author: HUFF, O. J.

text:
    KING-COLLIE CO. v. WICHITA FALLS WAREHOUSE CO.
    (No. 1341.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 17, 1918.
    Rehearing Denied Oet. 9, 1918.)
    1. Appeal and Error <@=>501(2) — Review— Exceptions — Order for New Trial.
    For consideration on appeal of assignments to overruling of exceptions to pleadings, exception to ruling, afterwards set up in. motion for new trial, need not be noted in the order, in view of Rev. St. 1911, art. 2062, and district court rule 53 (142 S. W. xxi), dispensing with reserving of bill of exception to ruling appearing otherwise of record, and to judgment on matters at common law constituting the record proper.
    2. Sequestration <@=>16 — Trial of Right of Property — Tender of Issues.
    Plaintiff warehouse company, tendering issue in proceedings for trial of right of property to sequestered cotton, that it was stored with it, need not name the owners who stored it, it stating it could not, and this appearing on trial.
    3. Evidence <@=>220(1) — Admissions — Agents — Communication to Other Party.
    Declarations of the agent of plaintiff, in trial of right of property to sequestered cotton, that there was a shortage of cotton in plaintiff’s warehouse, and that it had been delivered to claimant, having been communicated by plaintiff’s representative to defendant’s representative, who admitted he had the cotton, was with that admission admissible.
    4. Trial <@=>255(4) — Instructions — Requests — Limiting Consideration of Evidence.
    Evidence being admissible for a certain purpose, the other party, if desiring it be considered for that purpose alone, should request the court to limit it thereto.
    5. Trial <@=>85 — Objections—Evidence Admissible in Part.
    Objection to evidence, some of which is admissible, should segregate that which is inadmissible.
    6. Evidence <@=>22-2(2) — Identity — Admissions — Sequestration.
    As a circumstance identifying cotton sequestered by plaintiff warehouse company, in action against a compress company, as cotton embezzled from plaintiff’s warehouse by M., assertion of claimant, to whom the compress company had issued receipts therefor, on refusal to surrender it, that it had bought it of M., was admissible on trial of right of .property.
    7. Sequestration <@=>16 — Trial of Right of Property — Question for Jury.
    Evidence on trial of right of property to cotton sequestered in action by plaintiff warehouse company against a compress company which had issued receipts therefor to claimant, held sufficient to go to the jury on the issue of it being cotton which plaintiff manager had embezzled from it, and sold after destroying the marks thereon.
    8. Principal and Agent <@=>148(2) — Sale of Stored Property — Title.
    One purchasing cotton from the manager of a warehouse company engaged in storing cotton and issuing receipts therefor, providing for delivery of the cotton only on their return, gets no title, the manager not having the receipts, and having no authority to sell, and the warehouse company being guilty of no acts operating as an estoppel.
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    Trial of right of property to sequestered cotton between the Wichita Falls Warehouse Company, plaintiff, and the King-Collie Company, claimant. Judgment for plaintiff, new trial denied, an-d claimant appeals.
    Affirmed.
    C. B. Felder and W. L. Bibb, both of Wichita Falls, for appellant. Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellee.
   HUFF, O. J.

This is a trial for the right of 21' bales of cotton. The appellee, Wichita Falls Warehouse Company, sued the Northwest Compress .Company for the cotton and sequestered the same. The appellant, King-Collie Company, filed its affidavit and bond for the trial of the rights of property. The issues tendered by appellee are to the effect that it was in the warehouse business, and that it received the cotton in its warehouse on storage, and as such was entitled to the possession and had the ownership of the cotton; that it was unable to give the names of the owners of the cotton; and alleges, further, that one Morris, in its employ as manager of the warehouse, had embezzled the cotton and sold it to appellant. The appellant tendered issues that the cotton, if it was ever owned by or in the possession of ap-pellee, was purchased by it in good faith, without any knowledge of the embezzlement, and that, by employing Morris as manager with the right to control the cotton, was estopped, etc. The facts show, generally, that the appellee was in the warehouse business, receiving cotton on storage, and that it had employed one Morris, under a written contract, to manage the business and to receive cotton on storage, and to execute receipts therefor to the owner, and stipulating that the cotton should not be delivered without a return by the owner of the cotton of the receipt to the warehouse. The facta show that there were some 31 bales of cotton found in the possession of the above-named compress, with the marks and numbers placed on the cotton by the gin and warehouse obliterated or cut out, and that the tags on the cotton many of them were torn off. It is also shown that the books kept toy Morris were mutilated by erasures and changes made therein; that the warehouse checked up Morris, and found that there was a shortage of about 100 bales of cotton, and they employed an auditor to assist in checking him up and while at work on the books, etc., Morris assisted or was present for a day or two, but afterwards left, and, upon charges being filed against him for embezzlement, he was arrested in Oklahoma under an assumed name. It is an uncontroverted fact, shown by the testimony, that the 3Í bales of cotton in possession of the compress, was claimed by appellant to have been purchased from Morris, the manager of appellee. Later, however, the evidence shows that 10 bales of this cotton, known as the Moss cotton, appellant turned over to appellee, asserting that it Lad only-received these 10 bales as collateral on a debt due by Morris, the other 21 bales that appellant purchased from Morris.

Assignments 1, 2, and 3 urge error in overruling appellant’s special exception to appellee’s tender of issues on the ground that the tender of issues did. not name the owners of the cotton so deposited, and failed to set up a specific contract with the owners. The trial court overruled the special exceptions, as shown by the order of the court. The appellant, however, failed to have exceptions to the ruling of the court noted in the judgment overruling the exception, but appellant set up the action of the trial court in overruling the exception as error in its motion for new trial. The appellee here objects to the consideration of the assignments, on the ground that no exception was noted in the order to the action of the court on the exception to the issues presented. “Where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto.” Article 2062, R. C. S. “There shall be no bill of exceptions taken to the judgment of the court rendered upon those matters which at common law constitute the record proper in the case, as the citation, petition, answer, and their supplements and amendments, and motion for new trial or in arrest of judgment, and final judgment.” Rule 53 (142 S. W. xxi), for district and county courts; also rule 65 (142 S. W. xxii). It has been held that a bill of exception taken on the action of the trial court on exceptions to pleadings is not authorized and will not support an assignment, and that there is no sanction in the rules or statute for taking bills of exceptions to orders entered oh the minutes of exceptions. Sowers v. Yeoman, 62 Tex. Civ. App. 188, 129 S. W. 1153; Reasonover v. Riley, 150 S. W. 220; Withers v. Crenshaw, 155 S. W. 1189; Ilseng v. Carter, 158 S. W. 1163; Daniel v. Daniel, 128 S. W. 469.

It would appear from the statute and the rules, where the action of the court otherwise appears of record, no bill is required “to reserve an exception thereto.” It is customary to note in the entry exceptions to the action of the court, but in so far as we can find there is no statute or rule requiring such notation as a precedent requirement to review the action of the court. It has been held repeatedly, if a demurrer to a pleading is not shown to have been presented to the trial court, it will be considered as waived or abandoned, but we know of no holding that the demurrer will be considered waived if the action of the court thereon is not excepted to in the judgment entry. His action appears of record, and can be reviewed upon proper assignment, as could any other matter apparent of record. In the case of Western Union v. Forest, 157 S. W. 294, the order overruling the exception did not show that the defendant excepted to the action of the court in so ruling. It was said in that case:

“The assignment of error and motion for new-trial are sufficient to present the point. It was not necessary that appellant should have excepted or had the ruling incorporated in a bill of exceptions.”

The office of a bill of exceptions ia to make that a part of the record which otherwise would not be. Cunningham v. Wheatly, 21 Tex. 184. In this case' the action of the court on the pleadings is part of the record according to all the definitions as well as by the rules and statutes. To require an exception to be entered would, in effect, be to require a bill of exceptions in order to bring up the action of the’ court as a part of the record. To hold that the failure to except to the action of the court would preclude a consideration of the demurrers would in effect be to hold the defendant abandoned in the court below its exceptions to the pleading when the record shows it was insisting on them and called for a ruling thereon, which ruling was entered of record in the manner provided by law. We therefore overrule appellee’s objection to the consideration of these assignments.

Ordinarily we would be inclined to hold that the appellee should have named the owners of the cotton so deposited with it, but in this case it alleged that it was unable to give the owners, and, as it developed upon the trial from the evidence that this allegation was probably true, no error is shown. The facts show that the books kept by Morris and the numbers placed on the cotton by the gin and by the warehouse and tags had been obliterated and destroyed, and that it would have been difficult to trace just who had stored the cotton with appellee. The assignment will therefore be overruled.

The fourth assignment asserts that there was error in permitting, over appellant’s objections, the witnesses Hines, McConkey, and Warren to give certain evidence. The proposition presented under this assignment is that the declarations .by Morris, the agent of appellee, in the absence of appellant, were hearsay and self-serving. The effect of the evidence of these several witnesses was that Morris admitted there was a shortage in the number of the bales of cotton in the warehouse, while they were checking him up by the warehouse receipts, tags, and books, and that he stated that appellant then held the warehouse receipts. Morris was the manager of the warehouse, who, it was charged, embezzled the cotton and sold to appellant. The evidence in the case further shows in connection with this evidence, to which objection was made, that when Morris admitted the shortage, and stated that it had been delivered by him to appellant, the witness Hines, acting for appellee, called up a Mr. Thornburn, who was then representing the appellant, -and talked to him over the phone, and told him what Morris had said, anti that Thornburn then admitted he held the cotton found short, as admitted by Morris. We think this admission and the statement, as communicated to appellant, were admissible. The other declarations of Morris objected to tended to show that Morris did the numbering, or had it done, on the bales of cotton. This evidence tended to show acts done by him in furtherance of his design to disppse of the cotton in fraud of appellee’s rights. We think it was admissible to show that he had in fact embezzled the cotton. The fact that his statement as to the cotton designated as purchased by appellant was included in the statement we do not think rendered the evidence inadmissible for the evident purpose for which it was offered. If appellant desired that it be not considered on the question of identity or against it, it should have requested the court to limit the evidence to the purpose for which it was admitted. This does not appear to have been done, and we therefore believe the assignment should be overruled.

The fifth assignment asserts error to certain evidence given by Hines, McConkey, Smith, and Eawlkes. This assignment is so clearly multifarious that it is almost impossible to consider it. The testimony of the witnesses is entirely dissimilar, some of which was evidently admissible for some purposes. Apparently the assignment objects to certain matters testified to as conclusions drawn by comparison and deduction from the warehouse books and receipts of the compress, etc. It is asserted the books were not introduced in evidence or proven up, and that they were mutilated, etc. The propositions, some of them, are not relevant to the assignment. It is true the statement of facts is not burdened with the books, but it does show that a book was offered in evidence— just what hook is not shown— and while the witnesses were testifying they referred to the book, and most of the evidence objected to relates to the manner in which Morris was checked up and found short. This appears to have been done in connection with, and in reference to, numbers on the cotton, warehouse receipts, and the like. Evidently, Morris had erased, changed, and mutilated the books. Some of the evidence was clearly admissible to show the fraudulent purpose of Morris and his method. The appellant does not segregate admissible evidence from inadmissible, and the court is not called upon to do what it should have done by its objection. The assignment, proposition, and statements are so presented in the brief that we cannot determine certainly just what the contention of appellant is. The assignment will be overruled.

The sixth assi^hment is overruled. There were found 31 bales of cotton in possession of the compress, which had issued its certificate to appellant, 10 bales of which were known as the Moss cotton, of which appellant had the compress receipts; but it turned back this cotton to appellee, stating, first, that it had bought the cotton from Morris, but afterwards admitting that it held them only as collateral on a debt due by Morris. The other cotton so found was not turned over to appellee by appellant on demand because appellant then asserted it had purchased the 21 bales from Morris. We believe this testimony admissible as a circumstance establishing the identity. The evidence will authorize the inference that Morris embezzled the cotton, and that the Moss cotton was taken as a part of his scheme to defraud appellee, together with the 21 bales in issue.

The evidence objected to under the seventh assignment was admissible.

The eighth assignment asserts error in refusing a special charge requested by appellant for an instructed verdict. The evidence in this case shows that Morris was manager for the warehouse, and while he was manager the evidence warrants the finding that he embezzled and appropriated to his own use about 100 bales of cotton which appellee held in storage; that, in order to cover up his acts, he made erasures in the books and otherwise falsified and mutilated them. Thirty-one bales of cotton were found at the compress with the gin numbers and warehouse numbers cut out and destroyed. The appellant claimed those bales of cotton so found and admitted it got them from Morris, 10 of which it claimed it received from him as collateral to a debt. These 10 bales it surrendered without a suit; the other 21 bales here in issue it claimed to have purchased and paid for and refused to surrender. It is not shown that Morris had cotton of his own. This cotton he sold in violation of the trust reposed in him by the warehouse and evidently without its consent. The receipts for the cotton issued to the several owners were not produced by appellant, but in several instances the owners testified they did not sell to appellant, but to other persons. We do not think the mere fact that the witnesses could not absolutely identify the bales found by the marks and numbers as that which had been stored with appellee should defeat a recovery when the circumstances point with almost absolute certainty that these bales were 'part of the cotton which had been embezzled. Certainly the appellee made a prima facie case. The appellant did not seek to deny any of the admissions charged to have been made by it or to introduce any evidence to the contrary. The court properly, we think, refused to instruct a verdict for appellant.

The ninth assignment is overruled. The court’s charge is as explicit on the burden of proof as the one requested by appellant.

The tenth, eleventh, and twelfth assignments are overruled. The instructions requested as applied to this case did not present correct propositions of law, and in addition thereto they were general charges for a verdict while this case was submitted to a jury on special issues.

The thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth assignments are overruled. The special issues requested, in so far as correct, were submitted by the court in its general charge. The other charges were properly refused because the case was submitted on special issues. There was no error in refusing the instructions of which complaint is made in the seventeenth and eighteenth assignments, for the reasons heretofore pointed out in considering the evidence as to the Moss cotton.

The nineteenth and twentieth assignments are also overruled. The charge does not point out what particular opinion or deduction by the witnesses made from the books, etc., was sought to be withdrawn from the jury. Much, if not all, the evidence of the named witnesses was admissible. Most of the evidence relates to numbers or marks found on, the cotton and from receipts returned, etc. These books were kept by Morris and the entries made by him and the markings under his direction. To establish the wrongful taking this evidence was admissible. The cotton was found in possession of appellant, who admitted that they purchased it from Morris, and it is established that the cotton marks, tags, etc., were destroyed or mutilated on the cotton in question, and that this cotton came from the warehouse, and was placed at the compress by Morris and men working under his direction. It would have been improper to give the charges requested.

Assignments 21 to 27, inclusive, assert that the findings of the jury and judgment thereon are without evidence to support them. Apparently it is the contention of the appellant, because Morris was managing the warehouse, that he had the right to sell the cotton, and that he would therefore be acting within the apparent scope of his authority, which would protect appellant in the purchase of the cotton. The warehouse was receiving cotton on storage for others, giving its receipt to the owner so storing it, and we find no authority given to Morris to sell this cotton. The evidence is conclusive that Morris did sell the cotton to appellant, and, to say the least, appellant was extremely negligent in failing to get the warehouse receipts issued to the owners. Had it done so, its defense would have had foundation. It was bound to know the warehouse or Morris did not own the cotton so stored, but had only a special ownership, which entitled it to the possession of the cotton, with the imposed duty of keeping and caring for it. Ordinarily the transfer of the warehouse receipt passes the title to property stored. The evidence is sufficient that Morris sold and got the money for this cotton. Appellant bought this cotton with the outstanding warehouse receipts against it — at least appellant does not show the transfer to it of any receipt. The purchase of this cotton was out of the usual course of business. The evidence shows Morris established a system of mutilating the numbers and tags on the cotton, and that he also instructed the compress not to put the warehouse numbers on the receipt issued by the compress or on its books — a thing never done before, the custom being to place the number of the warehouse or gin on the compress books and receipts. The authority of an agent to keep and care for property does not give him the right to sell. A sale by him will pass no title. Morris was not clothed with any indicia of ownership of cotton stored in the warehouse. There is no act on the part of appellee shown by the evidence which would estop it from showing he had no such authority. The facts in this case indicate appellant must have known Morris could not sell stored cotton. It is a general rule in the sale of personal property that the purchaser cannot acquire a better title to the thing sold than the seller had. The vendee of property, of which the vendor had no title to or authority to sell, is not protected against the claim of the true owner, though he purchased in good faith and for a valuable consideration, where the owner is not guilty of acts which would operate as an estoppel. Stillman v. Hurd, 10 Tex. 109; Case v. Jennings, 17 Tex. 662; Bank v. Tufts, 63 Tex. 113; Woodward v. San Antonio Traction Co., 95 S. W. 76; McBrayer v. Smith, 145 S. W. 1053; New York, etc., v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206. A general power to act for the principal in his business and to manage his prop-perty conveys no implied right to sell such property unless sales are regularly in the line of the business intrusted with the agent. Hodge v. Combs, 1 Black, 192, 17 L. Ed. 157; Holmes v. Tyner, 179 S. W. 887. The contract employing Morris as manager of the warehouse limited his authority to receiving cotton tendered for storage and to issue receipts therefor, which required him to stipulate that cotton would only be delivered upon the return of the receipt. Nowhere was he authorized to sell the cotton, and he could deliver the cotton at the compress only upon the order of the owner. The appellant introduced no evidence showing that it tried to ascertain the authority of the agent, but it simply paid the money to Morris, without a showing that he had the original warehouse receipts, and without showing that it even demanded the same.

The twenty-eighth assignment again asserts that the verdict 'and judgment are without evidence to support them, and also asserts that it was entitled to a new trial on the ground of newly discovered evidence, attaching to its motion the affidavit of Mr. Nor-wood to the effect that he sold to appellant five bales of cotton, the numbers of which correspond to the bales claimed by appellant, as shown by the witness Smith. The appellant showed no diligence to secure such evidence before the trial. Norwood does not claim to have then been in possession of the warehouse receipts, and appellant, if it bought the cotton from him, evidently knew when the affidavit of claim was filed from whom it purchased the cotton, and ought to have had the receipts. The admission- was made by appellant that it purchased the cotton from Morris. This admission appellant did not deny or controvert upon the trial. If it purchased the cotton from Norwood, it did not purchase it from Morris; in fact, appellant pleaded only estoppel against appellee on the ground that its agent sold the cotton, and that he had been buying cotton for himself with the permission of appellee, etc. The trial court we think properly overruled the motion for new trial. The judgment will be affirmed.

HALL, J:, not sitting.
      <S=>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    FOGLE et ux. v. BAKER et al.
    (No. 7589.)
    (Court of Civil Appeals of Texas. Galveston.
    June 27, 1918.
    Rehearing Denied Oct. 10, 1918.)
    1. Adverse Possession <®=^94 — Five-Year Statute — Raiment oe Taxes.
    The five-year statute of limitation does not require, in order to acquire title by adverse possession, that taxes be paid before they become delinquent, but only that they be paid before suit.
    2. Limitation oe Actions <@==>5(1) — Statutes — Construction.
    Statutes of limitations are curative, and confer rights of property, which are as much entitled to protection as any other legal right. 8. Adverse Possession <@=>71(2) — Forged Deed — “Forgery. ’ ’
    The fact that a deed -was executed by “Wesley Baker” as “the sole heir of G. W. Baker, of Fayette county, Illinois,” does not render the deed a “forgery,” within the meaning of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5674, relating to advers'e possession, by reason of the fact that the deed conveys land which was at one time owned by George W. Baker, who has no descendant or relative named Wesley Baker.
    [Ed. Note. — For other definitions, see Words and Phrases, First and 'Second Series, Forgery.] 4. Adverse Possession <§=»71(2) — Forged Deeds
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5674, relating to adverse possession, it is immaterial that there is a forged deed in a chain of title, where other deeds are alone relied on to establish title.
    Appeal from District Court, Harris County; J. H. Harvey, Judge.
    Trespass to try title by George W. Baker and others against Lewis Fogle and others. From a judgment in favor of plaintiffs for an undivided one-half of the land, and in favor of defendants Fogle and wife on a cross-action for an undivided one-half of the land, plaintiffs and defendants Fogle appeal.
    Affirmed in part, and reversed and rendered in part.
    Hutcheson & Bryan, of Houston, for plaintiffs. Fred R. Switzer and Sam, Bradley & Fogle, all of Houston, for defendants Fogle.
   PLEASANTS, C. J.

This is an action of trespass to try title, brought by appellees, heirs at law of Daniel Baker, deceased, against appellants Lewis Fogle and wife, to recover a tract of 100 acres of land, a part of the A. F. Morse 640-acre survey, in Harris county. Appellees, William Giles and J. J. Sweeney, who held a mortgage upon the land executed by Lewis Fogle, were also made parties defendant. The defendants’ answer contains a general denial, plea of not guilty, pleas of limitation of three, five and ten years, a plea of improvements in good faith, and a cross-action in form of trespass to try title. Plaintiffs by supplemental petition pleaded a general denial and plea of not guilty; that plaintiffs’ ancestors, through whom they held, had died intestate; that no administration was had upon the estate of either, and that the period of limitation was suspended for one year after the death of each; that the five-year statute of limitation could not avail defendants because, in the absence of the five-year statute of limitation, they would deraign title through a forged deed.

The cause was tried without a jury in the court below, but the only issues submitted to the jury were those raised by defendants’ plea of improvements in good faith and the question of the rental value of the land for the two years next preceding the filing of the suit. The issue as to improvements in good faith was decided adversely to defendants and the rental value of the property for the two years was found to be $200. Upon the return of the verdict judgment was rendered by the court in favor of plaintiffs for an undivided one-half of the land, and the sum of $100, and in favor of defendants Fogle on their cross-action for an undivided one-half of the land. From this judgment both parties have appealed.

The facts upon the issue of title to the land, which are undisputed, are as follows:

J. E. Foster was the common source of the title under which each of the parties claim. In 1875 J. E. Foster executed a deed convejdng the land in controversy to George W. Baker for a recited consideration of $1. The land was in fact disposed of by lottery; the tickets in the lottery having been sold for $1. A ticket in this lottery bought by George W. Baker proved the winning ticket, and this was the actual consideration for the conveyance from Foster to Baker. In 1881 George W. Baker, for a consideration of $10, conveyed the land to Daniel Baker. This consideration was paid by the grantee in said deed. Daniel Baker died in 1901, and Ms widow, who was Ms wife at the time the land was conveyed to him, died in 1910. The appellees are the heirs of Daniel Baker and his wife. Neither George W. Baker, Daniel Baker or wife, nor any of appellees, have ever been in possession of the land. ^

On November 9, 1898, F. A. Reichardt, administrator of the estate of J. E. Foster, deceased, for a consideration of $900, conveyed to Violet Foster a tract of 160 acres of land in Bell county and another tract of 160 acres in Comanche county, “and all interest of the estate of J. E. Foster, deceased, in all lands, wherever situated, except such as are included in the inventory and appraisement of the estate of J. E. Foster.” The land in controversy was not inventoried in said estate. On November 2, 1908, Violet Foster conveyed the land in controversy to C. R. Brace for a consideration of $25. This deed was recorded on February 28, 1907. C. R. Brace conveyed the land to Lewis Fogle on February 20, 1907, for a consideration of $1,500. The deed was recorded on the day of its execution. On October 13, 1906, Wesley Baker conveyed the land to C. R. Brace. This deed recites that the grantor, Wesley Baker, was the sole heir of G. W. Baker, deceased, of Fayette county, Ill. This deed was recorded April 27, 1915.

It is agreed by the parties that the George W. Baker to whom the land was conveyed in 1875 by J. E. Foster is still alive, and has eight living children, and has no relative by the name of Wesley Baker. Defendant Lewis Fogle has been in actual, exclusive, and continuous possession of the 100 acres of land from the spring of 1907, claiming it under his deed from Brace, and cultivating, using, and enjoying the same. He has paid all taxes on the land for each year from 1906 up to and including the year 1916. This suit was filed October 2, 1916. The date of payment of the 1906 taxes was not shown. The taxes for 1907 were paid June 4, 1908, and the taxes for 1913 were paid on, November 30, 1914. The taxes for each of the remaining years were paid before they became delinquent.

Upon this state of the evidence the trial court held that defendant Fogle had not acquired title by limitation to the undivided one-half of the land inherited 'by plaintiffs from the wife of Daniel Baker, who, as before stated, died in 1910, because of the failure of Fogle to pay the taxes for the years 1907 and 1913, respectively, before they became delinquent. If, in order to acquire title by limitation under the five-year statute of limitation, the taxes on the land must be paid each year before they became delinquent, Fogle has not acquired title by limitation to the interest in the land owned by Sirs. Baker. Limitation began to run in Fogle’s favor when he took possession under his recorded deed from Brace in 1907, but according to the holding of the trial court his possession for the year 1907 cannot be considered as a part of the five-year period required by the statute in order to acquire title, because the taxes for that year were not paid until after they became delinquent in 1908. Beginning, then, with 1908, for the next succeeding five years the taxes for each year were paid before they became delinquent. This perfected title by limitation to the undivided one-half of the land inherited by plaintiffs from Daniel Baker; but, as Mrs. Baker died in 1910 and no administration was had upon heiv estate, the statute was suspended for one of these five years, and the taxes for 1913, the next succeeding year to said five-year period, not having been paid before they became delinquent, the trial court held that no concurrent possession and payment of taxes for a period of five successive years was shown as to Mrs. Baker’s interest in the land.

Appellants, under an appropriate assignment of error, assail this holding of the trial court, and we think the assignment should be sustained. We do not think the decisions of our Supreme Court, or any of our Courts of Civil Appeals, sustain the holding of the trial court that to acquire title under the five-year statute of limitation it is necessary, not only that there be peaceable and adverse possession and cultivation, use, and enjoyment of the land under a recorded deed, and the payment of taxes thereon, for a) period of five successive years, but that the taxes for each of said years must be paid before they become delinquent. There is nothing in the language of the statute that requires that it be given such construction, and it seems to us it would be judicial legislation for the courts to require the taxes to be so paid to entitle the possessor of land to the protection and benefits of the statute. The statute has been uniformly construed by our courts as requiring that the possession and payment of taxes shall concur in the sense that the years for which the taxes are paid must be the five successive years in which the land was occupied, used, and emjoyed under a recorded deed. It has never been held that the taxes for each of these years must be paid during the year in which they became due, or before they became delinquent.

In the case of Showden v. Rush, 76 Tex. 197, 13 S. W. 189, our Supreme Court held that the payment of taxes for the fifth year of the possessory period, made after the occupancy of the land had ceased and after the taxes had become delinquent, was a sufficient compliance with the statute. This decision has not been overruled or modified by any of our later decisions. In the case of Club Land & Cattle Company v. Wall, 99 Tex. 591, 91 S. W. 778, 122 Am. St. Rep. 666, it was held that the payment of taxes for the fifth year of the period of occupancy, made after suit for the land has been filed, would not avail the defendant under Ms plea of limitation, when the evidence showed that the taxes for that year were due and defendant had more than a month to pay same before plaintiff’s suit was filed. Hie extent of this holding is that the requirements of the statute must be complied with before suit is brought, and there is nothing in that opinion which sustains the ruling of the trial court in this case that the statute is not complied with, unless the taxes for each year are paid before they become delinquent. The full scope of the holding in that case is shown by the following quotation from the opinion:

“The indulgence by the state to the 1st of March did not relieve the taxpayer of the duty to pay at any time between the 1st of October and the 1st of March. When this suit was instituted, the possession of the half interest which belonged to the firm had continued for full five years and more, hut the title had not been divested out of the true owners of the land, because the taxes on that half interest for 1903 had not been paid; and, there being no title in Matlock, Miller, and Dyeus at the date of the institution of this suit, no act of theirs done thereafter could divest the title out of the plaintiff.”

The only expression of our Supreme Court which in any way indicates that that court now dissents from the conclusion that the five-year limitation statute does not require the taxes to be paid during the year in which they accrue, or before they become delinquent, is found in the case of Capps v. Deegan, 92 Tex. 600, 50 S. W. 1117. In that case the Court of Civil Appeals held that the payment of taxes for the years 1890, 1891, and 1892 on November 29, 1892, was a sufficient compliance with the statute. In a memorandum opinion, refusing a writ of error in the case, the Supreme Court says:

“We are not prepared to concur with the Court of Civil Appeals in holding that the ap-pellee made out her title to the land in controversy by virtue of the statute of limitations of five years, but * * * she showed title otherwise. The application is therefore refused.”

. Appellee in that case set up a record title to the land and also a title by limitation. The trial court and Court of Civil Appeals both held her record title bad, but sustained her title by limitation. It does not appear from the opinion of the Court of Civil Appeals that there were any objections to the limitation title, other than the time of the payment of taxes; but there may have been, and it is stated in a written argument filed by counsel for the appellant that the record in that case does disclose a serious question as to the sufficiency of the possession, which was presented and urged by appellant. This may have been the question in the mind of the Supreme Court when it declined to concur with the Court of Civil Appeals in holding that appellee showed title by limitation. In any event, we do not feel constrained to interpret this expression of the Supreme Court as deciding that the statute requires the taxes to be paid before they become delinquent.

This court, in the case of Hirsch v. Patton, 49 Tex. Civ. App. 499, 108 S. W. 1015, after a review of the cases upon this question, including the Capps v. Deegan Case, supra, concludes the discussion as follows:

“We are inclined to think that, in order for the payment of taxes to be concurrent with the possession, use, or cultivation under recorded deed, such payment mus't be made for each year with reasonable promptness, either when due and demandable, or within such reasonable time thereafter as is usual and customary in the payment of taxes.”

In that case the taxes were not paid before they became delinquent, and this court declined to hold that the failure to so pay them prevented the acquisition of title under the five-year statute of limitation.

The statutes of limitation are curative statutes, and confer rights of property which are as much entitled to protection as any other legal right. In the language of the Supreme Court of the United States in the case of McCluny v. Silliman, 3 Pet. 270, 7 L. Ed. 676:

“They rest upon sound policy, and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction, to evade the effect of those statutes.”

Appellees by cross-assignments contend that the five-year statute of limitation is not available to appellants, because “in the absence of said statute appellants would deraign title through a forged deed,” and are claiming title under a forged deed. This construction is based upon the assumption that the deed from Wesley Baker to C. R. Brace was “a forged deed,” in the meaning of that term as used in article 5674, Vernon’s Sayles’ Civil Statutes. We are not inclined to agree with appellees that the fact that the George W. Baker to whom Poster conveyed the land is living, and that he has not and never had a child or relative named Wesley, Baker, is sufficient to show that the deed from Wesley Baker, which recites that he “is the sole heir of G. W. Baker, of Fayette county, Ill.,” is a forgery. There is no evidence that this recital is not true; no evidence showing or tending to show that this deed was not executed by Wesley Baker, the sole heir of G. W. Baker, deceased, of Fayette county, Ill., except the fact that the deed conveys land which was at one time owned by a George W. Baker who is now living and has no descendant or relative named Wesley Baker. It is certainly not forgery to convey land that the grantor does not own, and it seems to us that this is all that is shown by the evidence in regard to the deed in question. If, however, it be conceded that the deed is a “forged deed,” as that term is used in the statute, appellees’ contention cannot be sustained, because appellants are not claiming under this deed. The point has been directly decided by the Court of Appeals for the Third District in the case of Olsen v. Creele, 190 S. W. 240. In that case it was contended that the statute of limitation was not available to de-iendant because one of tbe deeds in bis chain of title was a forgery. In disposing of this question Chief Justice Key, speaking for the court, says:

“But it is also contended on behalf of appellant that the five-year statute of limitation cannot avail in this case, because the undisputed testimony shows that a deed in appellees’ chain of title, executed many years prior to the Allen deeds hereinbefore referred to, and purporting to have been executed under power of attorney from appellant, was a forgery. It is true that the statute relating to five-year limitation declares that ‘no one claiming under a forged deed, or deed executed under a forged power of attorney, shall be allowed the benefits of this article’; but in their plea of five-year limitation appellees did not base their right to such limitation upon the deed charged to be a forgery, but upon deeds executed by the Allens, as hereinbefore stated, and which deeds were free from any suspicion of forgery. We hold that the provision of the statute denying the right to use a forged deed as the basis of the five-year statute of limitation has reference to the deeds relied on in support of that plea, and not to- other deeds, not necessary to support such plea of limitation. Hence we hold that the proviso in the statute referred to has no application to this case.”

Appellant’s possession and claim was under the recorded deeds from Violet Foster to Brace and from Brace to himself. The deed from Wesley Baker to Brace, while turned over to him at the time Brace conveyed the land to Fogle, was not placed of record until 1915, after appellant’s possession had continued for eight years, and was not the deed relied on by appellants under their plea of limitation.

Our conclusion upon the question above discussed renders a determination of the other questions presented by appellants as grounds for á reversal of the judgment unnecessary. We conclude that, for the reasons above stated, the judgment of the trial court in favor of appellants for one-half of the land should be affirmed, and that portion of the judgment awarding appellees one-half of the land and $100 should be reversed, and judgment here rendered for appellants; and it has been so ordered.

Affirmed in part; reversed and rendered in part.
      @=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    JACKSON et al. v. GRAHAM et al.
    (No. 6062.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 19, 1918.
    Rehearing Denied Oct. 16, 1918.)
    1. Boundaries <§=>3(3) — Control op ObJECTS*
    In boundary suit, instruction that, in locating land lines and corners, resort must first be had to natural and artificial objects called for, without variation for course, distance, quantity, or other facts, was proper.
    2. Boundaries <§^41 — Instructions — Disputed Landmarks.
    ' In boundary suit, where plaintiffs claimed corner at tree marked p, and defendants claimed the corner at a different tree, alleged to be so marked, but on which the letter was indistinct, instruction describing plaintiffs’ claimed tree, and requiring verdict for plaintiffs, if such was the corner, held proper.
    3. Trial @=>203(3), 350(1) — Instructions — Special Issues — Issues op Each Party.
    When a case is submitted on a general charge, issues of each party should be affirmatively submitted, but such is not the case if the submission is on special issues.
    4. Boundaries @=>25 — Junior Survey — Coincident Corners.
    Where junior survey located northwest corner at the southwest corner of a senior survey, and called for a marked tree at that point, instruction controlling findings by the call for the tree in the junior survey held proper.
    ■Appeal from District Court, ZSavala County; R. H. Burney, Judge.
    Action by Mary Louise Graham, and others against T. J. Jackson and others. Judgment for plaintiffs, and defendants Jackson appeal.
    Affirmed.
    George C. Herman, of Batesville, G. C. Jackson, of Crystal City, G. B. Fenley, of Uvalde, and George Powell, W. C. Linden, and Joe H. H. Graham, all of San Antonio, for appellants. Wt B. Teagarden, of San Antonio, and L. Old, of Uvalde, for appellees.
   SWEARINGEN, J.

Mary Louise Graham, joined by her husband, J. W. Graham, George A. Norsworthy, and Ross E. Doughty, Jr., a minor, by his guardian, Ross E. Doughty, all appellees, brought this suit in trespass to try title to lands described, and for damages against T. J. Jackson -and wife, Emma Jackson, and M. Peebles and wife, Margaret Peebles. T. J. Jackson and wife impleaded M. Peebles and wife upon their alleged covenant of warranty.

Upon the trial the cause developed into a boundary, suit. The only two issues were: First, the location of the common boundary between surveys Nos. 51 and 50, which common line was the south boundary of No. 51 and the north boundary of No. 50; second, the issue of the rental value of the land in dispute. Appellants disclaimed as to all land in No. 51 and appellees disclaimed as to all.land in No. 50.

The cause was submitted upon special issues to the jury. Judgment was in favor of appellees Mary Louise Graham and husband, J. W. Graham, George W. Norsworthy and Ross E. Doughty, guardian of Ross E. Doughty, Jr., establishing the boundary on the line claimed by appellees, and against T. J. Jackson and Emma Jackson for damages in the sum of $50, with interest at the rate of 6 per cent, per annum from September 23, 1917. M. Peebles and Margaret Peebles were dismissed from the suit at the cost of T. J. and Emma Jackson.

The facts are that J. W. and Mary Louise Graham, George W. Norsworthy, and Ross E. Doughty, Jr., owned the land in survey No." 51, and T. J. and Emma Jackson owned the land in survey No. 50. The south line of No. 51 and the north line of No. 50 were identical. No. 51 was surveyed and patented prior to survey No. 50. The field notes of No. 50 established the N. W. comer of No-. 50 and the S. W. corner of No. 51, and called for a bearing tree described thus: A live oak 20 inches in diameter standing on the brink of the bank (the east bank of the Leona river is previously mentioned) marked P bears N., 47 W., 9.2 vs.

The only object testified to by any witness to identify the location of this common corner, S. W. of 51 and N. W. of 50, was the above-mentioned witness tree marked when survey No. 50 was surveyed for the patentee, Sanchez, whose title the Jacksons own. There was evidence of two live oak trees marked p, both near the east bank of the Leona river, but some distance apart. Appellants’ testimony tended to identify the one up the river as the original marked bearing tree; appellees’ testimony tended to identify the one down the river as the original bearing tree. Whichever tree was proven to be the original witness tree controlled the determination of this case. The tree identified by appellees was clearly marked as described in the original field notes, and the mark.was on the side of the tree facing the comer claimed by appellees to be the N. W. corner of No. 50. The tree attempted to be identified by appellants had a mark that looked as much like a Catholic cross as the letter P. In fact, several witnesses testified that they had carefully examined this miark and were certain that it was not, and had never been, a letter P. Witnesses for appellants admitted the mark would not be recognized as the letter P without careful examination, and even then it could not be readily or positively distinguished from a Catholic cross. Moreover, the evidence showed that this mark was on the opposite side of the tree from the location of the N. W. comer of No. 50 as claimed by appellant. The tree identified by appellees was recognized and remembered by several witnesses as the original bearing tree; whereas, the tree attempted to be identified by appellants was newly discovered by Surveyor Jowers, by means of a process of checking, reversing, and long-range measurements, more or less scientifically made. No witness seems to have had any prior knowledge of this newly discovered tree, and, even when happened upon by Surveyor Jowers, resort to the aid of careful examination was necessary to create the idea that the mark was the letter P, and this careful study failed to put the mark on the side of the tree towards the corner claimed, though the “cuts” which the field notes described as over and under the letter P were on the side of the tree opposite from the mark.

The rental value of the land was proven.

The first assignment is that the verdict is contrary to the evidence. We have carefully examined the entire statement of facts, and have found an abundance of testimony, as indicated in our finding of facts, to sustain the jury’s finding. The first assignment is overruled.

The second assignment contends that the court erred in submitting to the jury the following special issue requested by appel-lees:

“You are charged, gentlemen, that in locating land lines and corners resort must first he had to the natural and artificial objects called for in the grant, if any of these can be found, and if any of these can be found the lines and corners must be established by them, and course, distance, quantity, or any other facts or circumstances cannot be considered to vary the result of establishing the lines or corners as they would be established by such natural or artificial objects, if found. So in this case, if you find and believe from the facts that the live oak tree and the two stumps referred to by Roy Benson and other witnesses for plaintiffs as being the witness tree for the southwest corner of survey No. 51, are the witness trees called for in the patent to surveys No. 50 or No. 51, or if you find and believe that either the live oak tree or the said stumps so spoken of by said witnesses are, or any one of them is, one of the witness trees called for in either one of said patents, then it is your duty to establish the southwest corner of survey No. 51 at the place claimed by plaintiffs, without considering any other facts or circumstances, if there are any by which this result would be defeated, and in such case, if you so find, you will answer question No. 1 in the affirmative.”

The court instructed the jury, without objection, that under the undisputed evidence the southwest corner of survey No. 51 and the northwest corner of survey No. 50 are common corners.

The testimony introduced by appellees located the common corner, being the N. W. corner of 50 and S. W. corner of 51, by proving the identity of two stumps and a tree marked g as the three original bearing trees called for in the field notes of No. 50. The testimony indicated that the two stumps were the remnants of two of the bearing trees and the marked live oak tree was the identical tree.

Appellants’ testimony tended to identify other trees found at another point as the original bearing trees called for in the original field notes of No. 50. As stated, the sole issue sought to be determined by the jury was which bearing trees were the ones in fact selected by the original survey.

The first question by the court was as follows:

“Do you find from a preponderance of the evidence in this case that the common corner on the Leona river of surveys Nos. 50 and 51, as mentioned above, upon the ground as originally established by the surveyor who located survey No. 51, is at a point on the north bank of the Leona river near a large live oak tree marked with the letter P, and two live oak stumps, and at a point as claimed by the plaintiffs and as testified to by Surveyor Benson and other witnesses? Answer ‘Yes’ or ‘No.’ ”

By this question the jury were required to find the true location of the N. W. corner of survey No. 50. The evidence given the jury consisted of evidence of old fences, ditclies, a bridge, a lane, various trees, a footpath, common reputation, etc. By this specially requested issue, to which objection is made, the jury were instructed as to the relative importance of those natural objects called for in the original survey, and identified as the actual footprints of the original surveyor, and to that end the jury were instructed that, if they found the tree claimed by appellees to be the identical tree marked by the original surveyor, that fact should control all facts in conflict therewith. We believe this is the rule of law, and that the requested issue applied this rule to the facts of this case. Bolton v. Lann, 16 Tex. 96, see page 112, Hubert v. Bartlett’s Heirs, 9 Tex. 97, 98; Anderson v. Stamps, 19 Tex. 460; Richardson v. Powell, 83 Tex. 588, 19 S. W. 262; Schunior v. Russell, 83 Tex. 83, 18 S. W. 484; Ayers v. Harris, 77 Tex. 108, 13 S. W. 768; Boydston v. Sumpter, 78 Tex. 402, 14 S. W. 996; Schaeffer v. Berry, 62 Tex. 705; Davis v. Smith, 61 Tex. 18.

Criticism is made by appellants of the terms used by the court to describe the tree. The criticism is that these terms used in the description of the tree gave undue prominence to the evidence of appellees. If the two trees could have been distinguished by designating one as the P tree and the other the T tree, the court no doubt would have done so. But both trees were designated by the evidence as P trees. The most natural designation, therefore, was the appellees’ P tree or the appellants’ P tree. This was in effect the description used by the court in its explanatory charge given at the request of appellees. We are unable to say that any injury was caused to appellants by reason of the court’s descriptive terms. The second assignment is overruled.

The third assignment complains of the trial court’s refusal of appellants’ requested instruction, which reads as follows:

“That if the jury believe from the testimony that the live oak tree situated on ¡he east bank of the Leona river, about 75 yards below the pumping plant, is marked with a P, and is the bearing tree at the N. W. corner of survey No. 50, the Sanchez, called for in patent to said survey, and referred to as the tree marked P, they will find a verdict for defendants.”

This requested instruction is clearly the substance of the first question submitted by the court, except that this instruction is given from appellants’ point of view. It is well settled that, when a case is submitted to a jury upon a general charge, the issues of each party should be affirmatively submitted. Ry. v. McGlamory, 89 Tex. 635, 35 S. W. 1058. But where the case is submitted on special issues, this rule does not seem to apply. Fain v. Nelms, 156 S. W. 281, § 4; Ry. v. Dawson, 201 S. W. 247, § 5; G. H. & S. A. v. Hodnett, 182 S. W. 7. The third assignment is overruled.

There is no merit in the fourth assignment. The substance of the complaint therein presented is that the court authorized the jury to control its findings by a natural object called for in the field notes of survey No. 50, which survey was junior to survey No. 51, which natural Object was not called for in the senior survey. It is true that the witness tree marked F was not mentioned in the field notes of No. 51, and is called for only in the field notes of the subsequent survey of No. 50. However, this marked bearing tree establishes the N. W. corner of survey No. 50, and the field notes of No. 50 expressly establishes this N. W. corner of No. 50 at the S. W. corner of survey No. 51. Therefore when the N. W. corner of No. 50 is found the S. W. corner of No. 51 is also found. We overrule the fourth assignment, and also the fifth, sixth, and eighth, which present a similar question.

Under the seventh assignment the verdict for $50 damages is assailed as contrary to the evidence. The proposition under this assignment contends that appellants withheld from appellees no lands belonging to them not leased and rightfully possessed by appellants. We find that there is evidence that the land claimed by appellants in this suit was neither owned nor leased by appellants, but used by them without the consent of ap-pellees, and we further find that $50 is a reasonable rental value of the land so used, as found by the jury.

The judgment is affirmed.

       — other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    COHEN et al. v. CITY OF HOUSTON et al.
    (No. 361.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 6, 1918.
    Rehearing Denied Oct. 9, 1918.)
    1. Appeal and Error <&wkey;1099(l) — Law oe the Case.
    Express holdings on former appeal that limits of city were legally extended, and that even were this not so there was a de facto municipality which Could be attacked only by the state, foreclose the questions.
    2. Constitutional Law <&wkey;63(2) — Powee oe Legislature — Change by Constitution.
    Power to extend city limits, previously vested in the Legislature, could, by amendment of the Constitution, be vested in the voters of the city.
    3. Constitutional Law <&wkey;65 — Powee oe LEGISLATURE — DELEGATION TO YOTEBS — MUNICIPAL Boundaries.
    Power of Legislature to extend city limits could by statute be delegated to the voters of the city.
    4. Municipal Corporations <&wkey;3&wkey;ExTENsion oe Limits — Submission to Vote — Curative Acts.
    If the voters of a city had not been given power to extend city limits by amending its charter, without vote of the inhabitants of the outlying territory required by Rev. St. 1911, art. 781, then such an attempt, subsequent to enactment of Acts 33d Leg. c. 147 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a-1096i), was rendered effectual, by Acts 34th Leg. e. 94, § 1 (Vernon’s Ann. Oiv. St. Supp. 1918, art. 1096j), and Acts 35th Leg. c. 30, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1096k), in terms validating attempted amendment of charter in such a city at such time.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by H. F. Cohen and others against the City of Houston and others. From an adverse judgment, plaintiffs appeal. .
    Affirmed.
    See, also, 176 S. W. 809.
    Wilson, Dabney & Ring and Wm. H. Wilson, all of Houston, for appellants. J. C. Hutcheson, Jr., and W. J. Howard, both of Houston, for appellees.
   BROOKE, J.

This is an action filed by H. F. Cohen, Wm. H. Wilson, Mrs. C. W. Walker and husband, J. C. Walker, B. Meineke, Miss Sallie Conner, Miss Susan Conner, W. T. Palfrey, J. J. Scttegast, M. P. Geiselman, B. C. Dissen, and H. O. S.chneider, plaintiffs, against the city of Houston and Ben Campbell and others, sued in their ofiicial capacity as mayor and aldermen of the city of Houston, setting up that the plaintiffs were the owners of real estate situated in lands outside of the city of Houston and in the neighborhood thereof, and that the voters in the city of Houston had, by an election held in said city, undertaken to make the said outlying lands a part of said city, and that said city was proceeding to assess, levy, and collect the taxes of the city of Houston on said outlying property belonging to plaintiffs, and praying an injunction against the collection of any city taxes off of said property, and for other relief.

General demurrers were sustained by the court to said petition, and also a general demurrer, on the ground that the question of the liability of said property to pay taxes to the city of Houston could be raised only by the state of Texas in a quo warranto proceeding. The plaintiffs declined to amend, the suit was dismissed by the court, and this appeal was taken.

The case was originally filed October 14, 1914. Plaintiffs’ second amended original petition was filed March 9, 1917, and the following is the prayer of said petition:

“Wherefore plaintiffs pray that this court enter its judgment declaring the invalidity and nullity of the proceedings herein attacked, and removing the cloud from the title of these plaintiffs herein described, and enjoining and restraining the collection of any taxes of the city of Houston off of said territory, and off of property therein situated, and particularly of the lands of these plaintiffs situated within said territory, and the doing of any other act by the city of Houston whereby it shall claim or assert that the 'said described lands or any part of them are a part of the city of Houston, and for all other relief, both general and special, legal and equitable, to which the plaintiffs may be entitled.”

The defendants filed, along with other pleadings, various exceptions to said pleadings, including, among others, a number of general exceptions, each stating the ground on which it was urged.

The court, on March 14, 1917, entered its judgment, and decree that the defendants’ general demurrers Nos. 5, 6, 7, and 8 to the allegations of plaintiffs’ petition be sustained, and that defendants’ general exceptions Nos. 9, 10, 11, 12, 13, 14, 15, 16, 18a, and 18d, to the effect that the plaintiffs, as property owners and residents of the annexed territory, were without legal authority to maintain the action, and that same could only be maintained by the state in a quo warranto proceeding be sustained, and that all the remainder of defendants’ exceptions to plaintiffs’ said amended petition be overruled, to which the defendant excepted, and thereafter, the case being called for trial, plaintiffs by their counsel declined to amend their pleadings, upon which the court dismissed the action, to which judgment the plaintiffs excepted and gave notice of appeal.

The case as originally filed was not only to enjoin the taxation of property within the attempted annexation, but was also to enjoin the issuance of bonds in the sum of $4,500,-000 against the city of Houston. This case went up to the Court of Oivil Appeals at Galveston heretofore (176 S. W. 809), and that court held that the temporary injunction be refused.

The assignment of error as presented is:

“The court erred in sustaining the general demurrer to plaintiffs’ petition, because that the citizens of Houston held an election among the inhabitants of said city, and undertook to annex outlying territory, a part of Harris county, and its population, to said city equal in area to the true limits of the city, and although as much as two-thirds of this territory so sought to be annexed consisted of agricultural or of pasture land, or of woodland, or of other land which was not in any sense urban land, or needed for any city purpose or use, and because the authority contained in the Constitution was to adopt or amend the charter of a city of more than 5,000 inhabitants, and because such agricultural and pasture and other nonurban land was not, within the sense of the word as used in the Constitution, or in the laws, any part of a city, or authorized to be made such by any subordinate body or community, that in so far as the voters of Houston undertook to incorporate said rural property into the city of Houston they were acting beyond the authority contained in the Constitution itself, or in any of the laws, and that hence, so far as they undertook to incorporate said agricultural, pasture, and other nonurban land into the city of Houston, their action was null and void, without any authority, or color of authority, in the law, and wholly ineffective for any purpose; and, being- void to that extent, the whole attempted extension of the limits is null and void, since the courts possess no power to make an extension of the limits of Houston in the absence of a lawful extension made by some body or community having power to do so.”

The proposition under this assignment is:

“The authority given by the Constitution is that ‘cities having more than five thousand inhabitants may, by a majority vote of the qualified voters in said city, at an election held for that purpose, adopt or amend their charters.’ The voters of a city, by virtue of this grant to adopt or amend a charter of said city, are not given unlimited power of legislation to extend incorporation over outlying territory and population. A necessary limitation on the powers granted is contained in the term ‘cities’ and its definition. The judicial decisions of Texas give to the word ‘city,’ when used in such connection, a definite and fixed meaning. It means a collection of inhabited houses. The term carries with it the idea of a considerable aggregation of people, living in close proximity. 'Defined by what it is not, in the Texas law a city population is distinguished from a rural population, which is understood to signify a people scattered over the country, and engaged in agricultural pursuits, or some similar vocation requiring a considerable territory for its support. A section of country so inhabited cannat be called a city, nor treated as a part of a city, without doing violence to the meaning ordinarily attached to that word. Where any considerable amount of agricultural, grazing, or timber land not used for, or susceptible of, city use is added to a city by the vote of a new charter to such city by its (qualified voters, such annexation of timber, grazing, and agricultural lands is void, and the whole annexation is void; for there is no power in the courts to create an addition to the city less than that which has been attempted, but which' is ineffective and void, because of the absence of any authority to make the particular extension.”

On the other hand, it is contended that appellants’ first ■ assignment of error complains of the overruling of the demurrer because it involves the holding that the majority of the voters of the city of Houston, at an electioni held ¿for that purpose, could amend the charter of said city, so as to extend its limits to include, ‘together with other territory, certain agricultural, pasture, and other nonurban lands.

In the case of Cohen v. City of Houston, reported in 176 S. W. 809, the court discussed the Acts of the 33d Legislature (chapter 147, Vernon’s Sayles’ Annotated Civil Statutes 1914, arts. 1096a-1096i inclusive), which were adopted to put into effect the amendment to the Constitution, art. 11, § 5, which authorized cities to adopt or amend their charters, but provided that no such charter should contain any provision inconsistent with the Constitution of the state or the general law, which act gave to a city adopting its own charter under that amendment power to fix boundary limits, providing for the extension of boundary limits and the annexation of additional territory, and held that the act superseded, in so far as such cities were concerned, Revised Statutes 1911, art. 781, which requires a vote of the inhabitants of outlying territory before the same can be annexed to a city, so that a provision of the city charter, authorizing it to extend its boundaries to include adjacent territory without vote of the inhabitants of such territory, does not conflict with a general law.

In this case we quote from the opinion of the Galveston Court of Civil Appeals as follows:

“We shall first consider the contention of appellants to the effect that the extension of the city limits so as to include a larger area of outlying territory was illegal and void.
“As has been hereinbefore shown, the special act of 1907, granting a charter to the city of Houston, defined the boundaries thereof as four miles square, of which the center of the courthouse square, in Harris county, in the city of Houston, should be the center. At the time of the passage of the special act no power was lodged in any incorporated city in this state by general law by which it could, in any manner, extend its boundaries, except in the manner prescribed by article 574 of chapter 10, tit. 18, Revised Statutes 1895 (article 781, Revised Statutes 1911), which, in part, reads as follows:
“ ‘Whenever a majority of the inhabitants qualified to vote for members of the state Legislature of any territory adjoining the limits of any city, incorporated under or accepting the provisions of this title, to the extent of one-half mile in width, shall vote in favor of becoming a part of said city, any three of them may make affidavit to the fact, to he filed before the mayor, who shall certify the same to the city council of said city. The said city council may by ordinance receive them as part of said city; from henceforth the territory so received shall be a part of said city.”
“In 1912 an amendment of section 5, art. 11, of the Constitution of Texas, commonly known as the ‘Home Rule Amendment,’ was adopted, which reads as follows:
“ ‘Cities having more than 5,000 inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state.’
“Appellants contend that this provision of the Constitution, expressly prohibiting the insertion in a city charter of any provision inconsistent with the general laws, was a direct prohibition against the city of Houston to provide in its charter, by amendment, for the extension of its boundaries in any manner or over a greater area than as provided by general law; and that as the manner of the extension of boundaries and the area over which such boundaries might he so extended were prescribed by general law, viz. article 781, Revised Statutes of 1911, the attempted extension by the city in any other manner than that prescribed in said article was illegal and void.
“We shall not pause to determine whether the article quoted applies to the manner of extending the boundaries of cities incorporated by special act of the Legislature. It will be noted that title 18, Revised Statutes of 1895, relating to cities and towns, provides the method by which they may he incorporated, and prescribes their powers and the duties of its officers. It will be observed that the article quoted provides the method by which territory adjoining the limits of a city ‘incorporated under or accepting the provisions of this title’ may become a part of such city. It may be that a city incorporated by a special act, and not under the general laws, which should, by •an amendment to its charter, enlarge its boundaries, should not be controlled by the provisions of article 574, which prescribes the manner in which a city incorporated under the provisions of title 18 may acquire additional territory, and that such an amendment would not he inconsistent with any general law of the state that is applicable to such a city. But this is a question that is not necessary for us to now decide. But if we should assume that article 574 was the only general law which prescribed the method by which a city of either class might extend its boundaries, then we think that any city, whether incorporated by special charter or under the general law, would he bound thereby, and that any provision of a city charter or of an ordinance which undertook to provide a different means of extending the city limits than that therein provided would be inconsistent therewith, illegal, and void. But is the article in question the only general law upon the subject? In 1913, before the adoption by the city of Houston of the amendment to its charter whereby its boundaries were extended, the Legislature adopted an enabling act to put into effect the above-quoted amendment to the Constitution (Acts 1913, p. 307), wherein it is provided:
“ ‘That by the provisions of this act it is contemplated to bestow upon any city adopting the charter or amendment thereunder the full power of local self-government, and among the other powers that may be exercised by any such city the following are enumerated for greater certainty: * * * The power to fix boundary limits of said city, to provide for the extension of said boundary limits, and the annexation of additional territory lying adjacent to said city, according to such rules as may be provided by said charter.’
“This act was in full force at the time the city of Houston adopted the amendment to its charter extending its boundary limits and annexing the additional territory. Being a general law, it superseded article 574 (article 781, R. S. 1911) as applied to cities which, under the home-rule amendment, had adopted or amended its own charters, and the amendment to the charter by which the city limits were extended was not only not inconsistent ‘with the Constitution of the state or of the general laws enacted by the Legislature,’ hut in harmony with the general law above referred to as the ‘Enabling Act.’
“Appellants contend.that the adoption by the city of the amendment to its charter, whereby a large section of the adjoining territory was annexed, is, in its essence, the adoption of a charter and the erection of a new city, which consisted of Houston as formerly bounded and the new limits, and they contend, in this connection, that the charter could not be adopted under the terms of the Constitution, unless an election were held within the limits of the whole city, both the old limits and the new; and that the home-rule enabling act of the Legislature made no provision for holding such an election. They argue, in this connection, that to erect and create a territory into a municipal corporation, without taking an election of the inhabitants of such territory to determine their consent, is an act which can be done only by the Legislature by virtue of its sovereign legislative authority, and that such authority cannot be delegated by_ the Legislature to third persons. We think it is sufficient to say, in answering this 'contention, that the Legislature not only may originally fix the limits of the corporation, but it may, in the absence of any constitutional restriction, authorize the annexation of additional territory; and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or in the annexed territory. 1 Dill. Mun. Corp. (5th Ed.) pp. 615, 617; Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742. In the case cited it is said that the power of the Legislature to extend the limits of a city so as to include adjoining territory is not restrained by the, Constitution. It follows that as the Legislature can delegate its power to extend the corporate limits so as to annex additional territory without the consent, and even over the remonstrance, of a majority of persons living therein; and that as the Legislature has so delegated its power to the city of Houston, as we have heretofore endeavored to show, its act in so annexing the new territory is valid, whether it be regarded as extending the corporate boundaries only, or the erection or creation of a new city.
“And it is no constitutional objection to the exercise of this power of compulsory annexation that the property thus brought within the corporate limits will be subject to taxation to discharge a pre-existing municipal indebtedness, since this is a matter which, in the absence of special constitutional restrictions, belongs to the Legislature to determine. 1 Dill. Mun. Corp. p. 617.
“ * * * It is shown by the testimony that after the amendment of the charter of the city of Houston, extending the boundaries, the city, acting as a city within its new boundaries, assumed and exercised governmental control over both the old and the new territory, performing its duties toward all the inhabitants thereof, and exacting of all the people therein that need of duty owing by a people to the local government ; and if the limits were unlawfully extended, and the added territory unlawfully annexed, nevertheless the corporation, extending throughout the entire territory, was a de facto municipal corporation, and, being such, ■ was not subject to the attack made against it by private citizens, the plaintiffs in this ease; for this can only be done by quo warranto in behalf of the state. In Graham v. Greenville, 67 Tex. 69, 2 S. W. 742, the Supreme Court expressly declared that, whether the boundaries of a city had been extended improperly or not, the question could not be raised in a collateral proceeding, but could only be taken advantage of by the state in a direct proceeding.
“In City of El Paso v. Ruckman, 92 Tex. 89, 46 S. W. 25, our Supreme Court said: ‘The rule is well established that when the creation of a public corporation, municipal, or quasi municipal, is authorized by statute, and a corporation has been organized under the color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The validity of the incorporation can only be determined, in a suit brought for that purpose in the name of the state or by some individual under authority of the state, who has a special interest which is affected by the existence of the corporation.’
“In Parker v. Harris County Drainage District, 148 S. W. 351, in which the legality of the incorporation of a drainage district was attacked by individuals, this court, speaking through Associate Justice Reese, said: ‘It is a firmly established doctrine that when the law provides for the creation of such districts by the action of any public body, as the commissioners’ court in the present drainage law, the validity of such action in the creation and organization of such districts cannot be questioned except by a direct proceeding in quo warranto, at the suit of the state, for mere irregularities in, or failure to comply with, the prescribed procedure.’
“In Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440, this court gave the following as the correct rule: ‘Even if a municipality has been illegally constituted, the state alone can take advantage of the fact in a * * * proceeding instituted for the purpose of testing the validity of its charter. When the question arises collaterally the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law and recognized by the state as such.’1 See, also, Gibbons v. Ross, 167 S. W. 21.
“It seems dear to us that if the extension of the boundaries of the city of Houston, in the manner and under the authority shown, has not resulted in creating a de jure corporation coextensive with the boundaries defined in the amended charter, it has certainly created a de facto one, which is exercising all the functions of city government throughout such limits, with the consent and acquiescence of the state, and under its authority; and the question being political, and not one of property, a court of equity will not interfere at the instance of a citizen, for the matter is one to be determined, if at all, by the state in a suit of quo warranto and not otherwise.”

In the opinion above it was not only expressly held that the limits, the extension of which are complained of here, were legally extended, but if they were not the facts alleged by defendants here showed a de facto municipality, and that this suit constituted such an attack upon it as only the state had authority to make.

It is true that the court in its opinion stated that there was another ground upon which the refusal of the court to grant the injunction should be sustained, namely, the doctrine of the “balance of convenience”; but this did not lessen as authority the other express holdings that the limits were legally extended, and that such suit could be maintained by the state only. The Supreme Court refused a writ of error without comment. We are of opinion that the questions raised by appellants upon this appeal are therefore foreclosed by the decision in the case of Cohen v. City of Houston, 176 S. W. 809.

Appellants base their contention upon the holding in certain cases involving the boundary of cities incorporated' under the general law. They admit, however, that the Legislature, by express enactment, could amend the charter of the city of Houston so as to include adjoining territory, regardless of the question whether it was urban land or agricultural land. This they say was by reason of the sovereign legislative power resting in the Legislature. Norris v. Waco, 57 Tex. 635. But the Constitution of Texas, by the article referred to, delegates to a majority of the qualified voters of every city of more than 5,000 inhabitants the right to exercise a power that theretofore rested in the Legislature. The power of. the people of the state, through a constitutional amendment, to vest in the voters of a city the right to exercise a power concerning the extension of its limits that had theretofore vested in the Legislature, will not toe questioned. So, then, if the sovereign power of the Legislature that enabled it to erect grazing and agricultural and other nonurban lands within the limits of a city has by said constitutional amendment been vested in the voters of said city to be exercised by them concurrently with the Legislature or to the exclusion of the power formerly vested in the Legislature, how can it be said that the fact that a portion of the land included within the limits as extended was nonurban in its character have any bearing upon the question of the validity of the extension of such limits? The power of the voters above referred to, to so extend the limits, was derived from sovereignty itself. But, if this were not so, we think there is no restriction, constitutional or otherwise, that operates against the Legislature delegating to the majority of the voters of such city the right and power to exend the city limits in the manner complained of by the above assignment. Blessing v. City of Galveston, 42 Tex. 659. The power above referred to was delegated to said voters by the enabling act above cited. Acts 33d Legislature, page 310.

Again the Legislature by the validating acts expressly extended the limits of the city of Houston so as to include the lana mentioned in the above assignment. Chapter 94, Acts 34th Legislature, § 1, p. 148 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1096j), provides that each charter, and each amendment to a charter, and each act of incorporation, adopted by the qualified voters of the cities of Ennis, Marshall, Houston, El Paso, Dallas, Beaumont, Waco, McKinney, Terrell, Galveston, Mineral Wells, Sweetwater, Wichita Palls, San Antonio, Brownwood, Orange, Belton, and Cleburne, respectively, since the enactm&nt of chapter 147, p. 307, of the Acts of the Regular Session of the Thirty-Third Legislature, and filed in the office of Secretary of State, be, and the same are hereby, validated, and are declared to be in as full force and effect the same as if each had been enacted by the Legislature and approved by the Governor.

The act of October 16, 1917, c. 30, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1096K), is as follows:

“That each charter and each amendment to a charter, adopted by any city of more than five thousand inhabitants in this state, or where such city has amended or attempted to amend or adopt such charter, since the enactment of chapter 147, Acts of the Regular Session of the Thirty-Third Legislature, 1913, and all proceedings had with reference thereto, are hereby validated, and are hereby declared to be in full force and effect, the same as if adopted in strict compliance with the requirements of said chapter 147, Acts of the Thirty-Third Legislature, and this act shall take effect and be in force from and after its passage.”

Prior to the date of these acts, 'the charter of the city of Houston had been so amended as to include the land referred to in the above assignment. So the effect of sáid acts was to expressly establish the boundaries of the city of Houston so as to include the said land; for it will be presumed that the Legislature had knowledge of the facts and conditions concerning which it undertook to legislate. It follows, then, that if the power to extend the limits in the manner complained of had not, by reason of the home rule amendment to the Constitution, become legally vested in a majority of the voters of the city of Houston, who enacted the charter amendment of 1913, establishing the limits •omplained of, such power remained in the Legislature, and it by such validating acts exercised such power. Article 781, R. S., of course operated as no limitation upon the effect or validity of the acts; for the Legislature had the power to modify, repeal, or enact exceptions .to said article 781, and in our judgment it cannot be said that the validating acts are retroactive, and for that reason not effective, for they impair no vested right under existing law, create no new obligation, nor do they impose any new duty. It may be said, as we understand, that the power of the Legislature to legislate concerning the extension of the city limits had been withdrawn from it by section 5, art. 11, of the Constitution (home-rule amendment), and therefore it would have had no power to extend the limits of the city of Houston in the first place, and, that being true, had no power to validate the limits fixed by a majority of the voters of said city at the election held for that purpose in 1913; and in their brief they say that, if the extension of the city limits had the same force as if it had been enacted by the Legislature and approved by the Governor, it would have no force at all, for the power of the Legislature to pass special laws in the charter of such cities as Houston on the amendment thereof had been finally withdrawn'by the amendment of section 5, art. 11, of the Constitution.

As we view the matter, appellants are placed in a position where they must accept one of two alternative propositions — either the power to extend the limits under consideration was by the home-rule amendment vested in the majority of the voters of the city of Houston, who exercised such-power by the election held for that purpose in 1913, or such power remained where it had rested in the Legislature, which exercised it by said validating acts and established the same limits.

As we view the brief of appellees, they each present, in one form or another, but one question, namely, the validity of the extension of the limits of the city of Houston. In our opinion, this question is correctly and completely answered in favor of the validity of such extension by saying that on the former appeal of this case it was not only decided, and in our opinion correctly, that such extension -was' valid and legal, but that, even if it was not, the state only can complain. Norris v. Waco, 57 Tex. 635; Kettle v. City of Dallas, 35 Tex. Civ. App. 632, 80 S. W. 877; Miller v. County Commissioners, 107 Md. 442, 69 Atl. 118; Madry v. Cox, 73 Tex. 541, 11 S. W. 541; Woolverton v. Albany, 152 Ind. 78, 52 N. E. 455; section 5, art. 11, Constitution of Texas; Enabling Act (Session Laws 1913, p. 310); Validating Act (Vernon’s Ann. Civ. St. Supp. 1918, art. 1096k); Validating Act (Act 34th Legislature, p. 148, e. 94 [Vernon’s Ann. Civ. St. Supp. 1918, art. 1096j]).

In addition to what has been said before, it might be added that the majority of the voters of the city of Houston, including the territory added by the charter amendment of 1913, of which appellants complain, having since the adoption of said amendment, By an election called and held for that purpose, adopted an amendment to the charter of the city of Houston, establishing the boundaries of the city of Houston, setting them out by metes and bounds so as to include the territory under consideration, said -amendment having been held in accordance with an act of the Thirty-Eifth Legislature, c. 43, p. 71, (Vernon’s Ann. Civ. St. Supp. 1918, arts. 1096% -1096%f), authorizing the consolidation of adjoining cities, and a-t which the city of Houston was consolidated with the city of Houston Heights by an amendment to its charter, establishing its limits and boundaries so as to include Houston Heights and all territory here under consideration, such extension-, and the fixing of such boundaries and limits, will not now -be disturbed, for at the election adopting such amendment the complaint of appellants that the inhabitants of the annexed territory had no voice in the establishment of the boundaries was met, for the election was called in the city of Houston and embraced the said annexed territory, and the said inhabitants were afforded an opportunity to and did participate in said election establishing said boundaries, and the extension of the city limits so established and acted upon, and in pursuance of which vast sums of -money, aggregating several million -dollars, have been expended in -public improvements upon the added -territory alone, will not be set aside or disturbed.

In our judgment the demurrers to appellants’ petition were properly sustained, and therefore all of the assignments of appellants are overruled, and- the judgment of the court below is in all things affirmed.
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