author: TADBOT, Í.

text:
    HUNTER v. RICE et al.
    (No. 7767.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1916.
    Rehearing Denied Jan. 6, 1917.)
    Municipal Corporations @=»918(3) — Bonds —Election—N otice — Suebtciency.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 606, providing that a proposition for issuance of municipal bonds shall distinctly specify the purpose, the amount, the time payable, and the rate of interest, and article 616, providing that any city or town providing for issuance of bonds shall provide for levy and collection of a tax annually of sufficient amount to pay annual interest and a sinking fund to retire the indebtedness, and article 884, providing for an ad valorem tax to pay interest and creating a sinking fund, the notice for an election on a bond question need not specify the rate of the tax to be levied, but that is left to the city council or town board.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. § 1921; Dec. Dig. 918(3).]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Injunction by R. T. Hunter against E. Rice and others. Judgment for defendants, and order overruling motion for new trial, and complainant appeals.
    Affirmed.
    Shurtleif & Cummings and J. E. Clarke, all of Hillsboro, and Chas. D. Black, of Austin, for appellant. Morrow & Morrow, of Hills-boro, for appellees'.
   TADBOT, Í.

The following statement of the nature and result of the suit is taken from appellant’s brief: This suit was filed by the appellant, R. T. Hunter, against the appellees, E. Rice, W. S. Ford, J. N. Collier, A. D. Rhea, P. J. Sherman, and J. G. Finley, the appellant seeking to enjoin the issuance and sale of certain bonds of the town of Whitney, Tex., and the levy and collection of a tax to pay the interest on, and provide a sinking fund for the payment of, said bonds. The cause was tried before the court without a jury, and, after hearing the case, the court rendered judgment in favor of ap-pellees. Appellant thereupon filed his motion for new trial and said motion, upon consideration, was overruled by the court, and appellant excepted to such action and gave notice of appeal, and has in due time and manner perfected his appeal to this court.

The appellant, R. T. Hunter, alleged that he was a qualified voter and property taxpayer of and resided in the town of Whitney, Hill county, Tex., and further alleged that the appellee E. Rice was the duly elected, qualified, and acting mayor of the said town, and that the other defendants' named were the duly elected, qualified, and acting aider-men of said town. Appellant further averred that, on September 14, 1915, the appellees, in their official capacity, passed an order, whereby they ordered that an election should be held in said town of Wlhitney on October' 19, 1915, to determine whether or not the appellees should be authorized to issue th'e bonds of said town in the sum of $15,000, payable 40 years after date, bearing interest at the rate of 5 per cent, per annum, “and to levy a tax sufficient to pay the interest on said bonds and create a sinking fund sufficient to redeem them at maturity,” for the purpose of constructing a waterworks system in said town. He further averred that on October 19th, the said election was held, and that the appellees thereafter, on October 25th, declared the result of said election as being in favor of the issuance of said bonds and the levy of said tax, and that the ap-pellees were seeking and preparing to issue said bonds and to levy the said tax, and would do so unless restrained by the court. Appellant further averred that the election was void, and all the orders and proceedings of the appellees' were void for the reasons: (1) That there was no law of the state authorizing the town of Whitney to issue bonds for the purpose specified in said order; (2) that no legal and sufficient notice of the election had been given before the same was held; (3) that the order for the election was void, because the same did not specify, as required by law, the rate of taxes to be voted to pay the interest on said bonds and provide a sinking fund for their redemption. Appellant prayed for a writ of injunction to issue, restraining the appellees from issuing said bonds and from selling the same when issued and from levying or attempting to levy or collect the said tax. The appellees answered by general demurrer, general denial, and by. special answer that the bonds referred to in plaintiff’s petition were regularly issued, and that all the proceedings had and done with respect to their issuance were valid, and that proper notice was given, etc.

The appellant presents but one assignment of error, namely:

“The court erred in denying the injunction prayed for, for the reason that the order for the bond election did not specify the rate of taxation proposed to be assessed and levied to support the said bonds, as required by the laws of this state, and the said order was therefore void, and the election ordered was therefore void, and the said bonds illegal and void.”

The order for the election in question was regularly made by the appellees' on September 13, 1915, and by its terms ordered that an election be held in the town of Whitney on the 19th day of October, 1915, and that at said election the following proposition be submitted:

“Shall the city council of the city of Whitney be authorized to issue the bonds of said city in the sum of fifteen thousand dollars ($15,000.-00), payable (40) forty years after date, with the option of redeeming same at any time after ten years from date, bearing interest at the rate of (5%) five per cent, per annum, payable annually and to levy a tax sufficient to redeem them at maturity, for the purpose of constructing a waterworks system in the said city of Whitney?”

The question presented is, Does the law require that the order for a bond election of the character involved in this proceeding shall specify the rate of taxation to be levied and collected for the payment of the bonds? Article 606 of Vernon’s Sayles’ Texas Civil Statutes prescribes how the proposition in such cases shall be submitted to a vote of the qualified taxpaying voters of the city, and reads as follows:

“The proposition to be submitted for the issuance of bonds shall distinctly specify the purpose for which the bonds are to be issued, the amount thereof, the time in which they are payable, and the rate of interest; and all voters desiring to support the proposition to issue bonds shall have written or printed upon their ballots the words, ‘JTor the issuance of bonds,’ and those opposed dhall have printed upon their ballots the words, ‘Against the issuance of bonds.’ ”

This statute, as will be observed, does not require, as one of the requisites of the order to be made for the election, that it state, either in a general way or specifically," the tax to be levied, and we have found no statute to that effect. The case differs materially from Parks v. West, 108 S. W. 466, seemingly relied on by appellant, and the case of Lowrance v. Schwab, 46 Tex. Civ. App. 67, 101 S. W. 840, cited in the Park-West Case. In those cases the statute under which the elections were authorized and held required that the order therefor should state the amount of the tax to be voted on, and the orders made in both cases were to the effect that the purpose of the election was to determine whether or not a tax not to exceed in any one year a certain number of cents on the $100 valuation of property subject to taxation in the respective districts shall be levied, etc. In holding in those cases that the election for the bond issue and tax levies was void because the orders therefor did not state the exact rate of the tax which it was proposed to levy, the conclusion was reached that under the provisions of the statutes applicable, the vote at such an election must be for a specific tax, and vested in the authorities ordering the election no discretion, either as to whether the levy of the tax should be made or as to its amount; that said provisions, taken together, clearly meant that the petition fixes the amount for which the election is to be ordered, and the order enables the voter to vote for the specific sum proposed to be levied, thus leaving nothing to the discretion of those ordering the election, but rendering their duties purely ministerial. In discussing the Lowrance-Schwab Case, which met with the approval of this court when the opinion in the Parks-West Case was written, and which still meets its approval, it was pointed out that in view of the fact that the order for the election stated that its purpose was to determine whether or not a tax not to exceed 20 cents on the $100 valuation of taxable property, the commissioners’ court under the election held might have levied any sum up to 20 cents on the $100 valuation and that there was no authority in the law for the delegation of the discretion of the voter to the commissioners’ court. The reasons for declaring the elections void in the cases referred to because the orders therefor did not specify the rate of the tax which it was proposed to levy do not exist in the present case. Here the statute, not only directs that the city council shall, at the time it authorizes the execution of bonds, provide for the levy and collection of a tax sufficient to pay the annual interest on such bonds and create a sinking fund for the redemption of the bonds at maturity, but that the city council or other municipal authorities shall levy such a tax. Vernon’s Sayles’ Texas Civil Statutes, 616, 884. In no provision of -the statute is it required that the amount of the tax be stated in the order for the election, or that the amount of the tax shall be determined by a vote of the qualified taxpaying voters of the city. As we understand the statutes relating to cases like the present, the Legislature, perhaps because the amount of the tax to be levied for the payment of the bonds was based on taxable values, which might change each year, has clothed the city council with the authority to ascertain the amount of that tax and to levy the same.

The judgment of the court below is affirmed.
      <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, O. J.

license: Public Domain

text:
    CANALES et ux. v. CANALES et al.
    (No. 5842.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1916.
    Rehearing Denied Jan. 10, 1917.)
    Homestead @=>209% — Sale under Execution — Temporary Injunction.
    In a suit to restrain sale under execution of an alleged homestead, the plaintiffs were entitled to a temporary injunction, restraining a sale of the property, to prevent a cloud upon the title, until the cause could be tried on its merits.
    [Ed. Note. — For other cases, see Homestead, Dec. Dig. @=3209%.]
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Suit for injunction by Fructuoso Canales and wife against Andres Canales and others. From an interlocutory order refusing a temporary injunction, plaintiffs appeal.
    Reversed, and temporary injunction granted.
    S. H. Woods, of Alice, for appellants. Ca-nales & Dancy, of Brownsville, and J. F. Carl, P. H. Swearingen, Jr., and Geo. G. Clifton, all of San Antonio, for appellees.
   FLY, O. J.

This is a suit instituted by appellants to restrain the sale under execution of a certain tract of land alleged to be the homestead of appellants, and consequently exempt from sale under execution. There was a preliminary hearing of the cause, and this appeal is perfected from an interlocutory order of the court refusing a temporary injunction.

The evidence was 'conflicting as to whether the land in dispute was a homestead or had been abandoned by appellants, but the question was one of fact, and forms a reasonable ground for the belief that appellants will probably sustain great harm if this property is sold under execution, and that nothing but a short delay will be encountered by-appellees. We think, therefore, that the court should have granted the temporary writ of injunction and restrained a sale of the properly until tJie cause could be tried on its merits. Friedlander v. Ehrenworth, 58 Tex. 350; Daniels v. Daniels, 127 S. W. 569.

Even if the old rule of refusing an injunction,- when the applicant has an adequate legal remedy, were in force in Texas, the right to an injunction to restrain the sale of a homestead, under execution, would exist. The sale would cast a cloud upon the title to the property, and the owners would have the right to an injunction to prevent such cloud. Joyce on Injunctions, §§ 708, 709; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Mann v. Wallis, 75 Tex. 611, 12 S. W. 1123; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250; Wylde v. Capps, 27 Tex. Civ. App. 112, 65 S. W. 648; Barr v. Simpson, 54 Tex. Civ. App. 105, 117 S. W. 1041.

Appellants have a case which should be determined, if they so desire, by a jury, on its merits, and they should not have a cloud placed on their title before a final trial, which they will be compelled to have removed.

The judgment of the trial court is reversed, and a temporary writ of injunction is granted, restraining the sale of the land described in the petition until the cause is finally disposed of on its merits.
      cS=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    FIDELITY TRUST CO. v. RECTOR et al.
    (No. 1068.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1916.
    Rehearing Denied Jan. 3, 1917.)
    1. Gifts @=>49(4)--Sufficiency of Evidence —Injunction.
    Evidence, in an action to restrain a sale of property under execution in satisfaction of a judgment against the husband of the principal plaintiff, held to sustain a finding that the property in question was acquired by such plaintiff as a gift from persons to whom she and her husband had sold property, and not as part consideration for such property.
    [Ed. Note. — For other cases, see Gifts, Cent. Dig. § 99; Dec. Dig. @=>49(4).]
    2. Fraudulent Conveyances @=>44 — Deed to Equitable Owner.
    A vendor cannot commit a fraud on creditors by making a deed to a grantee, to whom the land already belongs by equitable title.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 102-104; Dec. Dig. <&=>44.]
    3. Appeal and Error @=>934(2) — Findings to Support Judgme/nt^-Presumption.
    Where, in an action to enjoin the sale of property in satisfaction of a judgment against the husband of the principal plaintiff, the issue whether a prior contract between such plaintiff and those from whom she claimed to have acquired the property as a gift was a contract of sale or a mortgage is not requested to be submitted, or submitted to the jury, and a finding that such contract was a contract of sale is necessary to the judgment, it will be presumed on appeal that that the trial court so found.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. § 3777; Dec. Dig. @=> 934(2).]
    Appeal from District Court, Fisher County ; Jno. B. Thompson, Judge.
    Suit by Ma.deline E. Rector and others against R. P. House and others, and the Fidelity Trust Company intervened. From judgment for plaintiffs, intervener appeals.
    Affirmed.
    Thompson & Barwise, G. W. Wharton, and Geo. Thompson, Jr., all of Ft. Worth, and L. H. McCrea, of Roby, for appellant. Wood-ruff & Woodruff, of Sweetwater, for appel-lees.
   HUFF, C. J.

The appellant alone briefs this case, and we adopted the following statement of the pleadings as set out in its brief:

“This is an injunction suit, brought by Madeline E. Rector, joined pro forma by her husband, E. R. Rector, seeking to restrain R. P. House, sheriff of Fisher county, Tex., and the Royston State Bank, a corporation, from selling 176.725 acres of land in Fisher county, Tex., as well as lots Nos. 13 and 14, in block 12, in the city of Royston, Fisher county, Tex., under alias execution issued out of the district court of Fisher county, Tex., on the 15th day of July, A. D. 1915, by J. C. Hilbun, clerk of the said court, in cause No. 698, style Royston State Bank v. E. R. Rector et al., to satisfy the balance due on said judgment amounting to the sum of $49.10. The petition of injunction alleged that the said property levied upon- by the sheriff was the separate property of Madeline E. Rector, and was acquired by her as a gift, and that a cloud has been placed upon her title by reason of the levy made by the sheriff under the said alias execution and advertisement of sale of the said property; said petition prayed for the issuance for a writ of injunction, restraining R. P. House, sheriff, from selling, or from further offering for sale, the property described, and further praying that the cloud so cast upon the title of Madeline E. Rector to the said property be removed upon final hearing, and that the said levy made by the sheriff under the alias execution be declared null and void and be held for naught. Said petition for injunction was granted by the court, and, appellee having filed a bond, as required by the court, the clerk of the district court of Fisher county, Tex., on September 4, 1915, issued a writ of injunction, restraining the sheriff, R. P. House, from selling the property, heretofore described, said writ of injunction being served upon the said R. P. Moore, sheriff, on September, 6, 1915, by T. W. Benson, constable of Fisher county, Tex., and being returnable to the district court of Fisher coun-ey, Tex., on September 28, 1915.
“On December 30, 1915, the Fidelity Trust Company, appellant herein, intervened in said injunction suit, and alleged: (1) That it was trustee for the Royston State Bank, all the assets of the said Royston State Bank having been duly transferred and assigned to it, among which assets was the judgment of the Royston State Bank v. E. R. Rector et al., upon which the levy of the property in controversy was made. (2) That the property in controversy and previously described, and which was levied upon by the sheriff, R. P. House, was community property of E. R. Rector and wife, Madeline E. Rector, the title to said property being in Madeline E. Rector as a matter of record. (3) That said property in controversy was not the separate property of Madeline E. Rector, appellee herein, and was not acquired by her as a gift by reason of the fact that said property was conveyed to the said Madeline E. Rector at the instance and request of Broad & Bomar of the city of Ft. Worth, who had b.een presented for a long time prior thereto with a claim of E. R. Rector for certain demands and moneys which the said E. R. Rector asserted that the said Broad & Bomar owed-him, and an equitable interest in 4,000 acres of land, situated in Jones, and Fisher counties, Tex. (4) That the said Broad & Bomar, in order to quiet E. R. Rector in his demands and claims as set forth, and with the purpose of compromise and settle once and for all all the said claims and demands held by the said E. R. Rector against Broad & Bomar, had the property in controversy conveyed to Madeline E. Rector upon the instance and request of her husband, E. R. Rector, and with the purpose and intention of placing said property beyond the reach of E. R. Rector’s creditors, and to hinder and delay them from collecting their debts and demands. (5) That at the time Broad & Bomar had the property in controversy conveyed to appellee, Madeline E. Rector, the said Madeline E. Rector and her husband, E. R. Rector, executed a release to Broad & Bomar, extinguishing all of their demands and claims against Broad & Bomar, the said release being in the form of a general warranty deed from E. R. Rector and wife, Madeline E. Rector, to Broad & Bomar, conveying all of their right, title, and interest-in a certain 4,000-acre tract of land in Jones and Fisher counties, out of which the original claim or claims of E. R. Rector against Broad & Bomar arose. (6) In-tervener denied that the property in controversy belonged to the separate estate of Madeline E. Rector, denied it was a gift to her, denied that her husband E. R. Rector, had no interest therein, and generally denied all of the allegations of appellee, and demanded strict proof thereof. (7) Intervener alleged that the property in controversy, levied upon and advertised for sale by the sheriff, R. B. House, belonged to the community estate of appellee, Madeline E. Rector, and E. R. Rector, and as such it was subject to execution and levy so made by the sheriff — by reason of all of which allegations, appellant prayed that upon a hearing the property in controversy be declared the community property of E. R. Rector and Madeline E. Rector, and that the writ of injunction be dissolved, and that the court direct the sheriff to readvertise the sale of said property and sell same under said alias execution.”

The first assignment of error is that the court should have instructed a verdict for intervener on the ground that the undisputed evidence shows that Rector and wife had a community interest in land deeded to Broad & Bomar, for the land and lots in question, and that this community interest was so conveyed upon a compromise agreement or settlement between the parties, and that the title was put in Mrs. Rector with intent to protect it from the creditors of Rector. On March 11, 1913, Broad & Bomar entered into a contract with E. R. Rector, the husband of appellee, by which Rector sold to Broad & Bomar something over 4,000 acres of land at $10 per acre, amounting in the aggregate to $41,070, $30,000 to be paid in cash, and the assumption of liens on the land, it being understood that all liens that could be discharged were to be discharged by payment in cash, and the balance assumed by Broad & Bomar. Broad & Bomar gave Rector an option to repurchase the land for one year after its date, at the price paid by them, plus 8 per cent, interest, and it) was also agreed therein that Broad & Bomar would lease the land to Rector, and that Rector was to pay for the lease annually a stipulated sum, which would equal 8 per cent, on the purchase price of the land, plus the taxes. The facts in this case are sufficient to show that Rector did not exercise his option, but that a controversy arose perhaps as to the time in which he should have to exercise the option and whether or not he was to have more money, he contending for more, perhaps. These' contentions were denied by Broad & Bomar; they contending that they had paid him the contract price according to tlie contract. It sufficiently appears from the facts in this case that Broad & Bomar paid the money they agreed to pay, and’ this was paid to the creditors of Rector, and Bomar says that before they could get the abstract, they found they had in fact paid more ‘to the creditors than the cash consideration which they were to pay amounted to, and that they decided to institute suit on the indebtedness, which was secured by a lien on the 4,000 acres of land which they discharged, and they did institute suit and foreclosed the lien. Rector and his wife, however, did not make a deed to the land, as they had agreed to do in the contract.

On the 26th day of June, 1915, Rector and his wife did execute a deed to the 4,000 acres of land, reciting the consideration of $1. It further appears from the evidence that the 176-acre tract of land, and the lots levied on by the appellants, by virtue of an execution issued on a judgment in favor of the Royston State Bank against the Royston Mc-Cauley Mercantile Company and E. R. Rector. This land, the 176 acres, stood in the name of J. E. Willis, who owned one half of the land and held the other half in trust for Broad ’& Bomar, and the lots were owned by Broad & Bomar. On the 29th day of June, 1915, J. E. Willis conveyed the land to Mrs. Madeline E. Rector, as her separate property and for her sole and separate use, and Broad & Bomar conveyed the lots in the town of Royston, levied on, to Mrs. Rector. Bomar testifies by deposition in this case that they had paid for the 4,000 acres of land, and did not owe Mr. Rector anything therefor, and that there was no legal obligation on their part to pay Mr. Rector anything more for this land, and that they recognized no such obligation, but that they gave to Mrs. Rector the property in controversy, and procured Mr. Willis to make her a deed to that effect. He states:

“It is a fact that the conveyance made to Mrs. Rector of the land and lots in question was not made in payment of anything that we recognized as a valid, enforceable obligation, either legally or morally, but was made to her in the discharge of what Mr. Broad and I believed, under the circumstances, to be absolutely fair and just as between man and man, and was intended by us as a gift to Mrs. Rector that should be protected from the creditors of E. R. Rector. It is a fact that E. R. Rector never instituted any suit or suits against us, and it is a further fact that he never at any time threatened to institute any suit or suits against us. It is a fact that we did tell Mr. Rector that we did not owe him anything or pay him anything, but that we were going to make a donation to Mrs. Rector and have them both feel that they had been decently treated. Mr. Rector never requested us to convey this land to his wife. This was my own conception; in fact I did not think that Rector realized the necessity of the property being protected from his creditors; he did not seem to. I cannot say that there is. any bias or leaning in this suit towards anybody,” etc.

At another place he says:

“I do not know whether the conveyance of this property to Mrs. Rector was a gift or not, but it was intended by Mr. John W. Broad and myself as being a discharge of what we believed as between ourselves and our God as to what was fair and decent for us to do under the circumstances, and without the slightest belief on our part that we lawfully owed E. R. Rector or his wife anything. Yes; it is a fact that at the time we made this conveyance to Madeline E. Rector, we were not indebted in any manner to 10. R. Rector or his wife,-and it is a fact that E. R. Rector or his wife, Madeline E, Rector, ever paid or promised to pay us anything whatever for the making of said conveyance of land and lots.”

The trial court submitted the following issues:

“A. A gift is the act by which the owner of a thing voluntarily transfers the title and possession of the same to another without consideration.
“B. A compromise is an agreement made between two or more parties as a settlement of matters in dispute between them, and in order to make a consideration for a compromise a binding one, there must be some matter of doubt between the parties as to whether a legal obligation exists or not.
“Bearing in mind the foregoing instructions, you will answer the following questions as above directed:
“Special issue No. 1. Was the deeds made by and at the instance of Broad & Bomar to Mrs. Madeline E. Rector on the 29th day of June, 1915, to the property in controversy, executed as a gift by Broad & Bomar, to said Mrs. Madeline E. Rector, as a gift is above defined?
“Special issue No. 2. Did the consideration, or any part there'■r, by which Broad & Bomar had the land in controversy in this suit conveyed to Mrs. Madeline E. Rector grow out of any compromise, difference, or settlement between Broad & Bomar and E. R. Rector, out of the failure of E. R. Rector to exercise his option to redeem a 4,000-acre tract of land from Broad & Bomar under the terms of said option contract, executed March 9, 1913?”

The jury answered the issues as follows:

“To special issue No. 1, we answer, ‘Yes.’
“To special issue No. 2, we answer, ‘No.’ ”

It seems to us the only issue raised by the pleadings was submitted by the trial court to the jury, for their determination. The questions were whether the land was given to Mrs. Rector by Broad & Bomar, or whether it was deeded to her in consideration of the equity of Rector in the 4,000 acres of land ascertained upon compromise. The jury answered that this was a gift. The evidence in this case will support the findings, and Bomar’s testimony shows, together with the written contract, that Broad & Bomar bought something over 4,000 acres of land, agreeing to pay therefor $10 per acre, amounting in the aggregate to $41,070. They were to pay about $30,000 in cash and to assume certain indebtedness secured by a lien on the land. Before the abstract was completed they had paid out something over the cash payment to various creditors of Rector. The contract gave Rector an option for one year to repurchase the land, and in the meantime he should occupy it as tenant and pay rent on the land equal to 8 per cent, on the purchase price. If he repurchased, he should pay the sum so paid and assumed, with 8 per Cent, thereon, less the rents theretofore paid. Rector never exercised his option, but brought on some kind of controversy, claiming apparently that he should have further time to repurchase and, perhaps, the payment of additional sums of money. Broad & Bordar refused to recognize his contention, and contended for a compliance with the contract. In order to protect themselves further they brought suit of foreclosure against the land on the debts paid by them, which were secured by a lien on the land. The liens they foreclosed, and it is inferable at least from the evidence that the land was purchased thereunder by them. Up to this time Rector and his wife had not made a deed to the land, as they had agreed to do. If the jury found that these facts were true, the title to the land under the contract and foreclosure vested in Broad & Bomar, and if this issue was not submitted to the jury, the presumption is that the court found the fact, in the absence of any special issue requested on that point. Rector, therefore, had no such interest in the land, which could be appropriated by any other creditor, after Broad & Bomar had paid the contract price as agreed in the written contract. The mere fact that Rector claimed such an interest did not necessarily make his claim true. The record shows repeatedly that Broad & Bomar denied that he had any such interest. The deed from Rector and wife may have cleared the record, but it was not necessary, if the facts, as found, were true, to vest the title in Broad & Bomar. The land and lots given Mrs. Rector at the time of the gift certainly were not subject to the claims of Rector’s creditors, and would not be so after the gift, unless the community property of Rector and wife paid for them. The jury, from the facts, were authorized to find that the community property did not pay for the land. All that is shown is that there was an exchange of the deed to the 4,000 acres, to.which Broad & Bomar had already the legal and equitable title. They had this title by having paid all that was agreed to be paid under the written contract enforceable under the law and by foreclosure of liens against the land. Whatever the motive of Broad & Bomar was in giving the land and lots to Mrs. Rector ought not affect the matter. This property was theirs to give. It did not deprive the creditors of Rector of any right therein to which they were before entitled. It withdrew nothing from the reach of the creditors subject to the payment of their debts; nothing belonging to Rector or the community went into the lands so given, if Bomar’s testimony is to be believed, to which the jury appears to have given credence. The mere claim of Rector itself did not make it an asset; it was never recognized by Broad & Bomar as a valid claim or legal claim of any value. At most, the testimony only shows that Broad & Bomar felt that it would be fair to give Mrs. Rector this property; whether it was conscience money or what not is immaterial. It was nothing placed beyond the reach of creditors which they could have subject to their debt.

A vendor cannot commit a fraud on creditors by making a deed to a grantee to whom the land already belonged by equitable title. Barnett v. Vincent, 69 Tex. 685, 7 S. W. 525, 5 Am. St. Rep. 98; Peck v. Jones, 10 Tex. Civ. App. 335, 30 S. W. 382. We interpret the contract by Rector with Broad & Bomar as a contract of sale, vesting title to the 4,000 acres upon the payment of the consideration stipulated for, and not as a mortgage ; but, if the contract is to be interpreted in the light of the facts as to whether it was a contract of sale or a mortgage, the facts in this case were sufficient to authorize the trial court to find that it was a contract of sale, and that the purchase price of the land was paid, and the presumption will prevail that he so found in support of the judgment. This particular issue was not requested to be submitted, or submitted to the jury for their finding, and under the statute the presumption is the court so found, if that is necessary to the judgment in this case.

The second, third, and fourth assignments of error are- grouped, and relate to the refusal of the court to give special issues Nos. 1, 2, and 3.. Issues Nos. 1 and 2 are substantially covered by issue No. 2, submitted by the court. Issue No. 3 appears to have been requested upon the same paper, or with 1 and 2. The court, having, as we consider it, substantially covered 1 and 2, properly refused to give the requested issues, as presented, and there was no error in refusing them. Issue No. 3, besides, was not warranted under the pleadings in this case, and the issues presented thereby. It was not shown in the pleading that the Royston Bank, at the time of these conveyances, was a creditor of Rector. The facts are sufficient to show that, but the pleadings do not allege it. Besides, in briefing the case, there is no proposition presenting the question of fraud under' these three assignments, and the brief is insufficient to present the question of fraud, and does not present it in such manner as will authorize us to consider it.

The sixth and seventh assignments are overruled for the reasons stated in overruling the first assignment.

The eighth assignment is overruled. The assignment to the admission of the testimony of Mrs. Rector and the objections stated to the admission of her testimony do not present such error as will require a reversal, if any error at all.

As we view the case, there is no reversible error, and the judgment of the lower court will be affirmed.


author: KEY,. C. J.

text:
    HARTMAN v. HARTMAN.
    (No. 5703.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 13, 1916.)
    1. Divorce <@=»25 — Cruel Treatment — Motive of Wife in Sums.
    Where a wife, as shown hy her own testimony, sued for divorce not on account of her husband’s cruel treatment, alleged in her petition, but because of his refusal to sell their home and move to some other community, she was not entitled to divorce.
    [Ed. Note. — Por other cases, see Divorce, Cent. Dig. §§ 61, 106; Dec. Dig. <®=>25.]
    2. Divorce <®=3l08 — Pleading—Evidence.
    In a wife’s suit for divorce on the ground of cruel treatment, the husband need not answer at all to render it the court’s duty to hear testimony showing that the wife has been guilty of similar acts of misconduct toward the husband, so that she is not entitled to divorce, since the rules of pleading applying in other cases do not apply to a defendant in a divorce suit in Texas.
    [Ed. Note. — Por other cases, see Divorce, Cent. Dig. §§ 349-352; Dec. Dig. <®=>108J ■
    3. Divorce 108 — Pleading — Answer — Evidence.
    In wife’s suit for divorce on ground of cruel treatment, husband’s answer . alleging facts as to wife’s acts of cruelty toward him as justification of his conduct in having her tried on a charge of insanity, sufficiently pleaded such facts to admit evidence of the wife’s cruel acts, if the answer in a divorce suit were to be tested by the general rules of pleading.
    [Ed. Note. — Por other cases, see Divorce, Cent. Dig. §§ 349-352; Dec. Dig. <@=»108.]
    • Appeal from District Court, Coleman County ; John W. Goodwin, Judge.
    Suit for divorce by Rozellia Hartman against William Hartman. Prom a judgment for defendant, plaintiff appeals.
    Judgment affirmed.
    Silodgrass, Dibrell & Snodgrass, and Critz & Woodward, all of Coleman, for appellant. Woodward & Baker, of Coleman, for appellee.
   KEY,. C. J.

This is a divorce suit wherein judgment was rendered for the defendant, and the plaintiff has appealed. We have considered all the questions presented in appellant’s brief, and have reached the conclusion that the judgment should be affirmed. The criticisms urged against the ehargé of the court are not regarded as tenable ;' nor do we think the court erred in refusing to give appellant’s requested instructions. But if error was committed in any of the respects referred to, we are still of opinion that the judgment should be affirmed. Appellant produced no other witness than herself to prove her allegations that her husband had assaulted and cursed and abused her; and it has been decided that, under such circumstances, the plaintiff should produce some corroborating testimony in order to obtain the decree of divorce. Lohmuller v. Lohmuller, 135 S. W. 751. But in this case appellee produced the testimony of many witnesses, most of whom were their children, directly contradicting appellant’s testimony in the respect referred to; and, in allowing a bill of exception, the trial judge indicated his opinion to the effect that, under the testinony submitted, appellant was not entitled to a divorce. Our statute does not authorize a divorce except upon satisfactory proof, and it has been held that if the proof is not satisfactory the trial court should disregard the verdict of the jury and decline to grant a divorce. Moore v. Moore, 22 Tex. 237; Haygood v. Haygood, 25 Tex. 576. And it has also been held that the same rule applies on appeal, and that the appellate court has the same power in that regard as the trial court. Furthermore, appellant’s own testimony shows that her real reason for seeking a divorce was not on account of the cruel treatment alleged in her petition, but was because of her husband’s refusal to sell their home and move to some other community; and for that reason she is not entitled to a divorce. Dority v. Dority, 62 S. W. 106, and cases there cited.

We overrule appellant’s contention that appellee had no right to prove that appellant had been guilty of similar acts of misconduct toward him. Appellant contends that appellee’s answer was not sufficient to admit such proof, though it is admitted that he alleged such facts in his answer as a justification of his previous conduct in having plaintiff tried upon a .charge of insanity. The rules of pleading which apply in other eases do not apply to a defendant in a divorce case in this state, and although he may not answer at all, it is the duty of the court to hear any testimony which would show that the plaintiff is not entitled to a divorce. Bostwick v. Bostwick, 73 Tex. 182, 11 S. W. 178. However, in this case we think the facts referred to were sufficiently pleaded by appellee, even though the answer should be tested by the general rule.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.
      <9s»For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    SCOTT & CO. v. O. D. MANN & SONS et al.
    (No. 5687.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1916.
    Rehearing Denied Dec. 23, 1916.)
    Justices oe the Peace @=>174(8) — Appeal— Amendment oe Pleading.
    Where suit on a note was brought in justice court by a business house described as a corporation because its attorney was ignorant that the corporation had been dissolved and the business continued by a partnership, the action of the county court in allowing plaintiffs to amend to allege that they were a partnership was not violative of Rev. St. 1911, art. 759, declaring that no new cause of action shall be set up when a case has been appealed from a justice court to the county court, since the members of the firm had the right to intervene in the county court and assert that the demand sued on belonged to them and not to the corporation, which was what they substantially did.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 670; Dec. Dig. @=> 174(8).] .
    Appeal from McCulloch County Court; G. A. Walters, Special Judge.
    Suit by O. D. Mann & Sons and others against Scott & Co. Prom a judgment for plaintiffs, defendants appeal.
    Judgment affirmed.
    Adkins & Adkins and Sam McCollum, all of Brady, for appellants. Shropshire & House,'of Brady, for appellees.
   KEY, C. J.

O. D. Mann & Sons brought this suit in a justice of the peace court, seeking to recover upon a promissory note, and to foreclose a chattel mortgage given to secure the note. They described themselves as a corporation, and obtained a judgment in that capacity. The defendants appealed the case to the county court, where the plaintiffs were permitted to amend their pleading by alleging that they were not a corporation, but a partnership, consisting of J. T. and O. Duke Mann. They further alleged that their business had formerly been incorporated under the name of O. D. Mann & Sons, and that the attorney who brought the suit in the justice court was not aware of the fact that the corporation had been dissolved, and that the partnership had continued the business in the same name as it was conducted by the corporation. The plaintiffs recovered judgment in the county court, and the defendants have appealed.

It is earnestly urged on behalf of appellants that reversible error was committed in permitting the plaintiffs to file the amendment referred to and recover in the capacity of partners; the contention being that such action of the trial court was violative of article 759 of the Revised Statutes, which declares that no new cause of action shall be set up when a case has been appealed from a justice court to the county court. We overrule that contention and hold that the trial court ruled correctly in the respect referred to. Amarillo Commercial Co. v. Railway Co., 140 S. W. 377; Davis v. Bank & Trust Co., 116 S. W. 393; Railway Co. v. Scott, 156 S. W. 295; Grayson v. Hollingsworth, 148 S. W. 1135; Rector v. Mill Co., 100 Tex. 591, 102 S. W. 402; Freeman v. Walker & Sons, 175 S. W. 1133. J. T. and O. D. Mann had the right to intervene in the county court and assert that the demand sued upon belonged to them and not to the corporation; and, in substance, that is what they did.

There are some other questions presented in appellants’ brief which we do not care to discuss in this opinion. They have been considered, and are decided, against appellants.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: RAINEY, C. J.

text:
    THOMAS v. KEAN.
    (No. 7632.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1916.
    Rebearing Denied Jan. 6, 1917.)
    1. Appeal and Error @=>1071(1) — Harmless Error — Findings oe Fact and Conclusions oe Law.
    The failure of the trial court to file conclusions of fact and law does not require reversal of the judgment, where the action was on a note, the answer alleging failure of consideration was not properly verified, and defendant did not appear at the trial, so that the note set out in the transcript furnished all the material that could be furnished by the conclusions of the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4234; Dec. Dig. @=>1071(1); Trial, Cent. Dig. § 940.]
    2. Pleading @=>302 — Verification — Ineor-mation.
    Under the verification of Pleading Act 33d Leg. e. 127 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829, 1829a, 1829b, 1902), requiring the affiant to state that the pleadings were true or that he believed them to be true, an affidavit by an attorney that the allegations are true and correct to the best of his knowledge formed on information from his client is insufficient.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 898-903; Dec. Dig. @=>302.]
    Appeal from Dallas County Court; T. A. Works, Judge.
    Action by George Kean against J. L. Thomas on a note. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Lewis & Roark, of Dallas, for appellant. Lovejoy & Youngblood, of Dallas, for appel-lee.
   RAINEY, C. J.

Appellee sued appellant on a note for $800, with interest and attorney’s fees of 10 per cent., alleging $399.58, with interest and attorney’s fees, for bringing suit, was due and unpaid. Appellant was cited, and he filed an answer, but did not otherwise appear and present his defense. On July 8, 1915, the case was heard by the court without a jury, and judgment rendered for ap-pellee for $493.81, with 8 per cent, interest thereon. On July 28, 1915, appellant filed a motion for new trial, which, was heard on same day and overruled, but judgment thereon was not entered until August 3, 1915. Notice of appeal was given and 30 days after adjournment given to file statement of facts and bills of exceptions. No statement of facts was filed, and bills of exceptions were not filed until December 15, 1915. A motion was made for the-court to file his conclusions of fact and law, which he sustained, but failed to comply therewith.

Conclusions of Law.

1. It is complained that the court failed to file his conclusions of fact and law, and reversal of the judgment is asked for that reason. The statute requires when a cause is tried by the court without a jury, when requested to do so, it is his duty to file his conclusions of fact and law, and ordinarily his failure to do so will cause a reversal of the judgment. In this case no injury resulted to appellant from the failure to do so, and it is not reversible error. The petition stated a cause of action upon a note which, being set out in the transcript, furnishes all the matter that would have been furnished in the court’s conclusions of fact and law. Implement Co. v. Templeton, 14 S. W. 1015; Bank v. Stout, 61 Tex. 567.

2. Error is assigned to the court’s action in that it did not consider appellant’s answer denying innocent purchaser of the auto by appellee, for which the note was given, and setting up the plea of failure of consideration, for that the cause was brought an'd tried under the verification of Pleading Act 33d Leg. c. 127 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829, 1829a, 1829b, 1902), and appellant’s answer was verified and was not denied by verified pleas of ap-pellee. We see no error in this action as the affidavit to appellant’s answer was not in conformity to said act, which requires that the affiant must state the pleadings are true or “believes” them true. The affidavit to the answer is:

“Before me, the undersigned authority, on this day personally appeared S. C. L^-wis, one of the attorneys for defendant herein, who deposes and says that the things set forth in the foregoing answer are true and correct to the best of his knowledge, formed upon information furnished by his client.”

The attorney, it will be noted, swears that the foregoing answer is “true and correct to the best of his knowledge formed upon information furnished by his client.” The affidavit should be positive as to the truth of the statements made in the answer or it must show that affiant believes them to be true. It ■ is not enough to state it is true from information, but affiant must go further and state from his knowledge he believes them to be true. This appellant did not do; consequently the affidavit was defective, which rendered the answer defective and inoperative. The judgment shows that neither the appellant nor his attorney appeared at the trial, but does not show the defenses set up were called to the court’s attention and presented to it on the trial. The plaintiff’s cause of action being a promissory note, there was nothing requiring the court to take notice of the defenses pleaded in the answer.

3. The motion for new trial was not filed for more than two days after the trial. It contained no legal or equitable excuse for its not being filed sooner.

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


author: PRENDERGAST, P. J.

text:
    RAY v. STATE.
    (No. 4311.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.
    Rehearing Denied Jan. 17, 1917.)
    1. Criminal Law <@=3451(3) — Evidence—Conclusion of Witness — Admissibility.
    A witness may testify, in a prosecution fot murder, that another was mad, from his tone of voice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1041; Dec. Dig. <§==>451(3).]
    2. Cbihinal Law <©=>1091(4) — Appeal—Bill op Exceptions — Sufficiency.
    A bill, showing that accused objected when the state asked one of its witnesses to state if he heard accused say anything as to deceased, and the witness answered that he did not know whether he referred to deceased, but that he said if he did not get him to-night, he would get him to-morrow, that being the substance of the whole of the bill, except the objections that such evidence failed to show that accused was talking of deceased and it was prejudicial to his rights, is insufficient to present a question for review.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. <@=»1091(4).]
    3. Homicide <©=>163(2) — Evidence—Admissibility.
    In a prosecution for murder, it was proper to exclude questions whether deceased did not inquire where he could get whisky, and if he did not drink quite a lot on the evening of the murder.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 312-317; Dec. Dig. <©=>163(2).]
    4. Homicide <©=>163(2) — Disposition of Deceased — Evidence—Remoteness.
    Though witnesses stated that they got' acquainted with deceased 15 or 20 years before, but did not state what his reputation was at that time, their evidence was not inadmissible as too remote.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 312-317; Dec. Dig. <@=>163(2).]
    5. Criminal Law <@=>829(5) — Instructions— Provoking Difficulty — Instruction Already Given.
    Where the court submitted self-defense fully and completely, but did not limit the defense by reference to provoking difficulty, and there was no objection to his charge, it was not error to refuse a special charge that the fact that accused carried his razor with him to deceased’s wagon did not abridge his right of self-defense.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829(5).]
    6. Criminal Law <@=>1144(18) — Appeal and Error — Presumptions.
    Where the record shows that on motion for new trial the court heard evidence as to newly discovered testimony, but does not show what the evidence was, the court, on appeal, must presume that he was clearly authorized to refuse new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901. 3036; Dec. Dig. <©=> 1144(18).]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Tom Ray was convicted of murder, and he appeals.
    Affirmed.
    John A. Cook and T. C. Hutchings, both of ML Pleasant, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at seven years in the penitentiary.

Appellant and deceased lived near neighbors and had been friendly until just a few days before appellant killed deceased. The road from town to deceased’s passed by appellant’s. In going from town home deceased had to pass along this road. The Sanders were renters of deceased, and also lived near. A few days before the killing a horse of the Sanders had died, and they and appellant buried it in a branch, on which deceased had a sorghum mill, and it was necessary for him to use the water from this branch in connection with making sorghum The dead horse greatly polluted the water. Deceased instituted a criminal prosecution against the Sanders for burying said horse where they did. They told appellant that deceased had also prosecuted him for the same thing. This greatly incensed appellant and made him mad at deceased. Appellant went to town with the Sanders on Saturday evening before the killing that night. The deceased and his two grown sons were in town also that evening. Appellant learned deceased was in town, and, according to the state’s testimony, hunted him up and had a talk with Mm, wherein he accused deceased of prosecuting him about said horse, which deceased denied. As a matter of fact, deceased had not prosecuted him, but had instituted criminal proceedings against the Sanders. At this time appellant cursed deceased, according to the state’s witnesses, and said to him: “You G-d-son of a b-. I will see you to-night” — and, it seems, had his open knife in his hand at the time. Thereupon one of the Sanders who was with him told him not to do that, and he desisted. Another state’s witness, in substance, testified that appellant on this occasion said: “If I don’t get him to-night or this evening, I will get him to-morrow.” Soon afterwards, and before night, appellant went home. Deceased and his two sons did not leave town for home until night. The state’s witnesses testified that as deceased and they were passing appellant’s house going home that night, appellant hailed deceased, had him to stop, stating he wanted to see him. He got his razor out of his trunk at the time, and took it with him when he went down to see deceased. That appellant again accused deceased of prosecuting him about said horse, which deceased denied; and that, without deceased doing anything, appellant put one foot up on the hub of the wagon, got up, caught deceased with his left hand, and with his right cut deceased’s throat from ear to ear with the razor, from which deceased died in a few minutes. Deceased’s wagon tlien went on Rome. Appellant returned to Ris Rouse, waited a few minutes, went to tRe Sanders’, and in going tRrew away Ris razor. He Rad tRe Sanders to telepRone for tRe sReriff to come and get Rim. According to tRe appellant and Ris wife and motRer’s testimony, deceased called appellant out to Ris wagon, stating tRat Re wanted to see Rim, and appellant acted and cut deceased’s tRroat in self-defense. His self-defense was submitted fully in tRe court’s charge to tRe jury, and, with ample evidence to sustain the finding, the jury found against Rim on this issue.

Appellant has several bills of exceptions to the admission and exclusion of very brief portions of testimony. It is unnecessary to take them up separately. A witness may testify that another was mad, from his tone of voice. 1 Branch’s An. P. O. pp. 73, 74.

Appellant Ras a Rill showing Re objected when the state asked one of its witnesses to state to the jury: “If you heard Rim say anything in reference to Mr. Daniels, tell what it was.” To which question and answer Re objected, and the witness answered:

“Well, sir, I don’t know if it was Mr. Daniels he was talking about or not; but I heard him say that if he didn’t get him to-night or this evening, he would get him to-morrow.”

This is, in substance, the whole of the bill, except Ris objections, which were because same did not show that the defendant was talking about deceased, and it was prejudicial to Ris rights and inadmissible. TRe state objects to the consideration of this bill because it is wholly insufficient under the long and well-established rules announced and adhered to by this court to authorize its review. TRe state’s contention is correct. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ortiz v. State, 68 Tex. Cr. R. 528, 151 S. W. 1056; Best v. State, 72 Tex. Cr. R. 201, 164 S. W. 996; 1 Branch’s An. P. C. p. 134, where Re collates a very large number of cases. All the circumstances and testimony satisfactorily show that appellant’s said statement Rad reference to deceased and to no one else. Howe v. State, 177 S. W. 498, and Hiles v. State, 73 Tex. Cr. R. 21, 163 S. W. 717, and cases therein cited.

Appellant has several other very meager and insufficient bills, wherein Re complains that the court sustained the state’s objection when Re asked several witnesses if deceased, on the evening when Re was in town, did not inquire of them where Re could get some whisky, and if deceased did not drink quite a lot. TRe court’s action was correct in all these matters.

Appellant introduced several witnesses, who testified to deceased’s bad reputation as a violent, quarrelsome, and dangerous man, going back in that respect, it seems, some 15 or 16 years. The state on this point introduced among others, two witnesses. Appellant’s bills complain of the testimony of these two witnesses. TRe bill shows, however, that in answer to questions, they stated that they got acquainted with him 15 to 20 or more years before the killing, but neither bill shows that either of said witnesses testified what deceased’s reputation was at that time. Hence they present no error.

The court, as stated, submitted appellant’s claimed self-defense in a full and complete charge, to which there was no objection, and without in any way charging on provoking the difficulty, or otherwise limiting his said defense. The court, therefore, did not err in refusing to give his special charge, to the effect that he had a right to got his razor and carry it with him to deceased’s wagon at the time he killed deceased, and that so doing in no way abridged his right of self-defense. Williford v. State, 38 Tex. Cr. R. 396; 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr.. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 585, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 117, 167 S. W. 366; Ford v. State, 177 S. W. 1176; and the cases of Crippen v. State, 189 S. W. 496, and Marshall v. State, 189 S. W. 499, recently decided, but not yet officially reported. The argument of the district attorney was strictly based upon the testimony of the case, and he had the right to base his argument thereon.

Appellant in his motion for new trial alleged some newly discovered testimony. The record shows that when the court heard the motion for new trial he heard evidence on this point. What that evidence was is in no way shown in this record. Hence, under all the authorities, this court must presume that the judge was clearly authorized to refuse a new trial on that ground. See the cases collated in Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 726, and 1 Branch’s An. P. C. p. 307.

There is no reversible error presented in this case, and the judgment is affirmed.
      cteoFor other «aseó see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    WELLS v. STATE.
    (No. 4307.)
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1916.)
    Appeal from District Court, Burnet County; N. T. Stubbs, Judge.
    D. W. Wells was convicted of cattle theft, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The record is before us without a statement of facts or bill of exceptions. Nothing in the record can be reviewed, in the absence of exceptions and the facts. The conviction of appellant for cattle theft will therefore be affirmed.

HARPER, J., absent.


author: HARPER, J.

text:
    MANICCHIA v. STATE.
    (No. 4323.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.)
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    Lee Manicchia was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $25.

Appellant was tried in the criminal district court of Dallas county; a jury of 12 men being impaneled. The verdict was returned by 11 of the jurors — one of the jurors, J. R. Bell, refusing to concur in or sign the verdict. This question was recently before this court in Cortonelia v. State, 189 S. W. 139, and Renfro v. State, 189 S. W. 137; and for the reasons stated in these eases this case must be reversed and remanded.

The judgment is reversed, and the cause remanded.


text:
    FREEMAN v. STATE.
    (No. 4321.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.)
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Oscar Freeman was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

From a conviction for assault to murder appellant has appealed to this court.

The record contains neither a statement of facts nor bill of exceptions; nor does it contain a motion for new trial. As the record is presented, there is nothing to review, and the judgment is ordered to be affirmed.


author: RASBURY, J.

text:
    FIRST STATE BANK OF TEAGUE v. HARE et al.
    (No. 7654.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 9, 1916.)
    1. Bills and Notes <@=49 — Accommodation Maker — Right to Rescind.
    An accommodation maker of a note had the right, at any time before the payee bank advanced money thereon, to withdraw from and rescind 'his engagement evidenced thereby.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 66; Dec. Dig. <@=49.]
    2. Bills and Notes <@=52 — Release — Effect on Cosurety.
    Where one of two accommodation makers of a note before the payee bank had advanced money thereon notified the bank that he desired to .withdraw from the note, he did not become a cosurety upon the note, and his release did not release the other accommodation maker.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 71; Dec. Dig. <@=52.]
    3. Principal and Surety <@=195 — Discharge op Surety — Epeect on Cosurety.
    The release of one of two accommodation makers on a note after 'he had become a co-surety would not release the other accommodation maker, as it would in no manner impair his right of contribution.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 624-626; Dec. Dig. @= 195.]
    Appeal from Limestone County Court; G. W. Fryer, Judge.
    Action by the First State Bank of Teague against R. P. Hare and others. From a judgment for plaintiff against named defendant, but for the other defendants, plaintiff appeals.
    Reformed by rendering judgment against defendant J. R. Thomas, and as reformed affirmed.
    See, also, 152 S. W. 501.
    D. T. Garth, of Teague, for appellant.
   RASBURY, J.

Appellant sued appellees, Hare, Thomas, and Stewart, upon their joint and several promissory note. There was jury trial. Verdict was for appellant against Hare and in favor of Thomas and Stewart. Judgment was in accordance with the verdict, from which appellant prosecutes this appeal.

The following facts in support of the verdict of the jury are deducible from the evidence: On May 22, 1909, R. P. Hare, J. R. Thomas, and W. F. Stewart, each as principal, signed a promissory note in usual form by which they agreed jointly and severally to pay to the order of appellant $200, with interest and attorney’s fees, etc. Other provisions unnecessary to detail were part of the note. The note was first signed by Hare. He then requested Thomas to sign, which Thomas did unconditionally. He next requested Stewart to sign, which he also did unconditionally. While both Thomas and Stewart signed the note unconditionally and it recited they were principals, they were in fact accommodation makers. Within an hour or two after signing the note Stewart called at the bank, and inquired of the president if any money had been advanced Hare on the note. Being informed that none had, he advised the president that he desired to withdraw from the note and not to advance any money thereon on his signature. The president agreed not to do so. On the same day, at about 3 o’clock in the afternoon, Stewart informed Thomas of what he had done. Immediately thereafter Thomas communicated with the president of the bank by telephone that he would also not be bound on the note. He was told by the president of the bank that the bank Had advanced the money. When Thomas signed the note hé was not informed that Stewart was to sign, nor did he sign on condition that Stewart would sign. After several extensions of the note appellant filed suit on same against Hare, Thomas, and Stewart, with the result stated.

It is proper to state that the president of the bank, with whom Stewart and Thomas liad their interviews, testified that he had no recollection of the matters about' which each testified. It is also necessary to state that the amount of the principal is not shown in the copy of the note copied in the statement of facts, but all the witnesses testify it was originally for $200, and we assume such to be true.

The trial judge instructed the jury if appellant released Stewart upon the note, without the knowledge and consent of Thomas, that then they should return verdict for Thomas. The action of the court in that respect is the single issue presented by the record. Stewart, being an accommodation maker, had the right, at any time before the note passed into the hands of a holder for value, to withdraw from and rescind his engagement evidenced thereby. Appellant, the evidence shows, had paid no money thereon when Stewart notified its president he would not be bound, and hence was not a holder for value.

Appellee Thomas, who- has not favored us with brief, but as indicated by his pleading in the court below, maintained further that when Stewart withdrew from the note it had the effect of releasing him as well. Such also was the opinion of the trial judge. It may be that, nothing more being shown, the release of one joint maker after delivery of a note for value would also release other joint makers, but we conclude that such a case was not presented upon trial of this cause, and that it is not necessary to decide that question. The pleading and proof here show that both Thomas and Stewart were in fact sureties, and had the consequent right, as we have indicated, to withdraw from the obligation at any time before appellant advanced the money thereon. This Stewart did. Thomas, however, according to his testimony, did not notify the bank of his intention to withdraw until the money was advanced on the note, and as a consequence he was not released unless his obligation was in some way dependent upon that of Stewart. Such does not appear to be true, since he testified that he signed the note unconditionally ; that is, he did not sign it on condition that Stewart wtould also sign. Thus when the bank advanced 1-Iare the money after Stewart had withdrawn from the note, such act did not impose upon Thomas any greater obligation than he originally undertook, but left his obligation precisely as it was. No question of cosureties and their consequent right of contribution arises, for the reason that Stewart withdrew from the note before he ever became a cosurety.

Even had Stewart become in law a co-surety, his release would not release Thomas, since it would have in no manner impaired any right of contribution. Bridges v. Phillips, 17 Tex. 128; McIlhenny v. Blum, 68 Tex. 197, 4 S. W. 367; Clifton v. Foster, 20 S. W. 1005; Merchants’ Nat. Bank v. McAnulty, 31 S. W. 1091. However, we are not to be understood as holding that Stewart was a cosurety of Thomas. The appellant having been notified by Stewart, an apparent joint maker, that he was in fact a surety and desired to withdraw from the note, and the appellant having, with such notice, advanced the money on the note, the trial court properly went into the real contract of the several parties; and, it having developed that the money was advanced in compliance with Thomas’ contract, we conclude he is bound thereon. Accordingly, it becomes our duty to reform the judgment so that ap-pellee Thomas shall be bound for the amount of the note, interest, and attorney’s fee.

As reformed, the judgment is affirmed.
      other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    TYLER et al. v. McCHESNEY.
    (No. 624.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.
    Rehearing Denied Jan. 11, 1917.)
    1. Partnership <©=3336(2) — Suit por Dissolution and Accounting — Evidence.
    In a partner’s suit for dissolution and accounting, the court properly refused to permit defendants to offer in evidence a trial balance made from the firm’s books, which would simply show that the books were in balance or out of balance, and would not properly show net profits.
    [Ed. Note. — Eor other eases, see Partnership, Cent. Dig. § 797; Dec. Dig. <@=>336(2).]
    2. Appeal and Error <@=>926(4) — Bill op Exceptions — Exclusion op Evidence — Presumption.
    On appeal in a partner’s suit for dissolution and accounting, where defendants’ bill of exceptions, to the court’s refusal to permit them to offer in evidence a trial balance made from the books of the firm, fails to incorporate the trial balance, the Court of Appeals cannot presume that it would have thrown any light on the subject-matter of the inquiry, the net profits of the firm.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2899; Dec. Dig. <@=>926(4).]
    3. Evidence <@=>266 — Conversation Outside Hearing op Party.
    A conversation between third parties, outside the hearing of plaintiff, ordinarily would not be admissible in evidence against him.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1051, 1052, 1054-1056, 1058-1060; Dec. Dig. <@=>266.]
    4. Partnership <@=>328(2) — Suit por Dissolution and Accounting — Evidence—Materiality.
    In suit for dissolution and accounting by a partner, testimony as to a conversation between a witness and the federal district attorney, who came to investigate the firm’s mode of doing business, and who informed the partners that they must do certain things to free themselves from liability to prosecution, was immaterial to any issue.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 780; Dec. Dig. <@=>328(2).]
    5. Evidence <@=471(2) — Conclusion or Pact.
    In a partner’s suit for dissolution and accounting., where all the books of the firm were offered in evidence, and the court permitted plaintiff, who was a bookkeeper, and other bookkeepers, and also a defendant on behalf of defendants, to explain the purpose of each and every book, and to explain the accounts kept therein,' the court properly excluded a general question to a defendant as to what books he went to for a true criterion and guide as to actual cash received and paid out.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 2160; Dee. Dig. <@=>471(2).]
    6. Appeal and Error <@=>232(2) — Reservation op Grounds op Review — Objection to Testimony.
    Where the bill of exception to the admission of testimony shows that the objection thereto urged in the trial court was entirely different from the objection urged in the brief, the assignment will be overruled.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 1430, 1431; Dec. Dig. <@=n 232(2).]
    7. Trial <@=>260(1) — Instructions—Requests —Repetition.
    Where a phase of the case is. sufficiently covered by the court’s charge, the refusal of a requested special charge on the matter is not erroneous.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 651; Dec. Dig. <@=>260(1).]
    8. Appeal and Error <@=>1068(5) — Harmless Error — Repusal to Charge.
    In a partner’s suit for dissolution and accounting, where the jury found a charge against plaintiff for the actual cost of doing the clerical work he was supposed to do under the partnership agreement, the refusal to defendants of a requested special charge, instructing that if plaintiff voluntarily left the firm’s office, and, under the articles of partnership, he was to keep the books of the company, and, by reason of his failure to do so, it became necessary to have the same done, plaintiff was chargeable with the amount expended, was harmless.
    [Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. <@=>1068(5); Trial, Cent. Dig. § 475.]
    9. Partnership <@=>333 — Accounting—Individual Expenses op Partners.
    In a partner’s suit for dissolution and accounting, two cash items, one representing attorney’s fees paid for answering in a garnishment suit against defendant partners individually, and the other representing traveling expenses of a defendant on his individual business, were not chargeable against partnership funds.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 792-796; Dec. Dig. <@=>333.]
    10. Partnership <@=>342 — Accounting—Sup-piciency op Verdict — Certainty.
    Verdict for plaintiff for a third interest of the realty and personalty of the firm, and for a fourth interest in the total net profits, found to be $19,631.30, subject to a deduction against him of $709.90, was not insufficient as vague and indefinite.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 810, 812; Dec. Dig. <@=>342.]
    Appeal from District Court, Reeves County ; ¡3. J. Isaacks, Judge.
    Suit by A.’ S. McChesney against J. L. Tyler and another. From a judgment for plaintiff, defendants appeal.
    Judgment affirmed.
    G. H. Culp, of Gainesville, Jno. B. Howard, of Pecos, and E. O. Canon, of Waco, for appellants. Clay ’Cooke, of Pecos, for appellee.
   HIGGINS, J.

McChesney brought this suit to dissolve the partnership theretofore existing between himself and appellants, J. L. and R. P. Tyler, doing business under the firm name of Southern Land Development Company; McChesney having a one-fourth interest in the firm, the appellants jointly owning the other three-fourths interest therein. The appointment of a receiver and an accounting of the partnership affairs was also sought.

The Southern Land Development Company was originally organized by McChesney, Brooke Smith, and the Tylers; each having a fourth interest therein. Its business was to cut into town lots certain acreage property and sell same. Subsequent to its organization, J. L. Tyler acquired tlie Smith interest. The books of the partnership consist of a ledger and a contract register. The contract register contained the accounts of the various purchasers of lots from the company. In it would be entered the name of the purchaser, his address, number of contract, and payments made by him. The lots were sold on payment of $10 cash and $10 per month until $170 had been paid. The register also showed the amount of agent’s commissions paid out of each purchase. This was the only record the company had with its customers and agents, and it was testified to by all parties that it was correct; none of such accounts being in the ledger proper. The ledger proper showed other accounts, viz. the accounts of the individual partners, interest and discount account, furniture and fixture account, expense account, real estate account, and other items outside the sale of lots, which, as stated above, were shown only in the contract register. Both the contract register, showing said receipts, and the ledger, showing all other accounts, were offered in evidence. The totals of the various accounts are testified to and are not disputed, and a summary thereof appears in the statement of facts and is taken as correct by the parties.

The items of the accounts disputed by McChesney were numerous, but on the proof only a few were considered. First, McChes-ney claimed that $5,888 paid by the firm to the Tylers as bonus on land conveyed by them to the firm was excessive. Another disputed item was the charge of $1,400 against McChesney which was charged .to him as expense for clerical hire after the dispute between the parties arose and Mc-Chesney left the office and a clerk was hired to do the clerical work which he had been doing. Another item was $250 paid to attorneys for answering in a garnishment suit at Brownwood, Tex. An item of $50 paid to one Walter Browning, and another item of $83.70 paid to J. L. Tyler for traveling expenses. All of the witnesses testified to the total amounts of the various accounts in the ledger, and their testimony is not in conflict; but none of the witnesses testified to the receipts as shown by the contract register except McChesney, and his testimony is not disputed.

It appears that the defendants were attempting to settle upon the basis of the amount of money that the firm had in bank, rather than upon the basis of the receipts shown by the contract register. The real issue between the parties was as to the total receipts of the partnership, there being no dispute as to the amount of disbursements except the above items particularly mentioned, and appellants claim that the amount in bank showed the correct net receipts, while McChesney claimed that the contract register showed vastly more receipts than were accounted for by the cash in bank and the total disbursements as shown by the ledger; there being a variance of $11,000 or more. The jury returned a verdict in favor of Mc-Chesney for a one-fourth interest in the real and personal property of the firm, a one-fourth interest in the net profits which it found to be $16,958.30. They further found the difference between the cash market value of the real estate sold to the firm and the amount they received from the firm for the same to be $2,673, which they added to the net profits, making a total net profit of $19,-631.30. One-fourth of this amount, to wit, $4,907.82, was due McChesney, from which they deducted a charge against McChesney of $709.90, leaving the neb amount due him to be $4,197.92, which amount they found for him, and for which amount judgment was rendered in his favor, together with a one-fourth . interest in the real and personal property of the firm.

Error is first assigned to the court’s refusal to permit appellants to offer in evidence a trial balance made from the books of the company. In this there was no error. The issue to be determined was the net profits of the partnership. A trial balance would not show this. A trial balance simply shows that the books are in balance or out of balance as the case may be. It would not properly show net profits. The proper way to obtain the amount of the net profits' was to ascertain the company’s gross receipts and deduct therefrom all proper disbursements and charges. This a trial balance would not show.

Furthermore, the bill of exception fails to incorporate the trial balance, exclusion of which is complained of, and this court has no way whatever of determining what the trial balance showed. We cannot presume or assume that it would have thrown any light upon the subject-matter of the inquiry, for, as stated, a trial balance, ordinarily, would not do so.

The second and third assignments complain of the court’s refusal to permit the witness McAdams to testify that the federal attorney of the Ft. Worth district came out to investigate the Southern Land Development Company’s manner and mode of doing business and that they had out their contract, which was a contract to sell a lot and give so many acres1 of land with each contract, and that at that time they had no acreage save and except a tract cut up into lots, and that the federal attorney informed them it would be necessary to secure acreage property and put it into the name of the Southern Land Development 'Company; that McChesney was informed of this matter and of what the federal attorney had said and was aware and knew that, unless such acreage property was secured, all the members of the partnership were liable to prosecution. In the first, place, a conversation between McAdams and the federal district attorney, outside the hearing of the plaintiff, ordinarily would not be admissible in evidence against McCbesney; but, aside from this consideration, it is1 not apparent bow tbe facts wbicb tbe witness sought to detail would in any wise affect MeObesney’s right to an accounting, and has no bearing whatever upon tbe issue as to tbe amount of tbe net profits to which be was entitled. Tbe proferred testimony was wholly immaterial to any issue in tbe case.

R. P. Tyler, while testifying in bis own behalf, was asked by bis counsel this question:

“When it becomes necessary to go into your books, tbe system of bookkeeping that was carried on there, to get a true system (criterion) of actual cash received and paid out, to what books do you go for a true and correct criterion and guide?”

Objection was made by plaintiff, and tbe witness was not permitted to answer. If permitted to answer, tbe witness would have stated that be would go to tbe ledger and cash book to get tbe actual cash received and paid out. Error is assigned to tbe exclusion of this testimony. There was no error in tbe court’s action. R. P. Tyler was not a bookkeeper. All of tbe books of tbe company were offered in evidence. Tbe court permitted McObesney, who was a bookkeeper, Beauchamp, Browning, C. E. Tyler, and McAdams, all bookkeepers, and also R. P. Tyler, upon behalf of appellants, to explain tbe purpose of each and every book and to explain tbe accounts kept therein. It was therefore not error to exclude a general question calling for a mere conclusion of R. P. Tyler as to what book be would look to in order to ascertain tbe amount of cash received. His conclusion might have been an entirely erroneous one. In fact, it clearly appears that it was so.

Error is assigned to tbe admission of testimony of tbe witness J. W. Moore as to the value of certain lands. Tbe bill of exception taken to tbe admission of bis testimony shows that the objection urged in tbe lower court is entirely different from tbe objection urged in tbe brief, for wbicb reason the objection presented' under this assignment is overruled.

Error is assigned to# tbe refusal of tbe court to give a requested special charge instructing tbe jury that if tbe plaintiff voluntarily left tbe office of tbe copartnership, and if they found from tbe evidence that under tbe articles of copartnership plaintiff was to keep tbe books of tbe company, and by reason of bis failure to do so it became necessary to have tbe same done, then, for any amount so expended for such work, they would find tbe same to be a valid charge against the plaintiff. Tbe court’s charge sufficiently covered this phase of tbe case. Furthermore, tbe jury found a charge against him for tbe actual cost of doing tbe clerical work that be was supposed to do under tbe partnership agreement, to wit, tbe sum of $709.90. For tbe reasons indicated, tbe refusal of tbe requested charge presents no error.

Tbe court, in its charge to tbe jury, instructed it to deduct from tbe expense account said sum of $250 paid as attorney’s fees for answering a garnishment proceeding at Brownwood, and said sum of $83.70, traveling expenses of J. L. Tyler, and error is assigned to this instruction. It was a proper instruction. Tbe evidence shows that tbe $250 attorney’s fees was paid for answering in a garnishment against tbe Tylers individually, and this was not a proper charge against tbe partnership. As to tbe item of $83.70, the evidence shows that this was traveling expenses of J. L. Tyler, on his individual business, and, of course, that could not be charged against partnership funds.

It is contended that tbe verdict is vague and indefinite and not responsive to tbe pleadings, issues, and evidence. It is not pointed out in what particular it is subject to tbe objection urged, and we think tbe objections are without merit. Tbe verdict is clearly sufficient and responsive to tbe pleadings, issues, and evidence.

It is also contended that tbe verdict and judgment was contrary to tbe law and unsupported by tbe evidence. An examination of tbe testimony shows that tbe verdict is amply supported thereby, and, under tbe verdict found, tbe law was properly applied in tbe judgment rendered.

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


text:
    SKEEN v. SKEEN.
    (No. 7666.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1916.)
    1. Insane Persons &wkey;>87 — Divorce—Prosecution by Next Friend.
    Vernon’s ,Sayles’ Ann. Civ. St. 1914, art. 4632, prohibits the granting of a divorce when either spouse is insane, and, where insanity of one of the spouses exists, a next friend, intervening during pendency of the insane spouse’s suit for divorce, cannot prosecute it to a termination.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 155; Dec. Dig. <§^S7.]
    2. Insane Persons <&wkey;87 — Partition of Property — Suit by Insane Wife.
    In view of the law recognizing the rights of husband and wife to agree as to the division of their property when living apart or in view of a separation, in a wife’s suit for divorce, the court, having jurisdiction of the parties, could take charge of their property and grant partition thereof at the instance of the next friend of the wife, although the wife was insane, so that divorce could not be granted.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 155; Dec. Dig. <®=»87.]
    3. Husband and Wife <&wkey;278(l) — Division of Property — Agreement — Enforceable Character.
    Where, at the time of a wife’s suit for divorce and for division of property, her husband was not contributing anything to her support, and for a long time prior thereto each party had determined not to live together, and an agreement for division of property was entered into by them with the authority of each when the wife was of sound mind, the agreement for division was enforceable in the suit at instance of the next friend of the wife, who 'had become insane.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1046-1051, 1053; Dec. Dig. &wkey;278(l)J
    4. Insane Persons <&wkey;94(l) — Suit by Insane Wife — Representation by Next Friend.
    Where a wife suing for divorce and division of property became insane, no guardian being appointed to represent her, it was proper for her to be represented in her suit by next friend.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 164; Dec. Dig. &wkey;>94(l).]
    Appeal from District Court, Delta County; A. P. Dohoney, Judge.
    Suit for divorce and partition of property by Susan Skeen against W|. E. Skeen, wherein J. E. Skeen, as next friend of plaintiff, filed a motion for injunction and judgment dividing the property. From a judgment sustaining defendant’s plea in abatement and dismissing the cause, J. E. Skeen, as next friend, appeals.
    Judgment reversed in part, and case in such respect remanded.
    James Patteson, of Cooper, for appellant. I. B. Lane, of Cooper, for appellee.
   RAINEY, C. J.

On December 12, 1914, Susan Skeen brought suit against her husband, W. E. Skeen, for divorce and partition of their property. On January 18, 1915, the defendant filed a plea in abatement setting up that plaintiff was insane and could not prosecute the suit. On the day last mentioned the court allowed plaintiff alimony in the sum of $50 per month. On January 20, 1915, plaintiff and defendant, by their attorneys and. with their consent, signed and caused to be filed a written agreement partitioning their property. On September 17, 1915, J. E. Skeen, as next friend of plaintiff, filed in said cause a motion alleging that just after signing said agreement plaintiff became insane, and that defendant was collecting the rents from the property so set apart to plaintiff and asked for an injunction restraining defendant from such action and that judgment be entered dividing said property as per said agreement, etc. On October 5, 1915, said J. E. Skeen amended the petition of plaintiff praying for the divorce, setting up the agreement for division of the property, and prayed for judgment. On October 11, 1915, defendant filed his original answer, specially excepting to plaintiff’s petition and alleging that plaintiff was insane and could not maintain the suit. On the same day the case was tried and defendant’s plea in abatement was sustained and the cause dismissed, and J. E. Skeen, as next friend, appeals.

In passing upon the plea in abatement there were no facts presented other than the allegations of the pleadings, about which there seems to be no controversy, except the defendant contends that Susan Skeen was insane when the agreement for division of the property was made, while the plaintiff contends that at said time she was perfectly rational. The pleadings of plaintiff show that in 1903 Susan Skeen became insane and afterwards in a few months became rational, and in 1906 she was again insane for a few months and again became sane, and then in 1909 she was duly adjudged insane by a court of competent jurisdiction and sent to the asylum for the insane, where she remained until about September 10, 1913, when she became sane and was released from the asylum and returned to Delta county; that she was never kept long in the asylum, except from 1909 to 1913, as aforesaid, and that at all other times she would only be insane for a few months at a time; that from the date of her discharge from the asylum to February 1, 1915, she was sane and perfectly in her right mind, then able to contract At the time of trying this case she was insane and confined in the asylum. The agreement for division of the property was entered into before February 1, 1915, and shows it to have been filed with the district clerk of Delta county on January 20, 1915.

On September 17, 1915, J. E. Skeen, as next friend for Susan Skeen, filed a motion in the divorce proceeding setting up the different periods of insanity and the lucid intervals, and her inshnity and confinement in the asylum at that time, and praying for judgment of divorce separating Susan and W. E. Skeen, for a partition of their property as per agreement, and that the injunction thereto granted be perpetuated. Susan Skeen alleged sufficient grounds for divorce, but our statutes on divorce, by amendment to article 4632, provide “that this act shall not apply to any case where either the husband or wife is insane.” Vernon's Sayles’ Civ. Stats. 1914. This provision prohibits the granting of a divorce when either spouse is insane, and we are of the opinion that a next friend, where insanity of one of the spouses exists, who intervenes during the pending of the suit for divorce, cannot prosecute the suit for divorce to a termination. However, in view of our law recognizing the rights of husband and wife to enter into an agreement for the division of their property when living apart or in view of a separation, and the court having jurisdiction of the parties, we see no reason why the court, as alleged in this proceeding, could not take charge of the property and grant a partition thereof at the instance of the next friend of Susan Skeen, who was insane.

J. E. Skeen, the son, made himself a party as next friend and asked that judgment of partition be granted. But the defendant says the agreement for partition was entered into with the view that a decree of divorce was to be granted, and as no decree of divorce was granted the court did not err in rendering a decree for partition and dismissing the case.

Susan Skeen alleged that W. E. Skeen was not contributing anything to her support, and J. E. Skeen, as next friend, alleged in his plea:

“That at the time of the filing of this suit, and long prior thereto, plaintiff and defendant had each and both determined not to live together in life as husband and wife; that the agreement for division was entered into with the authority and consent of each; and that at the time Susan Skeen was of rational and sound mind.”

If these allegations are true, we see no reason why the court below should not have enforced the agreement.

In Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324, in discussing this subject, Mr. Justice Gaines said:

“All deeds for future separation are held to be absolutely void; but where the spouses have already separated, or have determined upon a separation and are in the act of executing it, a conveyance by the husband intended as a provision for the support of the wife will be upheld. In other respects a deed of separation was held void. This was the carefully restricted doctrine at an early day in the English courts, and as so limited it has been universally recognized in the courts of this country. The tendency of the later English eases is to extend to deeds of separation a more liberal support (1 Bishop on Marriage and Divorce, § 634a), while by the weight of authority in the American courts they are held valid in so far as they settle the rights of property between the husband and wife, provided they have been entered into without coercion or other undue influence, and the provisions are just and equitable. (Cit'ing authorities.) In most of the cases cited the I only interest in property relinquished by the ! wife in the agreement was her dower in the husband’s lands. But we think that, in a jurisdiction where the spouses hold each an equal interest in the property acquired during marriage, the same principle should apply to deeds of separation which make a partition of the common property. Unless against the policy of the law, and on that account void, there is no difficulty in giving effect to the conveyances in the present case.”

In Caffey’s v. Caffey’s, 12 Tex. Civ. App. 616, 35 S. W. 738, this court adhered to this doctrine; Lightfoot, C. J., rendering the opinion. In the case of Crouch v. Crouch, 30 Tex. Civ. App. 288, 70 S. W. 595, we upheld the same doctrine.

In view of Susan Skeen’s condition, it was necessary for her property rights to be protected, and, no guardian being appointed to represent her, it was proper for her to be represented by next friend.

The judgment is reversed as to the action of the court in not passing upon the agreement of division of property, and the case in that respect is remanded.
      igu^For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes