want of description, but is admissible to make more certain the imperfect description given in the contract. Thus, if the contract in Jones v. Carter, supra, had been to convey a piece of land supposed to be 40 acres owned by him in a named survey, it would have been permissible to prove that Carter owned a certain 40 acres in said survey, and that he owned no other land therein. Such a description would have been regarded as certain under the maxim,- “That is certain which can be made certain.” Brainard v. Jordan, 60 S. W. 784; Taffinder v. Merrell, 95 Tex. 101, 65 S. W. 177, 93 Am. St. Rep. 814; Morrison v. Dailey (Sup.) 6 S. W. 427; Bitner v. Land Co., 67 Tex. 341, 3 S. W. 301; Ryan Lumber Co. v. Ball, 177 S. W. 232; Hughes v. Adams, 55 Tex. Civ. App. 197, 119 S. W. 134; Slaughter v. City of Dallas, 101 Tex. 315, 107 S. W. 48; McAmanus v. Orkney, 91 Tex. 35, 40 S. W. 715; Cunyus v. Lumber Co., 20 Tex. Civ. App. 290, 48 S. W. 1106; Beaton v. Fussell, 166 S. W. 458; Anderson v. Hall (Mo.) 188 S. W. 81; Bates v. Harris, 144 Ky. 399, 138 S. W. 276, 36 L. R. A. (N. S.) 154; Bateman v. Hopkins, 157 N. C. 470, 73 S. E. 133, Ann. Cas. 1913C, 642; Crotty v. Effier, 60 W. Va. 258, 54 S. E. 345, 9 Ann. Cas. 770; Keepers v. Yocum, 84 Kan. 554, 114 Pac. 1063, Ann. Cas. 1912A, 748; Waring v. Ayres, 40 N. Y. 357; Head v. Sanders, 189 Ala. 443, 66 South. 621; Burns v. Witter, 56 Or. 368, 108 Pac. 129; Lente v. Clarke, 22 Fla. 515, 1 South. 149. Such being the law, we overrule all of appellant’s assignments of error involving the issue of uncertainty as to the contract sued upon, and the admission of oral testimony in reference to the same.

Appellant contends, under an appropriate assignment of error, that judgment should not have been rendered for appellee, for the reason it was not shown that he had title to the lots described in the contract, and also for the further reason that appellee did not prior to filing suit tender appellant a warranty deed to the lots described in the contract.

Where a party to a contract to purchase lands refuses to comply with the contract, for the reason that the vendor cannot make a good title and alleges such fact in his answer, the burden is on the plaintiff to show title. Upton v. Maurice, 34 S. W. 642; 36 Cyc. 694, 695. Appellant did not plead want of title in appellee. Whether or not, under our form of pleading, the general denial in a suit for specific performance puts in issue the plaintiff’s title need not be decided in the instant case, for the reasons: First, ap-pellee testified, without objection, that he had good title to the lots, and there was no evidence to the contrary. In the second place, while the failure to plead want of title in appellee may not of itself be a waiver of proof of title, yet taken in connection with the further fact that appellee set up a specific reason why the contract should not be enforced, viz. that he never made such contract, but that he signed the same upon the agreement that it should not be delivered, and should not take effect unless Smith should first agree that he would exchange his home place in Austin for some of said lots (upon which issue the jury found against appellant); that he did not allege as a defense want of title in appellee; that he permitted appellee to testify, without objection, that he had good title; that he received the abstract provided for in the contract, and never had the same examined; that he never claimed that the abstract did not show good title in appellee. All these combined are sufficient to show that appellee waived the issue of title. Such acts constitute an implied acceptance as to title. 39 Cyc. 1541, 1566; Prichard v. Mulhall, 140 Iowa, 1, 118 N. W. 46; Kenefick v. Shumaker (Ind. App.) 116 N. E. 319-322.

Eor like reasons we hold that it was unnecessary for appellee to tender to appellant a deed prior to bringing suit. Appellee testified that he had at all times been ready and willing to make appellant a general warranty deed to the lots in question, and alleged in his petition his willingness to make such deed; and the judgment of the court was that he should make such deed. Appellant having repudiated the contract, upon the ground that he never made it, it was useless for appellee to tender him a deed. It was in effect refused in advance of such tender, and thfe law does not require a useless thing.

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

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

      ©n^For.other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRAND LODGE, UNITED BROTHERS OF FRIENDSHIP OF TEXAS AND SISTERS OF MYSTERIOUS TEN, v. LAWSON et al.
    (No. 5891.)
    (Court of Civil Appeals of Texas. Austin.
    March 20, 1918.
    Rehearing Denied May 1, 1918.)
    1. Insurance <§=>819(4) — Action on Policy— Sufficiency of Evidence.
    In an action on a death benefit certificate by administrator of the beneficiary, circumstantial evidence held sufficient to show beneficiary killed insured, where same evidence would have sus? tamed a conviction of murder in first degree with death penalty.
    2. Insurance <§=>787 — Fraternal Insurance-Murder of Insured by Beneficiary.
    A man named as beneficiary in wife’s death benefit certificate will not be permitted after murdering wife to recover on the certificate; the rights of beneficiary to recover after taking life of insured being contrary to public policy.
    3. Insurance <§=>795 — Murder of Insured by Beneficiary — Right of Heirs to Recover on Policy.
    , Where a man murders his wife, and is given death penalty for so doing, the wife’s death benefit certificate in which husband was beneficiary will be payable to her heirs, where policy contains no provision as to payment in the event of murder of insured by beneficiary. »
    4. Insurance <§=>722 — Forfeiture of Policy —Public Policy.
    A provision in a contract of insurance, stipulating that in the event of the intentional killing of insured by beneficiary, the policy shall be void, and all payment thereon forfeited, is not contrary to public policy.
    5. Insurance <§=>718 — Fraternal Insurance — Forfeiture of Policy.
    Where the constitution of a fraternal insurance organization, made a part of the contract of insurance by the death benefit certificate, provided that the certificate shall be void and all payments thereunder forfeited in the event that beneficiary intentionally takes life of insured, the certificate was held void, where a man murdered his wife, in whose death benefit certificate he was named beneficiary.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Action by W. B. Lawson, as administrator of W. T. Weaver, deceased, against the Grand Lodge, United Brothers of Friendship of Texas and Sisters of Mysterious Ten; William Dials, Thos. Darden, and others intervening. Judgment for plaintiff, and the interveners named, and the defendant appeals.
    Reversed and rendered.
    Meek & Kahn, of Houston, for appellant. J. D. Williamson, of W^ico, and Allan Y. McDonnell, of Austin, for appellees Darden and Dials. G. W. Barcus, of Waco, for appellee Lawson. Nat Harris, of Waco, and Chas. L. Brachfield, of Henderson, for appellees Lee White, Haywood White, Sebe White, and Fannie Jeffries.
   JENKINS, J.

W. B. Lawson, administrator of W. T. Weaver, deceased, brought this suit, against the Grand Lodge, United Brothers of Friendship of Texas and Sisters of Mysterious Ten, a fraternal organization, to recover upon a certificate of insurance issued to Carrie Weaver, deceased, the wife of W, T. Weaver, in which W. T. Weaver was named as beneficiary. Wm. Dials and Thos. Darden, to whom Weaver had assigned a half interest. in said certificate, intervened. Lee White, Sebe White, Haywood White, and Fannie Jeffries, who it was admitted on the trial hereof were the only heirs of Carrie Weaver, also intervened, alleging that neither the administrator of the estate of W. T. Weaver, nor his assigns, were entitled to recover, for the reason that W..T. Weaver murdered his wife, Carrie Weaver. The fraternal organization also alleged that W. T. Weaver murdered Carrie Weaver, and that for this reason it was not liable on said certificate. The case was tried before the court, without a jury, and judgment was rendered for the administrator for one half of said certificate, and for the interveners, Dials and Darden, for the other half. The court did not file findings of fact.

In view of our decision herein on the assignment that the judgment of the court is not supported by, but is contrary to, the evidence, it is unnecessary for us to pass upon tlie other assignments of error.

The evidence fully sustains the allegation that W. T. 'Weaver murdered his wife, the insured in said certificate. While the evidence as to this fact is eircümstantial, 4t is sufficient to have sustained a conviction of murder in the first degree, with the death penalty, which would probably have been his fate had he not committed suicide after murdering the principal witness against him.

It is against public policy to permit the beheficiary in an insurance policy to- recover thereon when he feloniously takes the life of the insured. “The unbroken voice of authority is to this effect.” Schmidt v. Life Association, 112 Iowa, 41, 83 N. W. 800, 51 L. R. A. 143, 83 Am. St. Rep. 323; Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. 877, 29 L. Ed. 997; Box v. Lanier, 112 Tenn. 393, 79 S. W. 1042, 64 L. R. A. 458; 14 R. C. L. p. 1228.

In the absence of any stipulation in the policy in reference to the death of the insured being caused by the beneficiary named therein, the policy in the instant case would be payable to the heirs of the deceased. Schmidt v. Life Association, supra; K. & L. of H. v. Menkhausen, 209 Ill. 277, 70 N. E. 567, 65 L. R. A. 508; Box v. Lanier, supra,

The certificate in the instant case contains the following provision:

“It is distinctly understood and agreed by and between this fraternity and the member [Carrie Weaver] that this certificate and * * * the constitution and by-laws of this fraternity shall constitute the contract between this fraternity and the member.”

The constitution provided, among other things, that:

“If the member holding this certificate * * * should die * * * by the hands of the beneficiary or beneficiaries named herein (except by accident) * * * this certificate shall be null and void and of no effect, and all moneys which shall have been paid on account of this certificate shall be absolutely forfeited.”

Neither of the parties hereto has cited any authority in reference to this feature of this ease; and in our limited time for research we have not been able to find any.

It is a general provision of law that contracts founded upon a valuable consideration, and not affected by fraud, accident, or mistake, will be enforced, unless the same be contrary to public policy. There is no suggestion of fraud, accident, or mistake in the instant case, and we know of no public policy that would be violated by enforcing the provisions of the contract above set out. Carrie Weaver voluntarily stipulated that in the event she should die by the hands of the beneficiary, her insurance certificate should be void. The association stipulated that in such event it should not be liable. The event occurred. Why should not this plain and unambiguous term of the contract be enforced?

A beneficiary in an insurance policy, in the absence of any stipulation in reference thereto, cannot recover where he feloniously causes the death of the insured, for the reason that to permit him to do so would be to encourage crime, and tend to the insecurity of life. The tendency of the contract above set out is to the contrary. Thus one who was the beneficiary in a policy, say on the life of his wife, as in the instant case, having children by his wife, and having grown desperate by reason of the condition of his financial affairs, or being jealous, or for some other reason, might contemplate taking the life of both himself and wife. In such event, knowledge of the fact, if such was the law, that the provision as to forfeiture. of the policy in the event he should murder his wife and commit suicide would be held void, and that his children could collect the policy, would not, to say the least of it, tend to deter him from the commission of his contemplated crime.

This case was tried before the court; the facts were fully developed; they show that the policy is void, for the reason that the insured died by the hands of the beneficiary, not by accident, but by felonious homicide. For this reason the judgment of the trial court is reversed, and judgment is here rendered for the appellant, the fraternal association hereinbefore, named.

' Reversed and rendered.
      <®=>For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    ROBINSON et al. v. GALVESTON, H. & S. A. RY. CO.
    (No. 350.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 3, 1918.
    Rehearing Denied May 15, 1918.)
    1. Appeal and Error <§=>262(1) — Scope — Presekvation op Exceptions.
    Under specific provision of Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann.. Civ. St. 1914, art. 2061), failure to except to refusal to submit special issues waives objection thereto, and the alleged error cannot be considered on appeal, nothwith-standing Acts 35th Leg. c. 177, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), rendering formal bill of exceptions unnecessary; such act not having been effective at the time of trial.
    2. Railroads <S=>352 — Injuries to Persons —Negligence.
    In action for injuries in collision of automobile and railroad car, jury’s finding that the railroad was guilty of no negligence which was the proximate cause of the accidént was conclusive, irrespective of finding on issue of contributory negligence, unless the findings were in irreconcilable conflict.
    3. Railroads @=>350(32) — Injuries to Persons — Questions por Jury — Proximate Cause.
    Issue of proximate cause, in an action for injuries in collision between automobile and railroad car, like issue of negligence, is nearly always a question of fact for the jury.
    4. Appeal and Error @=>999(1) — Conflicting Findings — Scope op Review.
    In action for injuries to husband, wife, and minor child, in collision between automobile and railway car, finding that railroad was guilty of no negligence which was the proximate cause of the accident will not be disturbed, where it found the husband and wife were contributorily negligent, in spite of further finding that the child was not so negligent.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Jesse Edwin Robinson and others against the Galveston, Harrisburg & San Antonio Railway Company. The two suits were consolidated, and there was judgment on verdict for defendant, and plaintiffs appeal.
    Affirmed.
    John W. Parker and K. C. Barkley, both of Houston, for appellants. Baker, Botts, Parker & Garwood and MeMeans, Garrison & Pollard, all of Houston, for appellee.'
   HIGHTOWER, C. J.

We take from appellants’ brief the following statement of the nature of this case, which is shown by the record to be substantially correct: R. L. Robinson and his wife, Julia E. Robinson, and their six year old son, Jesse Edwin Robinson, were all to some extent injured in a collision between the automobile in which they were riding and a motorcar on the Galveston, Harrisburg & San Antonio Railway, at a point where such railway is crossed by the La Porte and Houston public road in Harris county, on May 8, 1915. They brought suit against the railway company for damages for the injuries alleged to have been sustained. Mrs. Robinson afterwards died, though it was expressly found by .the jury that her death was not caused by any injury claimed to have been sustained in this collision, and thereafter the suit by R. L. Robinson and that by Jesse Edwin Robinson were consolidated; and other minor children of Mrs. Robinson, deceased, and her parents were made parties plaintiffs on the theory that the death of Mrs. Robinson was due to the injury received by her in the collision. The case was tried with a jury, and was submitted on special issues, and upon the verdict of the jury, which consisted of its answers to these numerous special issues, judgment was rendered in favor of the defendant, appellee here. Motion for new trial was made by the plaintiffs, which was overruled by the court, and the case has been properly brought here by appeal.

The first five assignments of error complain of the action of the trial court in refusing to submit to the jury certain special issues requested by appellants, being special issues Nos. 1, 2, 3, and 4. To the consideration of each of these assignments by this court, appellee has interposed objection, the reason assigned fol- the objection being that it does not appear in appellants’ brief, nor does it appear anywhere in the record, that the appellants, at the time these special issues were refused, or at any time, excepted to the refusal of the court to submit such special issues, or that appellants reserved any bill of exceptions to the action of the court in that regard, and that therefore the action of the court in refusing to submit said special issues must be regarded as approved by the appellants.

Upon consideration of these objections, we find that they are well taken, for the reason that neither in appellants’ brief nor by the record is it disclosed that appellants excepted to the action of the trial court in refusing to submit either of the special issues mentioned. At the time this case was tried below, article 2061, Vernon’s Sayles’ Civil Statutes, as amended by the Acts of 1913, was applicable, and must control in the disposition of these assignments, notwithstanding the amendment relative to the giving and refusing of special charges passed by the Thirty-Fifth Legislature, and which became effective in June, 1917.

Appellants having failed to properly except to tlie action.of the trial court in refusing to submit to the jury the special issues tendered, this court is not at liberty to consider the error, if- any, on the part of the court in refusing to submit such issues. Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; Saunders v. Thut, 165 S. W. 553; H. B. & T. Ry. Co. v. Price, 192 S. W. 359; Palmer v. Logan, 189 S. W. 761.

• We have carefully examined all assignments of error found in appellants’ brief, with the exception of the first five, and, without discussing them in the order found, or even specifically at all, we have concluded that none of them can be sustained, and ■that the judgment of the trial court in this case must be affirmed.

We will say at the outset, the jury expressly found, in answer to specific questions by the court, that the appellee was guilty of no negligence towards any of the plaintiffs, which became the proximate cause of any injury sustained by any of them; and the jury further expressly found, in answer to specific questions submitted by the court, that both R. L. Robinson and his wife, Julia E. Robinson, were guilty of contributory negligence, and it is conceded by appellants that the finding by the jury of contributory negligence on the part of R. L. Robinson and Mrs. Robinson is conclusive as to R. L. Robinson and all the minor children, with the exception of Jesse Edwin Robinson, who, the jury found, was not guilty of contributory negligence, and that this court would be bound to affirm the judgment of the trial court as to fR. L. Robinson and the minor children, other than Jesse Edwin Robinson, unless the findings of the jury on other issues were so contradictory and inconsistent as to require a reversal of the judgment as to all of the appellants.

In the first place, the jury’s finding that appellee was guilty of no negligence which was the proximate cause of any injury to R. L. Robinson or Mrs. Robinson is conclusive as to them, without regard to the issue of contributory negligence, unless it can be «aid tliat the jury’s findings on the special issues submitted to them on the question of negligence, proximate cause, and contributory negligence were so inconsistent and conflicting that no legal judgment could he entered upon the verdict. Appellants' have undertaken to show in their brief that such findings are so contradictory and inconsistent that no valid judgment could be entered upon the verdict, and we have carefully followed the contentions of counsel for appellants on these points; and, after careful consideration of the record in this case, and the entire findings by the jury, we have concluded that there is no such inconsistency or contradiction in the findings of the jury as contended for by appellants, and that the verdict of the jury, to the effect that appel-lee was guilty of no negligence which proximately caused the injury to any of the plaintiffs, finds support in the evidence, as reflected by the record in this case, and must be sustained.

The issue of proximate cause, like the issue of negligence itself, is nearly always a question of fact for the determination of the jury, and in this case, as we view the record, the question of proximate cause of the injury complained of was peculiarly a question of fact for the determination of the jury, and, it having been determined that the appellee was guilty of no negligence which proximately caused the injury to any of them, the finding by the jury to that effect will. not be disturbed by this court, even though the jury found that the minor son, Jesse Edwin Eobinson, was not guilty of contributory negligence.

It would serve no useful purpose for this court to undertake to follow the many contentions of counsel in writing this opinion, because we would simply be forced, even after doing so to the conclusion that this judgment must be affirmed, and we therefore decline to enter into a minute discussion of the numerous contentions made by the appellants.

As to the appellants, E. L. Eobinson and the minor children other than Jesse Edwin Eobinson, the judgment is affirmed, both because of the finding of the jury that there was no negligence on the part of appellee which caused such injuries as were sustained by E. L. ;Bobinson and the mother of said minors, and also because the jury expressly found, upon sufficient evidence, that both E. L. Eobinson and the mother were guilty of contributory negligence; and as to Jesse Edwin Eobinson, it is affirmed because of the express finding of the jury that the appellee was guilty of no negligence which was the proximate cause of any injury to him, and which finding, as we have stated, also has support in the evidence.

It is therefore ordered that the judgment of the trial court be affirmed in toto.
      @=For other cases see same topic and KEYtNUMBER in all Key-Numbered Digests and Indexes


text:
    MOSLEY v. STRATTON.
    (No. 5850.)
    (Court of Civil Appeals of Texas. Austin.
    March 6, 1918.
    Rehearing Denied April 24, 1918.)
    1. Exemptions <©==>84 — Mortgage — Policy for Benefit of Mortgagee.
    Under an agreement between a mortgagee and a mortgagor that the latter will insure the property for the benefit of the mortgagee, the latter has an equitable lien on the proceeds of the policy, even though the property itself was exempt from forced sale.
    2. Husband and Wife <@=>23 — Agency of Wife for Husband.
    Where a principal authorized his wife as his agent to purchase household furniture on credit, and in doing so it was necessary that she contract with mortgagee to insure the property, the making of such agreement was within the scope of her authority.
    3. Principal and Agent <@=>166(3) — Eatifi-cation of Agent’s Acts.
    If a principal knew that his agent had purchased furniture agreeing with the mortgagee to insure the same for mortgagee’s benefit, or by the exercise of ordinary diligence he could have known it, he will be held to have ratified the agreement.
    4. Husband and Wife <@=>23 — Agency of Wife for Husband — Contract in Agent’s Name.
    Where a principal impliedly authorized his wife as his agent to purchase furniture upon the terms contained in the contract signed by her, it is immaterial that she sign the same in her own name and the husband is bound thereby.
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Suit by G. Stratton against M. M. Mosley and wife. Judgment for plaintiff, and defendant M. M. Mosley appeals.
    Affirmed.
    G. W. Barcus and Alva Bryan, both of Waco, for appellant. S. E. Stratton, of Waco, for appellee.
   JENKINS, J.

M. M. Mosley and his wife, Mrs. M. M. Mosley, lived in Waco, Tex. Mosley was a traveling salesman. They rented a house, and his wife had been subletting some of the rooms. She suggested to her husband that they rent a larger house, so she could take more roomers. Mosley agreed to this, and instructed her to buy such furniture as was necessary to furnish a larger house. She purchased furniture ($753 worth) from appellee on credit, and entered into a written contract with appellee in her own name, agreeing to pay for the furniture on-monthly installments of $30 each, and also agreeing to have the furniture insured for the benefit of appellee, as his interest might appear.

The case was submitted to a jury on special issues, in reply to which they found; First, that Mrs. Mosley signed a mortgage on the property purchased (which mortgage contained the agreement to insure); second, that M. M. Mosley expressly authorized Mrs. Mosley to purchase the furniture; and, third, that he ratified the purchase of the same.

The larger house was rented as contemplated, and tlie furniture was placed therein with the knowledge and consent of M. M. Mosley, and was used by him and his wife until the same was destroyed by fire. Mosley furnished money from time to time to assist in paying the monthly installments on the furniture. Mrs. Mosley did not insure the property, but some time thereafter Mosley insured the same in the German American Insurance Company, in his own name, together with their other household furniture, amounting in all, including the furniture purchased from appellee, to about $2,500.

The jury further found that Mosley did not authorize his wife to sign the written contract with appellee. Appellee brought this suit against Mosley and wife, and the German American Insurance Company. There was judgment for appellee against M. M. Mosley for the balance due appellee, to wit, $426, and against the insurance company for the same amount. No judgment was rendered against Mrs. Mosley. The insurance company admitted its liability on the policy.

Appellant Mosley insists that the court erred in refusing to peremptorily instruct the jury to return a verdict in his behalf, and in refusing to enter judgment for him upon the verdict of the jury. He bases his contention in this respect upon the proposition that the proceeds of the insurance policy was exempt from forced sale or garnishment, for the reason that the property destroyed was household furniture, and also upon the proposition that his wife had no authority to . agree to insure the property purchased from appellee.

It is true that the proceeds of an insurance policy upon exempt property are not liable for debts of the insured, and this even though a .party had a lien upon such property. Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 479; Mueller v. Richardson, 82 Tex. 361, 18 S. W. 693; Cameron v. Fay, 55 Tex. 59; Connally v. Hopkins, 195 S. W. 659; Chipman v. Carroll, 53 Kan. 163, 35 Pac. 1109, 25 L. R. A. 308. It is also true, however, that an agreement between a mortgagee and a mortgagor that the latter will insure property for the benefit of the mortgagee gives the mortgagee an equitable lieu on the proceeds of the policy, even though the property itself was exempt from forced sale. Connally v. Hopkins, supra; 4 Cooley’s Insurance Brief, § 3706; Chipman v. Carroll, supra, and authorities cited in note thereto.

The jury found as above stated on the uncontradicted evidence that Mosley authorized his wife to purchase the furniture, and that he knew that she had purchased the same to be paid fdr in small monthly installments. He did not know that she had signed a .contract to insure the same, but. if she was authorized so to do his want of such knowledge is immaterial. Mosiey did not expressly authorize his wife to agree to insure this property, but an agent is authorised to do whatever is reasonably necessary to accomplish the purpose of his agency, and we think that the court was justified in rendering judgment for appellee upon the ground that it was reasonably necessary for Mrs. Mosley to agree to insure this property in order to be able to purchase the same, ft appears from the testimony that appellee would not have sold her the property without such agreement. If Mosley knew that she had made such an agreement, he ratified-the same by receiving and retaining the furniture. If he did not know of this agreement, it seems to us that by the exercise of ordinary diligence he could have ascertained such fact. It does not appear that he ever asked his wife as to this feature of the contract, and although a copy of the contract which was signed by his wife was found in his desk after the fire, he testified that he had never read it. If Mrs. Mosley was impliedly authorized to purchase the furniture upon the terms contained in the contract signed by her, it is immaterial that she signed the same in her own name, and, notwithstanding such fact, it would be the contract of her husband. Parrott v. Peacock, 180 S. W. 132.

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

Affirmed.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    AMERICAN CENT. LIFE INS. CO. v. SMITH.
    (No. 6005.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 1, 1918.)
    Insurance @=665(1) — Action —•' Evidence-Surrender.
    In action on life insurance policies, the defense being release and surrender of the policies, evidence held to show such release and. surrender were made, and were not induced by fraud or false representations of insurer.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Mary S. Smith against the American Central Life Insurance Company. From judgment -for plaintiff, defendant appeals.
    Reversed,, and judgment rendered for defendant.
    Boyle, Ezell, Houston & Grover, of San Antonio, for appellant. Cobbs & Cobbs, Marshall Eskridge, and Lewright & Douglas, all of San Antonio, for appellee.
   MOURSUND, J.

The appellee sued appellant to recover the amount claimed to be due on two insurance policies for $5,000 each, issued by appellant on or about December 5,. 1913, on the life of her husband, Robert Allen Smith, in which policies appellee was named as beneficiary. She alleged that her husband died on or about April 14, 1915; that the policies were surrendered to appellant on or about December 2, 1914; and that Smith and appellee were induced to surrender said policies by reason oí false and fraudulent representations of the appellant’s agents. The appellant admitted the issuance of the policies, but pleaded that the same were surrendered to it by appellee and her husband, for a valuable consideration, on or about December 2, 1914, and canceled long prior to the death of Smith. Appellant denied any fraud on its part in prorating the release and surrender of the-policies, and in addition alleged that Smith had procured the issuance of said policies by willful, false, and fraudulent representations made in his application for the issuance thereof; also that the policies had lapsed by reason of failure to pay premiums.

In answer to the fourth special issue the jury found that A. L. Davis and C. B. Welli-ver, or one of them, on or about December 2, 1914, as an inducement to obtain the consent ■of Smith to surrender to defendant for cancellation the two policies of insurance, represented to Smith that in any suit brought by ■defendant for the cancellation of said policies the defendant could and would prove by Mrs. J. L. Long the alleged facts set out in the signed statement of said Mrs. Long, dated November 25, 1914. In answer to the fifth issue the jury found that such representation was false. In answer to issue No. 5% they found that such representation was material, ■ and in answer to section (a) of issue No. 6 that Smith relied on the truth of such representations, and in answer to section (b) of such issue that Smith was induced thereby to surrender said policies.

Two sets of similar issues were also submitted; one relating to the statement of Dr. Baird, and the other to that of Dr. Small. 'The jury found that Davis and Welliver represented to Smith that defendant could and would prove by said persons the alleged facts set out in written statements signed "by them respectively, and that such representation in each instance was true, and was material, and that the representation with ref- ■ erence to Dr. Small was relied on by Smith and he was induced thereby to surrender the policies. The questions whether Smith relied on the representation relating to Dr. Baird, and whether he was induced thereby to agree to surrender and cancel the policies, were not answered.

The jury also found that Smith was not acting as the agent of defendant in obtaining the policies from plaintiff at the time Smith, Davis, and Welliver were in El Paso; that plaintiff did not receive any of the money paid Smith by defendant as a consideration for the cancellation of the policies; that plaintiff, at the time she made the indorsement signed by her on said policies and forwarded same to her husband, intended thereby to surrender to defendant her interest and ■ claim as beneficiary under said policies; that Smith did not learn of the falsity of any of the representations; that plaintiff, during her husband’s lifetime, did not learn of the falsity of any of said representations; that Smith was financially able to have paid the second annual premium within the time stipulated in the policies, and would have done so had he not entered into the contract for the surrender of the policies.

Special issues Nos. 1, 2, 4, and 5, requested by defendant after the refusal of its peremptory instruction, were submitted, and by its answers thereto the jury said that Smith did not have, and had never had, consumption at the time he made application for the policies; that he had changed his place of residence on account of his health, or had been advised by a physician so to do, prior to November 24, 1913; that such representation was not material to the risk; that defendant would have filed suit for the cancellation of the policies before the expiration of the year from date of issuance thereof, if the policies had not been delivered to defendant, and by reason thereof did not file said suit Judgment was entered for appellee for $12,925, being the amount of the policies, interest, penalty, and attorney’s fees.

Smith made application for the insurance on November 24, 1913. In answer to the question in the application whether he had ever had any of certain named diseases, including consumption, or “any other serious disease,’’ the only disease mentioned by him was “pneumonia in 1893.” In answer to the question whether any physicians or surgeons had been employed or consulted for himself during the past two years, he said “No.” He also gave a negative answer to the question whether he had ever changed residence or tried “a change of climate” on account of his health, or been advised to do so by a physician. He had consulted at least four physicians in San Antonio during the time mentioned in his application. He had a well-developed case of tuberculosis at the time he made the application, and had been informed of such condition.. There is no escape from the conclusion that he deliberately concealed from the insurance company information which, if it had been furnished, would have resulted in the rejection of his application. He was a soliciting agent for a life insurance company in 1903, when he married, and continued in that business for many years, being finally appointed agency director and placed in charge of 27 states and Cuba. His career in the insurance business shows that he was fully conversant with the importance of the questions to which he returned false answers, and there is no escape from the proposition that he willfully and deliberately perpetrated such a fraud on appellant as would have entitled it to cancel the policies in a suit brought for that purpose.

The policies provide that they shall be incontestable after the first policy year except for nonpayment of premiums. During October or November, 1914, Mr. Davis, appellant’s general agent for Texas, received information leading Mm to believe that SmitMs answers were false. Upon Ms advice an investigation was made. Tbe company received additional information indicating that the report received by Davis was true. Thereupon Mr. Welliver, its general attorney, came to Dallas and suggested that an interview be arranged with Smith to see whether he would agree to cancel the policies, or whether a suit for cancellation would be necessary. Smith had moved to New Mexico. Davis arranged a meeting with Smith at El Paso. At this meeting Welliver told Smith it was Ms intention to file suit to cancel the policies before the expiration of the first policy year, unless they were surrendered by cancellation. Pie told Smith they intended to repudiate the policies on several grounds: First, that he had tuberculosis at the time he toolc out the policies and knew it; second, he had consulted doctors within two years prior to taking out the policies, and, of course, knew that, too; third, he had changed his residence upon the advice of a physician; and, fourth, he had been associated with his wife, and that she had tuberculosis. The fourth ground was withdrawn after Smith exhibited a photograph of his wife. Welliver said: “I have enough here to show that you consulted doctors, and had tuberculosis and knew it.” They told him they had evidence that he had tuberculosis and that he had been treated by a Dallas physician. Welliver also testified that he told Smith they had not had much time to look up evidence because the time was short, but had enough information to justify it (presumably suit for rescission), and that he had deceived them as to consulting doctors and having tuberculosis; also that they absolutely repudiated the policies and would file suit for.rescission, and Welli-ver would come to San Antonio and Galveston and see if he could find any further evidence to support the evidence he already had. He showed Smith four written statements signed by persons living at Dallas.

Davis testified:

“I told Mm that we had evidence that he had tuberculosis at that time, and also that we had evidence that he had been treated by reputable physicians in Dallas for tuberculosis some two years prior to making application for insurance to our company, and also that Dr. T. W. Var-dell and Dr. Whitfield Harrell had told me that he (Smith) had tuberculosis, and had been treated for this dread disease while he was living in Dallas, which I think was in the years of 1911 and 1912.”

After Smith had considered the matter for a day or two an agreement waii reached and reduced to writing whereby he surrendered the policies for cancellation in consideration of $500. He telephoned his wife and had her to indorse on the policies a release as beneficiary and send same to him, whereupon he delivered them to Welliver. When the written statements were shown Smith he denied that they were true, but, according to Welliver’s testimony, after the agreement had been consummated admitted that he had tuberculosis at the time he applied for the policies, and stated that if he had listened to doctors at San Antonio and not gone to Galveston he would have been better off. Smith took the copies of the statements-home with him, but took no steps with reference to such statements, and died on or about April 14, 1915. .

Plaintiff alleged that Smith knew the statements were false, but relied on the allegation that Welliver and Davis falsely represented to Mm that the persons whose statements were produced would testify to the facts stated therein, and that he believed such representations and was induced thereby to agree to a cancellation of the policies. Plaintiff made no issue with reference to the statement given by J. Frank Smith. The testimony, was undisputed that the statements of Dr. Small and Dr. Baird coincided with their testimony. In other words, they testified that the statements signed by them were true and correct, and the jury so found. Mrs. Long, in a half-hearted way, attempted to repudiate one sentence contained in her statement. That sentence reads:

“WMle Mr. and Mrs. Smith lived at 3813 Ross avenue, Dr. Baird examined Mr. Smith and advised him to go to San Antonio, claiming Mr.' Smith had tuberculosis.”

She said she did not think this statement was true. Her testimony is so uncertain that it ought not to be accepted as sufficient to show that she did not make to the person who wrote her statement the sentence above quoted. But she testified that as a matter of fact such knowledge as she had was derived from Mrs. Smith, and that Mrs. Smith told her:

“That Dr. Baird told her (Mrs. Smith) that on account of a slight rectal operation on Mr. Smith, which sometimes, though very seldom, led to lung trouble, he (the doctor) advised that Mr. Smith go to San Antonio until he gained a certain weight and she intimated that that was one of their reasons for moving.”

In answer to another question, she again said that Mrs. Smith told her that one reason for moving to San Antonio was that Dr. Baird had recommended it.

No witness testified that Davis or Welli-ver, or either of them, told Smith that the persons who signed the statements would testify to the truth of the facts contained in such statements. They told Smith the grounds on which they would base the suit for cancellation. They put him in possession of the information they had received, and furnished him' copies of the four statements mentioned in the petition. They referred to their information as “the evidence they had,” but that was a representation as to what persons_had told them, and not a representation concerning what the persons would testify on a trial. In order to obtain a representation that Welliver and Davis told Smith the persons mentioned would respectively testify on a trial to the facts set out in the statements signed by them, a meaning must he given the language of which it is not fairly susceptible. Fraud is not to be lightly inferred or established by surmise or conjecture. There is no evidence that any false representations were made by Davis or Welliver.

If there had been any testimony to the effect that Welliver and Davis represented to Smith that Mrs. Long, Dr. Baird, and Dr. Small would testify in the suit for cancellation to the facts set out in their signed statements, under the facts of this case, such representation would have been a mere expression of opinion. There is not a particle of testimony tending to show that Welliver or Davis led Smith to believe they had ever interviewed either of said persons. The signatures were witnessed by other persons, and furnished no inference that the statements had been obtained in person by Welliver or Davis. He had just as good an opportunity to determine what the persons would probably testify to as Welliver and Davis had. He was furnished copies of the statements on which they based their opinion; no artifice or fraud was practiced to prevent him from making such investigation as he deemed proper and forming his own judgment. Under such circumstances, ,the statement of what certain persons would do in the future furnishes no basis for a claim of fraud.

The particular portion of Mrs. Long’s statement repudiated by her is that wherein she said in effect that Dr. Baird claimed Smith had tuberculosis. Smith knew that Mrs. Long was not present at any interview between himself and Dr. Baird, and that she spoke from hearsay in stating that Dr. Baird claimed Mr. Smith had tuberculosis and advised him to go to San Antonio. She could not testify to such facts of her own knowledge and Smith knew it, and knew he could prove by Dr. Baird, his wife, and himself that what she said was hearsay. The instrument contained no statement from which he could infer that she claimed to have personal knowledge of the facts stated with reference to such matter, and it contained other statements which he knew to be hearsay. So it is apparent that, after we assume that Smith was told Mrs. Long would testify to all the facts contained in the instrument signed by her, he assumed that Davis and Welliver meant she would testify that either Baird, Mrs. Smith, or Smith had told her these matters, and that he was misled into so believing she would so testify and induced thereby to surrender the policies. The statement of Dr. Baird, of which a copy was furnished him at the same time, read as follows:

“This is to certify that about three and a half years ago I examined Mr. R. A. Smith of Dallas, and thought it best for him to change his place of residence and so advised. He had a cough, slight fever, and a slight hemorrhage from his lung at the time of my visit.”

He knew that if Dr. Baird testified in accordance with such statement the testimony would not be hearsay, and, if believed, would show that he had answered falsely a question contained in his application with reference to change of residence. On this important point at least Mrs. Long’s hearsay testimony was in accord with her signed statement. Smith also knew that Dr. Baird’s statement that he had a cough, slight fever, and a slight hemorrhage from his lung, if testified to, would tend strongly to support the contention that he had tuberculosis. He knew that Ms answers would not bear investigation, and knew that if a suit was brought the investigation would be made in San Antonio, and what could and probably would be discovered. He knew that if the suit was brought he would lose it, if the truth was developed. He took his time'about making an agreement, and secured $500 when he was only entitled to the premiums paid. It is inconceivable that Smith would not have done just what he did, had the statement of Mrs. Long never been referred to or shown him. Judging from the ordinary experience of mankind, in the absence of any representation as to what she would testify (assuming there was such a representation), he would in all reasonable probability have made the agreement. Conscious of his fraud and of the fact that sufficient had been discovered to cause an investigation sure to lead to his defeat in the courts, he elected to save the costs and embarrassment of litigation, and take $500 instead of what he was entitled to, namely, $221.46. No sane man, as conversant with the insurance business as Smith was, woulij have done otherwise. The evidence does not support a finding that the representation as to what Mrs. Long would testify to, assuming there was such a representation, induced Smith to make the agreement.

We deem it unnecessary to discuss and dispose of the many assignments of error urged in the brief. The peremptory instruction in favor of defendant should have been given, and judgment entered for defendant. The testimony with regard to the allegations made has been fully developed.

The judgment is reversed, and judgment rendered in favor of defendant.
      <g=For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes