author: BOYCE, J.

text:
    LITTLEFIELD et al. v. CLAYTON BROS.
    (No. 1110.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1917.)
    1. Sales <&wkey;413 — Issue—Surplusage.
    In buyer’s action to recover damages for failure to deliver calves pursuant to a sales contract, allegations that the seller’s withholding of certain calves was fraudulent may be rejected as surplusage.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1166-1169.]
    2. Trial <&wkey;296(12) — Instructions — Mutual Mistake.
    In buyer’s action for damages, an instruction omitting the essential requirement of mutuality in defining mutual mistake is not reversible error where another portion of the charge covered the omission.
    [Ed. Note. — For .other cases, see Trial, Cent. Dig. § 716.]
    3. Sales <&wkey;52(5)— Buyer’s Action fob Damages — Sufficiency of Evidence.
    Evidence held, to sustain a jury’s finding that the enumeration of certain calves was omitted from a sales contract by mutual mistake, although one of the plaintiffs testified at one point that he was uncertain whether the agreement including them was made before or after the contract’s execution.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 136, 137, 139.]
    4. Sales <&wkey;36 — Mutual Mistake — Effect of Negligence.
    Where a sales contract was dictated principally by defendant after several days’ negotiations, plaintiffs’ negligence in failing to discover a mutual mistake would not estop them from later seeking relief.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 63,' 64.]

      5. Domicile <&wkey;2 — “Residenue” — INSTRUCTIONS.
    In a controversy over venue, an instruction defining “residence” as meaning living in a particular locality, although the intent to make it a permanent home be not present, is not incorrect especially -when supplemented by appellant’s requested instructions.
    [Ed. Note. — For other cases, see Domicile, Cent. Dig. § 2.
    For other definitions, see Words and Phrases, First and Second Series, Residence.]
    C. Domicile ⅞=»10 — Residence— Sufficiency oi? Evidence.
    Evidence that defendant spent a few days every ten days or two weeks at a ranch inside the state where he maintained a house which his family lived in for various periods sustains a verdict that such place was his residence, although he owned a home, sent his children to school, paid poll taxes, and voted outside the state.
    [Ed. Note. — For other cases, see Domicile, Cent. Dig. § 39.]
    7. Domicile &wkey;^2 — Residence — Definition.
    Although residence may not be acquired by temporary visits, a man may have several different residences.
    [Ed. Note. — For other cases, see Domicile, Cent. Dig. § 2.]
    8. Sales <&wkey;179(4) — Acceptance of Goods— Waiving Defects.
    A buyer’s acceptance of goods without protest constitutes an estoppel or waiver as to defects then known.
    [Ed. Note. — -For other cases, see Sales, Cent. Dig. §§ 460-463.]
    9. Sales <&wkey;179(5) — Accepting Past of Goods — Waiving Delivery of Remainder.
    A buyer’s acceptance of part of the calves enumerated in a sales contract does not estop him from suing for nondelivery of the remainder.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 464.]
    10. Sales <&wkey;3 — Distinguished itrom Assignment of Contract Rights.
    Where the buyer after execution of a sales contract, but before delivery of the calves covered thereby, sold the calves to a third party upon understanding that he was to take the calves just as the buyer received them, there was a sale rather than an assignment of the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 6-19.]
    11. Sales &wkey;418(l) — Exemplary Damages— Breach oí1 Contract.
    Exemplary damages may not be recovered for fraud in breaching a sales contract where the fraud inflicts no additional
    cases’see Sales- 0ent-
    12. Sales <&wkey;>418(l) — Buyer’s Action for Nondelivery — Measure of Damages.
    Ordinarily the measure of damages for failure in whole or in part to deliver personal property pursuant to sales contract is the difference between the contract price and market value of the undelivered property.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174, 1201.]
    13. Sales <&wkey;418(l) — Buyer’s Action for Nondelivery — Measure of Damages.
    The measure of damages for failure to deliver certain calves pursuant to a sales contract is the difference between the contract price and market value of the undelivered calves instead of the difference between the market value of the calves contracted for and calves delivered less the contract price of the undelivered calves, where there is evidence that the nondelivery depreciated the value of the remainder of the herd.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174, 1201.]
    14. Sales <&wkey;41S(10) — Buyer’s Action fob Nondelivery — Special Damages.
    In buyer’s action for nondelivery of certain cattle, damages caused rest of the herd by such nondelivery must be specially pleaded and proved.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1191.]
    15. Sales <&wkey;416(2) — Buyer’s Action for Nondelivery — Special Damages.
    Testimony that smaller bids would be made for a herd of cattle from which the best calves had been removed and that presence of such calves would enhance the value of the whole herd held insufficient to sustain a verdict for special damages for such depreciation to rest of the herd.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1172.]
    16. Appeal and Error <&wkey;1171(l) — Review —Incorrect Measure of Damages.
    Where a case is submitted on an incorrect measure of damages, and the appellate court cannot determine what might have been the result if correctly submitted, it will be reversed, although the verdict might be sustained by the evidence if a correct measure had been adopted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546, 4552.]
    17. Appeal and Error <&wkey;934(l) — Plea of Privilege — When Considered Overruled.
    Where a verdict found defendant’s residence in accordance with plaintiffs’ claim, and the court entered judgment for plaintiffs without mentioning the plea of privilege, the Court of Civil Appeals will regard the action as overruling the plea.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777, 3780, 3781.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Suit by Clayton Bros, against George W. Littlefield and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed in part, and reversed and remanded in part.
    Martin, Kinder, Russell & Zimmermann, of Plainview, and W. H. Bledsoe, of Lubbock, for appellants. Bean & Klett and W. F. Schenck, all of Lubbock, and Gilliland & Estes, of Hereford, for appellees.
   BOYCE, J.

This suit was brought by ap-pellees, Clayton Bros., against appellants, Geo. W. Littlefield and J. P. White, in the district court of Lubbock county, Tex., to recover damages for breach of contract for sale of cattle. It was alleged that the plaintiffs contracted with defendants for the purchase of all calves born on certain ranches of the defendants during the year 1915 up to September 15tb, and also the unbranded calves of 1914; that a written contract was entered into, but by mutual mistake the agreement to include the unbranded calves of 1914 on said ranches was omitted from the written contract, and by its terms only the calves born during the year 1915 were included. Plaintiffs further alleged that there were about 0,000 head of calves that should have been delivered under the terms of the contract, but that the defendants in fact delivered only 5,032 head, and that the defendants fraudulently concealed and refused to deliver a large number of the best of the calves, delivering only the “tailings” to the plaintiffs, and sought to recover $40,000 actual damages and also the sum of $40,000 exemplary damages. The defendants pleaded to the venue, as hereinafter more fully stated, and answered by general and special denials of the allegations of plaintiffs’ petition.

The jury having found that the provision for the sale of the unbranded 1914 calves was omitted by mutual mistake from the written contract, that the defendants failed to deliver some of the calves to which plaintiffs were entitled under their contract, and that plaintiffs were damaged thereby in the sum of $2,323, judgment was entered for the plaintiffs for that amount, from which judgment this appeal is taken.

Giving the verdict of the jury the effect to which it is entitled, as resolving the conflicts in the evidence, we find that the evidence establishes the following facts: The plaintiffs and the defendants, on the 12th day of July, 1915, entered into a contract in writing whereby the defendants agreed to sell to the plaintiffs all of the calves, with certain stated exceptions, and a specified cutback, the drop of 1915, up to September, 1915, on the Yellow House ranch, in Texas, and Pour Lakes ranch, in New Mexico, owned by the defendants. Delivery of the cattle was to be begun on October 20, 1915, and continued as rapidly as the cattle could be rounded up and deliveries made. The consideration to be paid for said calves was the sum of $30 per head for all calves delivered, $20,000 being paid in cash on execution of the contract, and the balance to be paid as the cattle were delivered under the contract. In the negotiations preceding the preparation of the written contract it was understood that the unbranded calves of the year 1914 on the said ranches, such calves being known as long age or winter calves, should also be included at said price of $30 per head, but by the mistake of the parties this agreement was omitted from the written contract. The defendants delivered under this contract 1,466 calves from the Pour Lakes ranch and 3,566 calves from the Yellow House ranch, for which the plaintiffs paid the agreed price of $30 per head. The defendants, without fraud, acting under their interpretation of the contract as not covering 1914 calves, did not deliver some of the long age calves to which plaintiffs were entitled under the contract ; the evidence suggesting that this number might be anywhere from 50 to 300 head. These calves, being older, were larger and for that reason worth more than the other calves, most of which were born during the spring and summer months, and plaintiffs sustained some damages by reason of the failure to deliver such calves. We will make such further statement of the pleadings and evidence as we deem necessary in connection with our consideration of the several assignments.

Plaintiffs in their petition had alleged that the defendants were guilty of fraud in concealing and not delivering the larger calves, and the jury found in answer to one of the special issues submitted that the defendants did not practice fraud in this respect. The appellants by their first assignment, assert that, since the jury found against the plaintiffs on this issue, judgment should have been rendered for appellants on the verdict of the jury. The gist of plaintiffs’ cause of action, as shown by the petition, is for breach of the contract in failing to deliver some of the calves. It was therefore unnecessary for the plaintiffs to allege or prove that the failure to deliver under the contract was fraudulent, and the allegations of fraud and the finding of the jury thereon may be disregarded as surplusage, in so far as the right to recover on account of the breach of the contract is concerned.

It appears from the evidence that the plaintiffs made ho complaint as to the delivery of the Four Lakes calves, and also that soon after the execution of the contract sued upon the plaintiffs had contracted to sell all the steer calves, to be delivered under the contract to one Elwood, who was to accept delivery, and who did accept delivery thereof, as the calves were delivered under the contract between plaintiffs and defendants. Appellants by their second and third assignments complain of the action of the jury in finding the amount of the damages sustained and the court’s refusal to give a peremptory instruction, because, as they allege, there was no evidence to show what effect the topping had on the Yellow House heifers alone, they being the only calves which under the evidence were shown to have been topped, if at all, to plaintiffs’ damage, and hence there was no basis for estimating any damages. The testimony offered by the plaintiffs gives estimates on the damage to a herd of 5,000 head of calves, resulting from taking out various numbers of the best calves, ranging from 25 head up to 250, so that, if the measure of damages as submitted was correct, which matter we will discuss hereafter, the jury did have a basis in the evidence from which to estimate the damages, and these assignments are not well taken.

The fourth assignment complains of the charge of the court which limits the consideration of certain testimony offered for the purpose of impeachment as being on the weight of the evidence, by reason of the wording of the charge. While the charge might have been worded so as to avoid some of the objections raised to it, we do not think it reasonably appears that it was calculated to lead the jury to give any undue weight to the testimony referred to. State v. Hilsabeck, 132 Mo. 348, 34 S. W. 38.

The court’s definition of mutual mistake in the main charge might be misleading for the reason that it omitted the essential requirement of mutuality. The special charge requested by appellants and given by the court fully covered this omission, however, and the two charges, taken together, are not inconsistent, and we do not think the jury could have misunderstood the charge, and for this reason overrule appellant’s fifth assignment.

The sixth assignment asserts that the finding of the jury that the provision for the sale of the 1914 unbranded calves was omitted from the contract by mutual mistake is not supported by the evidence. In their statement under this assignment appellants quote certain testimony of one of the plaintiffs to the effect that he could not say whether the agreement to include the 1914 unbranded calves in the sale was made before or after signing the contract. This testimony, considered alone, would support this-assignment. However, a reading of the entire testimony of the witness, as well as the testimony of the other witness offered by the plaintiff on the subject, discloses that, according to the testimony of such witnesses, the subject of the unbranded long age or winter calves was discussed with the defendant White several' times while the negotiations for the sale were proceeding, and White stated on these occasions that these calves were to go in the sale, and that he would instruct his men to do no more branding of such calves, and the contract was closed with this understanding. This witness testified that he discovered the omission within a few minutes after the contract was prepared and as they were preparing to leave the place where the contract was written, and called the defendant White’s attention to the fact, when he again made the statement that it was understood that all unbranded calves should be delivered under the contract. The reading of this detached part of the witness’ testimony does not furnish a fair conception of his testimony taken as a whole. We think the evidence is sufficient to support the finding of the jury on this issue.

In this connection we will consider appellants’ twelfth assignment, which complains of the failure of the court to submit the issue of negligence on the part of the •plaintiffs, with reference to the failure to have the provision for the unbranded calves of 1914 included in the contract. The evidence shows that the contract was drawn after protracted negotiations, extending over a period of several days; that the plaintiffs and the defendants were together before the scrivener when the contract was being dictated. It was dictated by the defendant White principally, though the others made suggestions from time to time. If the mistake was mutual, we do not think’ that negligence or inattention on the part of the plaintiffs under the circumstances would preclude them from asking for relief on account of the mistake. San Antonio National Bank v. McLane, 96 Tex. 48, 70 S. W. 203; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311.

The defendant Geo. W. Littlefield resided in Travis county, Tex., and the plaintiffs sought to sustain in the venue in Lubbock county by reason of the fact of the alleged residence of the defendant J. P. White, in Hockley county, an unorganized county, attached to Lubbock county for judicial purposes, and on account of the further allegations of fraud in connection with the breach of the contract, which was alleged to have been perpetrated in Hockley county. The defendants denied that the defendant White resided in Hockley county, alleged his residence to be in Roswell, N. M., and alleged that the allegations of fraud were fraudulently made for the purpose of maintaining jurisdiction. The question of the residence of the said White was submitted to the jury, and in response to a special issue it was found by the jury that White- did reside in I-Ioekley county.

The appellants by their seventh assignment assign error on the definition of “residence,” as given in the court’s charge, and by their seventeenth assignment attack said finding of the jury as being unsupported by the evidence. The definition of “residence,” as contained in the court’s charge, was copied from the definition adopted by the Supreme Court in the case of P. & N. T. By. Co v. Thompson, 106 Tex. 456, 167 S. W. 801, and is not incorrect. If it is not sufficiently full, the deficiency was supplied by the special instruction elaborating the definition requested by the defendant, and given by the court. The question as to whether the findings of the jury on the issue of residence is supported by the evidence is more serious.

The only testimony offered on the issue was that of the defendant J. P. White, who testified that he was a married man and had lived at Roswell, N. M., since 1903, at which place he owned his home, sent his children to school, paid his poll taxes, and voted; that he was superintendent of the Yellow House ranch, in Texas, and the Four Lakes ranch, in New Mexico, both very large properties, owned jointly by himself, the estate of his deceased brother, and Geo. W. Littlefield; that he was frequently at the Yellow House ranch, “from one to three days at a time, and tliat every ten days or 'two weeks”; tliat lie was generally at the ranch the last two days of each month, but kept no trunk there, bringing with him a change of clothing in a hand grip; and that during the year 1916, the year in which the suit was Instituted, he had been at the Yellow House ranch in all iierhaps about 30 days. On first examination the said defendant testified:

That he had a residence at the Yellow House ranch, which consisted of a six-room house, and “when I am at the ranch I stay in the house referred to as a residence. When my family is there they cook for us, and when they are not there we eat with the men. When my family is there we stay in the house that I referred to as a residence and have our cooking done there, and when they are not there I sleep there and eat at the ranch house with the hands.”

This residence- was shown to be some little distance from the ranch houses occupied by the foreman and hands on the ranch, and it is not shown that it is regularly occupied by any one except the defendant White and his family. And on subsequent examination by appellants, the defendant White testified:

“I don’t have there an exclusive room occupied by myself. I have no bed there, a special %ed, only the company bed 1 occupy when I am m there, and when I am not there others occupy it; the door is open for them.”

Ordinarily a man’s residence and domicile are the same though this is not necessarily true. Residence carries with it the idea of an abode, a place of living or a home, and may not be acquired by mere temporary, casual, or even frequent visits, and presence at a place without such presence assumes the character embodied within the meaning of some of the foregoing terms. Our decisions recognize that a person may have several different residences. If a man have several different places at which he and his family establish themselves as in a home, and live during certain seasons of the year, he may acquire a residence at each of such places. Pearson v. West, 97 Tex. 238, 77 S. W. 944; G., C. & S. F. Ry. Co. v. Rogers, 37 Tex. Civ. App. ,99, 82 S. W. 824; O’Connor v. Cook, 26 S. W. 1113; P. & N. T. Ry. Co. v. Thompson, 106 Tex. 456, 167 S. W. 801. The burden of proof was by the charge of the court placed on the defendants to establish the negative of the issue as to whether defendant J. P. White resided in Hockley county. The testimony, which we have referred to above, does not show how much of the time the family of the said White is at the ranch nor anything further as to the character of their visits and stay there, nor does this evidence make it clear that the residence is not reserved for the use of the said White and his family, and suggests a probability that the residence at the Yellow House ranch might be occupied by the said defendant’s family for considerable portions of the year, 'and does not repel the suggestion that it might be so occupied as to constitute one of the residences of the family. So that we do not feel at liberty to disturb the finding of the jury on this issue.

In view of this holding we do not authoritatively decide as to whether the jurisdiction may be sustained by reason of the allegations of fraud, though we may say that we are of the opinion that, as we more fully point out elsewhere, the allegations of fraud add nothing to the rights of the plaintiff, so that fraud is not such basis of the suit as would bring it within the meaning of the statute fixing venue in such cases. Baines v. Mensing, 75 Tex. 200, 12 S. W. 984; Oakes & Witt v. Thompson, 58 Tex. Civ. App. 364, 125 8. W. 320; Cloyd v. Sacra, 175 S. W. 456; Seley v. Whitfield, 46 S. W. 865. Besides, the jury found that there was no fraud, and there is a line of decisions that holds that in such cases the plea of privilege should be sustained, notwithstanding there was no evidence to establish that the allegations of fraud were fraudulently made for the purpose of conferring jurisdiction. Hilliard v. Wilson, 76 Tex. 180, 13 S. W. 25; Cannel Coal Co. v. Luna, 144 S. W. 723; Cloyd v. Sacra, supra. We do not undertake to determine whether these decisions may be distinguished from those cases that decide that, where a joint liability is alleged, and jurisdiction acquired by reason of the presence of one of the defendants, who is ultimately held to be not liable jointly, it is nevertheless incumbent on the other defendant, resident of another county, to establish that the allegations of joint liability were fraudulently made, before he is entitled to have his plea of privilege sustained. Wichita Falls Compress Co. v. Moody, 154 S. W. 1032; Railway Co. v. Williams, 38 Tex. Civ. App. 405, 86 S. W. 38; Railway Co. v. Stell, 61 S. W. 980. If the two lines of authorities may not be reconciled, we would feel constrained to follow the decision of Hilliard v. Wilson, supra, as that decision was by the Commission of Appeals, and approved by the Supreme Court, and has subsequently been re-: ferred to with approval by the Supreme Court.

We do not think it is at all likely that the jury could have taken the language used in the submission of the issue as to the amount of damages as an expression of opinion on the part of the court as to any fact in issue before the jury, and overrule the eighth assignment.

The ninth assignment complains of the refusal of the court to submit an issue as to whether plaintiffs discovered prior to the performance of the contract that some of the calves were being held back. The calves were delivered in several different bunches as they were gathered. There had been some wrangling on one occasion as to certain calves which defendant White was proposing to hdld, but which were delivered on plaintiffs’ insistence, and later, but prior to the completion of the delivery, one of the plaintiffs saw some big calves in another pasture, which had been branded in defendants’ brand, and withheld from delivery. He said nothing to the defendant White about this at the time, but at the time of final delivery and settlement states that he charged the defendant White with having held back some of the calves and White denied having done this. When goods are accepted without protest, with knowledge of defects, as being in fulfillment of the terms of the contract, the acceptance will constitute an estoppel or waiver, but we do not think the facts stated bring this case within this rule. The plaintiffs were entitled, under their contract, not only to the calves which were actually delivered, but to the others, and the mere acceptance of a delivery of the part, without some act evidencing their intention not to insist on the contract as to the others, would not constitute a waiver or estoppel.

We do not think there was error in refusing to submit the issue requested by appellants as to whether there had been a partial assignment of the contract to Elwood. The testimony is to the effect that some time after the execution of the contract and before delivery of the calves the plaintiffs sold to Elwood the steer calves to be delivered under the contract with defendants at $32 per head. Plaintiffs, after having testified that they sold the steers to Elwood, stated:

“He (referring to Elwood) was to take our contract on the steer end of the calves. He was to receive them just as I received them at the Yellow House pens, according to that contract.”

We think the evidence shows a sale of the calves rather than a partial assignment of the contract between plaintiffs and defendants ; said contract between plaintiffs and defendants merely supplying the description of the calves and the stipulation as to time, manner, and place of delivery in the contract of sale from the plaintiffs to Elwood.

We are of the opinion that the exception to that part of the pleading seeking recovery for exemplary damages should have been sustained. The plaintiff’s right which was violated was to have delivery made of certain calves, and the wrong done him was the failure to deliver the calves. Plaintiff’s right was secured by the contract, and the wrong was in the breach of it. The motives that may have impelled the defendants to withhold some of the calves did not add to plaintiff’s actual damages. So that the real and only foundation for the recovery of actual damages is in the breach of the contract. If the fraudulent act of the defendants perpetrated in connection with the breach of the contract, had inflicted some other and different injury upon the plaintiff from that which would have been suffered from the breach of the contract in the absence of the fraud, plaintiffs would undoubtedly have had the right to join the action for tort with the action for breach of contract, and under proper showing recover exemplary damages; but, as we understand our decisions, where the fraud in breach of the contract inflicts no other or additional injury, exemplary damages may not be recovered. H. & T. C. Ry. Co. v. Shirley, 54 Tex. 147; Shirley v. Waco Tap Railway Co., 78 Tex. 131, 10 S. W. 543; McCauley v. Long & Co., 61 Tex. 77; Hooks v. Fitzenrieten, 76 Tex. 277, 13 S. W. 230. As the jury did not find exemplary damages, this error would not require a reversal of the case, but, as the case is- to be reversed on another assignment, we rule on this question so that it may be eliminated upon another trial.

The thirteenth, fourteenth, fifteenth, and sixteenth assignments, as to the giving and refusal of charges and the introduction of evidence, question the correctness of the theory of the measure of damages on which the case was tried. Ordinarily the measure of damages for the failure in whole or in part to deliver personal property under contract-of purchase is the difference in the contract price and the market value of the undelivered property at the time and place provided for delivery by the contract.

The object of the law is to award compensation, and where one has been deprived of personal property to which he is entitled, whether the deprivation is the result of tort or the breach of a contract, this may be accomplished by awarding the injured party the market value of the property because he can make himself whole by supplying himself with the property from other sources, at its market value. If the party claiming the damages is a purchaser, he can recover no more than it would cost him, with reasonable diligence, to supply himself with the same property by resort to the market or other sources of supply. Sutherland on Damages (4th Ed.) § 89. If the property has no market value or cannot be obtained from other sources, then, of course, upon such fact being shown different elements of damage may be considered. Sutherland, § 52. For the same reason the same rule would apply where there has been a partial delivery of property under a contract, and it has been so held. Sutherland, §§ 645, 655; 35Cyc. 639; Mechem on Sales, vol. 2, § 1377. Sutherland, at section 645, in reference to a paAial delivery, says:

“If the vendee retains the part delivered, after the vendor has made default in respect to the residue, it is a severance of the contract, and the vendor is entitled to recover the contract price for what is so delivered and retained.”

Mechem on Sales, vol. 2, § 1337, states the rule thus:

“If the default be as to delivery of part only, and the contract is severable, then damages as to that part could be recovered under the general rule already given (that is, the difference between the contract price and the market value of the undelivered property); if the contract were entire, but the part not delivered could be procured in the market, the general rule could also be applied; but where the contract is entire, and the missing part cannot be so procured, damages based upon the diminished value of the whole from the nondelivery of the part (that is, the difference between the value of the whole and the value of the part) would be reeov-•erable.”

• If the contract here, from its very nature, was not severable, It was made so by the ■plaintiff’s accepting and retaining the cattle delivered after the knowledge of failure to deliver a part of the long age calves. Even if this is not correct, the ordinary rule of damages should- be applied here because there was no evidence that calves such as those that were not delivered could not have been purchased at their market value elsewhere. So we think that the measure of damages as announced in the above authorities is the measure that should have been applied in this case.

The theory of damages under which the case was tried is thus stated in the charge of the court:

“The difference between the market value of the calves contracted for and the market value of the calves delivered, less the contract price of the calves not delivered.”

In many cases the result of such a rule would be the same as the rule announced above, but under this theory of damages evidence was introduced on the trial to the effect that the “topping,” as it was called, of the calves, diminished the value of the remaining calves and of the entire herd out of all proportion to the-value of the top calves themselves. Long age calves, according to plaintiff’s testimony, would be worth about $50 per head; but testimony was offered to the effect that the taking out of from 25 to 50 head of these calves would damage the herd of 5,000 calves in the sum of $10,000. Plaintiff testified:

“In my judgment, if you top 150 out of 5,000, you would have a $25,000 damage. I would say 300 to 400- topped would be a $50,000 damage.”

Other testimony than that of the plaintiff was offered to the same effect, though the witnesses vary the damage to a herd of 5,000 calves by the taking out of 250 tops from $2 to $7 per head.

We take it that damages, in addition to the value of the cattle taken out, from the taking or withholding of only a part of a herd of cattle that would result to the balance of the herd, on account of the diminished value of the individual cattle remaining, would be special damages recoverable only on pleading and proof of the .special facts. If the presence of the larger cattle increased the value of the smaller ones more than the value of the larger cattle, such damages could be obviated by the purchase of other cattle at the market price to take their place, and the rule as to the measure of damages we have announced would still apply. If for any reason the ordinary rule of damages cannot be applied, by reason of the fact that the larger cattle could not be replaced, plaintiff would be required to specially plead and prove the facts. However, we are of the opinion that the evidence offered on the trial would not justify the recovery of the increased value of the smaller cattle, due to the presence of the larger cattle in the herd, even if special facts authorizing such recovery had been pleaded and proven. The reason given by the plaintiff as to the decrease in value on account of the larger cattle being taken out is thus stated by the plaintiff:

“It injured them in several different ways to take the top out of the herd of steers. Several different ways it damages a man’s cattle. One is that, the fact being known that your cattle had been topped, you cannot get lots of men to look at them. Another is that a man buying them he would buy them with several dollars a head less than he would if he knew that the top cattle were there. If you wanted to put the cattle on the market, there would be a shortage on the weight of the entire herd on the market. ⅜ ⅜ ⅜ more t0p you ha(j better they would sell. Every one of the big fine ones a man could see looking at them it would have a good effect on him, make him' think they were worth more money.”

Whether plaintiff’s herd would have acquired a reputation of having been topped and as to the effect this would have had on plaintiff’s ability to get buyers to look at Ms cattle, and particularly as to the extent the presence of the big calves in the herd might affect the judgment of the buyer as to the others, and make him think they were better, are results and considerations so uncertain and speculative as that we do not think they can be safely made a basis on which to found a measure of damages. Fraser v. Echo Mining & Smelting Co., 9 Tex. Civ. App. 210, 28 S. W. 714, and authorities cited. The item of decrease in the weight of the herd is, of course, a certain and definite element of damage, but this item, we take it, would be fully compensated for in the ordinary measure of damage.

While the verdict of the jury is not so large but that it might be sustained by the evidence, if the proper measure of damage had been applied, we must reverse the case for this error because it was tried on an incorrect theory of damage, and we are unable to determine what might have been the result if it had been tried on the correct measure.

We find no judgment in the record directly passing on the defendant’s plea of privilege. Upon return of the verdict of the jury, in which the residence of J. P. White was found to be in Hockley county, the court entered judgment for the plaintiff without mentioning the plea of privilege. We will treat this as being in effect a judgment overruling the plea of privilege. If this is not its effect, the appellant would be held to have waived the plea of privilege, not having invoked the action of the court upon it at the first term of court. Treating the judgment, therefore, as being a judgment overruling the defendant’s plea of privilege, and for the plaintiffs on the merits of the case, we will affirm that part of the judgment which overrules the plea of privilege and reverse and remand the ease for another trial on the merits.

■HAUL, J., not sitting.

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

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source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    KETCHUM v. BOGGS.
    (No. 7720.)
    (Court of Civil Appeals of Texas. Dallas.
    March 3, 1917.
    On Rehearing, April 14, 1917.)
    1. Judgment ‘@=250(1) — New Tetad <§=65— Entry According to Jury’s Findings.
    Under the statute the court must enter judgment in accordance with the jury’s findings whether or not they be correct, though thereafter, if he considers them erroneous, he may grant a new trial.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446, 454; New Trial, Cent. Dig. § 130.]
    2. Evidence <§=372(10) — Ancient Instruments — Record .
    The record of a deed purporting to have been executed 35 years before, but recorded only 5 years before, is not admissible as an ancient instrument as proof of recitals in it.
    [IOd. Note. — For other cases, see Evidence, Cent. Dig. § 1625.]
    3. Evidence <§=383(7) — Ancient Instruments — Matters Proved.
    A deed, even if an ancient instrument, is not proof of the recital therein that the grantor was the surviving widow of deceased and qualified as survivor of the marital partnership; the presumption being that this can be shown by the court records of the proper county.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1668.]
    4. Judgment <§= 199(5) — Motion for Judgment — Matters to be Considered.
    Exhibits not before the jury to whom the case was submitted are improper for the court’s consideration on motion for judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 370.]
    On Rehearing.
    5. Appead and Error! <§=1180(3) — Effect of Reversad.
    Reversal on appeal by a defendant from judgment for plaintiff in trespass to try title 'affects only them and those parties to the suit who were interested in the issues in litigation between them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4658, 4659.]
    6. .Appear and Error <§=1180(3) — Jurisdiction — Separate Judgments.
    On appeal only by defendant K. from judg-ment for plaintiff, B., in trespass to try title, in which defendant P. filed a cross-bill and made others parties and raised issues different from those between K. and B. on which judgment was rendered, the court has no jurisdiction even to affirm for nonappeal such other judgment; the judgments being separate and distinct and in no way dependent one on the other.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4658, 4659.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Action by George E. Boggs against W. H. Ketchum and others. Judgment for plaintiff, and the named defendant appeals.
    Reversed and remanded.'
    W. R. Bishop, of Athens, for appellant. Miller & Miller, of Athens, and Terry & Brown, of Kaufman, for appellee.
   RAINEY, C. J.

This is an action' of trespass to try title brought by appellee against appellant and others to recover the title and possession of 96½ acres of land in W. P. Wyche’s 640-acre survey, situated in Henderson county, Tex. Appellant answered by plea of not guilty and three, five, an'd ten year statute of limitation. The cause was submitted to a jury on special issues, answers returned, and judgment entered by the court for appellee.

The common source of title was John S. Martin, and one of the links in appellee’s chain of title was a deed from Martin to Be Gierse & Co., and two of the special issues submitted to the jury were:

(1) “Does the deed of date November 5, 1875, from John S. Martin to Be Gierse & Co. include the land described in plaintiff’s petition?” Which was answered by the jury “No.”
(2) “Have defendants Brooks and Ketchum and those under whom they hold for ten years previous to the filing of this suit claimed the land in controversy, or did they claim to the north line thereof?” The jury answered: “We agree that the defendants claimed to the south boundary line.”

The findings of the jury on these two issues were favorable to appellant. They were proper issues for submission to the jury, having been raised by the pleadings and evidence, and, whether or not the findings of the jury were correct, the court was bound to render a judgment in accordance therewith. If the said deed did not in fact embrace the land in controversy, the appellee was not entitled to recover, and he was not entitled to recover if the statute of limitations had barred plaintiff’s right to recover and the same result should obtain.

The statute requires that the court shall enter a judgment in accordance with the findings of the jury, whether or not such "findings are correct or erroneous. If he considers such findings erroneous, he must nevertheless so enter the judgment, but grant a new trial. The court on the other answers of the jury and other circumstances rendered a judgment for the appellee, which we do not believe he was authorized to do.

Appellant also presents the following assignment' of error:

“The court erred in not rendering judgment against the,plaintiff and in favor of the defendant Ketchum for the reason that the plaintiff did not show title in himself to .the land sued for, the deed from Ceeile Be Gierse to M. Basket-conveying no title, and there being no evidence to show title out of Be Gierse & Co., the recitals of the above-named deed not being evidence to show authority on the part of Ceeile Be Gierse to make said deed, there being no' proof that she was the surviving widow of Bouis Be Gierse or that Bouis B,e Gierse was a member of the firm of Be Gierse & Co., or that Be Gierse & Co. was a copartnership firm, and not a corporation. and there being no evidence to show that Ceeile Be Gierse ever qualified as survivor of the marital partnership, or that the land which said deed purports to convey was community property of Louis Le Gierse and Cecile Le Gierse, and no authority is shown in her to convey said land, and because there is no evidence showing that Le Gierse & Oo. was a wholesale liquor copartnership, or that M. Lasker was a member of the firm at the time deed was made to Le Gierse & Co., and because to accept said deed as evidence would be to build one presumption upon another which is never allowed, because the rule is elementary that a presumption can legally be indulged in only when the facts from which the presumption arises are proved by diz-ect evidence, and that one pz'esumption is not to be deduced from another.”

With this assignment is the following proposition :

“The record of deed from Mrs. Cecile Le Gierse to M. Lasker of date April, 1877, filed for record May 18, 1911, and recorded in Henderson County Deed Records May 19, 1911, does not, as an ancient instrument, prove the truth of its recitals.”

The evidence shows the record of a deed from Mrs. Cecile Le Gierse to M. Las-ker, dated April, 1877, but shows it was never recorded until May, 1911. This instrument purports to convey the right, title, interest, and estate of the late Louis Le Gierse in the partnership estate heretofore carried on in the county of Galveston, state of Texas, by said Louis Le Gierse, deceased, and said M. Lasker as partners in the liquor business, both real and personal belonging to said business under the name of Le Gierse & Co., which recites:

“That I, Cecile Le Gierse, the surviving widow of Louis Le Gierse, deceased, having qualified as survivor of the marital partnership under the statutes regulating community rights in property according to the laws of the state of Texas,” etc.

The deed record introduced in evidence is but a copy of the original instrument, and which original was never introduced in evidence, but recorded in 1911. The record of this instrument is not sufficient to show it is an ancient instrument (Ehrenberg v. Baker, 54 S. W. 437), and the recitation in said instrument that Cecile Le Gierse was the surviving widow and had qualified as marital partner of Louis Le Gierse is not sufficient proof of that fact and other proof is required to establish it. The presumption is that this can be shown by the court records of Galveston county. Tucker v. Murphy, 66 Tex. 355, 1 S. W. 76.

Appellee attached to his motion to the trial court for judgment certain documents, and asked that they be considered as a part thereof, viz. a transcript of the proceedings in the probate court of Galveston county, Tex., showing Mrs. Cecile Le Gierse, grantor, tó M. Lasker, to be survivor in community of herself and Louis Le Gierse, deceased, and showing Louis Le Gierse to have been dead at the date of the deed to Lasker, also showing Louis Le Gierse to be of the mercantile firm of Le Gierse & Co., also affidavit of C. G. Hatch as to M. Lasker being of the fii'm of Le Gierse & Co,- which exhibits were asked to be considered in support of the motion for judgment on those questions arising for determination by the court, and not in connection with any question submitted to the jury. These exhibits were not before the jury, and, the case having been submitted to the jury, they could not form a basis for a judgment, and were improper for the court’s consideration.

The judgment is reversed, and cause remanded.

On Rehearing.

The motions of appellant and appellee for rehearing are overruled.

We are asked to affirm the judgment as to.those parties who did not join in the appeal. W. H. Ketehum was the appellant from a judgment in favor of appellee, Boggs, and the reversal only affects those two and those parties to the suit who were interested in the issues in litigation between them.

Defendant Peck filed a cross-bill and made others parties to the action and raised different issues from those between Ketehum and Boggs, upon which judgment was rendered, and which are separate and distinct and in no way dependent one upon the other. So this court was not called upon to act on that part of the judgment relating to Peck and those whom he made parties, as there was no appeal from that part of the judgment. We have no jurisdiction of the matter to dispose of the others, but left it to stand as rendered.
      <S=For other oases see same topic and KEY-NUMBER in .all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    JUNG et al. v. PETERMANN et al.
    (No. 5821.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 21, 1917.)
    1. Trusts <§=>203 — Adverse Possession — Notice of Holding — Conveyance.

      Where the father died, and the mother then conveyed half of the land to each of two sons, if she in fact held the land in trust for all the children, the record of her conveyance to the other children and heirs was notice of adverse ownership and possession by the grantees.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 273-276.]
    2. Tenancy in Common <§=>14 — Rights of Cotenants — Ouster.
    The mei'e act of obtaining deeds to land unaccompanied by open and notorious adverse claim would not be an ouster of cotenants.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 30-41.]
    3. Adverse Possession <§=>62(3) — Color of Title — Deeds—Reservation—Effect.
    Where the father died, and the mother conveyed half the land to each of two sons, providing that she reserved from the land her homestead rights until her death, and also all other rights to which she was entitled, but agreed that her grantees should not be disturbed in actual possession, the reservation would not toll the running of limitations.
    [Ed. .Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 329-332, 340.]

      4. Adyebse Possession <©3^33 — Cotos of Title — Evidence—Admissibility." ''
    In such case the deeds to the sons were properly admitted in evidence in action of trespass to try title as a notice of claim to title.
    [Ed. Note.- — For other cases, see Adverse Possession, Cent. Dig. §§ 134, 135.]
    5. Husband and Wife ⅞⅜=>273(9) — Community Property — Sale of Property.
    The power of the survivor of the community to sell the property to pay community debts or to reimburse for sums paid on the debts applies to the homestead as well as other property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1020.]
    6. Adverse Possession ⅞^>62(3) — Sufficiency of Possession.
    Where the father died, and the mother conveyed half the land to each of two sons, reserving a homestead right, but other heirs claimed an interest, to establish title by adverse possession the two sons need hold adversely only to the other heirs, and not to their mother.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 329-332, 340.]
    7. Wills <§==>205 — Admissibility in Evidence — Necessity of Probate.
    A purported will which was never probated is inadmissible in evidence.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 507, 509-512, 561, 928.]
    8. Evidence <§=>230(3) — Admissibility — D o cuments — Wills .
    A purported will which apparently affected title to land was inadmissible where the land involved had been conveyed nine years before, since declarations of a grantor made after execution of conveyance not in the presence of the grantee cannot be used to impeach or limit the title conveyed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 837, 838, 846.]
    • 9. Deeds <®=97— Construction — Limitation.
    Where a deed contains full covenants of warranty, and exceptions, conditions, or reservations inconsistent therewith are made, which have a tendency to depreciate or destroy the grant, they are of no effect.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 267-273, 434-447.]
    10. Wills <§=S8(2) — Deed or Will — Grant of Present Estate — “Wills.”
    Instruments conveying a present interest are deeds, and not wills, and the grantor can in no way impair or destroy their effect.
    '[Ed. Note. — For other cases, see Wills, Cent. Dig. § 209.
    For other definitions, see Words and Phrases, First and Second Series, Wills.]
    Appeal from District Court, Gillespie County; Horace E. Wilson, Special Judge.
    Action by Henry Jung and others against August Petermann and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Geo. Powell, of San Antonio, for appellants. A. W. Moursund, of Fredericksburg, for appellees.
   FLY, C. J.

This is an action of trespass to try title to an undivided interest of two-eighths in and to 280 acres of land out of original survey 49, granted to A. Oten, in Gillespie county, instituted by William Peter-mann, Henry Jung, Jr., August Jung, Alfred Jung, Henry Jung, Walter Jung, Otto Jung, 1 Meta Jung, and Arthur Jung, the last-named seven being minors and orphans, who appear through Henry Jung, Sr., and Walter Bart and wife, Emma Jung Bart, against 22 defendants, who are appellees on this appeal, but, with the exception of Franz Petermann and August Petermann, are claiming nothing. Franz Petermann answered, claiming 140 acres of land, being the west half of the 280-acre tract, and disclaimed as to the other half, and pleaded limitations of three, five, and ten years and improvements in good faith. B. J. Stubbs answered claiming the east half of the 280 acres of land, and pleaded limitations and improvements in good, faith. Katie Holden and Sylvia Holden, through their guardian ad litem, answered claiming two twenty-fourths of the 280 acres of land. Other defendants disclaimed all interest in the land. All of the parties claim from Franz and Caroline Petermann, the father and mother of William Petermann, Sr., some as heirs and others as vendees of Mrs. Caroline Petermann as survivor of her husband, Franz Petermann, deceased. The cause was tried by jury resulting in an instructed verdict and judgment in favor of Franz Pe-termann and B. J. Stubbs, defendants. The plaintiffs prosecuted this appeal.

The uncontroverted evidence showed that on February 22, 1894, Mrs. Caroline Peter-mann, after the death of her husband, Franz Petermann, conveyed the west one-half of the 280 acres of land to Franz Petermann and the east one-half to August Petermann. The deeds were recorded on February 23, 1894, and Franz Petermann had continuous adverse possession of his half, and August Pe-termann and his vendee, B. J. Stubbs, had continuous adverse possession of the other half until this suit was instituted, on November 29, 1915, a period of over 20 years.

If Mrs. Caroline Petermann was holding the land in trust for her heirs, plaintiffs herein, she repudiated the trust by making the conveyances to her two sons, and the record of the deeds put appellants upon notice of such repudiation, and that Franz Pe-termann and August Petermann were claiming the land not as tenants in common, but in their own right. The two men paid the taxes on the respective tracts of land conveyed to them by their mother, and exercised all the rights and.privileges of adverse ownership and possession. The acts of the parties in connection with the land could not have been more certain and unequivocal than those proved without contradiction.

The mere obtaining deeds to the land, unaccompanied with open and notorious adverse claim to the land, would not be an ouster of the cotenants, but in this case there was an open repudiation of the lights of all others in the land, and the statute of limitations was put into operation. Towery v. Henderson, 60 Tex. 291.

When Mrs. Petermann sold the land to ap-pellees, she repudiated her tenancy in common with her children, and this was followed by the adverse open and notorious claim of her vendees to the land. Dillard v. Cochran, 158 S. W. 662; Robles v. Robles, 154 S. W. 233.

In each of the deeds made by Mrs. Peter-mann to her sons Eranz and August, immediately following the covenant of warranty, were these words:

“But it is expressly understood and stipulated, that I reserve from said land herein conveyed, my homestead rights until my death, and also such other rights as I may be entitled to, hereby agreeing that my said grantee * ⅜ ⅞ shall not be disturbed in the actual possession, cultivation and enjoyment of the premises herein conveyed, by, through or under me.”

The sons had been living with their mother since the death of the father, -making a living for her and paying off a number.of debts of the father. She was feeble and lame. When the deed was made to Eranz he fenced his 140 acres off from the balance of the land, and August lived with his mother only a short time and then built a home. They paid the taxes on their respective shares. His mother lived with August in the new home until 1895 or 1896, when she left and lived with her father six or seven years, when he died, and she then returned and lived, until her death in 1913, with her son Eranz. He built her a small house in his yard adjoining his house. The old house was not occupied after August moved out. He sold to Stubbs in 1914.

The reservation in the deeds was undoubtedly intended as a reservation of the right to live on the land if Mrs. Petermann so desired. A year or two after making the deeds she left the place, and did not return until after the death of her father, which occurred six or seven years after she went to live with him. She then returned, not to the old house, but to her son Eranz’s place, upon which he built her a small house. She exercised no control whatever over the place and permitted a division of it between her two sons. William Petermann knew of the division and knew his brothers were exercising ownership over the land. Eor over twenty years none of the plaintiffs claimed any interest in the land or paid any taxes on it. They knew the mother had sold it, and that her vendees were claiming it as their land and rendering it for taxation in their respective names. The moment Mrs. Peter-mann executed the deeds, she repudiated the trust and gave notice that she did not recognize the rights of any one else in the land, except her two sons.

The homestead rights in the land, if they could he reserved when the land was conveyed, would carry with them the right of possession, right of enjoyment and control, and the right to all the revenues arising from the homestead, but in the clause seeking to retain these rights they are destroyed by the language of the reservation itself. The language, “I reserve from said land herein conveyed, my homestead rights until my death,” means absolutely nothing when coupled with the stipulation that the grantees “shall not be disturbed in the actual possession, cultivation and enjoyment of the premises herein conveyed.” That clause gave absolute dominion over the land to the grantees, and completely destroyed any homestead rights of Mrs. Petermann. If the grantees were to have actual possession, the right to cultivate and the right to enjoy the land, what rights could have been left for the grantor? Absolutely nothing, and the whole clause fails and is of no effect. We are of opinion that the clause seeking to reserve homestead rights is meaningless and of no force or effect whatever. The grantor never at any time attempted to enforce any homestead rights after the execution of the deeds. The deeds were properly admitted in evidence, and they were sufficient, taken with other circumstances, to notify appellants that the vendees were holding the land adversely to them and for twenty years appellants acquiesced in their right to the land. Brasher v. Taylor, 109 Ark. 281, 159 S. W. 1120; Robles v. Robles, herein cited; Eastham v. Gibbs, 58 Tex. Civ. App. 627, 125 S. W. 372; Honea v. Arledge, 56 Tex. Civ. App. 296, 120 S. W. 508.

The uncontroverted evidence showed, and it is recited in the deeds to August and Eranz, that they had supported their mother and had paid off community debts amounting to a large sum’ of money. It has been often held that the survivor of the community has the power to sell the property to pay community debts or to reimburse for ■ sums paid on the debts. And this power applies to the homéstead as well as other property. Ashe v. Yungst, 65 Tex. 631, and authorities cited therein; Wiener v. Zweib, 128 S. W. 699, affirmed 105 Tex. 262, 141 S. W. 771, 147 S. W. 867; Morgan v. Lomas, 159 S. W. 869; Pierce v. Gibson, 184 S. W. 502.

In regard to the possession of the land by appellees, it was not necessary that it should be adverse to Mrs. Petermann, if it was adverse to appellants. Price v. Eardley, 34 Tex. Civ. App. 60, 77 S. W. 416; Glover v. Pfeuffer, 163 S. W. 984; Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153.

The purported will of Mrs. Peter-mann executed in November, 1903, was properly rejected. The will was never probated, and if it had been, it could have no binding force as to land conveyed by her over nine years before to her sons. She could not at that date or any other after the execution of the deeds give directions as to how one or both of them should dispose of any of the revenues arising from the land. The whole of the evidence tended to show that Mrs. Petermann never at any time after the execution of the deeds exercised the slightest control oyer the land, but abandoned It and went to live with ber father for seven years. The will had no probative force whatever and was properly rejected. There was no offer by appellants to show that the instrument was executed by Caroline Petermann or that her signature was appended thereto. It is well established that the declarations of a grantor made, after a conveyance is executed, not in the presence of the grantee, cannot be used to impeach or limit the title" of the estate conveyed.

It is the rule that where a deed, as in this instance, contains full covenants of warranty, and exceptions, conditions, or reservations inconsistent with the interest granted by the deed are made, which have a tendency to depreciate or destroy the grant, they are of no effect. Devlin, Real Estate, § 843a.

The two instruments executed to ap-pellees by their mother were deeds, and not wills, because they conveyed a present interest, and no act of the vendor could impair or destroy their effect. Devlin, Real Estate, §§ 855a, 855b. The two instruments were warranty deeds and conveyed the full estate to the appellees. Devlin, Real Estate, § 978; Hamilton v. Jones, 32 Tex. Civ. App. 598, 75 S. W. 554.

The sixth, seventh, and eighth assignments of error are overruled. The evidence was uncontroverted that the community rights «were paid by Franz Petermann and August Petermann, and adverse possession was clearly proved.

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

      rffepFor other cases see same to^ic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    POTTER et al. v. MOBLEY.
    (No. 1137.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1917.)
    1. Sales <&wkey;120 — Rescission—Breach of Warranty.
    Where a contract for sale of silo contained a warranty, but no provision for return of property in case of breach, it was essential to the purchaser’s right to rescind the contract that he show fraud therein, or that the silo was wholly unsuitable for its purpose.
    [Ed. Note. — For other cases, see Sales, Cent Dig. § 294.]
    2. Appeal and Error &wkey;>934(2) — Scope op Review — Presumptions.
    In action for breach of warranty of a silo where no issue was submitted whether the contract was induced by fraud or the silo was worthless, and plaintiff by trial amendment alleged fraud, but the evidence was insufficient to authorize submission of such issue to the jury, the court on appeal cannot assume in support of the judgment that the trial court so found.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777.]
    3. Fixtures <&wkey;2'l — Right as Between Vendor and Purchaser.
    If when a silo was being erected on the land it had been understood and agreed between the sellers and the purchaser that it might be severed and removed, it would continue to be personalty, even as against purchasers with knowledge.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 47-56.]
    4. Sales <&wkey;124^-REscissioN — Return op Article — Fixtures—Parol Reservation.
    ■ • Since a parol reservation of a silo by a grantor would be ineffectual, the buyer of the silo, after grant of the land could not, on breach of wárranty, make good tender of it to the seller on the rescission of contract of purchase.
    [Ed. ¡Note. — For other cases, see Sales, Cent. Dig. §§ 303-312.]
    5. Sales <&wkey;124^-BREACH op Warranty-Right to Rescind — Return op Property.
    If a silo sold under warranty was utterly worthless, its return is not prerequisite to rescission, but if the material were of any value for any other purpose than as a silo, the sellers would be entitled to its return in event of rescission.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 303-312.]
    6. Husband and Wife c&wkey;133(l) — Ownership of Property — Evidence — Sufficiency.
    Evidence held insufficient to support finding that the wife was not the owner in her separate right of certain notes sued on.
    [Ed. Note. — For other cases, see I-Iusb'and and Wife, Cent. Dig. §§ 487, 493.]
    7. Bills and Notes <&wkey;497(2) — Bona Fide Holders — Burden of Proof.
    In,action by purchaser of silo for breach of' warranty where seller counterclaimed for notes given for purchase price, and his wife set up her separate ownership of the notes, the burden of proving that she was a bona fide holder was not .on the defendants.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1676, 1677, 1686, 1687.]
    8. Husband and Wife <&wkey;36 — Contracts between — Validity.
    Even prior to the legislation of 1913, a married woman might contract with her husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 218.]
    9. Husband and Wife &wkey;>25(l) — Husband as Agent of Wife — Contracts Between.
    While prior to the legislation of 1913, the husband was the sole manager of the wife’s separate estate, he could not be her agent in transactions with himself.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 148, 150, 153.]
    10. Husband and Wife &wkey;>25(3) — Con- . tracts of Wipe — Knowledge of Facts.
    Where the wife, in acquiring- notes from a firm of which the husband was a member, acted of her own separate will, her husband could not be regarded as her agent, and she would not be affected by his knowledge of defects in title to the notes.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 151.]
    11. Husband and Wife <&wkey;25(3) — Contracts — Validity.
    If the husband pursuing his power to manage his wife’s property assigns a note to her in the name of a firm of which he is a member and draws a check against her funds in favor of the firm without any agreement with her, she could not hold the note without being bound by her husband’s knowledge of defects in the title.
    [Ed., Note. — For other cases, see Husband and Wife, .Cent. Dig. § 151.]

      Appeal from Potter County Court; T. W. McBride, Judge.
    Action by R. U. Mobley against A. M. Potter and others, wherein defendants filed a cross-complaint and Mrs. Potter filed a cross-action. Judgment for plaintiff against A. M. Potter and'R. H. Potter, and all defendants appeal.
    Reversed and remanded.
    Reeder & Dooley, of Amarillo, for appellants. O. E. Custavus and M. J. R. Jackson, both of Amarillo, for appellee.
   BOYCE, J.

A. M. Potter & Son, H. R. Potter, two of the appellants, erected on the premises of the appellee Mobley a cement stave silo, for which the said Mobley paid them $400, $100 in cash and $300, evidenced by three notes, dated September 21, 1912, payable December 1, 1912, January 1, 1913, and February 1, 1913. As a part of said contract the said Potters executed and delivered to Mobley a written guaranty that said silo “is sufficient for the purpose for which it is erected, and that it will keep ensilage perfectly and will not chip, crack or crumble.” This suit was brought by appellee Mobley against said A. M. Potter and H. R. Potter, alleging the breach of said guaranty; that the said silo did, soon after its erection, crack; that a great part of the ensilage placed therein by plaintiff had spoiled by reason thereof, and that said silo was worthless. Plaintiff prayed for damages for his spoiled ensilage, recovery for value of labor performed and material expended by him in the construction of the silo and for the money paid on the contract, and also for cancellation of the notes given by him. Plaintiff also alleged that Mrs. E. R. Potter, wife of A. M. Potter, was setting up some fictitious and fraudulent claim to the notes, and made her a party to the suit, and prayed for judgment also against her for the cancellation of said notes. The defendants answered by general and special denials, and Mrs. Potter, in a cross-action, prayed for judgment, for ’principal, interest, and attorney’s fees due on said note, alleging that she was a bona fide purchaser thereof for value before maturity. The jury found in response to special issue submitted that the silo erected did not comply with the warranty made by defendant, that Mrs. Potter was not the owner in her separate right of the three notes, and that she was not a bona fide purchaser for value of said notes. They also fix the value of the labor done and material furnished by plaintiff in carrying out his part of the contract in the erection of the said silo. Upon these findings the court entered judgment for the plaintiff against A. M. Potter .and H. R. Potter, for the amount of money paid and the value of labor and material expended by plaintiff and against all the defendants for the cancellation of said notes. All of the defendants have appealed from this judgment.

The errors assigned by appellants may be generally stated as follows:

First. That it was essential to a rescission of the contract, on account of the breach- of warranty, that it be shown, either that there was fraud in the contract, or that the silo was worthless, and they assert that the evidence -is insufficient to establish either of these essentials.

Second. That plaintiff, Mobley, had put it out of his power to rescind because he had sold the silo.

Third. That the undisputed evidence shows that Mrs. Potter purchased the notes with her separate property without notice and for value, and the findings of the jury on these issues are unsupported by the evidence. Error is also assigned as to certain charges of the court in the submission of this issue.

We will consider these questions in the order stated above.

As the suit was for a breach of warranty, and the contract, as we construe it, contains no provision for a return of the property in case of breach, it was essential to plaintiff’s right to rescind the contract to show either fraud in the contract or that the silo was wholly unsuitable for the purpose for which it was built. Wright v. Davenport, 44 Tex. 164; Texas-Kalamazoo v. Alley, ISO S. W. 621; Texas Machinery & Supply Co. v. Ayers Ice Cream Co., 150 S. W. 750.

No issue was submitted to the jury, either as to whether the contract was induced by fraud or as to whether the silo was worthless. WJhile the plaintiff, by trial amendment, alleged that the contract was induced by fraud, we do not think that the evidence was sufficient to authorize the submission of such issue to the jury, and we cannot assume in support of the judgment that the court so found. The court seems to have tried the case on the theory that a rescission might be had if the terms of the warranty were breached, and that it was not necessary to show that the silo was worthless. Plaintiff offered evidence to the effect that a large per cent, of the ensilage which he had placed in the silo soon after it was erected was spoiled, and the silo was cracked in numerous places, but no direct evidence was introduced by the plaintiff as to the possibility of repairing it so as to make it serve its purpose. One of the witnesses testified that he had about as soon place ensilage in the courthouse and expect to keep it, and the record contains several statements made by plaintiff to others that the silo was worthless. This testimony tends to the conclusion that the silo as it stood at the time was not suitable for the purposes for which it was erected. The testimony of some of plaintiff’s witnesses, as well as the direct testimony of a number of witnesses, offered by the defendant, tends to show that the silo could be fixed up so as to be suitable for use. As we will reverse the case on another ground, we will not undertake to decide whether the court would have been justified in finding under the evidence that the silo was wholly unsuitable for the purpose for which it was erected, nor as to whether, in view of the conflicting evidence, we should assume in support of the judgment that the court so found, when the record rather indicates that the case was tried on the theory that a finding on such issue was not necessary. The facts bearing on this issue will doubtless be more fully developed on another trial, and the issue submitted to the determination of the jury, if the case should be tried before one.

The evidence shows that the silo was built on a concrete foundation, which extended three feet underground. Plaintiff Mobley conveyed the land on which the silo was built to R. E. and J. C. Jenkins, by warranty deed before the filing of the suit, and the deed contained no reservation of the silo. The testimony of one of the purchasers is to the effect that Mobley told him that the silo did not go with the land, and that he, the said Jenkins, made no claim to it. If it had been understood and agreed between the parties at the time of the erection of the silo that it might be severed and removed therefrom, then it would continue to be personalty, and if the Jenkinses bought with knowledge of this status, it would continue as to them. Clayton v. Phillipp, 159 S. W. 117; Jones v. Bull, 85 Tex. 136, 19 S. W. 1031.

However, the status of the property as personalty or as a fixture would be fixed with reference to the intention of the parties at the time it was erected, and as the contract did not itself provide for any contingency upon which the silo might be removed, and this contingency could only arise by reason of the breach of the warranty and election of one of the parties to rescind, we are inclined to think that the silo became a fixture at the time it was built on the land. It appears from the authorities that the parol reservation of the silo if it were a fixture, at the time of the execution of the deed, would be ineffectual, and, notwithstanding the reservation, the said purchasers could prevent its removal, and the plaintiff, Mobley, was thus in no position to make good a tender of the silo. Brown v. Roland, 92 Tex. 54, 45 S. W. 795; State Security Bank v. Hoskins, 130 Iowa, 339, 106 N. W. 766, 8 L. R. A. (N. S.) 376; Leonard v. Clough, 133 N. Y. 292, 31 N. E. 93, 16 L. R. A. 305.

However, if the silo was utterly worthless, it would not be necessary to tender a return of it before rescission might be had. Wintz v. Morrison, 17 Tex. 388, 67 Am. Dec. 658; Haynes v. Plano Mfg. Co., 36 Tex. Civ. App. 567, 82 S. W. 532. If the material, however, were of any value for any other purpose than as a silo, defendants, in the event of a rescission, would be entitled to its return.

The testimony shows that these notes were indorsed by Potter & Potter, the firm composed of A. M. Potter and his son, and delivered to Mrs. E. R. Potter, wife of A. M. Potter, and that she paid therefor the sum of $300, checking on funds deposited in her name in the bank. The evidence shows that these funds represented the proceeds of the sale of a lot which had been acquired in settlement of a contingent claim which Mrs. Potter had to certain property under the will of her mother. We are of the opinion that the findings of the jury that Mrs. Potter was not the owner in her separate right of the three notes is contrary to the evidence, and if the judgment against her can be supported, it would be on the other finding that she was not a bona fide holder thereof. •

The only testimony as to the sale of the notes to Mrs. Potter was that given by the defendants A. M. Potter, H. R. Potter, and Mrs. Potter. Their testimony is to the effect that an agreement had been made with Mrs. Potter to sell her these notes before contract with Mobley was made; that Mrs. Potter was assured that they were good notes, and she consented to buy them; that in pursuance to this agreement A. M. Potter, . on October 3, 1912, prepared check for $300, and presented it to Mrs. Potter, who signed it, and it was cashed by the firm of Potter & Potter. The notes were indorsed by Potter & Potter, and delivered to Mrs. Potter some time later, the exact time of delivery not being shown. It is shown that within a short time, probably before the notes were indorsed to Mrs. Potter, Mobley, having begun to fill the silo, noticed some cracks in it, and came to town greatly excited, creating the impression in the minds of A. M. Potter and his son that Mobley thought the silo was about to fall down. Mrs. Potter knew of their engaging in this enterprise, as it was a new venture, and was informed of Mobley’s complaints as to the silo, though she testifies that this information was received after the notes were purchased by her. The court, in connection with the submission of the issue as to whether Mrs. Potter was a bona fide purchaser of the notes, charged the jury that to constitute a bona fide purchase for value it was necessary that the purchaser pay a valuable consideration therefor, and at such time have no notice of any defect, imperfection, or lack of consideration as to such notes, and that the burden of proof was upon the defendants on the issue. This charge on the burden of proof was erroneous. R. S. art. 589; Wright v. Hardie, 88 Tex. 653, 32 S. W. 885; Daniel v. Spaeth, 168 S. W. 509; Herman v. Gunter, 83 Tex. 66, 18 S. W. 428, 29 Am. St. Rep. 632; McAlpin v. Finch, 18 Tex. 831; Watson v. Flanagan, 14 Tex. 354; Bank v. Kemp, 114 S. W. 402.

The court, in connection with the submission of this issue as to Mrs. Potter being a bona fide purchaser of the notes, also instructed the jury to find against her on the issue if they should find that Mrs. Potter had knowledge of such failure of consideration, either from personal knowledge or information, or that she was acting by and through her husband, A. M. Potter, in acquiring such notes, and that her said husband, A. M. Potter, was her duly authorized agent in such transaction. It is urged by appellants that this charge was error because A. M. Potter could not act as Mrs. Potter’s agent in transactions with himself. We have already stated the negotiations as testified to by the Potters concerning the sale of the notes to Mrs. Potter. Mrs. Potter testified, further, that her husband attended to her business when she wanted him to, and A. M. Potter testified that he always attended to his wife’s business. It is well established that even prior to the recent legislation, enlarging her contractual rights, a married woman might contract with her husband. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 489, 6 L. R. A. (N. S.) 381.

While prior to the legislation of 1913 the husband was the sole manager of the wife’s separate estate, he could not be her agent in transactions with himself. “In transactions between themselves, in reference to property rights, the wife must, in the nature of things, if she can contract with her husband at all so as to bind herself or her separate estate, be entitled to exercise her own will; for in reference to such matters the husband cannot be the agent of the wife to make a contract with himself.” Pearce v. Jackson, 61 Tex. 646.

This case, however, recognizes that if there is any contract at all, it must be one in which the wife has exercised her own will. The evidence we have referred to indicates that Mrs. Potter did, in this transaction, exercise her own will and power to contract; and, if this be true, then her husband was not to be regarded as her agent, and she would not be affected by his knowledge. Pearce v. Jackson, supra; Stephens v. Herron, 99 Tex. 63, 87 S. W. 326; Cooper v. Sawyer, 31 Tex. Civ. App. 620, 73 S. W. 992; Loewen v. Forsee, 35 S. W. 1138.

This view is not inconsistent with the ease of Allen v. Garrison, 92 Tex. 546, 50 S. W. 335, relied on by appellee. In that case the husband, being the real owner of an indebtedness and having notice of a release of deed of trust securing payment of the indebtedness, as trustee under the deed of trust, sold the property and had it bid in at the sale for his wife, and conveyed it to her. It does not appear that the wife had any knowledge of or gave any assent to-the transaction, it being handled by her husband; and, under these circumstances, it was held that the wife could not claim the benefit of the transaction effected for her, free from the fraudulent practices by which it was effected, although she herself may have been ignorant of the fraud.

So, in this case, if A. M. Potter, in pursuance to his power to manage his wife’s property, has assigned the note to her and drawn a check in favor of Potter & Potter against her funds, without any agreement with her, she could not hold the note without being bound by the knowledge of her husband. This distinction is recognized in the application of the law of agency generally. Mechera (2d Ed.) §§ 1817, 1818. See note to case of Brookhouse v. Union Publishing Co., 73 N. H. 368, 62 Atl. 219, 2 L. R. A. (N. S.) 994, 111 Am. St. Rep. 623, 6 Ann. Cas. 675; Morris v. Georgia Loan, Savings & Banking Co., 109 Ga. 12, 34 S. E. 378, 46 L. R. A. 506; English-American Loan & T. Co. v. Hiers, 112 Ga. 823, 38 S. E. 103; Commercial Bank v. Burgwyn, 110 N. C. 267, 14 S. E. 623, 17 L. R. A. 326; Black) Hills National Bank v. Kellogg, 4 S. D. 312, 56 N. W. 1071. The case of Traders’ National Bank v. Smith, 22 S. W. 1056, is in harmony with the doctrine announced in these authorities, and may be better understood if read in connection with them. The reason advanced for this distinction is that if thei party claiming the benefit of the transaction' was acting for himself or through other independent agents, the ostensible agent, having the adverse interest, may be really treated as an adverse party, but, if there is really no contract except through the assent of the agent having the adverse interest, the principal, when he claims the benefit of such contract to which he has given no real assent, except through such agent,, must take the contract subject to the contamination of the channel through which it has come. These reasons are in harmony with the reasons given by our courts for the holding generally that a principal is bound by knowledge of the agent. Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028; Texas Loan Agency v. Taylor, 88 Tex. 47, 29 S. W. 1058.

It will not be necessary for us to express an opinion as to whether the evidence is sufficient to support the finding of the jury on the issue as to whether Mrs. Potter was a bona fide purchaser of the note, as we will reverse the case for the errors in the charge submitting the issue. The other question presented by the assignments are not likely to occur on another trial, and it is not necessary to notice them.

Reversed and remanded.
      (gcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    MENSING v. FIDELITY LUMBER CO. et al.
    (No. 147.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 22, 1917.
    Rehearing Denied April 25, 1917.)
    1. Payment <&wkey;66(2) — Pkesumption—Mort-gage.
    Where no attempt was made to foreclose a deed of trust for 25 years, after the note secured by it became due, and the note was not produced, nor was any evidence offered that it had not been paid, and in the meantime the land had been in the open possession of the purchasers under foreclosure of a second deed of trust, it will be presumed that the note secured by the first deed of trust had been paid and the trust thereby satisfied.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 178, 179.]
    2. Treuass to Try Title <⅞»35(2) — Lapse of Time — Issues—Not Guilty.
    In trespass to try title, where plaintiff claimed under a foreclosure of a deed of trust 25 years after the maturity of the indebtedness, defendants in possession can rely on the defense of laches under their plea of not guilty; it being necessary to plead equities only when defendant seeks affirmative relief.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 51.]
    Appeal from District Courtj Tyler County; A. E. Davis, Judge.
    Trespass to try title by G. H. Mensing against the Fidelity Lumber Company, in which the defendant brought in its war-rantors S. F. Carter and others. Judgment for the defendant and the warrantors, and plaintiff appeals.
    Affirmed.
    Geo. T. Burgess and Stewarts, all of Dallas, and R. A. Shivers, of Woodville, for appellant. Thomas & Wheat, of Woodville, Townes & Yinson, of Houston, and Matthews & Browning, of Lampasas, for appellees.
   BROOKE, J.

Appellant, G. H. Mensing, filed this suit in trespas to try title against the appellee Fidelity Lumber Company, for 277 acres of land patented to D. Spinks as assignee of E. B. Blount, and 177 acres patented to Cordelia Ewell, the assignee of John Clark. Fidelity Lumber Company brought in its warrantors, S. F. Carter and J. P. Carter, Thompson Bros. Lumber Company, a corporation, J. L. Thompson, Hoxie Thompson, and Alex. Thompson, and the appellees S. F. Carter and J. P. Carter brought in their warrantor, J. A. Mooney. All of the defendants pleaded general denial. Trial was had before the court with a jury, on the 2d day of February, 1916, and upon the conclusion of the trial, there being- no question of fact for the jury, it was, by agreement of the parties, discharged, and the cause submitted to the court, and the court rendered judgment that appellant take nothing, and in favor of the 'defendant warrantors. Appellant filed a motion for new trial on the Sd day of February, 1916, an'd an amended motion on the 10th of February, which was by the court overruled, to which action of the court, appellant excepted, and in open court gave notice of appeal. Appeal bond was filed February 28, 1916.

It was agreed that Dreenan Spinks was the common source of title as to the Eli Blount survey, and that William Frazier was common source of title as to the John Clark survey. William Frazier died, leaving surviving him» nine children, among whom were W. P. Frazier, S. S. Frazier, Elizabeth Cooper, and Eliza Ingram. The interests inherited by the other five children of William Frazier were not in controversy herein, the title thereto or to the greater part being vested in the defendants, and never having been vested in plaintiff or his predecessors in title. Elizabeth Cooper died, leaving as her sole heir at law her son, S. B. Cooper. Eliza Ingram died, leaving as her sole heir at law a child named D. C. Ingram. W. P. Frazier, S. S. Frazier, and D. C. Ingram conveyed their interest to S. B. Cooper. Dreenan Spinks and wife conveyed to S. B. Cooper the Eli Blount survey. S. B. Cooper, on the 29th day of April, 1886, executed a deed of trust to F. D-. Minor, as trustee, to secure Mensing Bros. & Co., in the payment of a note for $400.21, of date April 27, 1886, due January 1, 1887, the deed of trust providing for sale of the land in the event of default in the payment of the note, and also providing for the appointment of a substitute trustee. The deed of trust fr,om Cooper to Minor for the benefit of Mensing Bros. & Co. was filed for record in Tyler county on the 5th day of May, 1886. S. B. Cooper, on June 15, 1886, executed a deed of trust to B. E. Moore, trustee, to secure a note due Wright & Taylor for-$650 of that date, due one year after date, the deed of trust providing for sale upon default of payment of said note and for the appointment of a substitute trustee. On September 17, 1912, F. D. Minor, trustee in the-deed of trust from Cooper to Mensing, declined to act. G. I-I. Mensing, as surviving-partner of Mensing Bros. & Co., on the 25th of September, 1912, appointed Maco Stewart as substitute trustee in place of Minor, resigned. Deed from Maco Stewart, as such substitute trustee under the deed of trust, conveyed the property in controversy to G. H. Mensing. B. E. Moore, trustee in the deed of trust from Cooper, for the benefit of Wright & Taylor, declined to act, and Wright & Taylor appointed John H. Kirby as substitute trustee. On August 2, 1887, Kirby, as such substitute trustee, conveyed the property in controversy to John J. Wright, and Marion E. Taylor, composing the firm of' Wright & Taylor, said deed being filed for record on September 5, 1887. The Wright & Taylor title, acquired under the foreclosure-by Kirby of the deed of trust to them, passed by proper mesne conveyances to defendants.

Appellant assigns error as follows: (a)The court erred in rendering judgment for defendants, because plaintiff showed a superior title in himself to the land in controversy; (b) the court erred in rendering judgment for the defendants, because plaintiff proved himself to be the holder of the superior legal title to the land in controversy; (c) the court erred in rendering judgment for the defendants, because plaintiff proved himself to be the holder of the superior legal title to tlie land in controversy from and under the common source; (d) the court erred in rendering judgment for the defendants, because under the pleadings plaintiff showed himself to be the owner and holder of the superior legal title from and under the common source, and judgment should have been for plaintiff, notwithstanding that facts may have existed which, if properly pleaded and proved, would have entitled defendants to equitable relief; (e) the judgment of the court is contrary to the law because the evidence showed plaintiff to be vested with the superior legal title to the land in controversy, from the common source.

Appellees’ counter-proposition under the first, second, and third assignments of error, are as follows:

“The plaintiff did not show a superior title, the only apparent title shown by Mm being such as he acquired through the foreclosure of the deed of trust from Cooper to Minor, trustee for Mensing, and no title vested in him by reason of such foreclosure, because said deed of trust was executed on April 29, 1886, to secure a note due on January 1, 1887, and no attempt was made to enforce or foreclose said deed of trust until December 3, 1912, long prior to which time Cooper’s title had become vested in other persons through whom appellees claim title, and no reason was shown why the plaintiff delayed for over 25 years in foreclosing his deed of trust, during all of which time the land, as shown by the records, was claimed by the appellees and those through whom they claim, and plaintiff did not, on the trial, produce the note secured by his deed of trust, or show that the same had not been paid. Therefore, by reason of plaintiff’s laches, and his failure to prove nonpayment of said note, it does not appear that the deed to the plaintiff from the trustee under said deed of trust passed title to any of the lands sued for.”

They also make the further proposition that:

“The defense of laches may be made under a plea of not guilty, and thereunder it may be shown that by reason of the laches of plaintiff he has not acquired the superior title to the land in controversy.”

We are of the opinion that the contentions of appellees, in the above propositions, are correct, and should be sustained. It has been held by numerous decisions that in an action, as the present, to try title to land, the presumption will be indulged that a debt secured by a mortgage was paid, and the mortgage thereby satisfied, and this presumption will arise from its existence for a long time before suit. There was a debt, and there was no evidence that it was ever paid. The long lapse of time would create the presumption that the debt had been paid by Cooper, the owner of the land, and, when paid, of course, the mortgage would be satisfied. We deem it unnecessary to recount the holdings of the various courts on the fact that the long lapse of time, 25 years in this case, will cause the presumption to be indulged that the debt has been paid. The note upon which the deed of trust from Cooper to Men-sing was based was not produced. There was no attempt made to show that the note had been paid. The fact that no move was made to enforce the collection of the note or foreclosure of the deed of trust until December 3, 1912, is persuasive, and the further fact that the title, through Wright & Taylor from Cooper, acquired under the foreclosure of the Kirby deed of trust on August . 2, 1887, which had been acquired by appellees and various other persons under whom they hold, had not been questioned during the said 25 years, and during this time, also, appellees and those under whom they claimed were asserting title openly and paying taxes on the land, and holding the same. This, to our minds, is conclusive. The deed to the plaintiff from Maco Stewart, the substitute trustee, did not pass any title to the appellant to any of the land sued for.

With reference to the contention that the defense of laches may be made under a plea of not guilty, it is held in the case of Kauffman et al. v. Spill Brown, 83 Tex. 47, 18 S. W. 425, decision by the Supreme Court, as follows:

“We understand the law to be that under the plea of not guilty the defendant can interpose any legal or equitable defense that tends to defeat tha plaintiff’s right to recover. It is only where the defendant seeks affirmative relief upon the issues he desires adjudicated that he is required to specially plead his equities. If the plaintiff in the pursuit of his remedy by trespass to try title makes a case which shows that the vendee is not in default, this is sufficient to preclude his recovery, as the right to recover does not exist until the vendee is in default, and the duty of proving this fact rests upon the vendors. Huffman v. Mulkey, 78 Tex. 557, 14 S. W. 1029 [22 Am. St. Rep. 71]. Further, where the vendor resorts to the legal action of trespass to try title to recover from the vendee the land, it is permissible, under the plea of not guilty, to show that the vendee is not in default, or to show that the vendor is in fault by reason of failure to comply with the terms of the contract to sell in some material respect. We quote with approval what is said by the court in Moore v. Giesecke, 76 Tex. 550, 13 S. W. 290: ‘We do not understand that it was intended to decide, in the cases where the vendor brought suit simply to try title and for possession, that the equities in favor of the vendee of a nature entitling him to relief would not be heard. We think, rather, that in those cases it was intended to decide that the facts pleaded by the vendee did not show a case entitling the party to affirmative equitable relief. We can see no good reason why the right of the vendee to equitable relief, when he is sued for the purchase money, or for the land itself, should at all depend upon the character or the form of the plaintiff’s suit. Whether or not he is entitled to any equitable relief will be a proper subject of inquiry in every case. When the circumstances of the transaction show him to deserve it, it should be administered: and when they do not, it should be denied.’ We see no good reason why, under the liberal remedy of trespass to try title, the equities and rights of the vendor and vendee should not be settled, and especially as the plaintiff is permitted in such action to establish by evidence either a legal or equitable title to the land without averring the facts that constitute his equities.”

Being of opinion that the appellees in the instant case, under plea of not guilty, could show the legal title vested in them through the foreclosure of the deed of trust of. Kirby, and also believing tbat they are entitled to tbe presumption from tbe facts and circumstances shown in tbis case, tbat on account of tbe long lapse of time, and tbe failure to take any action to enforce or foreclose tbe deed of trust, it follows tbat tbe deed to tbe plaintiff from tbe substitute trustee, Maco Stewart, passed no title to any of tbe land sued for. Finding no error in tbe action of tbe trial court, the appellants’ assignments are overruled. We refer to tbe following authorities: Foot v. Silliman, 77 Tex. 268, 13 S. W. 1032; Carlisle v. Hart, 27 Tex. 350; McKin v. Williams, 48 Tex. 92; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870; Hines v. Thorn, 57 Tex. 104; Haskins v. Wallet, 63 Tex. 220; Hutton v. Pederson, 153 S. W. 176; Hume v. Le Compte, 142 S. W. 934; Milwee v. Phelps, 53 Tex. Civ. App. 195, 115 S. W. 894; Montgomery v. Noyes, 73 Tex. 209, 11 S. W. 138; Groesbeeck v. Crow, 85 Tex. 200, 20 S. W. 49; Gruner v. Westin, 66 Tex. 209, 18 S. W. 512; Riggs v. Hanrick, 59 Tex. 570; Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102; 30 Cyc. 1273 et seq.

The action of tbe trial court is, in all things, affirmed.
      <S=AFor other eases see'same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=aFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes