text:
    LAFFERTY v. WILSON.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 18, 1913.)
    1. Appeal and Error (§ 934) — Presumptions —Mattebs Adjudicated.
    In trespass to try title, where the liability of plaintiff to return the purchase money paid by defendant under a void sheriff’s deed was not called to the attention of the court during the trial, and where no charge on the question was requested by defendant, it must be presumed on appeal that the right to the return of the money was not adjudicated below because not presented.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.]
    2. Teespass to Try Title (§ 4) — Condition Precedent — Retubn oe Consideration eor Void Deed to Defendant.
    It is a condition precedent to the recovery of land that money paid by defendant as a consideration for a former void deed be returned.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 4; Dec. Dig. § 4.]
    3. Judgment (§ 617) — Res Judicata — Matters Not Presented.
    Where the right to a recovery of money paid as a consideration for a void deed is not adjudicated in an action of trespass to try title, the party entitled to such return may maintain a subsequent action therefor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062, 1130, 1134; Dec. Dig. § 617.]
    4. Judgment (§ 250) — Grounds of Review —Waiver.
    Defendant in trespass to try title, who did not urge his claim to a return of money paid for a void sheriff’s deed through which he claimed during the trial, thereby waived his right to recover in such action.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. § 250.]
    5. Trial (§ 229) — Instructions—Burden of Pro of — Repetition .
    In trespass to try title, where defendant set up a void sheriff’s deed and a claim upon the ground of equitable estoppel, a charge, that his title rested upon the void deed and a charge on estoppel consisting of six paragraphs and containing a repetition as to what constituted an estoppel and as to the burden of proof required of defendant, as a whole, was not a proper presentation of the law of the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.]
    6. Trespass to Try Title (§ 45) — Instructions — Applicability to Evidence.
    Evidence in trespass to try title held not sufficient to raise the question of a presumed deed in defendant’s chain of title to such degree of certainty as to require its submission to the jury.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67: Dec. Dig. S 45.]
    Error to District Court, Harris County; Norman G. Kittrell, Judge.
    Trespass to try title by H. T. D. Wilson against J. Edgar Lafferty. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded for new trial.
    Tharp & Tharp, of Houston, for plaintiff in error. Atkinson & Atkinson and Harry Holmes, all of Houston, for defendant in error.

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

   HARPER, C. J.

This is a suit in trespass to try title, filed by H. T. D. Wilson against J. Edgar Lafferty on April 10, 1910, for the following tract of land in Harris county, Tex.: Ten acres out of lot No. 8 of the subdivision of the Harris and Wilson two-league grant on the north side of Buffalo bayou,, west corner of the Gagne tract of land in said lot 8; thence north 660 feet to corner; thence east 660 feet to corner; thence south 660 feet to corner on the north line of the Gagne tract; thence west 660 feet to the place of beginning. The defendant pleaded as follows: (1) Not guilty. (2) Three, five, and ten years’ statute of limitations. The case was tried before jury and judgment rendered in favor of plaintiffs, from which judgment it comes to us upon writ of error.

The record discloses that the parties claim the land in controversy, as follows:

Plaintiff’s title, as follows: First. Title from Mexican government to Wm. P. Harris and Robert Wilson two leagues of land, dated June 13, 1832. Second. It was admitted that I-I. T. D. Wilson is a grandson of Robert Wilson. That Robert Wilson had a son, James K. Wilson, and a son, J. T. D. Wilson. Third. Quitclaim deed from James K. Wilson to James T. D. Wilson, conveying his interest in land in Harris county, dated January 4, 1890. Fourth. In matter of the estate of James T. D. Wilson, deceased, showing that he died November 23, 1902, leaving a will which was probated. That after special bequests, he gave to H. T. D. Wilson and Hubert S. I-I. Wilson all other property which he might own or be entitled to at his death. Fifth. Deed from executors of Jas. T. D. Wilson to H. T. D. Wilson conveying all property belonging to said estate, dated July 16, 1909. Sixth. Deed from H. S. H. Wilson to I-I. T. D. Wilson, conveying all his right and title in all property belonging to estate of James T. D. Wilson, deceased, dated July 16, 1909.

Note: The foregoing constitutes plaintiff’s chain of title to the Robert Wilson one-half of the land. As to the W. P. Harris one-half interest, plaintiff introduced the following: First. It was admitted that Glen M. Harris is sole heir of Wm. P. Harris. Second. Quitclaim deed from Glen M. Harris to H. T. D. Wilson, dated September 30, 1910, conveying his right, title, and interest in lots 7, 8, 9, and- 10, second tier of Harris and Wilson two leagues, for the consideration of $100.

Defendant’s chain of title: First. Original grant to Wm. P. Harris and Robert Wilson. Second. Judgment in cause No. 55, entitled Andrew Briscoe v. Joseph Evans, dated June 10, 1839, rendered in Eleventh district court for $600. Execution docket shows: Execution on said judgment issued June 29, 1839, bearing the following return: “Levied and sold on twelve months’ credit, due 13th of December, 1840.” Third. All papers in case are lost, and after diligent search by the clerk cannot be found. Fourth. Sheriff’s deed, dated January 5, 1841, recorded in Deed Records, vol. G, p. 541, filed March 5, 1842, at 4 p. m., from Robert Wilson, by sheriff, to D. W. O. Harris, the same being as follows: (Deed omitted.) Fifth. William P. Harris died, and his widow, Caroline E. M. Harris, appointed and qualified adminis-tratrix, in 1844. Inventory shows: One-half of the unsold portion of two leagues granted to Harris and Wilson, one-half of 8,000 acres. Petition of Caroline E. M. Harris for partition of lots 7, 8, 9, and 10 in second tier of lots, between the estate of Wm. P. Harris and Birdsall and Harris. Decree ordering partition. Sixth. Partition deed dated February 8, 1845, between Caroline E. M. Harris, M. L. Birdsall, and D. W. C. Harris, in which D. W. C. Harris received lot 8 of the Harris and Wilson survey. Seventh. Deed from D. W. C. Harris to Thos. T. Hailey, dated June 15, 1854, conveying 297½ acres, being lot 8. Eighth. Deed from Thos. T. Hailey to Wm. Chapman, dated July 14,1860, 53 acres out of lot 8, fronting on Gagne’s north line. Ninth. Deed from Wm. Chapman to W. H. Stan-field, dated September 7, 1863, conveying the ten acres in question. Tenth. Deed from W. H. Stanfield to E. J. Hanberry, dated October 4, 1863, conveying the ten acres in question; also described as lot 4 of Hailey’s subdivision. Eleventh. Deed from the heirs of E. J. Hanberry to Mary E. Scott, dated 1898, conveying the land in question. Twelfth. Deed from W. J. Hailey and Rebecca Hailey to Mary E. Scott, conveying the ten acres in question, dated May 30, 1908. Thirteenth. Deed from Mary E. Scott and husband, Wm. E. Scott, to J. Edgar Lafferty, conveying the land in controversy. Dated February 23, 1909.

Defendant further claims title under equitable estoppel and presumed deed. He also asserts that the plaintiff cannot recover without first returning the money paid as consideration for the void sheriff’s deed above described, which shall be discussed in passing upon appellant’s assignments of error.

The appellant charges that the court erred in charging the jury that: “The title of the defendant rests upon a certain sheriff’s deed made under execution in 1839. Under the law that deed is void, and the parties through whom defendant claims got no title thereby, and therefore you will not consider the same” — because such charge was erroneous for the reason that plaintiff could not recover without having paid back the purchase money paid for the land under said execution sale, or offered to do so as a condition precedent to his recovery.

It is nowhere disclosed by the record that this proposition of return of the money was raised during the trial of the cause, but was called to the attention of the trial court for the first time in the motion for a new trial. There being no evidence that the money mentioned in the deed was in fact paid, unless the recital in the deed is evidence, and no charge upon the question and none asked by the defendant, it will be presumed that the right to have the money returned was not adjudicated by the trial court because not presented.

It is a condition precedent to a recovery of title to land that money paid as a consideration for a former void deed be returned, but like every other right it must be proven: And the law is that, if such question is not adjudicated in the case where the right of property is adjudicated, then the party entitled to such money may maintain a subsequent action therefor. So, in this case, the defendant has waived his right to recover in this action by not urging his claim at the proper time and place. Johnson v. Caldwell, 38 Tex. 218; Towns v. Harris, 13 Tex. 507.

Appellant urges that the sheriff’s deed referred to in the charge complained of in this assignment only affects the title to an un-, divided half interest in the land and was therefore prejudicial to the defendant. We find that, from the record, as a whole, it is conceded that the sheriff’s deed referred to in this charge is void. It shows that only a half interest in the original survey was meant to be conveyed (the Robert Wilson half interest). The widow of William P. Harris, Caroline B. M. Harris, presumably recognizing the rights of D. W. C. Harris, through the sheriff’s deed, joined in a partition deed February 8, 1845, in which said Harris received lot 8, or the land in controversy. But if he received no title by virtue of the void sheriff’s deed he could receive none from Mrs. Caroline B. M. Harris by virtue of the partition deed because it was a nullity. Therefore defendant, Lafferty, could get no more title than said Harris got. And if this had been the only claim urged by defendant below, the court should have instructed a verdict for the plaintiff.

The seventh, eighth, and ninth assignments are grouped, and urge that the court’s charge is too favorable to plaintiff to the injury of the defendant upon the question of equitable estoppel. Save the first two paragraphs, the court’s charge is devoted to the question of estoppel: “Paragraph 3. The case is submitted to you solely upon what is termed a question of ‘estoppel.’ By ‘estoppel’ is meant that a party does or says that which induces another party to act and to change his position for the worse, and which he would not have done but for such statement or action. Paragraph 4. In order that ‘estop-pel’ shall arise so as to prevent the assertion of one party of a right against another party who claims the benefit of the ‘estoppel,’ it is necessary that there should be a clear understanding and a meeting of the minds of the two parties concerning the question at issue between them. Paragraph 5. What the facts were is for you to say, you being the sole and exclusive judges of the facts proved, the weight of the evidence, and the credibility of the witnesses. The law you will -receive in this charge and be governed thereby, reading the same in your retirement, and, by applying the law as herein given to the facts as you find them to be, make up your verdict. Paragraph 6. The burden of proof is on the defendant, Lafferty, to prove by a preponderance of the evidence the ‘estoppel’ with that measure of clearness and certainty which you are instructed herein the law requires. Paragraph 7. If you believe that the very land in controversy was pointed out on an accurate map by B. W. Scott to H. T. D. Wilson, and that Wilson told Scott that he had no claim to the land in controversy, then you will find that, as to Scott, Wilson was estopped, and, if you so find the facts to have been, you will find for defendant. Paragraph 8. On the other hand, if you find that there was not a clear understanding between Scott and Wilson as to what land Scott was inquiring about, and that there was an uncertainty as to what land the inquiry was being made about, and believe that Wilson told Scott that he claimed nothing north of the Miles and Franklin division line, which begins at the intersection of the two railroads on the map, then Wilson, the plaintiff, was not estopped by the statements made to Scott, and, if you so find the facts to have been, you will find for plaintiff.”

The sixth paragraph of the court’s charge is assigned as error “because said charge mistakes the law and requires the jury to not allow defendant the benefit of estoppel unless he proves the same by a preponderance of the evidence, and with that measure of clearness and certainty, etc.” This charge was sought to be corrected by the defendant by a special charge requested, which is substantially correct, but which was refused by the court. These errors in the court’s charge are urged by three assignments, which are grouped, but which are propositions in themselves, and are followed by the proposition that the court’s general charge was too favorable to plaintiff to the injury of the defendant.

The court should have given a clear statement of the law of estoppel, in one or more paragraphs, and then in one paragraph naming the things necessary to be proven by appellant by the preponderance of the evidence, that is, grouping the facts thereunder, it will be seen that the charge as given is a repetition as to what constitutes an estop-pel, and a repetition as to the burden of proof required of the defendant; and taken in connection with the two first paragraphs, charging that “the defendant’s title rested upon the void sheriff’s deed,” it cannot be said that the charge as a whole was a proper presentation of the law of the case; therefore the assignments are sustained.

The- eleventh assignment complains that the court erred in not submitting the issue as to whether the land in question lies north of the' railroad. While this assignment was not properly raised by requesting charge to the jury upon the proposition, in view of another trial the assignment is considered with observation that the evidence is sufficient to raise the issue of fact, especially in connection with the question of estoppel relied upon by defendant.

The tenth assignment complains that the court erred in not charging and refusing the defendant’s special charge requested upon the issue that under the facts and circumstances of this case it will be presumed that a deed was executed by Robert Wilson to D. W. C. Harris. The appellant relied upon the following facts and circumstances to support his proposition:

First, defendant’s chain of title (the many transfers thereunder).

Testimony of H. T. D. Wilson; “Robert Wilson was my grandfather. He died in 1857 or 1858 in Harris county. I am not positive whether it was 1857 or 1858, but it was about the time I was born. He lived in Harris county before this land was granted to Harria and Wilson, and nearly all the time from that time up to the time of his death. My father was born in St. Louis. He came to Texas in 1835 or 1836. He lived here from that time until his death, most of the time; this was not his home always. He lived in Panama and South America for two or three years; other than that his home was in Harris county. He died in November, 1902. I lived five years in Los An-geles and San Francisco, and all the rest of my life I have been living here. I was born in February, 1858.”

Mr. Lafferty testified; “I bought this land from Mary E. and Wm. E. Scott. When I purchased, I went out and looked it over. It was fenced and was located like city lots, Mr. Gagne’s lines were all fenced up, and they were old fences. Mr. Abbott gave me an opinion that it was a good, merchantable title. At the time I bought the land, there was a suit pending against it for taxes, and I paid off the suit. I have paid the taxes and assessed it ever since then, and have paid the taxes on it. I paid $1,100 for the land to Mrs. Scott.”

“Defendant read in evidence certificate from comptroller’s office, showing payment by the Haileys of taxes from 1858 to 1864.

“Defendant introduced the map of Hailey’s addition, recorded September 17, 1868, in volume 6, on page 439, Deed Records of Harris County, in which the land in controversy is lot No. 4, marked ‘Stanfield 10 acres,’ and it lies immediately north of the Gagne tract.”

The court did not err in refusing the charge because the evidence is not sufficient to raise the question to such degree of certainty as to require its submission to the jury. Masterson v. Harrington, 145 S. W. 626.

Because of the defects in the charge of the court above pointed out, the cause is reversed and remanded for a new trial.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. HILL.
    (Court of Civil Appeals of Texas. El Paso.
    June 26, 1913.
    On Rehearing, Dec. 18, 1913.
    Rehearing Denied Jan. 8, 1914.)
    On Rehearing.
    1. Appeal and Error (§ 743) — Assignments of Error — Sufficiency—Rules oe Couet.
    An assignment of error, though not conforming to Courts of Civil Appeals rule 25 (142 S. W. xii), requiring assignments to refer to that portion of the motion for new trial in which the error is complained of, will be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Appeal and Error (§ 1040) — Harmless Error — Erroneous Rulings on Pleadings.
    The error in overruling special exceptions to the allegations of the petition, bearing only on the question of the damages recoverable, and in admitting evidence in support of the allegations, is harmless, where the court in its instructions directs the jury not to consider the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    3. Limitation of Actions (§ 138) — Commencement of Action — Issuance and Service of Citation.
    Where plaintiff filed a petition before the running of limitations, and prayed therein for issuance of a citation, and in good faith intended that process should at once issue and be served, and he gave a bond for costs, which entitled him as a matter of right to the issuance of a citation before the running of limitations, and both parties proceeded on the theory that defendant was in court, and the fact that citation had not been served was not discovered until limitations had run and the parties had gone to trial after a continuance, the action was not barred by limitations, since plaintiff and his counsel were not responsible for the failure of the clerk to perform his duty and issue citation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 573; Dec. Dig. § 138.]
    4. Telegraphs and Telephones (§ 66) — Delay of Messages — Negligence—Evidence.
    In an action against a telegraph company for delay in the delivery of a message, evidence held to support a finding that the company negligently delayed the' telegram.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]

      5. Telegbaphs and Telephones (§ 37) — Delivery of Messages — Sufficiency.
    Where a telegram is addressed to the addressee in care of another person, a delivery to either, if promptly made, is a performance of the telegraph company’s duty; but a delivery at the office of such person to another having no authority to receive telegraph messages is not a sufficient delivery.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.]
    6. Telegbaphs and Telephones (§ 71) — Delay in Deliveey of Messages — Damages —Excessive Damages.
    A verdict for $1,500 for delay in the delivery to the sendee of a message announcing the illness of his wife, thereby preventing him from reaching her until the illness had so far progressed as to render her practically unconscious and render her unable to converse with him or recognize him, and so remaining until her death a few days later, was not excessive.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cen,t. Dig. § 74; Dec. Dig. § 71.]
    Appeal from District Court, El Paso County ; A. M. Walthall, Judge.
    Action by C. S. Hill against the Western Union Telegraph Company. From a judgment
    for plaintiff, defendant appeals.
    Affirmed, and motion for rehearing overruled.
    Geo. H. Fearons, of New York City, and Beall & Kemp, of El Paso, for appellant. Coldwell & Sweeney, of El Paso, for appellee.

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

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

   HIGGINS, J.

This suit was instituted by Hill against the appellant for damages alleged to have been sustained by reason of delay in delivery of a telegram delivered to appellant for transmission and delivery to appellee at Ft. Worth, Tex. Upon trial before a jury, verdict was rendered in appel-lee’s favor for the sum of $1,500, and judgment thereon was accordingly rendered.

An inspection of the assignments of error herein as they appear in the record discloses that they do not comply with that provision of rule 25 for the government of the Courts of Civil Appeals (142 S. W. xii) as amended January 24, 1912, requiring assignments to refer to that portion of the motion for a new trial in which the error is complained of. Because of the failure of the assignments of error, as they appear in the record, to comply with this provision of the rule, the same will therefore not be considered. In an opinion rendered upon rehearing in El Paso Electric Railway Company v. Lee, 157 S. W. 748, recently filed, and not yet reported, we at length state our reasons for declining to consider assignments of error which do not comply with said amended rule. We here now refer to this opinion as stating in full our reasons for declining to consider the assignments in this case. We also refer to the following additional authorities: Railway Co. v. Pemberton, 155 S. W. 652; Davidson v. Patton, 149 S. W. 757; Murphy v. Earl, 150 S. W. 486; Railway Co. v. Ledbetter, 153 S. W. 646; Railway Co. v. Gray, 154 S. W. 229; Jones v. Edwards, 152 S. W. 727; Allen v. Kitchen, 156 S. W. 331; Railway Co. v. Emerson, 152 S. W. 469; Nunn v. Yeale, 149 S. W. 758; Astin v. Mosteller, 152 S. W. 495; Wright v. Wright, 155 S. W. 1015; Railway Co. v. Cummins, 156 S. W. 542; Elmo Rock Co. v. Sowders, 155 S. W. 270; Lee v. Moore, 162 S. W. 437; Brewer v. Blythe, 158 S. W. 786; Benton v. Kuykendall, 160 S. W. 438; and Railway Co. v. White, 160 S. W.. 1128; the last four cited cases recently decided by the Dallas Court of Civil Appeals, and not yet officially reported, but are cited in Railway Co. v. Cummins, supra.

It is a matter of regret to the court that it should be called upon in this cause to enforce the provisions of the amended rules, for the reason that the distinguished counsel who represent the appellant are unusually observant of the rules, and rarely, if ever, has this court been called upon in their cases to overlook violations thereof. In this particular case, the nonobservance was, no doubt, due to an inadvertence, which in turn was doubtless due to the fact that the amendments were of comparatively recent date. We deferred enforcing the amendments until a sufficient time had elapsed to permit the members of the bar to become familiar therewith, and, after the lapse of such time, we deem it our duty to rigidly enforce the same. From the number of records recently filed in this court in which the amendments t are disregarded, it is evident that in no other manner can their observance be enforced.

Affirmed.

On Rehearing.

The action of the Supreme court in granting a writ of error in El Paso Electric Railway Co. v. Lee, 157 S. W. 748, indicates its disapproval of this court’s holding that rule 25 (142 S. W. xii) requires that assignments of error shall refer to that portion of the motion for a new trial in which the error is complained of. It therefore becomes our duty to pass upon the assignments of error herein, which we originally declined to do, because of their failure to comply with the rule indicated.

On February 26, 1910, appellee filed suit against the appellant to recover the sum of $1,950 damages, alleged to have been sustained by reason of alleged delay in the transmission and delivery of a telegram, advising him of the illness of his wife. It was averred that on February 27, 1909, plaintiff was temporarily in Ft. Worth, Tex., and his wife was quite sick at his residence in the city of El Paso, which sickness was unknown to him; and on the morning of that day, Dr. King, the attending physician of his wife, acting as his agent, caused to be delivered to defendant, the following telegram: “Feb. 27, 1909. To C. S. Hill, Ft. Worth, Texas, care of J. C. Hill First National Bank. Mrs. Hill has La Grippe, think best you come. [Signed] 'Dr. King.” That upon the delivery of said telegram, defendant’s agent in charge of the receiving office, and to whom the message was delivered, was informed that the matter was one of life and death. That said message was received by defendant for transmission and delivery to plaintiff or to said J. 0. Hill, and .that defendant knew of the condition of plaintiff’s wife and her relationship to him; that defendant negligently failed to transmit and deliver said message to plaintiff or to said J. O. Hill at said First National Bank, or anywhere else, although several times during the day mentioned, after the time said message should have reached Ft. Worth, plaintiff was at defendant’s office in Ft. Worth and inquired of defendant’s agents in said office if they had any message for him. That he was at such office and made such inquiries because he was then expecting to receive a telegram on other matters from another point; that if said message had been delivered to plaintiff or any one for him in due time, he could and would have at once started for El Paso, and would have reached there about noon on February 28th; that his wife’s sickness almost immediately developed into pneumonia, as was natural and to be expected, and as defendant was informed when it received said message for transmission. That El Paso is very high above the sea level and such altitude is a circumstance which renders pneumonia doubly dangerous, and that the best course in cases of pneumonia is to at once remove the patient to a lower altitude, and that, but for defendant’s negligence in failing to transmit and deliver said message with reasonable dispatch, the plaintiff would have reached El Paso in time to remove and would have removed his wife to a lower altitude; that by reason of such negligence he did not reach Ei Paso until noon, March 2d, and found his wife practically unconscious and unable to speak and too weak to be removed, to which condition she had been reduced in the 24 hours just preceding, and that, by reason of said weakness, plaintiff was unable to so remove his wife or to converse with or be recognized by her; that she died a few days after his arrival, without at any time becoming able to speak to or recognize plaintiff, and that her death was in all probability occasioned by the fact that she was not removed to a lower altitude in the time that she would have been removed but for defendant’s negligence aforesaid. The usual further allegations were made with reference to the items of his damage, and concluded with a prayer for issuance of citation and judgment for damages.

Defendant answered by (a) general demurrer ; (b) special exception to that portion of the petition, “but for the defendant’s negligence plaintiff would have reached EÍ Paso in time to have removed and would have removed his wife to a lower altitude, and that but for defendant’s negligence he would have removed his wife in time to have saved her life,” because the items of damage sought to be recovered by reason thereof were too remote, speculative, and uncertain to authorize a recovery; (c) general denial; and (d) special plea that the petition was filed on February 26, 1910, and that the suit was for damages based upon alleged negligent failure to deliver above message; that on August 16, 1910, a motion was filed by the clerk of the court to require plaintiff to give cost bond, and that the cost bond was not filed until September 7, 1910, and that citation was not issued and served upon defendant until June 8, 1911, more than two years after the plaintiff’s cause of action accrued; wherefore the cause of action was barred by the two-year statute of limitation, which was pleaded in bar. Upon trial, verdict in the sum of $1,500 w:as returned, upon which judgment was rendered, and from which this appeal is prosecuted.

The first assignment complains of the overruling of the special exception above noted, and the fourth, to the action of the court in permitting plaintiff Hill to testify that he would have removed his wife to a lower altitude, and that he believed such removal to a lower altitude was good for diseases such as she was suffering from, and, in his opinion, at that time it was his duty to remove his wife; that he told his brother he was going to move her to Ft. Worth if she was able to be moved, but that she wan not removed, because Dr. King told him she was too weak for that purpose. The exceptions should have been sustained and the testimony indicated excluded, but the court in his general charge carefully excluded from the consideration of the jury any elements of damage which they might otherwise have considered in relation to the exception and evidence, and further, at the request of defendant, gave a special charge directing the jury not to consider any of such evidence. This rendered harmless the erroneous action of the court in the respect indicated.

A peremptory instruction was given against appellant upon the issue of limitation raised by its pleading. This is made the basis of the second assignment, and by the third assignment complaint is made of refusal of a special charge requested by appellant as follows: “You are instructed that, under the law, it was the duty of plaintiff to commence and prosecute his suit within two years after his cause of action accrued; and that said cause of action accrued, as shown by appel-lee’s petition, on the 27th day of February, 1909. If, therefore, you find from the evidence that plaintiff, after filing his said petition, failed to procure the issuance and service of citation upon defendant until more than two years elapsed after his cause accrued and the filing of said petition, which was on the 26th day of February, 1910, and the issuance and service of citation upon said defendant, which was on the 8th day of September, 1911, and if you further find that' said delay was unreasonable, and you so find from all the evidence in the case, then your verdict should be for the defendant, otherwise for the plaintiff as to said issue.” It is urged first, that although plaintiff filed his petition in due time, the undisputed evidence discloses he failed to prosecute his suit by having citation issued and served until more than two years had elapsed after the accrual of the cause of action, and second, under the statute of limitation pleaded, plaintiff was required to commence and prosecute his suit within two years after the accrual of the cause of action, and the cause of action did accrue more than two years before the issuance and service of citation, and, if parol evidence was admissible for the purpose of excusing such delay, it was for the jury to determine whether or not the delay was reasonable, and such issue should have been presented by the special charge quoted.

W. M. Coldwell, appellee’s attorney, testified: “I am the Coldwell, of Coldwell & Sweeney. The petition in this case was filed the day it purports to be. My own memory is that it was about that time. It was in my own writing, and filed with the clerk. I told the clerk to issue citation and went out. As I was going out he said: ‘Will you give cost bond?’ I said yes. He did not say anything about not issuing citation. He told me he wanted a cost bond; we told him we would give him a cost bond. I heard no more about the cost bond until I think he sent me a notice of the motion for costs, through the mail, to Coldwell & Sweeney to file a cost bond. I still thought citation had been issued. I had had a conversation with the attorneys for the defendant about the case, and afterwards we set it. We set cases here two months in advance. The case was set for trial and passed by consent of both parties. It was set again, and when we started into the trial, on the morning of it, why, the attorney for the defendant, Mr. Maury Kemp, told me there had been no service of citation. This was long after the case had been filed. I looked into the papers and did not see any citation, and then went into the clerk’s office and ordered citation. I thought all the time citation had been issued and served.” Cross-examination: “I don’t think I ever saw any answer of the defendant in the case at the time I opened the papers at the time of going to trial. I supposed, of course, you had filed an answer because we had spoken about it. Of course, if any answer was filed, there was no need of citation. But, in speaking about the case, I supposed, of course, you had been notified and filed an Answer.”

The only possible respect in which appel-lee could be held chargeable for delay in the issuance of the citation was the failure to file cost bond with his petition. Such cost bond -was filed September 7, 1910, several months before the expiration of the two years. It 'further appears that a jury was demanded by the appellee and the jury fee paid on January S, 1911; also, that the case was, by agreement, twice set for trial. It was not tried at the first setting and continued by agreement of the parties. At the next setting it was then discovered that citation had not been served. Appellee’s counsel then at once proceeded to the clerk’s office and caused the citation to be issued.

In Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645, it is said: “All the elementary writers agree that, in order to stop the running of the statute of limitations by suit, not only must the initial step required by the statute be taken, but there must also be a bona fide intention that the process shall be served at once upon the defendant. Bus. on Lim., § 355; Wood on Lim., § 289; Angelí on Lim., § 312; and such is praeticálly the ruling in this court. Veramendi v. Hutchins, 48 Tex. 532.”

There is nothing whatever in the facts detailed above to indicate other than a bona fide intention that process should be at once issued and served, nor is there any fact after cost bond was filed to charge appellee with failure to have the same issued and served. His petition contained a request for the issuance of citation. He gave a bond for costs, which entitled him, as a matter of right, to the issuance of the citation long prior to the expiration of the two years, and it is plainly apparent further that the attorneys for both parties had proceeded upon the theory that the defendant was properly in court. The fact that citation had not been issued and served evidently was not discovered until the parties had started to go into trial upon the second setting. Appellee and his counsel are in no wise responsible for the failure of the» clerk to perform his duty and issue citation. The court properly gave the peremptory instruction upon the issue of limitation. Rick-er v. Shoemaker, supra; City of Belton v. Sterling, 50 S. W. 1027.

The fifth assignment is that the verdict and judgment is unsupported by and contrary to the evidence on the issue of negligence of appellant in making delivery of the telegram. The assignment is submitted as a proposition, and it is not apparent in what respect it is contended the evidence is insufficient, but, from the argument supporting the assignment, it appears that appellant’s contention is that the telegram was delivered to the party in whose care it was-addressed, and there is no evidence when appellee’s brother received it; therefore no affirmative proof of negligence. The first information appellee had of the serious illness of his wife was about 10:50 p. m. on February 28th. He was then at the residence of his brother in the city of Ft. Worth, and by telephone was advised by the Western Union Telegraph Company of the contents of a message for his brother, J. C. Hill, received from G. W. Payne in El Paso. This telegram does not appear in the record, but it is apparent from the evidence that it imparted information concerning the serious condition of appellee’s wife, and on the following day, March 1st, he departed by first train for El Paso. 1-Ie testified that the telegram, described in his petition, was not received by him until the morning of the day he left, and he received it at his brother’s office, together with other mail; that the message was in a Western Union envelope, and came through the United States mail; that it had a postage stamp on it, and his brother had gotten it through the mail sometime during that morning. To rebut the deduction of negligence arising from this evidence, appellant offered in evidence its telegram delivery sheet, reading as follows: “The Western Union Telegraph Co’s Delivery Sheet. February 27-28, 1909. Messenger No. 20. No. 87, Time 12:35 P. M., Signature J. Scanlon, Address C. S. Hill. Time delivered, 1:05.” Also the deposition of Ralph Mark-graf, who testified by deposition that he was a messenger in the employ of defendant at Ft. Worth on February 27, 1909, and received the message in question for delivery and went to J. C. Hill’s office and asked for C. S. Hill of a man who was in the office, and who told him that Mr. Hill was not in, but that he would receive the message for him. That this man signed for the message and he left it with him, but he did not know who the man was; that this party made a notation on the delivery sheet showing the time the message was received, and also signed his name as the receiver of the message; that he had made a statement in regard to the delivery of the message, which statement w7as attached to the deposition, and reads: “Statement of messenger No. 20 herewith. ‘Received message No. S5 to deliver to C. S. Hill c/o J. C. Hill, First National Bank at 12:35 p. m., on February 27, 1909. Went to address and found building- was being demolished and could not deliver. Returned to office and was sent to Dundee Building where I delivered message to a party in J. C. Hill’s temporary office. Told him who message was for and he signed for saíne at 1:05 p. m., February 27, 1909. See form 87 attached. Do not know party who signed for this and cannot locate him.’ ”. It therefore appears from the testimony of the messenger boy that he made delivery of the message at 1:05 p. m., February 27th, at the office of J. C. Hill to a party named J. Scanlon. There is no testimony in the record froin Scanlon. If the testimony of the appellee detailed above be true, then it is evident that Scanlon was an imaginary person and the delivery story of the messenger boy a fabrication. An issue of fact is therefore raised as to whether or not the delivery was ever made as detailed by the messenger. But concede delivery was-made to a party by the name of Scanlon in J. C. Hill’s office, still this was not a delivery to either O. S. Hill or J. O. Hill, such as was required by the terms of the contract. It is, of course, true that if prompt delivery had been made to J. G. Hill, the measure of appellant’s duty would have been fulfilled. Johnson v. Western Union Telegraph Co., 132 S. W. 814, and cases there cited; but the principle there recognized does not go-to the extent of authorizing delivery to parties who may be wholly irresponsible and unauthorized, and simply at the place of business of the party in whose care the message is directed. Delivery to Scanlon at the office qf J. C. Hill was not such a delivery as was required by the terms of the contract in the absence of some showing of authority upon the part of Scanlon to receive telegraphic messages addressed to J. C. Hill. For both of the reasons indicated, the contention that the evidence is insufficient must be overruled.

The sixth and seventh assignments complain of the verdict of the jury as excessive in amount, and the natural result of' sympathy aroused in behalf of appellee by his testimony, the admission of which was-the basis of the fourth assignment above quoted. The verdict is not regarded as excessive (Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 D. R. A. 844, 16 Am. St. Rep. 920; Same v. Piner, 9 Tex. Civ. App. 152, 29 S. W. 66), and there is no reason to believe that the jury disregarded the positive instruction of the court to exclude these matters from their consideration, as directed by the general charge and special charge given as above stated.

The motion for rehearing is overruled.


author: TADBOT, J.

text:
    HALES v. PETERS et al.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 13, 1913.
    Rehearing Denied Jan. 3, 1914.)
    1. Appeal and Error (§ 917) — Presumptions — Demurrer—Waiver.
    Where the record does not show that any action was taken on a demurrer to the petition, it will be deemed to have been abandoned or-waived.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 3706-3709; Dec. Dig. §- 917.]
    2. Appeal and Error (§§ 500, 713) — Record-—Review.
    If the transcript contains no judgment or record entry showing a ruling on a demurrer to the petition, the ruling cannot be reviewed,, though such ruling be shown by a bill of exceptions reserved thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298, 2379, 2463, 2645, 2956, 2957; Dec. Dig. §§ 500, 713.]
    3. Husband and Wipe (§ 276) — 1Community Property — Qualification of Administrator-Effect.
    The qualification of the husband, as community administrator, upon his wife’s death did' not divest the one-half interest in the community property which vested absolutely in the children, subject to payment of community debts.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1082-1045; Dec. Dig. § 276.]
    4. Husband and Wife (§ 276) — Community Pbopebty — Rights in Proceedings.
    If property belonging to the community was sold by the husband, as community administrator, and the proceeds invested in other land, the children could claim the same interest in the land purchased as in the original community property, and were not bound to sue on the bond of the community administrator to obtain their rights.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.]
    5. Husband and Wipe (§ 276) — Community Pbopebty — Actions—Bubden op Peoop.
    In an action by children against one who purchased from the husband, as community administrator, land which was property of the community, agreeing, as part of the consideration, to pay the children the value of one-half of such land, the burden was on defendant to show that the community property was not more than sufficient to pay expenses of administration and community debts; the statute requiring the survivor to keep a correct account of the debts and expenses of administration.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.] .
    6. Husband and Wife (§ 276) — Community Pbopebty — Action to Recoveb — Sufficiency of Evidence.
    In an action by the children on defendant’s agreement, made upon purchasing from the community administrator land which was the property of the community, to pay the children the value of one-half of such land, evidence held to show that there was a surplus of the community property after payment of community debts and expenses of administration.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.]
    7. Husband and Wife (§ 276) — Community Pbopebty — Actions to Recoveb — Sufficiency of Evidence.
    In an action on an alleged agreement by defendant, who purchased from the community administrator -land which was the property of the community, to pay to the children, as part of the consideration, the value of one-half of such land, evidence held to show that defendant made the agreement alleged upon purchasing.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.]
    8. Husband and Wife (§ 276) — Community Pbopebty — Pubchase fboh Administbatob —CONTEACT.
    One who purchased land from the community administrator, knowing that the heirs claimed a half interest therein, and agreed to settle with them for their interest, in effect agreed, upon purchasing, to pay such heirs the reasonable value of their one-naif interest in the land.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.]
    9. Husband and Wife (§ 276) — Community Pbopebty — Rights of Children.
    If one who purchased from the community administrator land which was the property of the community agreed to pay the children the value of one-half of such community estate, the children could sue on such agreement without first seeking a partition and distribution of the community estate, or suing on the community bond.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.]
    10. Tbiai, (§ 242) — Instructions—Misleading.
    In an action by five of eight heirs on an agreement, made by defendant upon purchasing from the community administrator land which was the property of the community, to pay the heirs the value of one-half of such community estate, the court instructed that, if defendant, when the conveyance was made, agreed with the community administrator that, as a part of the consideration, he would pay the children “the reasonable value of one-half of said land, then you will find for plaintiffs for five-eighths of whatever amount you may believe from the evidence was the reasonable value of said land” at the time of the sale to defendant. The evidence showed that plaintiffs were only claiming five-eighths of the value of one-half of the land sold to defendant. Held, that the instruction could not have misled the jury to believe that plaintiffs were entitled to recover five-eighths of the value of the entire tract; its reasonable meaning being that they were only entitled to five-eighths of the reasonable value of one-half of the land sold.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.]
    11. Appeal and Eeeob (§ 1170) — Harmless Ebboe — Instructions.
    Any misleading effect of such instruetici-' was harmless where the paper on which the jury calculated their verdict showed that the amount awarded plaintiffs was only five-eighths of the value of one-half of the land sold to defendant, after deducting an incumbrance from the value of all of the land; Court of Civil Appeals rule 62a (149 S. W. x) prohibiting reversals for errors which were not reasonably calculated and probably did not cause the rendition of- an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    12. Vendor and Purchaser (§§ 249, 251)— Vendor’s Lien — Creation.
    Unless expressly waived, a vendor’s lien to secure the purchase price arises upon the sale of land, and, if a part of the price is the assumption of an indebtedness due a third person having no claim on the land, such lien arises in favor of such third person.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 624-635, 650; Dec. Dig. §§ 249, 251.
    13. Vendor and Purchaser (§ 284) — Vendor’s Lien — Jury Question.
    Where circumstances were shown which would raise a vendor’s lien to secure payment of the price of land, it was not necessary to submit to the jury the question of its existence; the lien being established by law.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 796-799; Dec. Dig. § 284.]
    14. Husband and Wife (§ 276) — Community Pbopebty — Action by Heibs — Necessary Parties.
    If defendant, upon purchasing from the community administrator land which was the property of the community, agreed to pay the children the value of one-half of such land, the children could either proceed against the community bond or against defendant on his agreement, and hence the other children were not necessary parties to an action by a part of the children on defendant’s agreement, since they could not be compelled to elect tD sue on the agreement instead of on the bond,
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.]
    15. Contracts (§ 9) — Certainty.
    A contract by defendant, upon purchasing land from the community administrator which was the property of the community, to pay the children the value of their interest in the community land so sold was not too uncertain to be enforced; the children’s interest and the amount defendant agreed to pay being capable of being made certain by mathematical calculation.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.]
    16. Contracts (§ 187) — Actions—Parties— Third Persons.
    If defendant, upon purchasing from the community administrator land which was the property of the community, agreed, as part of the consideration, to pay to the children the value of one-half of the community estate, the children and hence their transferee could sue on such agreement to recover the reasonable value of their interest in the land; the agreement being an original undertaking which inured to the children’s benefit.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 798-807; Dec. Dig. § 187.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by W. R. Peters and others against Ed Hales. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    See, also, 144 S. W. 694.
    L. L. Bowman and Tates, Sherrill & Starnes, all of Greenville, for appellant. Clark & Leddy, of Greenville, for appellees.

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

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

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

   TADBOT, J.

Appellees W. R. Peters and O. W. Bowman instituted this suit against the appellant, Ed Hales, and A. Lindsey, alleging in their original petition, among other things, in substance, that a short time prior to August 22, 1907, Emma Lindsey, wife of A. Lindsey, died, and at the time of her death she and her surviving husband owned community property of the aggregate value of $2,545, of which $1,800 was real estate, and the balance personal property; that on said date the defendant A. Lindsey was duly appointed community administrator of said estate, and executed and filed his bond as such administrator in the county court of Hunt county; that on the same day said defendant Lindsey filed an inventory and appraisement of said property belonging to said estate, showing the aggregate value above named; that, after said inventory and bond were filed and duly approved by the county court of Hunt county, said A. Lindsey was duly authorized by said court to handle, manage, control, sell and dispose of said property in the manner authorized by the statutes of Texas relating to community administration; that thereafter the said A. Lindsey sold the land belonging to the community and a large amount of the other property shown by the inventory, and invested the proceeds thereof, or a part of the proceeds thereof, in other lands, which were thereafter, to wit, on the 22d day of October, 1909, sold to the defendant Ed Hales; that before the sale of said property to the said Hales more than a year had elapsed since the taking out of community administration on said estate; that the said A. Lindsey and his deceased wife left surviving them eight children, all minors at the time A. Lindsey qualified as community administrator, but four of whom had become of age at the time of the trial of this suit; that, at the time the sale of the land was made to Ed Hales, the said Hales, in purchasing said land, agreed to pay to the children of A. Lindsey and Emma Lindsey what the said Hales and A. Lindsey agreed was the value of one-half of said property, amounting to the sum of $600, of which sum one-half would belong to the children who had reached their majority, and the said A. Lindsey is indebted to the four children above named for the value of one-fourth of said community estate; that, although said children had demanded of said Lindsey a settlement of their part of said estate, no part of the amount due them has ever been paid, and that the defendant Hales refused to recognize any liability to either of said children or the plaintiffs herein, and has refused to pay them any sum whatever; that plaintiffs are the owners by purchase and transfer in due and legal form from said four adult children of all their rights, title, and interest in and to said land and any property belonging to said community estate. Defendant Hales filed general and special demurrers to plaintiffs’ petition, and a general denial of the allegations thereof, except that part of the same which shows that A. Lindsey had duly and legally qualified as community administrator of said estate, and that A. Lindsey, joined by his second wife, had sold and conveyed the tracts of land described in plaintiffs’ petition to defendant Ed Hales. Defendant’s general demurrer to plaintiffs’ petition was presented and sustained. Plaintiffs declined to amend, and their case was dismissed. They appealed, and the judgment of the lower court was reversed, and the cause remanded. See 144 S. W. 694. When the case came up for trial again in the district court, as between the plaintiffs and the defendant Hales, the controversy as between plaintiffs and the defendant Lindsey having been theretofore flisposed of by judgment of the court, plaintiffs filed what is styled their first trial amendment, and alleged, in substance, that since the filing of their original petition they had purchased and were “the owners of the amount due Paralee, another child of said A. Lindsey,” and were the owners “of her interest' in said land and in said purchase money, making them now the owners of five-eighths interest therein instead of oné-half as heretofore alleged”; that, instead oí the sum of $600, as alleged in plaintiffs’ original petition, the defendant Hales agreed and promised to pay the said children named in said petition the reasonable value of their interest in said land, which was understood between the parties to be the sum of $900; that, as a part of the consideration of said sale of the land described in plaintiffs’ petition, it was specially understood and agreed by and between the said Lindsey and Hales at the time thereof that the said Hales was to settle with said children for their interest in said land, and was to pay them the reasonable value of one-half of said land, and that by reason of said agreement a lien exists against said land for the amount due said children. Plaintiffs asked judgment for $900, and that a lien for same be fixed upon the land bought by defendant Hales. In reply to plaintiffs’ “trial amendment,” defendant Hales filed a supplemental answer, alleging that said amendment was insufficient in law to authorize any foreclosure against the land alleged to have been sold to him by A. Lindsey, or to authorize the establishment or finding or fixing of any lien against said land. Defendant Hales also denied all the allegations in said amendment. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiffs for the sum of $675.78, and, defendant Hales’ motion for a new trial being overruled, he appealed.

Appellant’s first assignment of error is that the court erred in overruling his general demurrer to plaintiffs’ petition. The record fails to show that such or any action was taken by the court on said demurrer, and the same must be deemed to have been abandoned or waived. Chambers v. Miller, 9 Tex. 236; Headley v. Obenehain, 33 Tex. 682; Knights v. Rose, 62 Tex. 322; Whitmire v. Farmers’ Nat. Bank, 97 S. W. 512. It is further held that, if the transcript contains no judgment or record entry showing the court’s ruling on a demurrer, the ruling cahnot be revised, even though it be disclosed by a bill of exception reserved thereto. Daniel v. Daniel, 128 S. W. 469, in which a writ of error was denied by the Supreme Court. There is a judgment in the record showing that appellant’s special exceptions were overruled, but none showing any action whatever with respect to his general demurrer. It seems, however, that the questions sought to be i>resented for decision under this assignment are raised by assignments of error hereinafter to be considered. We may also add that on the former appeal, to which we have referred, it was held that even appellees’ original petition, which was subsequently strengthened by amendment, was not obnoxious to a general demurrer. In so holding, the court declared, in effect, that where, as a part of the consideration for the conveyance of a tract of land, the purchaser promises, as was alleged to have been done in this case, to pay a debt due by the grantor to a third person, he is bound by such promise, and a petition so alleging presents a cause of action.

The court instructed the jury in the first paragraph of the general charge as follows: “At the time of the execution of the first deed introduced in evidence, viz., October 22, 1909, the legal title to the land therein described was in A. Lindsey, and he had a right to convey it. However, his children by his first wife, five of whom have assigned their claims to plaintiffs, would have been entitled to a portion of the proceeds of a sale of said land upon a settlement of the community estate of A. Lindsey and his said deceased wife, the mother of said children.” The latter clause of this charge is complained of, and made the basis of appellant’s third assignment of error. It is said the charge is erroneous, because (1) the rights of the children referred to therein were governed by the conditions of the community bond shown to have been filed by A. Lindsey after the death of the mother of said children, according to the value of the community estate on hand at the time of the mother’s death and the indebtedness against such community, without regard to the value of the land sold by A. Lindsey to defendant Hales; (2) the charge assumes there was a surplus of the community estate of Lindsey and his deceased wife after their community debts and the expenses of administration had been paid, without any evidence to support it; and (3), when the survivor of the community has legally qualified as community administrator, and the order of the county judge approving the inventory, appraisement, list of claims, and bond has been recorded as required by law, the rights of the heirs are protected by such bond, and they are not entitled to claim any part of the proceeds of the sale of the community estate, unless such heirs demand a partition and distribution thereof in the manner provided by article 3612, Revised Statutes of Texas. The record before us fails to disclose any pleading or evidence concerning the community debts, if any, of A. Lindsey and his deceased wife, or the expenses incurred by the said A. Lindsey, as community administrator, in administering the community estate of himself and wife. Nor does it appear that their children, under whom appellees claim, ever demanded a partition of the community estate in the manner provided by statute. This being the state of the record, should it be held that the charge in question was materially erroneous, and the plaintiffs not entitled to recover? We think not.

Upon the death of Mrs. Lindsey a one-half interest in the community property of herself and her husband, A. Lindsey, vested absolutely in their children, subject, of course, to the payment of community debts. Such interest did not cease to exist by the qualification of A. Eindsey as survivor, and he did not thereby become the unqualified owner of the same. By qualifying as survivor, A. Lindsey acquired the right to manage and control the community estate; “but the title of the children was not thereby divested.” Paris v. Simpson, SO Tex. Civ. App. 103, 69 S. W. 1029. As held in Paris v. Simpson, supra, after the lapse of one year they were entitled, under the statutes, to have the estate partitioned and distributed, and this could not be done if the property belonged to their father, A. Lindsey. If Lindsey, by qualifying as survivor, became the owner, in his own right, of all the community property of himself and deceased wife, then as a matter of course there could be no community property to be distributed between him and his children.

The sale of the community land on hand at the time Mrs. Lindsey died, and the use of the proceeds thereof by the survivor in purchasing the lands sold by him to appellant, was not a conversion, in the sense that the children were thereby limited to an action on his bond. When such proceeds were invested in the land sold to appellant, said land took the place” of the land from the sale of which such proceeds were derived, and became, in equity, community property of A. Lindsey and his deceased wife, and their children had the right to claim the benefit of such investment and their interest therein, which was the same as in the original tract, without resorting to the community bond. Worst v. Sgitcovich, 46 S. W. 72.

But appellant contends that it devolved upon appellees to allege and prove, before it can be said they had an interest in the land purchased by appellant and entitled to recover, if at all, on the ground that appellant agreed, as a pa rt of the consideration for said purchase, to pay the children of A. Lindsey and his deceased wife, the reasonable value of one-half of said land, that there was more than sufficient community property belonging to said estate to satisfy the expenses of the administration and pay the community debts. To this contention, we do not agree. It was not essential to appellees’ right of recovery to allege and prove said facts. The burden was upon appellant to do so. It seems clear, as argued by counsel for appellees, that, had these children been suing A. Lindsey himself, and had Lindsey been claiming the right to reduce their interest in the property, or sought to defeat a recovery altogether, on account of the appropriation of the community property to the payment of community debts and expenses of administration, it would have been incumbent upon him to allege and prove the facts necessary to sustain such a defense, and appellant, having purchased from Lindsey, and having assumed Lindsey’s obligation to settle with the children for their interest in the community estate, is in no better position than Lindsey himself would have been had the suit been brought against him as suggested. The statute makes it the duty of the survivor to keep a correct account of the debts and expenses paid by him as the community administrator. Such debts and expenses are peculiarly within his knowledge, and the rule requiring him to allege and prove the same before he will be allowed to defeat an action by the heirs to recover their interest in the community property, on the ground that such property has been by him applied to the payment of community debts and expenses of administration, is a proper, just, and fair one, and this rule should apply to a purchaser under him, where such purchaser has expressly agreed, as a part of the consideration of his purchase, to settle with the heirs for their interest.

But, although there were no direct allegations or proof of the community indebtedness and expenses of administration, the inference is clear from the terms of the contract sued on that both A. Lindsey and appellant recognized and admitted the interest claimed by the children in the community estate, and that such interest had not been divested by the sale of the community property to pay community debts. Besides, appel-lees did allege that the tract of land involved in this controversy constituted substantially all of the property belonging to the community estate of A. Lindsey and his deceased wife that still remained, and that each of them had demanded of A. Lindsey their part of the same, that said Lindsey was insolvent, and that they had elected to ratify the purchase of said land by him with the proceeds derived from the sale of the land on hand at the time of Mrs. Lindsey’s death, and to accept their proportional part thereof in lieu of their proportional part of said proceeds; and it was agreed, as shown by the record, by and between the appellees and appellant that the “allegations with reference to the community property are substantially correct;” and it was admitted that the allegations in the pleadings relative to the community administration were true. And, further, A. Lindsey testified that the land sold by him to appellant was purchased with the proceeds of a tract of land belonging to the community of himself and deceased wife, and that “the children claimed their mother's) interest in the place, one-half of it.” He further testified: “These children have never been settled with for their share of the community. It was community property, and they are entitled to their mother’s part. The Shelby county land was acquired during the lifetime of the mother of the children. I sold that property, and with the proceeds bought this land. I sold to Mr. Hales, and the children are entitled to a half interest of that.” It follows that, in our opinion, the objections to the clause of the court’s charge under consideration are not well taken, and that tlie assignment of error under which they are urged should be overruled.

The court instructed the jury in the second paragraph of the main charge thus: “Now, if you believe from a preponderance of the evidence that at the time of said conveyance defendant E. D. Hales promised and agreed with said Lindsey that, as a part of the consideration of said conveyance, he would pay ’to said children of A. Lindsey by his first wife the reasonable value of one-half of said land, then you will find for plaintiffs for five-eighths of whatever amount you may believe from the evidence was the reasonable value of said land at the time of the trade between defendant E. D. Hales and A. Lindsey.” This charge is assigned as error, and the contention made (1) that there was no evidence tending to show that the appellant, Hales, agreed with A. Lindsey that, as a part of the consideration of the conveyance of the land sold him, he would pay Lindsey’s children the reasonable value of one-half of said land; (2) that, where the heirs of the community ■do not avail themselves of the statute providing for the partition and distribution of the community property, but elect to pursue their remedy under the bond, the measure of damages is determined by the bond of the survivor, and is one-half of the excess of the proceeds of the community property, after payment of community debts and expenses of administration; (3) that, if the measure of the rights of the heirs of A. Lindsey and his deceased wife is to be determined solely by the value of the land in question, then appellees, who claim to own the interest of only five of the eight children, would be entitled to no more than five-eighths of the reasonable value of one-half of said land, less the indebtedness against it at the time, and not five-eighths of the value of the whole of said land, as charged by the court.

The evidence supports the allegations that appellant agreed with A. Lindsey, as a part of the consideration for the land sold him, to pay the children of the said Lindsey by his first wife, the reasonable value of one-half of said land. A. Lindsey testified: “I sold the Shelby county school land, and bought this piece of land that I sold to Mr. Hales. When X sold him this land, he was to pay the children. He (Hales) was to pool the place, and assume the loan, and he was to give me one-half of what he pooled it for for my interest, and he was to settle with the heirs. The children claimed their mother’s interest in the place, one-half of it. These children have never been settled with for their share of the property. It was community property, and they are entitled to their mother’s part. The Shelby county land was acquired during the lifetime of the mother of these children. I sold that property, and with the proceeds bought this land X sold to Mr. XIales, and the children are entitled to a half interest in that.” W. R. Peters testified: “It is my understanding that $1,750 was to be borrowed on the land and paid to Lindsey and his children. * * * I know that Lindsey told me that as far as that went he would settle with the heirs; that they would be satisfied; that the heirs would be settled with.” W. A. Gibbs testified: “Mr. Hales said he was to pay the heirs. He did not say what he would pay them. He said he would settle with the heirs, if he got the place. It was my understanding that Mr. Hales was to pay the heirs.” Mr. Hales himself testified: “I knew before I made the last trade that the children were claiming a half interest in the property, and that they had put the matter in the hands of Mr. Byrd.” Cleve Lindsey testified as follows: “I only had one conversation with Mr. Hales prior to the sale of the place. That was at Royce. He just said that, if he got the place, he would settle with the heirs. I signed a deed one day at Gaddo Mills conveying the property to Mr. Hales. I was looking to Ed Hales to pay me until he refused to do so. He only offered to settle with the heirs one time. I believe he said that the heirs (interest) were worth $75. I do not remember when that was.” B. J. Anthony testified: “I had a little conversation with the defendant Ed Hales in Gaddo Mills, after he secured a deed from A. Lindsey for this property. After he got the deed he came over to Mr. Basser’s lumber yard, where I was, and said, ‘Me and Mr. Lindsey have traded for the land, and I have got the deed in my pocket, and the damned heirs can get their part the best way they can.’ ” Mrs. Flora Lindsey stated: “Mr. Hales said he would pay us $798 for Mr. Lindsey’s interest, and he would pay the heirs.” This and other evidence in the case, notwithstanding the testimony of the appellant to the contrary, well supports the proposition that appellant agreed to pay, as a part of the consideration for the land in question, the heirs for their interest therein, and that such interest was understood to be and should be measured by the reasonable value of one-half of said land seems clear. Appellant having purchased the land from A. Lindsey, knowing that the heirs were claiming a half interest in it, and having agreed, as found by the jury, and supported by the evidence, to settle with them for their interest therein, the same constituted in law an agreement to pay them the reasonable value of one-half of said land.

A sufficient answer to the second proposition contended for by appellant is that this suit is one to recover upon an express agreement made by a purchaser of community property to pay the heirs for their interest in the same, and not a suit on the bond of the community survivor. The heirs, under the circumstances of this case, were not compelled to pursue the remedy afforded them by the bond. The contract made by appellant and A. Lindsey could be sued on, as was done, and allegations and proof showing that an effort had been made by the heirs by suit to have a partition and distribution of the community estate were not essential to the right to maintain such suit. This is also an answer to appellant’s second assignment of error, complaining that the court erred in overruling his special exception No. 2 to plaintiffs’ petition; the contention being that the right of the survivor of a community estate to control and dispose of the same, after qualifying under the statute, continues until partition is sought and made as provided by law, and that, until there is such partition, the heirs must look to the community bond for the protection of their rights and interests in the estate. It is held, in Huppman v. Schmidt, 65 Tex. 586, that “the survivor may settle with the heirs, without the aid of any court,” and, as said by counsel for appellees, there is nothing in the law to prohibit him from arranging for such settlement in selling a part of the community property or property acquired with the proceeds thereof, especially where, as here, the heirs are demanding a settlement in accordance with an arrangement made therefor by the survivor, and more than a year has elapsed since the survivor qualified.

Referring to the third proposition of appellant, stated above, it may be said that, while the charge we are here considering is not entirely accurate, yet, when fairly considered, it was not calculated to mislead the jury to the prejudice of appellant. Construed in connection with the pleadings and the undisputed evidence, which showed that ap-pellees were only claiming five-eighths of the value of one-half of the land sold to appellant, it is not at all probable that the jury were misled by the use of the language, “five-eighths of the reasonable value of said land,” and thereby caused to believe that the measure of appellees’ damages was five-eighths of the value of the entire tract of land. Besides, as will be observed, the paragraph of the charge in question makes appellees’ right to recover depend upon the alleged fact that appellant “promised and agreed with said Lindsey that, as a part of the consideration of said conveyance, he would pay to said children * * * the reasonable value of one-half of said land, and it is evident, we think, when the entire paragraph is looked to, that the court meant, and that the jury must have so understood by the language, “you will find for plaintiffs for five-eighths of whatever amount you may believe * * * was the reasonable value of said land,” five-eighths of the reasonable value of one-half of the land. Any jury of average intelligence, we think, would have so construed and understood the charge, and it must he assumed that the jurors trying this case were men of at least such intelligence.

However this may be, it is clear to our minds that, if the charge is subject to the criticism urged against it, the error therein is not of such a character as “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case,” and, if it was not of such a character, the error furnishes no ground for a reversal. Rule 62a (149 S. W. x). But it was made to appear, in a contest of appellant’s motion for a new trial in the district court, by an affidavit of one of the jurors who sat in the trial of the ease, and by other testimony, that the jury were not, in fact, misled by the charge. It is argued, however, that the affidavit of the juror was improperly allowed to show that the alleged error in the court’s charge did not mislead the jury in arriving at the amount of their verdict. Whether this contention is or is not correct, we need not decide. The fact that the jury was not misled by the charge is shown by undisputed evidence independently of the affidavit of the juror. It appears that upon the contest of appellant’s motion for a new trial appellees produced before the court the identical piece of paper upon which the jury made the calculation resulting in the amount of the verdict found. This paper, with the figures made thereon by the jury, was left in the jury room, and was immediately thereafter discovered by a deputy sheriff, and preserved. It was identified by the foreman of the jury and the deputy sheriff, and annexed as an exhibit to the written contest of the motion for a new trial. The result of the calculation referred to, as shown by these figures, corresponds exactly with the amount of the verdict rendered, and it is evident that the amount of damages awarded appel-lees is only five-eighths of the value of one-half of the land sold appellant, after deducting from the total value of said land, as found by the jury, an incumbrance thereon, about which there was no dispute.

The fifth assignment of error is that the court erred in refusing to give a special charge requested by appellant directing the jury to return a verdict in his favor. It is sufficient to say that, if this assignment has not been disposed of against appellant by what we have already said, the evidence was amply sufficient to take the case to the jury, and the special charge was properly overruled.

It is next assigned that the court erred in its decree fixing a lien upon the land, and in foreclosing the same, and directing that an order of sale issue commanding the sale of the land, because (1) the verdict of the jury did not find in favor of a lien and its foreclosure; (2) there was no evidence introduced showing an express agreement between appellant, Hales, and A. Lindsey that a vendor’s lien should exist in favor of Lindsey’s children on the land sold appellant, and there was no such agreement expressed in the deed; (3) in order to create a vendor’s lien on land, there must be a debt for unpaid purchase money to a fixed amount, payable at a certain time, in a certain manner, ami payable as purchase money; (4) where an implied vendor’s lien is sought to be fixed on land, such lien cannot be decreed, unless the verdict finds that the amount due is due as a payment for the land claimed, and shows the amount of the debt and the existence of the lien; (5) it is error for the court to decree a foreclosure of an implied vendor’s lien on land, and direct a sale thereof, when the pleadings and the evidence, as in the instant ease, show there are minors equally entitled with the judgment creditor to the benefits of said lien, and such minors are not parties to the suit. We think neither of these contentions should be sustained.

It is settled law that a vendor’s lien arises by operation of law, and exists in the sale of land to secure the payment of the purchase money, unless expressly waived (Briscoe v. Bronaugh, 1 Tex. 330, 46 Am. Dee. 108; Cecil v. Henry, 93 S. W. 216; Springman v. Hawkins, 52 Tex. Civ. App. 249, 113 S. W. 966), and, where a part of the purchase money for a tract of land is the assumption of an indebtedness due to a third party who has no claim on the land, the vendor’s lien arises in favor of such third party to secure such indebtedness (Thomas v. Morrison, 46 S. W. 46; Joiner v. Perkins, 59 Tex. 300; 29 Am. & Eng. Eney. Law, p. 49). That the vendor may not know that the law gives such lien, or does not contract therefor, does not alter the case. The ap-pellees claimed, and the jury found upon evidence justifying the conclusion, that, in purchasing the land involved in this suit, appellant promised to pay to the children of A. Lindsey what he and the said Lindsey agreed was the value of the one-half of said land as a part of the purchase money thereof, and upon this promise and agreement the right of appellees as the transferees or assignees of this claim is based.

Upon such sale, purchase, and agreement, the vendor’s lien arose by operation of law, as it does generally in other conveyances of land, and, the lien being given by law, there was no occasion or necessity of submitting the question of its existence and the right to have it foreclosed to the jury. In Railway Co. v. Henderson, 86 Tex. 307, 24 S. W. 381, it is said: “When the issues submitted to a jury embrace only such claim or claims as by law are given a lien upon property, it is not necessary to submit the question of lien to the jury, because, in finding that the plaintiff is entitled to recover on such claim or claims for any amount, the jury determines that a lien exists, which will be declared by the court as a matter of law, and upon a general verdict a decree of foreclosure should be entered by the court. Day v. Cross, 59 Tex. 608; Pearce v. Bell, 21 Tex. 691; Jones v. Ford, 60 Tex. 131; Railway v. James, 73 Tex. 18 [10 S. W. 744, .15 Am. St. Rep. 743].” The argument advanced in support of this holding of the Supreme Court is that: “If the court were to submit to the jury the question as to the existence of lien, it would necessarily be in the form of an instruction to the effect that, if they found the plaintiff entitled to recover, they would find a lien for the amount so found on the property in question, which would be the declaration of the court that a lien attaches to such claim by law, and the jury would not exercise any discretion upon the subject submitted. It would simply be the declaration of the law by the court before verdict, instead of upon the verdict.” The case, it seems' to us, is easily distinguished from the case of Ablowich v. National Bank, 95 Tex. 429, 67 S. W. 79, 881. There suit was brought upon a note, and to foreclose a mortgage alleged to have been given upon land to secure its payment. Whether the mortgage lien existed was a material issue in the case, which was submitted to the jury, and, the verdict of the jury having failed to declare its existence and foreclosure, the judgment of the court doing so was held not to be sustained by the verdict, and therefore erroneous. In so ruling, the Supreme Court declared that, “when a jury has been demanded by either party, he is entitled to have every material issue made by the pleading and the evidence submitted to that jury, and the trial court cannot enter judgment upon a verdict which fails to pass upon any material issue submitted to the jury, unless it be in case of a special verdict, which is provided for by statute.” There was no such issue with respect to the lien declared upon and foreclosed in the present case. Here the lien was given by the law, and, as held in Railway Co. v. Henderson, supra, which was not overruled by the Ablowich Case, and which has not been overruled by any decision in this state that we are aware of, was not an issue of fact to be submitted to and passed upon by the jury.

Upon the proposition that the pleadings and evidence show the want of necessary parties, to wit, the three minor children •of A. Lindsey and his deceased wife, it may be said that these children were doubtless proper parties, but not necessary parties. Unlike the case which appellant seems to rely on, the interest of the children under whom appellees claim and said minor children was not joint. Their interests are separate and distinct, and they were not therefore necessary parties to this suit. Furthermore, it seems pretty clear that the minors could not be forced into this suit, and have their rights concluded by the judgment therein. They unquestionably have the option to proceed against the co'mmunity bond executed by A. Lindsey or against the appellant, and we are not prepared to say they could be compelled to elect, because appellees did so, and brought into this suit, to proceed against the appellant.

The eighth and last assignment of error asserts that the court erred in overruling appellant’s amended motion for a new trial “because the verdict of the jury was contrary to the law and the evidence, in that the evidence fails to. show a specific agreement on the part of appellant to pay the children of Lindsey and his deceased wife any specific amount, or at any specific time, or in any specific manner.” We are of opinion that this assignment should be overruled. The interest of the heirs was an equitable one-half interest in the property; that of the five under whom appellees claim five-eighths of the value of one-half thereof. Appellant assumed the obligation of A. Lindsey to account for and pay the children’s interest, and the evidence shows the reasonable value of the land he acquired from Lindsey in consideration of this assumption. And appellant having failed to allege and prove facts that would reduce the claim of the children below one-half of the community property, the law would write into the transaction an obligation or promise to pay the five children five-eighths of the reasonable cash market value of one-half of the land, upon demand, or' within a reasonable time. At any rate, the contract sued upon in this suit was not incapable of enforcement because of any uncertainty in its terms. The interest of the children and amount appellant promised to pay was capable of being rendered certain by a mer.e mathematical calculation.

A careful consideration of the briefs and record has led us to the conclusion that no reversible error has been pointed out, and that the case should be affirmed. Appellees’ cause of action is grounded upon the promise and agreement of appellant to pay for A. Lindsey, as a part of the consideration for the land deeded to him, the value of the interest of the children of said Lindsey in the community estate of himself and wife. This being an original undertaking based upon a valuable consideration, was a binding obligation which inured to the benefit of said children, and, said children having sold and transferred their claim to appellees, an action could be maintained by them to recover therefor. Peters v. Lindsey, 144 S. W. 694.

The verdict and judgment were authorized by the pleadings and evidence, and, no error warranting a reversal of the case being disclosed, the judgment is affirmed.