author: PLEASANTS, C. J.

text:
    IMPERIAL SUGAR CO. v. CABELL et al.
    (No. 6736.)
    (Court of Civil Appeals of Texas. Galveston.
    July 1, 1915.
    Rehearing Denied Oct. 14, 1915.)
    1. States <&wkey;191 — Action Against — Suit Against Agents.
    That defendants in trespass to try title are claiming possession as agents for the state will not defeat the right to maintain the action by one who has'shown title and right of possession, on the ground that suit is brought without the state’s consent; the only necessary party being, under Rev. St. 1911, arts. 7737, 7738, the person in possession.
    [Ed. Note. — For other eases, see States, Cent. Dig. §§ 179-184; Dec. Dig. &wkey;19L]
    2. Deeds <&wkey;165 — Condition — Eeeect of Breach.
    Where a vendor sold certain, land to the board of penitentiary commissioners under a deed expressly retaining a vendor’s lien to insure the vendees’ obligation to make payment and to raise and sell to the vendor a certain amount of sugar cane for 10 years, and reciting that the deed should become absolute upon final payment and performance of the vendees’ obligations, but the vendees failed to comply with their contract and repudiated its obligations, the vendor’s title remained unimpaired, and he was entitled to possession of the premises.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 521; Dec. Dig. &wkey;>165.]
    3. Deeds <&wkey;147 — Conditions—Vapidity.
    A deed of land provided that the superior title should remain in the vendor, and pass to the vendee only upon the condition that the contract be fully performed, is not rendered ineffectual because the consideration for the contract was partly the sale of personal property, since a conveyance may be made conditional upon the performance of any lawful contract.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. §§ 473-477; Dec. Dig. &wkey;147.J
    4. Deeds <&wkey; 145 — Construction—Conditions —Covenants.
    Where a deed of land was made conditional upon the performance of a contract whereby the vendees were to cultivate a certain part of the land in sugar cane for 10 years and sell the cane to the vendor, such agreement was a condition, the breach of which would prevent title from vesting in the vendees, and not a covenant, though such in form.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 471; Dec. Dig. &wkey;145.]
    5. Vendor and Purchaser <&wkey;296 — Remedies of Vendor — Lien.
    A vendor, who has reserved an express vendor’s lien to,secure the consideration for a conveyance, may, on default by the vendee, rescind the contract and recover the land in trespass to try title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § SS2; Dec. Dig. <&wkey;> 296.]
    6. Vendor and Purchaser <©=^267 — Remedies of Vendor — Lien—Release.
    A vendor sold land and retained a vendor’s lien to secure the payment of the consideration and the performance of an agreement whereby the vendees were to raise a certain amount of sugar cane and sell it to the vendor for a period of 10 years. On payment of the money consideration agreed upon, the vendor executed a release of his lien, which provided that the cane contract should continue in full force and effect and that the release should not be construed as a cancellation thereof. Held, that reference was made to the cane contract in its entirety, and therefore did not release the reservation of title for its performance, since, although a release concludes with general words, it will be construed to relate to the particular matter recited, which the parties intended to release.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 751-758; Dec. Dig. &wkey;>267.]

      7. Yendok and Purchaser <&wkey;266 — Remedies oe Vendor — Lien—Waiver.
    Where a contract for the sale of land and the cultivation of cane for 10 years was secured by a vendor’s lien, failure to assert the lien upon a partial breach of the contract was no waiver of future performance, and suit to recover the land was not required to be brought until the vendees’ repudiation of the entire contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. <&wkey;>266.]
    Appeal from District Court, Ft. Bend. County; Samuel J. Styles, Judge.
    Action by the Imperial Sugar Company against Ben E. Cabell and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Lane, Wolters & Storey and Wm. A. Vinson, all of Houston, Williams & Neethe, of Galveston, D. Rj Peareson and Thos. B. Peareson, both of Richmond, and Hill & Eakins, of Huntsville, for appellant. B. F. Looney, Atty. Gen., and G. B. Smedley and C. M. Cureton, Asst. Attys. Gen., for appel-lees.
   PLEASANTS, C. J.

This is an action of trespass to try title, brought by the appellant against Ben E. Cabell, L. W. Tittle, and R. W. Brahan to recover about 5,200 acres of land, known as the “Sartartia Plantation,” in Ft. Bend county. The defendants, by plea in abatement, disclaimed any right, title, or interest in the land sued for as individuals, and alleged that they together constituted the board of prison commissioners of the state of Texas, and as such were holding the land in question for the state of Texas, and as officers of the state; that the fee-simple title to said land was in the state of Texas, and not in the defendants, or either of them; that, while the suit was brought against them, the effect of a judgment against them would be to divest the title to said land out of the state of Texas; that the suit was in fact against the state, and could not be maintained under the laws and Constitution of Texas. In their first amended original answer the defendants, both by exception and plea, raised substantially the same question. It was further specially alleged that the respective rights and contentions of the parties arose out of the following transaction, viz.: That on February 17, 1908, the Imperial Sugar Company executed and delivered to W. I-I. Gill, R. H. Hicks, and J. T. Mewshaw, the then board of penitentiary commissioners of Texas, a general warranty deed to the land in question, and also to a large amount of personal property therein described, for the use and benefit of the state of Texas; that as a part of the same transaction, although not contemporaneously executed, the said board of penitentiary commissioners executed and delivered to the Imperial Sugar 'Company a certain instrument in writing, the two instruments being executed, it was alleged, as the result of a verbal agreement and negotiations between the Imperial Sugar Company and the board of penitentiary commissioners.

The deed referred to in defendants’ answer is a deed of general warranty executed by the appellant, and conveys to the persons last above named, composing the board of penitentiary commissioners, for the use and benefit of the state of Texas, the land in controversy, and also the following personal property:

“134 hogs, 139 work mules, 17 saddle horses, SO tram cars, 75 sections of portable track, 49 cultivators, 16 disc cultivators, 115 turning plows, 6 disc plows, 35 sweep stocks, 7 stubble shavers, 5 stubble diggers, 8 middle bursters, 13 subsoilers, 6 cane scrapers, 12 cotton, planters, 2 mowing machines, 30 hoes, 6 post hole diggers, 3 rice seeders, 12 shovels, 10 spades, 20 stubble hoes, 12 briar hooks, 30 axes, 6 scrapers, 6 pitchforks, a large number of double and single trees, 150 cane knives, 60 sets of plow gear, 17 cane wagons (secondhand), 10 cane wagons (new), 9 road wagons, 2 good graders, 1 corn crusher, about 20 dozen tract chains for unloading cane, 6 saddles for guards, 18 wagon saddles, and 3 complete derricks; about 1,000 bushels of ear corn, 2 large barns of crushed corn, about 50 tons of rice bran, about 200 bales of alfalfa and hay, 75 bushels of field peas, about 1,500 bushels of cotton seed for planting purposes; also one blacksmith and wheelwright shop and tools; also a large amount of repair material, such as clev lap links, etc., and such other similar personalty and chattels as were on hand and used in connection with the plantation, and all machinery improvements and buildings of every description then on the land.”

Following the covenant of general warranty the deed contains the following:

“But it is expressly stipulated, agreed, and understood, by and between the parties hereto, that .a vendor’s lien and the superior title to all lands and personalty hereby conveyed is hereby retained and reserved by the company and granted by the board to secure full, complete, and prompt payment of the consideration herein agreed to be paid therefor, as is hereinafter fully set forth, and to fully insure the obligations herein assumed by the board [the vendee], and upon the full payment of the said consideration and performance of said obligations this deed shall become absolute. The consideration agreed to be paid for said land and personal property is the amount and upon the terms and conditions following, as is evidenced by the one certain obligation in writing, for the sum of one hundred and sixty thousand ($160,000.00) dollars, to bear interest from the-day of January, 1908, at 6 per cent, per annum, interest payable annually, executed by said board in behalf of said penitentiary system, and duly approved by his excellency, T. M. Campbell, Governor of the state of Texas, of even date herewith, and made payable to the Imperial Sugar Company, or its order, at Houston, Harris county, Texas. The full purchase price of said land and personalty is one hundred and sixty thousand ($160,000.00) dollars, to be paid by said board causing to be delivered to the company, or its assigns or legal representatives, as is hereinafter provided, 40 per cent, gross of the annual crops of cane and cotton raised and grown upon the lands herein conveyed; the value of said per cent, of said products so delivered to the company is to be applied annually as a credit upon the obligations given for said purchase money, first discharging and paying all accrued interest and the balance to be applied to the reduction of such principal sums, and this method to continue until the full amount thereof has been paid, when full release thereof shall be given. In -connection with and as a part of this sale and purchase, the following covenants and agreements, by the company and the board, respectively, are made and entered into, and is a part of the consideration therefor.”

Here follows a number of mutual agreements and covenants, among which are the following:

“'(b) For the term of ten years, including the year A. D. 1908, the purchaser [the board] agrees and binds itself to sell and deliver the annual cane crop grown on the land hereby conveyed to Imperial Sugar Compnay or its successors or assigns, f. o. b. cars at its sugar mill at Sartartia, and when same is so delivered the company agrees to purchase the same and to pay therefor a minimum price of $3 per ton on a 79 per cent, purity test, and as much more as the test shall indicate, at the rate of 10 cents per ton for each degree or point over and above 79 per cent, test, and plus, also, such additional price per ton as the advance price of sugar at New Orleans, Louisiana, shall indicate or justify, from time to time; this agreement, sale, and purchase having been made on a basis of the price of sugar at New Orleans, Louisiana, on January 24, 1908. Such cane shall be delivered by the purchaser at proper times and in proper quantities, so as to facilitate the operation of the company’s mill when the company is grinding the cane of the purchaser, and the company agrees to take and receive daily, during the grinding season, from the purchaser, a reasonable quantity of cane, so as to facilitate the harvesting of the crop, each party looking, not only to its own interest in this respect, but to their mutual interest. The vendee may, however, require the company to accept, a daily average of 500 tons of cane from the beginning of delivery until the close of the season, but shall not compel the company to receive a greater daily average. The cane to be delivered under the provisions hereof shall be in good marketable condition, and reasonably clean of fodder and trash; that is to say, in such condition as cane is usually and customarily accepted by mills generally in this section, and shall be topped or cut no higher than the last full red joint. In loading same for the mill on cars, the chains shall be properly placed in cars, and if any cars are delivered without chains properly placed, the company will have the right to charge against such cars the reasonable additional cost of handling the same, and if any cane not meeting the above requirements as to marketable condition is accepted, a reasonable deduction shall be made and allowed thereon, so as to bring it to the proper standard.”
“(g) It shall be the duty of the state, acting through its board aforesaid, to maintain on said plantation at all times at least 2,250 acres in good cane stubble, and to keep and maintain the personal property hereby eoneveyed, and the improvements on the real estate, in approximately as good condition as they are when delivered to the board. Under the provisions of this conveyance, and this provision with reference to the maintenance of said property, shall apply to the quantity as well as to the quality of all such personal property, and shall continue in force until at least 50 per cent, of the purchase money has been paid, including all interest.”

The agreement referred to in defendants’ pleading is as follows:

“Whereas, the Imperial Sugar Company, a corporation, has this day executed and delivered to the board of penitentiary commissioners of the state of Texas, a warranty deed conveying to said board and its successors in office, for the use of said state in 'fee simple, 5,435 acres of land situated in Ft. Bend county, and known as the ‘Sartartia Plantation’ (less 200 acres with improvements on same, less also the railroad of the Imperial Yalley Railroad Company, and an easement for its right of way 100 feet in width through said plantation); and whereas, there was also sold and transferred to the vendee by said deed all the personal property, farming utensils, and improvements on said lands conveyed, which personalty has already been delivered to vendee; and whereas, it is desirable that the contract and undertaking of the vendee shall be evidenced by a separate writing officially signed by the members of the board of penitentiary commissioners: Now, therefore, this instrument is to declare: That said board, in consideration of said deed and the covenants therein contained, undertakes, agrees, and promises, and so far as may be lawful binds its successors in office and the state of Texas, to pay the purchase money, to wit, 8160,000, with 6 per cent, interest from January 24, 1909, as stipulated in said deed, as follows, to wit: (1) To maintain the present acreage of sugar cane and to pay said vendor forty per cent. (40%) of the annual crop of cane and cotton grown on said premises, to be credited first to the accrued interest on the $160,000 purchase money, the remainder to be credited upon the principal, and to so continue from year to year until the entire purchase money, principal and interest, is fully paid off and discharged. (2) In consideration of said deed and transfer', and the undertakings therein set out, on the part of the vendor, said board agrees, and as far as may be lawfully done binds its successors in office and the state of Texas, to sell and deliver f. o. b. cars at the cane mill of said vendor situated on the 200 acres reserved as expressed in the deed the annual output of cane (less such amounts as may be reserved for replanting and extension of acreage), and to sell same to the vendor at the minimum price of $3 (three dollars) per ton on a 79 per cent, (seventy-nine por cent.) test, and as much more per ton as the test above that or the price of crude sugar at New Orleans may indicate at the date of delivery, the vendor having bound itself to purchase said cane upon the terms above stated. The price of $3 per ton above named is predicated upon the price of crude sugar at New Orleans on,the 24th day of January, 1908, and shall be the basis of comparison in arriving at the increased price of cane per ton from time to time. This obligation for the sale and purchase of cane upon these terms shall be mutually binding for the term of ten years; that is to say, it shall run from the year 1908 to 1917, inclusively, and shall include the crop of 1917, whether harvested and delivered before or after the expiration of that year, and this whether the property transferred by said deed is sooner paid for or not. (3) The vendee in said deed shall maintain the condition of the personalty on the sold premises in practically as good condition as when delivered, both as to quality and quantity, until at least half the purchase money is paid. (4) It is agreed that the vendees shall not undertake to raise on said premises a greater amount of corn, oats, or other forage crops than are necessary for the maintenance of the live stock now on the premises sold, or which may hereafter be placed thereon for the proper cultivation and handling of said premises. But if the ven-dee should conclude to raise such crops for sale, or for the maintenance of the live stock on other state farms, then the vendor shall have forty per cent. (40%) of such excess so sold or used elsewhere, to go as a credit on the principal and interest of the purchase price; but this restriction as to the use of the premises shall not be in force after the property is paid for.”

The defendants alleged that each and all of the covenants and agreements contained in the deed and agreement, which were obligations upon the board of penitentiary commissioners, or upon the defendants as their successors in office, were complied with, and discharged; that the vendor’s lien note for $160,000, described in the deed, was paid in full on October 15, 1910, and that' upon the payment thereof the vendor’s lien contained in said deed became and was satisfied, and the legal title to the lands in controversy became fully vested in the state of Tesas; that the plaintiff, on or about the date mentioned, esecuted and delivered a complete release of said vendor’s lien. The release, omitting formal parts, is as follows:

“Whereas, by deed dated March 11, 1908, recorded in the county clerk’s office of Ft. Bend county, Texas, in Book -, page -, the Imperial Sugar Company conveyed to the board of penitentiary commissioners of the state of Texas, for the use of said state, in fee simple, 5,434 acres of land situated in Ft. Bend county, Texas, and known as the ‘Sartartia Plantation’ (less 200 acres with improvements on same, less also the railroad of the Imperial Valley Railroad Company, and an easement for the right of way 100 feet in width through said plantation); and whereas, there was also sold and transferred to the vendee by said deed all the personal property, farming utensils, and improvements on said land conveyed, all of which are fully described in said deed, to which reference is here made for all purposes, retaining therein a vendor’s lien securing the payment of a certain note for the sum of one hundred and sixty thousand ($160,-000.00) dollars with six per cent, interest from January 24, 1908; and whereas, said note and all interest thereon, in full satisfaction of said incumbrance, have been paid so far as the said vendor’s lien note is concerned, but not as regards a certain cane contract, which is to continue in full force and effect: Now, therefore, know all men by these presents, that we, the Imperial Sugar Company (a corporation acting herein through its duly authorized president and secretary), being the legal owner of the above referred to note at the time of its payment, do hereby release the above-described properties from the vendor’s lien aforesaid, and declare the same extinguished ; but this release is in no manner to be construed as a cancellation of the above-mentioned cane contract, entered into between the said board of penitentiary cpmmissioners and the Imperial Sugar Company, which was also a part of the consideration for the transfer of the property above described.”

The defendants alleged that this suit could not be maintained, for the reason that the vendor’s lien retained in the deed was attempted to be retained in consideration of the purchase price of the land in controversy, and of a large am.ount of personal property therein described; that the purchase price of the land and of the personalty was not separated at the time, and is not now capable of being separated, so as to show accurately what part represents the purchase price of the land; that the considerations were so inter-blended as to produce confusion to such an extent that the vendor’s lien did not and could not arise; that in addition thereto, by reason of the various and sundry covenants contained therein, particularly those with reference to the sale, purchase, and delivery of cane covering the period of ten years time, and as to the amount which should be cultivated in cane during any period of time, the agreement was so complicated, and the sum total of the consideration produced such confusion, that it was impossible to separate the-actual purchase money for the land from the other matters of consideration, and that the vendor’s lien therefore could not arise. It was further alleged that as to the covenants-obligating the board of penitentiary commissioners to deliver the cane from the land in controversy, and to sell the same to the plaintiff upon the terms and conditions named therein, that the vendor’s lien did not and could not arise, because the same was not a fixed consideration, either of money or its equivalent, whereby there arose a certain absolute debt of the vendees to the plaintiff, in consideration of the transfer of the lands in. controversy; that, such obligations, when breached, would authorize a suit only for an uncertain and unliquidated demand; that the covenant or obligation was one merely collateral to the purchase of the realty, and was and is not susceptible of accurate ascertainment as to the amount of damages, for the breach of which a vendor’s lien could be retained, or would be impressed upon the land; and that to secure same there did not arise and could not exist a vendor’s lien.

The defendants further alleged, with reference to the particular covenant to maintain 2,250 acres of land in cane for a period of 10 years, that it was complied with and was satisfied when the vendor’s lien note for $160,000 was paid; that, if mistaken in such allegation, then it was understood and agreed that the land should be cultivated in cane in the usual and ordinary way, which was to-rotate the crops, so as to keep the same at the usual state of efficiency as cane-producing land; that, if mistaken in that, that the reservation of 2,250 acres as being the amount which should be cultivated was a mutual mistake; that the land was not surveyed at the time the deed was drawn, and the board of penitentiary commissioners did not know accurately the number of acres described in the plaintiff’s petition which were capable of being cultivated in and of producing cane, and that as a matter of fact there were only about 1,700 acres thereof capable of being cultivated in and of producing cane; that after observing that there were-not 2,250 acres of cane land on said land, and after the fact was fully known to the plaintiff, that the plaintiff continued, without objection, to receive cane from said lands, and that its officers and agents advised with the defendants, and authorized them to cultivate only that portion of land described in. its petition as would produce cane, and authorized and advised them to permit said amounts of said cane-producing land to be-cultivated in other crops, for the purpose of causing the land to continue as cane-producing land. The defendants further alleged that said covenant was contrary to public policy and void, in that it restricted the use-of the land conveyed by the deed, and restricted the -rights of sovereignty; that it was not a covenant and agreement concerning the land, or any estate conveyed by said deed; that it was not an easement, was not a covenant running with, the realty, and that its breach or violation was no ground for forfeiture, and would not prevent the legal title from vesting in the state, or in the defendants, for the use and benefit of the state. The defendants further alleged that the plaintiff was estopped to seek a recovery of the land in controversy for any breach of any of the covenants set forth in the deed, for the reason that the plaintiff, by said instruments, agreed and promised and became bound to pay for cane delivered to it in accordance with the provisions of said instruments ; that during the year 1911 the defendants caused to be grown upon the land in controversy a large quantity of cane, which plaintiff was bound to receive and pay for, but that, although the defendants had delivered the cane in accordance with the covenants and agreements set forth in said instruments, the plaintiff had wholly failed, refused, and declined to pay for the same, and had thereby breached the, terms of said covenants and agreements; that the defendants had complied with said covenants up to that time, and would have continued to do so, except for the breach thereof by the plaintiff.

W. O. Murray, S. J. Bass, and W. O. Stamps having been appointed prison, commissioners to succeed the original defendants, plaintiff by supplemental petition made them parties defendant.

The plaintiff, by its second supplemental petition specially excepted on numerous grounds to the plea in abatement of the defendants, and also to various allegations in their first amended original answer, which exceptions need not be further noticed. The plaintiff admitted that it executed the deed referred to on February 17, 1908, and that it conditionally conveyed thereby the lands sued for; that notwithstanding the fact that the prison commissioners agreed for the term of 10 years, including the year 1908, to sell to the plaintiff under the terms therein mentioned all of the cane grown upon said premises, and notwithstanding the further fact that they contracted and agreed as a part of the contract price of said land that they would maintain on said plantation to be delivered under the contract of sale aforesaid, at all times, at least 2,250 acres in good cane stubble, and notwithstanding the fact that the vendor agreed to give and the state accepted an option during said 10-year period to sell and to buy the sugar mill and lands upon which it was situated as a parti of the consideration for said contract of sale, the state directly failed and refused to comply with the provisions of said contract of sale, and refused and has failed for 10 years to sell, under the terms of said contract, to the plaintiff, the cane grown upon said premises, as it was bound to do, but only sold and delivered the cane grown upon said premises during the years 1908, 1909, and 1910; that the state failed and refused to maintain on said plantation at all times 2,250 acres in good cane stubble, and to properly cultivate and harvest the same, as it was bound to do, and to deliver and sell same to the plaintiff under the terms of the contract, but, on the contrary, 2,250 acres of the cane were maintained on said land, and the crops therefrom sold to the plaintiff only for the year 1908; that for the year 1908 the cane raised on said plantation was sold to the plaintiff under the terms of the said contract, but much of the stubble which existed during the year 1908 was plowed up, so that not more than 1,700 acres of said land were planted in cane during the year 190á and delivered to the plaintiff under the terms of said contract, and a much less acreage was planted in cane during the year 1910, and sold and delivered to the plaintiff, and the state of Texas, acting through its duly authorized agents and officers, openly, boldly, and clearly repudiated the obligations contained in said conveyance, and the defendants openly declared that the state would not continue after 1910, and during the year 1911 and subsequent years, to maintain 2,250 acres in cane, and sell the same under the terms of said contract to the plaintiff, nor would the state sell any of the cane under the terms of said contract which might be raised upon said premises to the plaintiff, and completely repudiated any obligation so to do on the part of the state; that the state, acting through its said agents and officers, had repudiated any obligation whatever to maintain on said premises 2,250 acres of cane, or any other acreage, by reason of the conditions and obligations contained in said contract of sale; that, the contract of sale having been repudiated by the state, plaintiff had exercised its right to declare the conditional sale abandoned and forfeited, and asserted its superior title retained in the conveyance, and instituted this suit to remove the defendants and their agents therefrom as trespassers.

If is further alleged that the part of the contract of sale of the land in controversy which provided for the annual maintaining and cultivation of 2,250 acres in cane, to be sold to the plaintiff for a term of 10 years, including the year 190S, as well as other cane which might be grown on said lands for 10 years, was and constituted the greater part of the consideration agreed to be paid for said lands, which fact was well known to the state of Texas and its officers and agents then acting for it in the purchase of said lands; that if said contract had been faithfully performed and carried out on the part of the state, as was by all parties contemplated and agreed, said 2,250 acres would have produced annually not less than 33,750 tons of good cane, and ought to have produced 40,000 tons; that such cane would have been worth to the plaintiff, and would have produced a profit to it, of not less than $2 per ton; that, if the contract had been faithfully performed by the state of Texas, plaintiff would have realized a profit annually from said cane of not less than $67,500, and possibly a larger sum, but the state had deprived the plaintiff of this sum by the nonperformance and repudiation of said contract, and to that extent had failed and refused to pay to the plaintiff that part of the consideration agreed to be paid for said lands. That with reference to the personal property sold with said lands, the contract itself as written shows that the parties thereto understood and agreed that when one-half of said $160,000 had been paid the lien and superior title reserved would be canceled and eliminated in so far as the personal property was concerned, and after the payment of said $160,000 it was so dealt with and treated by both parties. Plaintiff further alleged that it had paid the state of Texas for all cane it had ever received from it from or off of said lands since same was contracted to be sold to the state, and that it now owed the state nothing therefor, and all such cane was in fact paid for long before it was delivered to the plaintiff by the state of Texas.

The plaintiff further alleged that there was no mistake in said contract, mutual or otherwise, relative to the number of acres of cane contracted to be maintained and cultivated on said lands for the 10 years; that all the parties participating in the making and executing of said contract well understood and agreed that there was to be maintained and properly cultivated on said land each year for 10 years, from and embracing the year 1908, 2,250 acres in good cane, and that all the cane upon said land was to be sold and delivered by the state to the plaintiff under the terms of said contract of sale, and this regardless of the number of acres then planted in cane upon said land; that in fact there was' at the time of the execution of said contract of sale then planted in cane upon said land at least 2,250 acres, all then in good cane stubble and ready for cultivation; that there was at no time any good reasdu or necessity for abandoning any part of said acreage for the growing of cane, nor was there any use to plant any portion thereof in any other kind of crop; that if any of said lands planted in cane, by reason of the death of the stubble, or for any other reason, was rendered unsuitable to cultivate in cane, it was the duty of the state under the terms of the contract to replant the same in cane, or to plant additional and new acreage upon said land in cane to replace the plowed-up stubble or abandoned land, as there was plenty of good land on said plantation useful and suitable for growing cane profitably to make up said quantity of 2,250 acres.

By first supplemental answer the defendants excepted to certain portions of the plaintiff’s second supplemental petition, and denied that they had openly declared to the plaintiff that the state would not continue to maintain after 1910, and during the year 1911 and subsequent years, 2,250 acres in cane, and sell the same under the terms of said contract. They further denied that they sold cane under any other contract than that contained in the deed to the premises in controversy, and averred that they were ready and willing to carry out the terms of said contract up to and including 1911, and would have continued to do so, but for the failure of plaintiff to pay for the cane delivered to it during the year 1911, as alleged in their first amended original answer.

By agreement of the parties the judgment of the court upon the pleas and exceptions was withheld until the evidence was heard. After the evidence had been introduced, the cause was by consent of parties withdrawn from the jury, and the matters of fact as well as of law submitted to the court. After having the case under advisement for some time the t court rendered the following judgment:

“The court being- of the opinion that this is a suit against the state of Texas, and there appearing nothing in the pleadings or evidence to show that the state had given permission to the plaintiff to sue, nor had consented to the prosecution of said suit, the court is of the opinion that the defendants’ pleas in abatement should be sustained and this case be dismissed. The court is further of the opinion that the provisions, agreements, and contracts contained in a deed offered in evidence by both parties, of date February 17, 1908, from Imperial Sugar Company to w. H. Gill and others, for and in behalf of the state, wherein the state agreed to cultivate in cane the number of acres set forth in said deed for a term of ten years, and to deliver the cane so raised to and sell the same to Imperial Sugar Company at the price in said deed stipulated, constitute a covenant, for the breach of which, if breached, the right to recover the land in an action of trespass to try-title in law does not lie, and that for this reason plaintiff should not have judgment, but the defendant should.”

Appellant under an appropriate assignment of error complains of the judgment sustaining the defendants’ plea in abatement. The proposition submitted under this assignment is as follows:

“It appearing that the defendants were in actual possession of the land in controversy, the action of trespass to try title was maintainable against them, although they claimed no personal interest therein, and held such possession only as officers and agents of the state, and the suit, was not one against the state.”

The suit is one to recover the title and possession of the land against defendants, who-are alleged to be wrongfully withholding possession from plaintiff. If plaintiff has shown title and the right of possession, the fact that, those wrongfully holding possession are not claiming any interest in the property for themselves, but are holding and claiming for and as agents of the state, does not defeat plaintiff’s right to maintain the suit on the ground that it is a suit against the state brought without its consent. The right of the citizen to maintain a suit and recover property wrongfully withheld from him by an officer or agent of the state without first obtaining tbe consent of the state to bring the suit is firmly established by the decisions of the Supreme Court of the United States and of this state, and so far as we are informed is no longer questioned by the courts of any state in the Union. The question was definitely settled by the Supreme Court of the United States in the case of United States v. Lee, 106 U. S. 197, 1 Sup. Ct. 240, 27 L. Ed. 171. The question as presented in that case was stated and answered by Mr. Justice Miller as follows:

“Could any action be maintained against the defendants for the possession of the land in controversy, under the circumstances of the relation of that possession to the United States, however clear the legal right to that possession might be in plaintiff? * * • The counsel for plaintiffs in error and in behalf of the United States assert the proposition that, though it has been ascertained by the verdict of the jury, in which no error is found, that the plaintiff has the title to the land in controversy, and that what is set up in behalf of the United States is no title at all, the court can render no judgment in favor of the plaintiff against the defendants in the action, because the latter hold the property as officers and agents of the United States, and it is appropriated to lawful public uses. This proposition rests on the principle that the United States cannot be lawfully sued without its consent in any case, and that no action can be maintained against any individual without such consent, where the judgment must depend on the right of the United States to property held by such persons as officers or agents for the government. * * * Under our system the people, who are there [in England] called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the moans which the law gives him for the protection and enforcement of that right.”

The learned justice sustained his opinion in that case by citation and discussion of the opinions in many previous eases decided by that court and by argument which places his opinion among the greatest of that great court. This decision has remained unassailed and unassailable, and been uniformly followed by the courts of the several states'. There is a clear distinction between a suit against an officer for a wrong committed by him in the name of the state, and suits brought against an officer to prevent the exercise by the state through such officer of some act of sovereignty, or suits against an officer or agent of the state to enforce specific performance of a contract made for the state, or to enjoin the breach of such contract, or recover damages for such breach, or to cancel or nullify a contract made for the benefit of the state.

Suits of the second class named above, while nominally against the officer, are really suits against the state. This character of suits are illustrated by the following cases: In re Ayers, 123 U. S. 505, 8 Sup. Ct. 164, 31 L. Ed. 216; Fitz v. McGhee, 172 U. S. 526, 19 Sup. Ct. 269, 43 L. Ed. 535; Stephens v. Railway Co., 100 Tex. 179, 97 S. W. 309; Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608, 29 L. Ed. 805; Railway Co. v. Conley, 67 W. Va. 129, 67 S. E. 613; Thomson v. Baker, 90 Tex. 168, 38 S. W. 21. This distinction is discussed in the case of Poindexter v. Greenhow, 114 U. S. 291, 5 Sup. Ct. 903, 962, 29 L. Ed. 185; and the reason for holding that suits against an officer for wrongs committed by him in the name of the state are not to be regarded as suits against the state is thus forcibly stated:

“This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarkation that separates constitutional government from absolutism, free self-g-overnment based on the sovereignty of the people from that despotism, whether of the one or the many, which enables, the agent of the state to declare and decree that he is the state — to say, ‘L’état c’est moi.’ Of what avail are written Constitutions, whose Bills of Right for the security of individual liberty have been written, too often, with the blood of martyrs shed upon the battlefield arid the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism, which is its twin — the double progeny of the same evil birth.”

Plaintiff in this suit does not seek specific performance of the contract made with the penitentiary commissioners, nor to enjoin its breach, nor to recover damages for its breach, but, claiming the title and right of possession to the land, sues to regain that title and possession from the persons alleged to be wrongfully withholding such possession. Our statute requires that such suit shall be brought against the person in possession, and, while any other person claiming title to the land may be made a party, the only necessary party is the person in possession. R. S. arts. 7737 and 7738. It is well settled by the decisions of the higher courts of this state that a suit to recover the title and possession of property wrongfully held by an officer or agent of the state, who claims no interest in the property, but is holding only for the state, is not a suit against the state, which can only be brought with the consent of the state. Whatley v. Patten, 10 Tex. Civ. App. 77, 31 S. W. 60; Stanley v. Schwalby, 85 Tex. 349, 19 S. W. 264; Conley v. Daughters of the Republic, 156 S. W. 197.

The fact that the defendants in this case were rightfully in possession of the land under the contract prior to its alleged breach and repudiation by them does not affect the question of whether the suit is one against the state. If the superior title remained in appellant, and could only vest in the state upon the performance by the state of the contract which formed a part of the consideration for the conveyance, upon breach of the contract by the state the appellant had the right to treat the contract of sale as forfeited and sue the persons in possession for recovery of the land, and such suit cannot be defeated on the ground that it is a suit to enforce the contract against the state. The contention of appellees, that the suit is one against the state to enforce the contract, is fully answered by the Supreme Court of Michigan in the eases of State Bank v. Hastings, 1 Doug. 225, 41 Am. Dec. 549, and State Bank v. Hammond, 1 Doug. 527. The trial court erred in sustaining the plea in abatement.

This brings us to a consideration of the second ground upon which the trial court rendered judgment for the defendants, as before set out, and which is assailed by appellant under an appropriate assignment of error. The court, though specially requested to find whether or not there was a breach of the contract by the board to maintain 2,250 acres of the land in good cane stubble and to sell and deliver the annual crop grown on said land to appellant for a term of 10 years upon the terms stated in the contract, failed to make a fact finding upon this issue. The evidence amply justified, if it does not compel, the finding that defendants failed to comply with these provisions of the contract and expressly repudiated this portion of their contract obligation and notified appellant that they would not be bound thereby. The evidence shows that the agreement of the defendants to cultivate 2,250 acres of the land in cane and deliver the annual crop to plaintiff at the price and upon the terms stated in the contract was a material part of the consideration for the sale of the land, and such contract, if performed by the defendants, would have been of more value to the plaintiff than the amount of money paid it as part of the consideration for the sale. The deed, as before set out, expressly provides that a vendor’s lien and “the superior title to the land” is retained and reserved by the plaintiff to fully insure the obligation assumed by the defendants and that “upon the final payment of said consideration and performance of said obligations this deed shall become absolute/’ This provision of the deed is plain and unambiguous and there is no room for construction. The superior title is reserved in the seller and is to pass to the buyer only upon condition of the final performance of the contract in consideration of which the conveyance was made. It follows that, if defendants failed to comply with their contract and have repudiated its obligations, plaintiff’s title remains in it unimpaired by the executory contract of sale or conditional deed executed and delivered to defendants.

There is no merit in appellees’ contention that the attempted reservation of a vendor’s lien and the superior title to the land was ineffectual because the deed conveyed personal property as well as land, and the price of the land and of the personal property not being separately stated, it cannot be determined what part of the consideration was given for the personal property nor what part for the land. In the first place, we are inclined to think that the contract shows that the $160,000 paid in money included all of the consideration given for the personal property. We thirds the provision in the contract, that the agreement of the defendants to keep and maintain the personal property in good condition should only remain in force until 50 per cent, of the purchase money was paid, indicates that all of the purchase price of the personal property was included in the $160,000. But, be this as it may, the parties have stipulated that the superior title should remain in the vendor and pass to the vendee only upon condition that the contract be fully performed, and the fact that the consideration for the contract may have been partly the conveyance of the personal property cannot affect the binding force of these stipulations. The right to annex a condition to a conveyance is a necessary incident to the right to own and convey the property, and a conveyance may be made conditional upon the performance of any lawful contract. State Bank v. Hastings, supra. The parties having made the passing of the title conditional, the question of whether an implied vendor’s lien would exist to enforce the performance of the contract, or the mere reservation of an express vendor’s lien would make the conveyance executory and the title one upon condition, becomes immaterial.

The contention that the contract to cultivate the land in cane and sell the cane grown thereon to the appellant is a covenant, and not a condition, and that therefore the breach of the contract would not prevent the title vesting in defendants, is equally untenable. The contract is in form a covenant, and so is a contract to pay money; but the performance of either may be made a condition for the vesting of title.

[5] It is unnecessary to cite authorities upon the proposition that a vendor, who has reserved an express vendor’s lien to secure the consideration for a conveyance, in event of default by the vendee, may rescind the contract, and sue in trespass to try title, and recover the land. The authorities are also uniform in support of the doctrine that where a conveyance is made upon condition, and the ■condition is broken, the vendor may recover the land. Alford v. Alford, 1 Tex. Civ. App. 245, 21 S. W. 283; Railway Co. v. Dunman, 74 Tex. 265, 11 S. W. 1094; Gibson v. Fifer, 21 Tex. 262. There is no sounder principle in law nor in morals than that one cannot hold property bought under a contract and repudiate the obligation of the contract upon which title is conditioned. White v. Cole, 87 Tex. 502, 29 S. W. 759; Railway Co. v. Gurley, 92 Tex. 233, 47 S. W. 513; McPherson v. Johnson, 69 Tex. 484, 6 S. W. 798. These general principles of law are in no way affected by the fact that the deed to the defendants was for the use and benefit of the state. The Supreme Court of this state, in the case of Fristoe v. Blum, 92 Tex. 80, 45 S. W. 998, in discussing the rights of parties under contracts of this kind, say:

“A clear understanding of the relation in which the state stands to the purchasers in these contracts will greatly facilitate a proper solution of the questions upon which this case depends. It is well settled that so long as the state is engaged in making or enforcing laws, or in the discharge of any other governmental function, it is to be regarded as a sovereign, and has prerogatives which do not appertain to the individual citizen; but when it becomes a suitor in its own courts, or a party to a contract with a citizen, the same law applies to it as under like conditions governs the contracts of an individual.”

We cannot agree with the trial judge that the release executed by the appellant of the vendor’s lien retained in the deed to secure the payment of the $160,000 can be construed as a release of the reservation of title in the deed retained to secure the performance toy defendants of the contract in regard to the cultivation of the land in cane and the sale to appellant of the cane grown thereon. On the contrary, the release, which we have before set out, exiiressly provides that the cane contract shall “continue in full force and effect,” and that the release “is in no manner to be construed as a cancellation of the above-mentioned cane contract, * * * which was also a part of the consideration for the transfer of the property.” This reference to the cane contract should be construed as referring to the contract in its entirety, which includes as well the agreement that the title is reserved to secure the performance by the vendees of the contract, and that the deed shall become absolute only upon such performance, as the obligation of the vendees to cultivate the land in cane and sell and deliver the cane grown thereon to appellant. If there are any general words in the release which could be construed as affecting the reservation of title to secure the performance of the cane’ contract, the provision of the instrument alcove quoted would restrict the meaning of siich words. The rule of construction is thus stated by our Supreme Court in the ease of Railway Co. v. McCarty, 94 Tex. 302, 60 S. W. 429, 53 L. R. A. 507, 86 Am. St. Rep. 854:

“Notwithstanding that the release concludes with general words, yet the law, in order to prevent surprises, will construe it to relate to the particular matter recited, which was under the contemplation of the parties, and intended to be released.”

This rule was also applied by our Supreme Court in the case of Sanborn v. Crowdus, 100 Tex. 605, 102 S. W. 719.

The failure of appellant to assert its superior title to the land upon the first partial breach of the contract by defendants was not a waiver of its title. The contract of defendants was to continue for 10 years, and no acquiescence in or waiver of one failure could be regarded as a waiver of future performance, and suit to recover the land was not required to be brought until there was a repudiation of the entire contract by the defendants. Thompson v. Robinson, 93 Tex. 171, 54 S. W. 243, 77 Am. St. Rep. 843. If the contract had been breached and repudiated as claimed by appellant, it has the right to assert its superior title to the land expressly reserved in the deed to secure the performance of the contract. If the state had made itself a party to the suit, it might have shown equities' which would have entitled it, upon offering to do equity and compensate appellant for the loss sustained by it by reason of the breach of the contract by the agents of the state, to defeat appellant’s suit to recover the land; but it cannot repudiate the obligations upon the performance of which its title is conditioned, and by its agents hold appellant’s land and deny it any redress for the damages sustained by the breach of the contract.

From the conclusions before expressed, it follows that the judgment of the court below must be reversed, and the cause remanded; and it is so ordered.

Reversed and remanded.

LANE, J., not sitting.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all.Key-Numbered Digests and Indexes

      «gLjFor other cases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    GRUBBS et al. v. EDDLEMAN et al.
    (No. 6957.)
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1915.
    Rehearing Denied Oct. 14, 1915.)
    1. Indemnity <&wkey;6 — Right, oe Action — Bills and Notes.
    A purchaser of land borrowed money to make the initial payment, giving therefor a note upon which plaintiffs were indorsers. Subsequently he executed a note to indemnify plaintiffs, secured by a deed of trust upon the premises purchased. Plaintiffs paid the note upon which they were indorsers, but defendant failed to pay the indemnity note. Held, that plaintiffs were entitled to judgment against defendant on the indemnity note for such a sum as they paid to the holder of the original note and to a foreclosure of the trust deed.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 7, 9, 18, 19; Dec. Dig. <&wkey;>6.]

      2. Vendor and PURCHASED <&wkey;260 — Rights of Vendor — Vendor’s Lien — Priority.
    A purchaser of land borrowed money to make the initial payment, giving therefor a note upon which plaintiffs were indorsers, and also giving vendor’s lien notes for deferred payments, some of which passed into the hands of one of the defendants. To indemnify plaintiffs as to the original note, the purchaser executed to them the note sued on, and gave a trust deed on the property as security therefor. Subsequently he deeded the land to the holder of the vendor’s lien notes, who assumed the payment thereof. The indorsers of the original note, having paid it, brought suit on the indemnity note and for foreclosure of the trust deed. Beld, that the execution and record of the indemnity note and trust deed created a lien on the original purchaser’s equity of redemption which plaintiffs were entitled to foreclose, subject to the superior lien of the holder of the vendor’s-lien notes, who by his purchase of the land and surrender of the notes did not lose his equity in the property.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. <&wkey;>260.]
    3. Vendor and Purchaser <&wkey;260 — Rights of Vendor — Vendor’s Lien — Priority.
    Where a purchaser of property executed a note secured by a deed of trust to indemnify plaintiffs, who had advanced money for the purchase price, and the holder of vendor’s lien nótes given for the remainder of the purchase pi’ice subsequently purchased the property, such latter purchaser had no lien superior to the lien of plaintiffs for improvements placed by him on the property; he having constructive notice of their lien.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. <§=>260.] ,

    4. Vendor and Purchaser <&wkey;263 — Rights of Vendor — Liens.
    Where the purchaser of property executed a note secured by deed of trust on the property to indemnify indorsers upon a purchase-money note, such lien was not destroyed by a sale subsequently made by him in1 consideration of the vendee’s assumption of the original vendor’s lien notes.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 696, 697; Dec. Dig. <&wkey;>263.]
    Appeal from District Court, Orange County ; A. E. Davis, Judge.
    Action by L. T. Grubbs and others a.gainst J. P. Eddleman and another. Judgment for defendants, and plaintiffs appeal.
    Reversed and rendered.
    Bisland & Bruce, of Orange, for appellants. Holland & Holland, of Orange, for appellees.
   LANE, J.

That the nature of this case and the transactions leading up to the bringing of this suit may be readily understood, we here make a brief statement of such transactions as we gather them from the fact findings of the trial court; there being no statement of facts filed with the record.

On March 19, 1909, J. P. Eddleman desired to purchase lots 1, 2, 3, and 4, block 51, of the amended Sheldon survey to the city of Orange, from Mary 0. Harmon and husband, Jesse Harmon. Por the purpose of procuring the cash payment demanded by the Har-mons he borrowed from George Call $1,020, for which he executed his note, with George-A. Foreman, H. W. Bland, L. T. Grubbs, and John Burton, plaintiffs herein, as indorsers thereon. On the 22d day of March, 1909, said Eddleman purchased said lots from the Harmons, which the Harmons conveyed to him by a general warranty deed reciting the payment of $1,000 cash and the execution and delivery by said Eddleman to them of one note for $800, due one year after date, one note for $1,350 due two years after date, and one note for $1,350 due three years after date, all bearing 10 per cent, interest per an-num, and retaining a vendor’s lien on said lots to secure the payment of said notes. The • note given Call by Eddleman was renewed, with these plaintiffs as indorsers, and the last renewal was due January 18, 1913, on which date the Eddleman note was taken up and satisfied by the plaintiffs in this cause. W. I-I. Stark came into possession of the first two vendor’s lien notes in the due course of business, by indorsement, before maturity. On September 28,1909, Eddleman, for the purpose of securing these plaintiffs as indorsers on the $1,020 note given George Call, executed and delivered to them a note for $1,000, due one year after date, and secured the same by a deed of trust of that date on the lots conveyed to him by Harmon and wife. On March 28, 1911, J. P. Eddleman, by general warranty deed, conveyed this property to W. IT. Stark, the consideration named in said deed being $1 and the assumption of the three vendor’s lien notes given by Eddleman to Harmon and wife, which notes are fully described in the deed of March 22, 1909, from Ha.rmon and wife to Eddleman. After the institution of this suit defendant Stark procured a deed from Plarmon and wife to this land; consideration named therein being the release of said Harmon and wife as indorsers on the original Eddleman notes. On the 19th day of January, 1913, the plaintiffs in this case paid to George Call $1,245, being the amount due Call from Eddleman on the loan as originally made. Eddleman has never paid the $1,000 note sued on in this ease. The deed of trust given plaintiffs to secure the $1,000 note sued on was filed for record on October 13, 1909, and duly recorded on the 15th day of October, 1909, in the deed of trust records of Orange county, and properly indexed. The $1,000 note sued on in this cause was placed on the hands of attorneys for collection.

Plaintiffs having paid Call $1,245 in satisfaction of the original note which was indorsed by them for the accommodation of Eddleman, and Eddleman having failed and refused to repay the money so paid to Call, they brought this riit against Eddleman upon the note given ny him to indemnify them, and for a foreclosure of the deed of trust given by Eddleman to secure said indemnifying note. They also sued defendant W. IT. Stark, alleging that he is in possession of the lots upon which they have a lien, and that he is asserting some kind of claim thereto, and pray for a foreclosure of said lien as against said Stark.

Defendant Eddleman answered: First, by general denial; second, that the note sued upon is but a collateral note given to plaintiffs by him to indemnify them against loss as indorsers of the note given by him to Call, which said note has never been paid by said plaintiffs; and, third, that the note and mortgage sued on was released by plaintiffs and said mortgage returned to him as a release from further liability upon said note and mortgage.

Defendant Stark, in effect, answered that he (Stark) was the owner of the three vendor’s lien notes executed and delivered by Eddleman to the Harmons, aggregating $3,-200, and interest, etc., given in part payment for the lots involved in this suit, and that he purchased said lots from Eddleman by warranty deed in payment of said notes, and that he thereby got title to the same freed from the lien asserted by plaintiffs, as plaintiffs’ lien was obtained from Eddleman, who at the time said lien was given did not hold the superior legal title to the lots in question, but held only secondary to the superior vendor’s lien, as evidenced by the deed from the Harmons to Eddleman, and by the notes of Eddleman held by the said Stark, and prayed, however, that in the event the court should hold that he did not hold title to said lots free from the lien held by plaintiffs he be permitted to recover judgment against Eddleman for the amount due upon said vendor’s lien notes, and that said property be sold, and that out of the proceeds of such sale he (Stark) be paid: First, the amount due on said notes; second, the sum paid out by him (Stark) for improvements on said lots; and, third, for judgment over against Eddleman upon his warranty.

Plaintiffs by supplemental petition deny all the material defenses of the defendants, and aver that,'when Stark purchased the said lots from Eddleman and in part payment therefor assumed the payment of the note executed by Eddleman to Harmon, said note became Stark’s debt, and that they were no longer liens on said lots, and therefore Stark holds said lots subject to the lien given by Eddle-man to secure the note sued upon, and 'that therefore they should be permitted to have their judgment against Eddleman for the full amount due on the note sued upon and for a foreclosure of their said lien against both Eddleman and Stark unincumbered by the lien asserted by Stark.

Upon these pleadings, substantially given, the case was tried before the court without a jury. Upon a finding of facts by the trial court substantially the same as hereinbefore set out, the trial judge reached the conclusion, as set out in the transcript, that plaintiffs should not recover as against either of the defendants, Eddleman or Stark^ and therefore rendered judgment against plaintiffs and in favor of both of said defendants. From this judgment, all the plaintiffs have appealed.

Appellants’ first assignment of error is that the court erred in failing to render judgment for appellants against Eddleman for the amount due upon the note sued upon, for a foreclosure of their lien, for attorney’s fees as prayed for, and for costs of suit.

The findings of fact of the court, which are not challenged by either party, are that the’ note for $1,020 given by Eddleman to Call was indorsed by plaintiffs ana was renewed with said plaintiffs as indorsers for Eddleman on January 18, 1913, at which time the plaintiffs paid Call the sum of $1,245, the amount then due upon the same; that said payment was made for Eddleman; that on September 28, 1909, Eddleman, for the purpose of securing plaintiffs as in-dorsers on the $1,020 note given by him to Call, executed and delivered to plaintiffs a note for $1,000 due one year after date (being the note sued on), and to secure payment of the same executed and delivered to plaintiffs a deed of trust of that date on the lots conveyed to him by the Harmons; that Ed-dleman has never paid the $1,000 note sued on in this case; that said deed of trust was promptly and properly recorded on the 15th day of October, 1909.

We are unable to understand upon what theory the trial court rendered judgment in favor of defendant Eddleman against plaintiffs undler the foregoing fact findings. The facts found by the court not only warrant, but demand, that Judgment be entered for plaintiffs against Eddleman on the note sued for, for such a sum as plaintiffs paid to Call in satisfaction of the original note of $1,020 given by Eddleman to Call and which plaintiffs had indorsed for the accommodation of Eddleman, and for a foreclosure of their lien upon the lots in question evidenced by the deed of trust executed by Eddleman and delivered to them. Therefore appellants’ first assignment is sustained, and judgment as above indicated will be here rendered for plaintiffs.

We now come to appellants’ second! and last assignment, which is, in substance, that the court erred in not rendering judgment foreclosing plaintiffs’ lien on the lots in question against defendant W. H. Stark, free from any superior claim of said Stark. Appellants’ proposition under this assignment is that, as Stark had purchased and become the owner of the original purchase-money notes executed and delivered by Eddleman to the Harmons in part payment for said lots, and had thereafter purchased said lots from Eddleman, and in part payment therefor agreed to and did assume the payment of said notes owned by him, said notes became Stark’s debt, and the lien upon the property which hadi existed by virtue of said purchase-money notes was released, and appellants’ deed of trust lien is now a lien upon said lots freed from former vendor’s lien. To' this proposition we cannot fully agree. The execution, delivery, and record of the deed of trust of Eddleman to plaintiffs on the 28th day of September, 1909, and the 15th day of October, 1909, respectively, created a lien upon Eddle-man’s equity of redemption in the lots involved in this suit, and plaintiffs (appellants), under their pleadings and the facts proven, as shown by the fact findings of the trial court, were entitled to a judgment against Eddleman as prayed for and a foreclosure of their lien on the property as against both Eddleman and Stark, subject, however, to Stark’s superior lien held by him as owner of the original vendor’s lien notes given by Eddleman to the Harmons, and by them transferred to Stark. Silliman v. Gammage, 55 Tex. 365; McDonald v. Miller, 90 Tex. 309, 39 S. W. 89, Gamble v. Martin, 129 S. W. 387; Rodgers v. Houston, 60 S. W. 445; Avery v. Loan Co., 62 S. W. 793.

Stark, however, would have no lien superior to the lien of plaintiffs for improvements placed by him on the property. He had constructive notice of plaintiffs’ lien, and therefore whatever improvements he put upon the property were put there at his own risk, and must go with it. Hence, even if there were proof of any improvements made, such pi’oofs would not affect the case. McDonald v. Miller, 90 Tex. 309, 39 S. W. 89.

In support of the foregoing proposition we cite the case of Silliman v. Gammage, 55 Tex. 365. In that case it is shown that one Ben Parker was the owner of a tract of land; that on December 22, 1874, he borrowed $500 from one Silliman, for which he executed and delivered to Silliman his promissory note, payable to Silliman six months after date. To secure said note Parker mortgaged to Silliman his said land, which mortgage was promptly and properly recorded. In July, 1876, one Longeton recovered a judgment against Parker, under which said land was sold as the property of Parker. At said sale one Gammage became the purchaser of the land. On June 17, 1879, while the debt and mortgage of Silliman were still valid, subsisting obligations, Parker, the mortgagor, sold the land to Silliman in full satisfaction and discharge of the debt and mortgage of Silliman; the real and true value of the land being, however, less than the amount due Silliman. Silliman took this conveyance to the land to save the expense of making sale under the power given in said mortgage or through the court. Parker being unable to pay more than the land conveyed, Silliman surrendered his said note, mortgage, and the balance of his indebtedness over and above the value of the land to Parker at the time he conveyed the land to Silliman, At the time of this sale Parker knew that Gammage had bought the land at the sale under Longeton’s judgment, but he was not consulted about the transaction. Gammage brought suit against Silliman for the land, and upon the facts as above stated the trial court held that the mortgage of Silliman was merged in the deed of Parker to him, and that Gammage had the superior title to the land, and rendered judgment for him for same. On an appeal from such judgment to the Supreme Court Judge Gould, in speaking for the court in that case, says:

“In his pleadings the defendant [Silliman] stated the facts, and claimed that under them he had the better title and right of possession, but, in1 the event the court held otherwise, claimed a mortgage lien for the note and interest, asked that ‘said lien be enfoi'ced, and that he have judgment for said sum of money against said Ben Parker, and said land be ordered to be sold, and that said Ben Parker be cited to appear in this case and answer, etc., and for all proper judgment..’ As we have seen, the court disregarded this part of the answer, holding that the mortgage was merged in the deed, and thereupon gave judgment in favor of Gammage for the land sued for.
“Counsel for appellant insists that, under the facts, Silliman had the superior title. In this state the mortgagor is regarded as the real owner, and until foreclosure, entitled to the possession of the mortgaged premises. By the execution sale that ownership, and right of possession vested in Gammage, subject to Silliman’s mortgage. Wright v. Henderson, 12 Tex. 43; Duty v. Graham, 12 Tex. 427 [62 Am. Dec. 534] ; Mann v. Falcon, 25 Tex. 271; Buchanan v. Monroe, 22 Tex. 537. A foreclosure and sale thereafter had, in a proceeding against Parker, without making Gammage a party, would have left Gammage’s title and right of possession unimpaired. Preston v. Breedlove, 45 Tex. 47, Morrow v. Morgan, 48 Tex. 304, and numerous subsequent cases. So the voluntary deed by Parker to Silliman, made without Gammage’s consent, could not affect his title or right of possession, whatever may have been its effect as between the parties thereto. As against Sil-liman, Gammage continued to hold the superior title and right of possession, but held subject to whatever rights as mortgagee yet remained in Silliman, if any.
“Strictly, the mortgage was not merged in the deed, as in ease where a greater and less estate meet in the same person; for by the execution sale and sheriff’s deed Parker, had been divested of his entire interest, and his deed to Silliman, although it might as against himself have the same effect as a foreclosure sale, conveyed no greater estate in which the mortgage could merge. But we understand the court to find substantially that under the facts Silli-man’s rights as creditor and mortgagee were totally satisfied, extinguished, and lost; and it is- not to be denied that numerous authorities, in cases strictly of merger, are supported on reasons which seem equally applicable to cases where the debt and mortgage have been in any way extinguished. Those authorities hold that the intention of the parties is the controlling consideration, and in- this case, because Silliman had accepted the deed in full satisfaction of his debt and had surrendered up the note and mortgage, would infer that he did not intend for any purpose to keep the mortgage alive. * * •
“But there are other authorities supporting a different view of the law, one which we think more consistent with the principles of equity, and more in accord with the course of decision in this state. In the case of Stantons v. Thompson, 49 N. H. 272, the authorities were largely discussed, and the court say: ‘We think it may be deduced from the authorities quoted that, when, the estates of the mortgagee and mortgagor are united in the former, he has in1 equity an election to keep the mortgage title on foot, and that whenever it is his interest, by reason of some intervening title or other cause, that the mortgage should be upheld as a source of title, it will not at law be regarded as merged. This is based upon the presumption, as matter of law, that the party must have intended to keep on foot his mortgage title, when it was essential to his security against an intervening title, or for other purposes of security; and it is no matter whether the parties, through ignorance of such intervening title or through inadvertence, actually discharged the mortgage and canceled the note, and really intended to extinguish them. Still, on its being made to appear that such intervening title existed, the law would presume conclusively that the mortgagee could not have intended to postpone his mortgage to the subsequent title.’ In a recent treatise on mortgages the law is thus summed up: ‘It may therefore be deduced from the authorities, as a general rule, that when the mortgagee acquires the equity of redemption, in whatever way, and whatever he does with his mortgage, he will be regarded as holding the legal and equitable titles separately, if his interest requires this severance. The law presumes the intention to be in accordance with his real interest, whatever he may at the time have seemed to intend.’ 1 Jones on Mortg. § 873.
“In the ease of Monroe v. Buchanan [27 Tex. 2461, where there had been an invalid trust sale, at which, however, the purchase money had been paid and the note delivered up, this court says: ‘The lot was still chargeable with the debt. The lien upon it was not extinguished, and equity required, if necessary that justice might be done all parties, that the note, although lost or destroyed, and the mortgage, should be recognized as a subsisting and valid charge upon the lot. It is a familiar maxim that equity will hold that as having been done which should have been done; and it is equally true that, in proper cases for its application, the converse of this proposition is as well established, and will hold that which should not have been done as still unperformed.’
“A class of cases involving the same principle, that, to prevent injustice, equity will keep alive a debt, mortgage, or judgment, although in law it may have been satisfied and the parties at the time so intended, is where there have been sales under decrees foreclosing liens, without making a subsequent vendee or mortgagee a party. This court has uniformly intimated its opinion that the purchaser, though he be himself the mortgagee or lienholder, might still, in a proceeding with proper parties, have the premises resold, and the first sale and the satisfaction of the debt thereby being set aside or disregarded; the object being that equity might still be done between all parties. Pitman v. Henry, 50 Tex. 364, 365; Carter v. Attoway, 46 Tex. 111; Jemison v. Halbert, 47 Tex. 180. To the same effect are Besser v. Hawthorn, 3 Cr. 131, and Hollister v. Dillon, 4 Ohio St. 197. In the latter ease the mortgagee had obtained judgment for his debt without subjecting the land, and at an execution sale under that judgment became himself the purchaser. In1 consequence of intervening rights, no title passed by this sale; but the court denied that such a sale could operate a payment of the debt for the benefit of those who had purchased subject to the mortgage. It says: ‘Such a sale of mortgaged property to the mortgagee cannot operate to deprive him of rights existing anterior to and independent of the judgment; that, if such a mistake does mot, on the one hand, lay a foundation for equitable relief, it does not, on the other, give any advantage to the debtor, when set up as a defense in a suit brought upon the mortgage, over which a court of equity has unquestioned jurisdiction.’
“The case of Jemison v. Halbert is one much in point, and fully supports the conclusion that the court erred in holding the mortgage extinguished as to Gammage. See, also, Robinson v. McWhirter, 52 Tex. 201.
“In the present case Silliman acted in ignorance of the existence of Gammage’s title, and therefore labored under a mistake of fact, and, notwithstanding he for some purposes had constructive notice, our opinion is that equity would give him relief. For the purpose of protecting Silliman against the intervening claim of Gammage, the court should have treated the mortgage as in force.”

We think from what -has been said, and from the authorities cited it is clear, without further discussion, that had Stark kept the notes executed by Eddleman in part payment for the property, he would have had a lien thereon, superior to the lien asserted by plaintiffs, to the amount due on said notes, and that by his purchase of the land from Eddleman and the surrender of said notes he did not lose his equity in the property.

We also think it clear that, as Eddleman held the legal title to the property at the time he executed and delivered to plaintiffs (appellants) the note sued upon and the deed of trust on the property, he created a lien in favor of plaintiffs which could not be and which was not destroyed by a sale made by Eddleman to Stark in consideration of Stark’s assuming to pay said original vendor’s lien notes held and owned by him, and that said lien should be foreclosed as prayed for, to be secondary, however, to the lien of appellee Stark. In every judicial investigation the discovery of truth and justice should be the aim and desire of the court, and if this discovery is made, the paramount effort of the court should be to see that justice is done to all parties to the suit.

After a most careful examination of the record and the law applicable to this case, we have reached the conclusion that the judgment of the trial court should be reversed, and that judgment should be here rendered for appellants against J. P. Eddle-man for the sum of $1,245, with interest thereon from the 19th day of January, 1913, at the rate of 10 per cent, per annum until paid, and for 10 per cent, upon the amount above adjudged as attorneys’ fees, and for a foreclosure of their lien upon the property in question against both the appellees, Eddle-man and Stark, and for all costs of suit incurred by them, and that judgment should be here rendered for appellee W. H. Stark against J. P. Eddleman for the sum of $3,-200, the aggregate sum of the vendor’s lien notes held and owned by him, dated March 22, 1909, with 10 per cent, interest per an-num thereon from the 22d day of March, 1909, until paid, and for 10 per cent, upon the amount so adjudged as attorneys’ fees, and for a foreclosure of his said lien on said property, and that appellants and appellee Stark may have an order for the sale of the property involved in this suit, and that, if said property be sold under such order, the proceeds of such sale shall be applied: Eirst, to the payment of the amount due to Stark upon the judgment here rendered; and, second, if there remains any balance of said proceeds, the judgment here rendered for plaintiffs shall be paid, and any balance remaining after making such payments shall be paid over to Stark. Having reached sudh conclusion, the judgment of the trial court is reversed, and judgment is here rendered in accordance with such conclusions.

Reversed and rendered.
      &wkey;»For other cases see samq topic and KEY-NUMBKR in all Key-Numbered Digests and Indexes

      ^=For other eases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    QUANAH, A. & P. RY. CO. v. COLLIER et al.
    (No. 815.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 19, 1915.
    Rehearing Denied Oct. 9, 1915.)
    1. Carriers <&wkey;230 — Carriage oe Live Stock — Delay in Transportation — Instructions.
    In an action for delay in the interstate transportation of live stock, whereby the shipment had to be diverted to a point within the state, it was not error to refuse an instruction for defendant, if a connecting carrier failed to run a special train from the point of connection to destination, where such carrier owed no duty to do so.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <&wkey;>230.)
    2. Appeal and Error <&wkey;930 — Assignment oe Error) — Issues Not Requested.
    In an action for delay in transportation of a stock shipment, whereby it became necessary to divert it to another market, an assignment of error that the verdict was insufficient to support a judgment for plaintiff in failing to find the weight of the cattle when sold and their market value at that time, or what they sold for, will be overruled, where the issue was not requested and the market value of the cattle was sufficiently proven, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, providing that upon appeal an issue not submitted and not requested' by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. &wkey;> 930.]
    Appeal from District Court, Motley County; J. A. P. Dickson, Judge.
    Action by R. L. Collier and another against the Quanah, Acme & Pacific Railway Company. Judgment for plaintiffs', and defendant appeals.
    Affirmed.
    D. E. Decker, of Quanah, and G. E. Hamilton, of Matador, for appellant. T. T. Boul-din, of Matador, and C. D. Russell, of Plain-view, for appellees.
   HENDRICKS, J.

Collier and Chalk, the appellees, as owners of eleven car loads of cattle, sued the appellant, the Quanah, Acme & Pacific Railway Company, for damages to the cattle, alleging a contract of shipment with appellant from Roaring Springs, Tex., to Kansas City, Mo., with the privilege of the Oklahoma City market. They aver that they delivered the 345 head of cattle to defendants at its stock pens at 8 o’clock, August 12, 1913, according to an agreement with the carrier, for the purpose of shipment, and that defendant detained said cattle at Roaring Springs until 2 o’clock of that date, at least five hours longer than they should have been detained, and that by reason of such delay the defendant failed to make connection at Quanah with the St. Louis & San Francisco cattle train, over which road said cattle were to be carried to Oklahoma City; that on account of its failure to make such connection, and on account of the fact that the cattle would have to be held at Quanah practically 24 hours, without feed or water, before the transportation from Quanah could be continued, the said cattle were shipped to Ft. Worth over the Ft. Worth & Denver City Railway Company at the request of the defendant; that by reason of the defendant’s negligence said cattle had to be carried to Ft. Worth and could not reach there in time for market on August 13th, but' were sold on that market August 14th — suing for the difference in the Oklahoma 'City and Ft. Worth markets, for the shrinkage, also damages for marketable appearance of the cattle.

The jury, upon submission of special issues, found that it was agreed that the cattle should be penned for shipment not later than 8 o’clock a. m. (presumably the 12th of August, 1913); that the owners yarded the cattle at Roaring Springs by 7 a. m., and that the same were not loaded on the cars for shipment until 2 p. m.; that said train left Roaring Springs for Quanah about 3 p. m., arriving at the latter station upon the Ft. Worth & Denver about 8 p. m. of the same day; and found that the shipment was • diverted to the Ft. Worth & Denver City Railway Company at Quanah for transportation to Ft. Worth, on account of the failure of the defendant to make connection with the Frisco at that point for Oklahoma City; also found that the agent of appellant at Roaring Springs informed the shippers that it would be necessary to pen the cattle at 8 a. m. in order to make said connection, and that the railroad company failed to furnish the cars for the purpose indicated. The jury found the market price of the cattle on the Oklahoma City market August 13th at $5.25 per hundredweight, and that the market price of the same upon the same date at Ft. Worth was about $5 per hundredweight; that the loss of the cattle by reason of the delay was about 18 pounds per head, and that the loss of the marketable appearance of said cattle by reason of the delay was 25 cents per hundredweight. The court found in his judgment $595.35 damages on account of the marketable appearance (25 cents per hundredweight of the cattle), and also found the same amount difference in the market value, and further found the sum of $326 for loss of weight, aggregating $1,516.70 recovered against the appellant.

The appellant railway company, in various phases, assigns', and undertakes to show in its brief, that the appellees were seeking to recover against the Quanah, Acme & Pacific Railroad, the initial carrier, in an interstate shipment, for negligence of the St. Louis & San Francisco and the Ft. Worth & Denver City Railroads, and, though initiated as an interstate shipment, but having been converted into a state shipment, the appellant was not liable, except for damages upon its own line.

Appellant has a misconception, as we view this record, of appellees’ cause of action. The railway company made a contract to ship these cattle to Kansas City, with the privilege of the Oklahoma City market. There is no dispute but what it failed to furnish the cars at the proper time for the purpose of transporting these cattle from Roaring Springs, Tex., so as to meet the St. Louis & San Fransisco train at Quanah, for the continued transportation of the cattle to Oklahoma City. The general manager of the Quanah, Acme & Pacific Railway Company accompanied this shipment from Roaring Springs to Quanah. Before arrival there, by telegram, he attempted to get the Frisco management to hold its Oklahoma City freight train, but his efforts were unavailing. There were no facilities at Quanah to feed and water the 11 car loads of cattle, and they would have to have been held at that station about 24 hours for another train for the purpose of continuing the original plan of shipment. The owners of the cattle testified that at the solicitation of Mr. McCray, the general manager, the cattle were diverted to Ft. Worth, over the Ft. Worth & Denver City Railroad, which made a run of a little over 14 hours from Quanah to Ft. Worth, about which no complaint is made, nor could be made; the cattle arriving, however, at that destination too late on August 13th for the market of that day. The cattle were held over until the next day and sold for $4.75 per hundredweight. Appellant says, in one proposition:

“The theory of appellees’ counsel, which theory was followed by the court, is that the initial carrier, Quanah, Acme & Pacific Railway Company, having made an interstate shipping contract, is responsible for the negligent acts of the Frisco Railway Company in not running a train out of Quanah on arrival of the Quanah, Acme & Pacific train; that the appellant is responsible for the negligence of the Denver in not making the market at Ft. Worth on the 13th of August, on the theory that a carrier cannot limit its liability to its own line in domestic or intrastate shipment.”

Whatever theory the trial court may have applied, however, the case pleaded, made by the evidence, and as found by the jury responding to the special issues, constitutes a contract and a duty to ship certain cattle to certain markets outside the state, and on account of the fault of the carrier making the contract and originating the shipment the transportation to those markets was abandoned, and the cattle were shipped to a different market inside the state, with certain resultant damages, ensuing, practically without contradiction, as the proximate result of the acts and omissions of said carrier. The failure of the Frisco, or the Denver, is not in the case. The former road, by any stretch, is not a relevant factor; and the latter road is not found to be negligent. In a statement following its proposition under the tenth assignment, appellant does say:

“There was evidence that the Denver was negligent in not making the Ft. Worth market on August 13th”

—without informing us of the substance of such evidence. All that we can find in this record upon such a question is that one of the owners of the cattle said that the run from Quanah to Ft. Worth on the Ft. Worth & Denver was from 12 to 16 hours, which, in connection with the testimony most favorable to appellant as to when the train on the Denver left Quanah, the Denver road made the run in a little more than 14 hours.

There are several academic propositions propounded and urged, involving the Gar-mack amendment (Act June 29, 1906, e. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]), and whether the several liability contracts of the Denver and the Quan-ah, Acme & Pacific affect certain questions, which, as applied to the contract made to ship these cattle to Oklahoma City, the duty imposed, the violation of same, and the damages flowing therefrom, as exhibited in this record, are almost unnecessary to discuss. For example: The appellant requests the submission of an issue:

“If the Frisco had received the cattle of plaintiff at Quanah, at the time they arrived there over defendant’s line, and [had] transported them with reasonable care and dispatch, would said cattle have reached Oklahoma City in time for the market there on August 13, 1913?”

The record is as certain as a question of this kind could be made so that if the initial carrier, the appellant, had furnished the cars and transported the cattle as it should have done, the train would have reached Quanah in ample time to have connected with the Frisco, to have reached the Oklahoma City market on that date.

Again, it was requested:

“If you find that it was the negligence of the Frisco Railway Company, in its failure to run a train from Quanah to Oklahoma City and transport plaintiff’s cattle after the same arrived at Quanah, which was the proximate cause of the injury and damage to plaintiffs, then you will return a verdict for defendant.”

What the Frisco failed to do, when no duty whatever is shown that it should have made up a special train, after appellant had failed to make the connection, is wholly immaterial.

There are a number of objections to the charge of the court, without any exceptions, which we will not consider.

The appellant’s nineteenth assignment of error (not in its motion for new trial) complains that:

“The verdict of the jury, having failed to find the weight of the cattle on the day sold, and the market value of the same on the day sold, or what they sold for, is not sufficient upon which a judgment for plaintiff can be rendered for any sum.”

This matter should have been called to the attention of the lower court. However, the appellee accompanying the cattle testified:

“I do know the market value of that class of cattle on the Ft. Worth market on August 13, 1913. It was a good strong' 5 cents the day I got there, and there was very little difference in that day’s market and the next day. The market was pretty steady along about that time. These cattle, the day they got on the market, brought $4.75 and they brought all they could bring on that day,” etc.

The market of the 14th with reference to the particular cattle was sufficiently proven. St. Louis, Iron Mountain & South. Ry. Co. v. Rogers, 49 Tex. Civ. App. 309, 108 S. W. 1027, writ of error refused; Reeves v. Texas & Pacific Railway Co., 11 Tex. Civ. App. 514, 32 S. W. 920. It is true the jury did not find specifically the market of that day, and found the market of the day previous, which, as compared to the Oklahoma Oity market of the same day, was 25 cents per hundred. Under article 1985, Vernon's Sayles’ Civil Statutes :

“Upon appeal or writ of error, an issue not submitted, and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding.”

The pleading embraces the issue not specifically found, and the evidence supports it. A careful reading of the judgment and of the manner in which the trial court finds the amounts makes it clear that, as to a part of his judgment, he bases it upon the findings of the jury. As to the judgment for the difference of the market value in the cattle, as to the two markets, the court’s language is ambiguous. Whether the difference in the market value, $595.35, as found by the court, was based upon the specific findings of the jury, is not at all clear, unless you would say that he found that difference 25 cents, the same as the jury, would show that intention. Appellant, however, did not plead more than the 25 cents difference in market value, but specifically alleged that amount, and consequently the court could not have found more. This statute reads that upon appeal an issue not submitted and not requested shall be deemed as found in such a manner as to support the judgment, if there be evidence for that purpose. Such an issue was not requested, and upon the command of the statute the assignment is overruled. We think the judgment of the trial court should be affirmed.

Affirmed.
      ^&wkey;Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    CALVERT v. STATE.
    (No. 3654.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    Rehearing Denied Oct. 13, 1915.)
    Criminal Law <&wkey;1090 — Appeal—Statement op If acts.
    Where there is neither a statement of facts nor any bill of exceptions, nothing is presented which the Court of Criminal Appeals can review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@=1090.]
    Appeal from McLennan 'County Court; Geo. N. Denton, Judge.
    Doe Calvert was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Elbert Pearce, of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of unlawfully carrying a pistol and fined $100.

There is neither a statement of facts nor any bill of exceptions. Nothing is presented which we can review.

The judgment is affirmed.