author: WILLSON, C. J.

text:
    MORRIS COUNTY NAT. BANK v. PARRISH et al.
    (No. 2034.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 21, 1918.
    On Appellant’s Motion for Rehearing, Dec. 19, 1918.)
    1. Appeal and Error <&wkey;1031(4) — -Reversal por Error — Evidence—Rule op Court.
    Despite Rule 62a for Courts of Civil Appeals (149 S. W. x), injury will be presumed when trial court erroneously excluded evidence constituting foundation of action or defense under such circumstances that it cannot reasonably be expected that it can be supplied by other evidence.
    2. Counties <&wkey;64 — Officers — Treasurer’s Bond — 'Conditions.
    Bond of treasurer of county, in which the words substituted for words of the statute were equivalent thereto, held not invalid as statutory bond on ground that it was not conditioned as statute required.
    3. Counties <&wkey;64 — Officers — Treasurer’s .Bond — Approval.
    Approval by commissioners’ court of bond of county treasurer, if necessary to its validity, could be shown otherwise than by entry on minutes of court.
    Appeal from District Court, Morris County ; J. A. Ward, Judge.
    Suit by the Morris County National Bank against W. M. Parrish and others. From judgment for defendants, plaintiff appeals.
    Reversed, and cause remanded.
    Appellee Parrish was county treasurer of Morris county. The other appellees were sureties on a bond made by him as such treasurer in November, 1914. Appellant claimed to be the duly qualified depository, under the act of 1905 (Vernon’s Statutes, arts. 2440 to 2453), of moneys belonging to said county. The suit was by appellant on said bond for $6,245.61, which it claimed to be damages it was entitled to because of the failure, it alleged, of Parrish as such treasurer to comply with section 24 (Vernon’s Statutes, art. 2444) of said act, which required him to turn over to it moneys in his hands as such treasurer.
    At the trial the bond sued upon was identified by J. D. Lasater, county clerk of Morris county in 1914, testifying as a witness, as the bond made by said Parrish as county treasurer in November of that year. Appellant thereupon offered the bond as evidence, together with a certificate of the county judge of Morris county, attached thereto, showing it to have been “approved in open commissioners’ court”; but on appellees’ objection thereto on the ground (1) that it was' not conditioned as the law required such bonds to be, and (2) that it did not áppear from testimony competent to prove the fact that it had been approved by the commissioners’ court, the bond was excluded. Appellant then offered to prove by the witness Lasater that, while the minutes of the commissioners’ court did not show it, as a matter of fact the bond was duly approved by that court November 10, 1914. The testimony was excluded on the theory, it seems, that the approval of the bond by the commissioners’ court could be shown in no other way than by an order entered in the minutes of the proceedings of that court. After excluding the bond as evidence, the trial court instructed the jury to return a verdict in ap-pellees’ favor. The appeal is from a judgment in accordance with such a verdict.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    P. A. Turner, of Texarkana, and Henderson & Bolin, of Daingerfield, for appellees.
   WILLSON, C. J.

(after stating the facts as above). The contentions presented by the assignments are that the trial court erred: (1) When he refused to permit appellant to prove by the witness Lasater that the bond sued upon was duly approved by the commissioners’ court; and (2) when he excluded the bond as evidence. It would serve no useful purpose to determine whether the trial court erred as claimed or not, for, if it were determined that he did, we would be bound, nevertheless, to affirm the judgment. It does not appear from the record that appellant either proved or offered to prove that Parrish as county treasurer held moneys he was bound, and failed, to turn over to it. Without such proof, and proof showing the amount of such moneys, appellant would not have been entitled, had the bond been admitted as evidence, to judgment' against appellees. It does not appear from anything in the record that appellant could have made such proof, and we have no right to assume that it could have made it. Therefore, were it conceded that the trial court erred‘as claimed, we could not say, as we must to reverse the judgment, that the error “probably caused the rendition of an improper judgment in the case.” Rule 62a for the Government of Courts of Civil Appeals; Ry. Co. v. Shinn, 153 S. W. 636; Hopkins v. King, 204 S. W. 360; Ry. Co. v. Miller, 190 S. W. 819; Lumber Co. v. Oil Co., 194 S. W. 633.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

Prior to November 15, 1912, the date when rule 62a for the government of the Courts of . Civil Appeals (149 S. W. x) was promulgated by the Supreme Court, it was the practice of the appellate courts, when it appeared that a trial court had committed error in the trial of a cause, to reverse the judgment, unless iit also appeared from the record that injury to the appellant had not resulted from the error. In other words, error appearing, the appellate court would assume it resulted in injury to the appellant, unless the contrary appeared in the record. The effect of rule 62a was to change this practice, and to forbid the reversal of a judgment by a Court of Civil Appeals, unless it appeared from the record, not only that error was committed in the trial, but also that the error “amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.” In other words, reversing the former practice, error appearing, the appellate court was to treat it as harmless, unless the contrary appeared in the record. Wells Fargo & Co. v. Benjamin, 165 S. W. 120, 127; Surety Co. v. Hardwick, 186 S. W. 804, 806; Ry. Co. v. Miller, 190 S. W. 819, 822; and cases cited in the opinion affirming the judgment, filed November 21st, last. It was because we thought the cause was within the prohibition against reversals declared in said rule 62a, in that it did not appear from the record that injury to appellant resulted from the exclusion of the bond sued upon as evidence, that this court affirmed the judgment without determining whether it was error to exclude the bond or not. This view of the record is vigorously attacked as erroneous; and, as supporting a contrary view, appellant cites many cases decided by the courts of this state prior to the time when said rule 62a was adopted, holding, in effect, as the court did in McCarty v. Wood, 42 Tex. 39, in accordance with the practice then prevailing, that injury will be presumed when the trial court “erroneously excludes the evidence which constitutes the foundation of the action or the defense, under such circumstances as that it cannot be 'reasonably expected that it can be supplied by other evidence.”

Further consideration of the question has convinced a majority of the members of the court that the view contended for by appellant is the correct one, notwithstanding the prohibition in rule 62a, and therefore, if it was error to exclude the bond as evidence, that the motion should be granted, the judgment reversed, and the cause remanded for a new trial. The writer is not satisfied that the view first taken by this court was erroneous. As stated in the opinion presenting that view, it did not appear from anything in the record that appellant offered to prove, or could have proven, that there had been a breach of the bond. If it could not, or would not, have made such proof, then of course it was not injured by the action of the court in excluding the bond as evidence. Therefore, to reverse the judgment on the ground that injury resulted to appellant from the ruling of the trial court, this court must assume that appellant could and would have proven a breach of the bond had it been admitted in evidence. And that is not the only assumption this court must indulge to reverse the judgment on the ground stated. In its petition appellant alleged as follows:

“The defendant W. M. Parrish was duly elected at the November election, 1914, was a county treasurer of Morris county, Tex., and that on the 10th of November, 1914, the said W. M. Parrish duly qualified as county treasurer of said county, and that he executed an official bond payable to the county judge of Morris county, Tex., and his successors in office, in the sum of $18,000, the said bond being conditioned that the said W. M. Parrish would faithfully execute the duties of county treasurer of Morris county, Tex., and pay over according to law all moneys which should come into his hands as county treasurer, and render a just and true account thereof to the commissioners’ court, at each regular term of said court, sureties on said •bond being the other defendants heretofore named, and at said time said bond was duly approved by the commissioners’ court of Morris county, Tex., and the said W. M. Parrish then and there took the oath of office as county treasurer of Morris county, Tex., and since that time, and is not, the regularly elected, qualified, and acting county treasurer of Morris county, Tex.”

At the trial appellant introduced in evidence a portion as follows of an answer ap-pellees filed in the case and afterwards abandoned, to wit:

“Specially answering herein, defendants say that it is true that W. M. Parrish was elected county treasurer of Morris county, and that he has qualified as such as alleged by plaintiff herein.”

As an admission by appellant, the portion of its abandoned answer just set out would have warranted the jury in finding as facts all that the bond excluded would have established had it been admitted in evidence. Ry. Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877; 16 Cyc. 1043. Therefore, to reverse the judgment on the ground of injury to appellant resulting from the exclusion of the bond, this court must also assume that appellees could and would have shown that said part of their abandoned answer should, not be treated as an. admission, or else could and would have so explained same as to destroy its value as evidence. As the writer understands rule 62a, it forbids such assumptions by this court.

As, in the opinion of the majority, the relief appellant asks for in its motion should be granted if it was error to exclude the bond as evidence, it becomes necessary in disposing of the motion to determine that question.

The members of the court all agree that the bond was not inadmissible on either of the two grounds urged by appellees.

One of those grounds was that the bond was not conditioned as the statute required it should be. The condition prescribed by the statute for such bonds wás that the county treasurer should “faithfully execute the duties of his office and pay over according to Iww all moneys which shall come into his hands as county treasurer, and render a just and true account thereof to said court at each regular term of said court.”

The bond offered as evidence was conditioned that appellee Parrish, as county treasurer, should “faithfully perform and discharge all the duties required of him hy lado as county treasurer aforesaid, and shall safely Jceep and faithfully discharge all moneys which shall come into my hands as county treasurer, and render a just and true account thereof to the commissioners’ court of said county at each regular term of said court.”

Words used in the statute and omitted from the bond are italicized in the excerpt above from the statute, and words used in the bond in lieu of the statutory words omitted therefrom are italicized in the excerpt from the bond. It is plain that the words substituted in the bond for words used in the statute are the equivalent, substantially, of the statutory words. As they were, the bond was not invalid as a statutory bond. Johnson v. Erskine, 9 Tex. 1; King v. Frazer, 2 Willson, Civ. Cas. Ct. App. § 788; 9 C. J. 24.

The other ground urged for excluding the bond and sustained by the trial court was that it must appear from the minutes of the commissioners’ court, and did not, that that court had approved the bond. That the approval (if it was necessary to the validity thereof) of the bond could be shown otherwise than by an entry on said minutes seems-to be well established. Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000; Rankin v. Noel, 185 S. W. 883; Marshall v. Simmons, 159 S. W. 89; Harper v. Golden, 39 S. W. 623; McFarlane v. Howell, 16 Tex. Civ. App. 246, 43 S. W. 315; Wright v. Leath, 24 Tex. 24, 33; Poer v. Brown, 24 Tex. 34; 9 C. J. 25; 15 C. J. 490; Ramsey v. People, 197 Ill. 572, 64 N. E. 549, 90 Am. St. Rep. 177. In his note to the case last cited Judge Freeman says:

“Statutes providing that official bonds shall be approved, and * * * directory'merely. Moreover, they are for the convenience, security, and protection of the public, and not directly for the benefit of the principal in the bond and his sureties. If a bond is delivered for approval, it becomes a binding obligation, unless actually disproved. A dereliction of duty on the part of the officers appointed by law to pass upon the sufficiency of the security, and approve or reject it, cannot be taken advantage of by the bondsmen. If they fail to act in the manner or time prescribed, or if they fail to act at all, or if the wrong officers act, the sureties are, nevertheless, bound, when their principal is inducted into office and proceeds to act and to assume to himself the privileges and authority appertaining thereto.”

The motion is granted; and the judgment heretofore rendered by this court will be set aside, the judgment of the .trial court reversed, and the cause remanded for a new trial.
      ©ssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    DICKERSON v. DICKERSON.
    (No. 2025.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 21, 1918.)
    1. Evidence <&wkey;>10(4) — Judicial Knowledge —Counties.
    The Court of Civil Appeals judicially knows that Fannin county is a subdivision of the state of Texas.
    2. Divorce <&wkey;124 — Residence—Sufficiency of Evidence.
    Evidence held to show that plaintiff was a bona fide inhabitant of the state, and had resided in county in which divorce action was brought the requisite time to give court jurisdiction.
    3. Divoboe <&wkey;37(o) — Abandonment—Visits.
    Fact that husband visited wife, who had abandoned him, for purpose of trying to persuade her to return, did not interrupt running of period of abandonment.
    4. Divorce &wkey;>184(6) — Review—Weight of Evidence.
    In divorce action, where evidence was conflicting, it was for trial court to weigh evidence and settle issues.
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Action by S. B. Dickerson against Mary L. Dickerson. Judgment for plaintiff,' and defendant appeals.
    Affirmed.
    Rosser Thomas and A. S. Broadfoot, both of Bonham, for appellant.
    Will Harkins and J. W. Gross, both of Bonham, for appellee.
   HODGES, J.

This appeal is from a judgment granting a divorce to the husband on the ground of three years’ abandonment by the wife. Tbe facts show that the parties were married in December of 1911 and lived together in Fannin county until April, 1914. They resided on a farm belonging to the father of the appellee.

There are but two questions presented in this appeal: One challenges the sufficiency of the evidence to support a finding that the appellee was a bona fide inhabitant of the state of Texas and had resided in Fannin county the requisite length of time to give the court jurisdiction in this case; the other challenges the sufficiency of the evidence to show three years’ abandonment. The appellee’s father testified that the plaintiff was born and reared on his farm near Ladonia, in Fannin county, and resided at the family home during his entire life, with the exception of the two or three years after marriage; that after marriage he lived in the same vicinity. The appellee testified that he and appellant were living on this farm at the time of their separation; that after the separation he had been living with his father. We judicially know that Fannin county is a subdivision of the state of Texas, and the remaining facts are sufficient to show that the statutory conditions as to residence existed at the time of filing this suit. Upon the issue of abandonment the appellee testified that in April of 1914, while he was engaged in some farm work, his wife left him, under the pretense of making a visit, and had continuously since refused to return and reside with him at their domicile; that within a short time after she left him she instituted a suit for divorce against him in the district court of Fannin county. At his instance that suit had been dismissed. She spent the greater part of her time thereafter in Dallas, and steadfastly refused to return and live with him in Fannin county. He admits that while his wife was in Dallas he visited her, and on more than one occasion they occupied the same room. He dadmed that he was endeavoring to influence her to return and live with him. It is not disputed that she was willing to live with him if he would change his place of residence, but refused to go back to Fannin county. Some time in 1916 they seem to have reached a definite understanding that they could not live together, and this divorce suit followed.

We think the testimony is sufficient to authorize the court in concluding that at the time the appellant left the home of the appellee she did so with the intention of abandonment. The fact that he visited her was not, under the circumstances, sufficient to require the court to hold, as a matter of law, that there had been a reunion sufficient to interrupt the running of the period of abandonment. In Womble v. Womble, 152 S. W. 473, Associate Justice Jenkins, of the Austin Court of Civil Appeals, in discussing facts similar to these, announces the principles which we think should control the der cisión of this question. While it is true the appellant testifies to a different state of facts, it was within the province of the court to weigh the testimony and settle the issue.

We conclude the state of the evidence is not such as to require us to set his findings aside, and the judgment is affirmed.
      <§=3For other eases see same topic and KEY-NUMBER in all Key-Numbered'Digests and Indexes


author: BOYCE, J.

text:
    LUSE et al. v. REA et al.
    (No. 1389.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Words and Piteases — '“Insolvent.”
    One may have sufficient property out of which to pay any percentage of his debt less than 100 per cent., and yet be insolvent, and the conclusion that one is insolvent does not justify the conclusion that his note is wholly worthless.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insolvent.]
    2. Mortgages <&wkey;28 — “Equitable Lien” — “Equitable Mortgages.”
    Where purchase-money notes recited that they were secured by deed of trust lien on land, one who took notes believing they were in fact so secured is entitled to equitable lien on the land, notwithstanding no deed of trust was in fact executed (citing Words and Phrases, First and Second Series, Equitable Liens and Equitable Mortgages).
    3. Liens <&wkey;>7 — Equitable Liens — Executo-ry Agreement to Give Lien.
    An executory agreement in writing to give a lien on land is sufficient to create a lien in equity on such land, though mortgage or lien is itself never executed, under the maxim that equity regards that as done which ought to be done.
    4. Vendor and Purchaser <&wkey;254(l) — Equitable Vendor’s Lien.
    Purchase-money notes are secured by an equitable vendor’s lien, though there is no express reservation of a lien either in notes themselves or in deed.
    5. Fraud <&wkey;59 (3) — Damages.
    In vendor’s action for damages against purchaser for misrepresentation as to solvency of maker of notes received in part payment, and as to value of land upon which notes were to be a vendor’s lien, vendor’s measure of damages, if action is to be taken as one of deceit, is difference between land conveyed and consideration received.
    6. Fraud &wkey;>59(3) — Notes as Part Payment —Solvency op Maker — Evidence.
    In-vendor’s cross-action for misrepresentation of purchaser as to solvency of maker of notes accepted by vendor in part payment, evidence of maker’s insolvency should be with reference to time of alleged false representations or as to time when value of notes is to be determined.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    Action by Mrs. P. L. Luse and husband against Mrs. Mary D. Waller Rea and husband, in which defendants bring cross-action in which A. F. Duse is joined. From judgment for defendants on cross-action, plaintiffs appeal.
    Reversed and remanded.
    W. H. Russell, of Hereford, for appellants.
    Kimbrough, Underwood & Jackson, of Amarillo, and Carl Gilliland, of Hereford, for appellees.
   BOYCE, J.

This suit was instituted by Mrs. P. D. Duse, joined by her husband, R. G. Duse, against Mrs. M5ary D. Waller Rea, and her husband, B. M. Rea, for recovery on breach of warranty of covenants against incumbrances contained in a conveyance of certain two sections of land conveyed by Mrs. Rea and her husband to Mrs. Duse. The questions on this appeal arise on the trial of the cross-action filed in said suit by the said Reas against the said P. D. and R. G. Duse, and also A. F. Duse, who was made party to the suit, so that it will not be necessary to notice further the issues raised by the pleading and the evidence as to the action on the breach of warranty. In this cross-action Mrs. Rea alleged that she, being the owner of two sections of land in Deaf Smith county, Tex., on which there was an incumbrance, entered into a contract with A. F. Duse to trade her equity in this land to A. F. Duse, in consideration of $800 cash, 160 acres of land in El Paso county, and $14,000 in notes, executed by O. H. Bennett, and secured by a deed of trust on five and one-half sections of land in Culberson and El Paso counties; that the contract was consummated in accordance with the preliminary agreement just stated; that Mrs. Rea was Induced to enter into this contract by representations made to her by the said A. F. Duse, who was acting for Mrs. P. D. Duse and her husband, to the effect that the five and one-half sections of land upon which he was to procure a deed of trust from the said Bennett to secure the payment of said notes for $14,000 were worth about $28,000, for which amount he had sold the same to the said Bennett, the $14,000 in notes representing the balance of the purchase price he was receiving for said land; that said notes were a vendor’s lien on said land, and he also agreed to have them secured by deed of trust executed by Bennett. It is further alleged that as a matter of fact such land at the time was practically worthless; that O. F. Bennett was insolvent, and the deed of trust, which purported to have been executed by O. H. Bennett to secure the payment of said notes executed by him and delivered to Mrs. Rea with such notes, was a forgery; that by such means the said Mrs. Rea was cheated out of her equity in the Deaf Smith county land, which was alleged to be of the value of $25,000, for which amount she prayed judgment.

The evidence shows that the trade was closed in pursuance to the preliminary contract referred to in the cross-action. Such contract provided that the Deaf Smith county land was to be conveyed by Mrs. Duse for the consideration referred to, including “$14,000 worth of deed of trust notes, executed by O. H. Bennett, and secured by lien on five and one-half sections of land located in Culberson county, Texas, and El Paso county, Texas,” etc. The notes so delivered by Dusé in consummation of the contract were executed by Bennett and payable to Mrs Rea, and each note contained this recital: “This note is secured by a deed of trust lien on Secs. * * ⅜following this statement with a specific description of the land in Culberson and El Paso counties.. A deed of trust on said land, purporting to have been executed and acknowledged by the said Bennett and securing the payment of these notes, was also delivered by Duse to Mrs. Rea with the notes. The jury found, in response to special issues submitted to them, that A. F. Duse represented to Mrs. Rea that Bennett was financially responsible for the payment of said notes; that as a matter of fact Bennett was insolvent; that Mrs. Rea relied on these representations, and was thus induced to make the contract, and that the deed of trust purporting to have been executed by Bennett was a forgery. No evidence was offered as to the value of the 160 acres of land in El Paso county, conveyed to Mrs. Rea, nor as to the value of the five and one-half sections of land described in the Bennett notes and deed of trust. It was shown that Mlrs. Rea had traded the said notes for $14,000 for property of various kinds, and upon such sale of said notes had indorsed them to the purchaser thereof. Upon this evidence and the findings of the jury, as above stated, the court entered judgment on the cross-action in favor of Mrs. Rea for the “face value of the notes delivered to defendants by A. F. Duse, in part payment for defendant’s Deaf Smith county land, the sum of $14,000 being the value of said notes had they been secured by valid deed of trust on the Culberson and El Paso counties land, as represented by A. F. Duse, or had O. H. Bennett been solvent.”

A considerable portion of the briefs of the parties is taken up in a discussion of the proper measure of damages to be applied to the cause of action set up by Mrs. Rea in her cross-action. The appellants’ contention Is that the causé of action is for deceit, and that the measure of damages is the difference in the value of the property conveyed hy Mrs. Rea, to wit, her equity in the Deaf Smith county land, and the value of what she received therefor. The appellants contend that the measure of their recovery is the face ralue of the notes, since they assert that it has been shown to be worthless. For guidance of the court, upon another trial, we will later express our opinion on the questions thus presented, but will first say that we do not think the judgment can be sustained under any theory.

There was no question as to the execution by Bennett of the notes for $14,000. He admitted their execution to Mrs. Rea, and promised to pay them, though he denied the execution of the deed of trust. Now, these notes had been sold by Mrs. Rea under indorsement, which of course bound her to their payment, so that they were not and could not be surrendered and delivered tc Duse. If they are worth anything at all, or if anything is ever collected on them, Mrs. Rea, and not Mrs. Luse, would, under the judgment, get the benefit thereof. Before Mrs. Rea could recover the face value of the notes under such circumstances, under any theory of damages applicable to this case, she ought to show that the notes were worthless. No evidence as to the value of the notes was offered except that which might be deduced from the fact that Bennett was insolvent, and that payment of the notes was not secured by deed of trust, as represented. Now, the note of an insolvent may not be worthless. The court charged the jury that “a person is insolvent if he has not property or means sufficient to pay his debts.” He might have sufficient property out of which payment of any per cent, of his debt less than 100 per cent, might be made and yet be insolvent.' So that a mere general conclusion that a person is insolvent does not, we think, justify a conclusion that a note signed by such person is wholly worthless. The record, we think, also very pointedly suggests that an equitable lien against the five and one-half sections'of land in El Paso and Culberson counties, Tex., may be enforced to secure payment of these notes. The recitation in the notes themselves that they are secured by a deed of trust lien on said land, and the delivery of the notes by Bennett to Luse, for the purpose of delivery to Mrs. Rea, who was without knowledge that the deed of trust was not in fact executed, would, we believe, authorize a court of equity to decree an equitable lien against said land, notwithstanding no deed of trust was in fact executed. Boehl v. Wadgymar, 54 Tex. 589; Atlanta National Bank v. Four States Grocery Co., 135 S. W. 1137; Words and Phrases (1st and 2d Ed.) titles “Equitable Liens” and “Equitable Mortgages”; Pomeroy’s Equity Jurisprudence (3d Ed.) §§ 1235-1237. The doctrine of equitable liens grows out of an application of the maxim of equity “which regards as done that which ought to be done.” An executory agreement in writing to give a lien on land is thus sufficient to create a lien in equity on such land though the mortgage or lien is itself never executed. Pomeroy’s Equity Jurisprudence, § 1237, and authorities above cited. It is said by one authority that “an equitable lien arises either from a written contract which shows an intention to charge some particular property with a debt or obligation or declared by a court of equity from the facts and circumstances of the case.” Garrison v. Vermont Mills, 154 N. C. 1, 69 S. E. 743, 31 L. R. A. (N. S.) 452. Another authority asserts that “an equitable mortgage results from different forms of transactions, in which there is present an intent of the parties to make a mortgage, to which intent, for some reason, legal expression is not given in the form of an effective mortgage.” Western Natl. Bank v. Natl. Union Bank, 91 Md. 620, 46 Atl. 962. The statement in the notes that “this note is secured by a deed of trust lien” on certain land is more than a mere collateral statement. It is in the nature of an agreement also that the maker of the note has, prior to or contemporaneously with the execution and delivery thereof, executed a deed of trust on the land described to secure its payment. For instance, it was held in the case of Buckley v. Runge, 136 S. W. 535, that this recital in the notes, given as part of the purchase money for land, “Secured by the 'S. E. and S. W. quarter oí N. E. Bl. of out-lot 70,” “evidences an express contract that they shall be so secured,” and therefore created an express contract lien, which prevented the title to said land from passing to the vendee. But we do not think it is necessary to hold in this instance that this statement constitutes an express agreement that the notes are secured by a deed of trust; for when third parties deal with the note on the faith that the maker of the note has in fact done what he has said he has done to secure payment of the notes we can see no reason why the application of the maxim of equity, which we have already referred to, would not justify a court of equity in decreeing that such facts are sufficient to establish an equitable lien, against the property. The maker of the note ought not be heard to say that he has not done that which he ought to have done to secure payment of these notes. We also think that the record suggests that the payment of these notes is secured by an equitable vendor’s lien on the five and one-half sections of land. Mrs. Rea had alleged in her cross-action that Luse represented to her that the $14,000 notes constituted a vendor’s lien on this land conveyed by him to Bennett. It is true that no direct evidence was offered to show whether these notes represented the purchase price of the said land, or even that said land was conveyed by Luse to Bennett; but we find this statement in the statement of facts: “It is agreed in open court that no vendor’s lien was retained in the deed from A. F. Luse to O. H. Bennett on the land mentioned and described in the trust deed herein copied and the notes executed by Bennett to Mrs. Rea.” The inference from this is that the notes were in fact a part of the purchase price for said land conveyed by Luse to Bennett. If so, an equitable vendor’s lien would result, notwithstanding there is no express reservation of a lien, either in the notes themselves or the deed. Joiner v. Perkins, 59 Tex. 300; Briscoe v. Bronaugh, 1 Tex. 326, 46 Am. Dec. 108; Senter v. Lambeth, 59 Tex. 259. We conclude therefore, that the evidence is such that it is not, in our opinion, sufficient to justify a conclusion that the said notes were wholly worthless, and that is the only conclusion upon which the judgment rendered can be upheld under any theory of the case. We therefore sustain appellants’ sixth and seventh assignments.

As to the proper measure of damages in this ease, we will say that the pleading and the evidence present two groups of facts whieh, if taken separately, would respectively make the suit an action for deceit on one group, and one for breach of the contract on the other. Allegations of such facts as that the making of the contract was induced by false representations as to the financial responsibility of Bennett, and the value of the land which was to be included in the deed of trust to be given to secure the payment of the $14,060 notes would make the suit purely an action for deceit. In such case the measure of damages would be that announced in George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Gas. 456, and the line of authorities following it, including the case of Doolen v. Hulsey, 192 S. W. 368, decided by this court. As we have already noted, the contract provided that Mrs. Rea should receive in the trade $14,000 worth of deed of trust notes executed by O. H. Bennett, etc. Now, if Luse delivered to Mrs. Rea notes which were not in fact so secured and they were accepted by her in ignorance of such fact, there was a breach by Luse of this provision of the contract, and, having disposed of the notes so that they could not be rejected, she might recover for such breach, and the measure of her recovery would be the difference in the value of the notes actually received and their value had they been secured as contracted for. This distinction is clearly made by the Supreme Court in the case of George v. Hesse, supra. In that case the contract was for an exchange of certain lands. George represented to Hesse that the land which he proposed to convey to him in the trade had “a gusher of water” upon it. This representation was false, and it was held that the measure of Hesse’s recovery was the difference in the value of the land he had conveyed to George and the value of the land he had received in exchange, and not the difference in the value of the land conveyed to Hesse without the gusher and its value if the representation had been true. In the discussion by the court in that ease importance is given to the fact that “the contract in this case was not to convey a tract of land ‘with a gusher on it,’ but was to convey a certain tract of land which was falsely represented to have a gusher on it, which false representation was an inducement which led to the contract.” The contract here did actually provide for notes secured by deed of trust lien on certain land, and, if the failure of the notes to be so secured be the only ground of recovery, we think a suit for breach of contract, and the application of its consequent measure of damages, would be proper. The plaintiffs’ petition in this case, however, so combined the facts as that it is, we think, to be regarded as an action for deceit.

The evidence of insolvency ought to be with reference to the time of the alleged false representations or as to the time when the value of the notes is to be determined. Moore v. Beakley, 183 S. W. 380; Morrison v. Clarke, 55 Tex. 437.

The other questions raised are not likely to arise upon another trial and need not be discussed.

For the reasons stated the case will be reversed and remanded.
      <&wkey;For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BRYSON v. ABNEY.
    (No. 2054.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 31, 1918.
    Rehearing Denied Jan. 2, 1919.)
    1. Injunction <&wkey;260 — Reconvention — Damages — Measure.
    Where an injunction restraining defendant from building on his own land was improper, defendant was entitled to compensation for the damages proximately resulting from that restriction, and the measure of damages was, it appearing that defendant intended to occupy the building for his own mercantile purpose, the cost of securing another building, less the expense incident to doing business in the building he intended to erect.
    2. Injunction <&wkey;260 — Reconvention — Damages — Evidence.
    An award of $160 in favor of defendant, who by an injunction was improperly restrained from building on his own land, held not insufficient, but to exceed the amount to which defendant was entitled by $7.

      S. Appeai, and Error &wkey;>1171(2) — Reversal-Grounds.
    A monetary judgment for $160, otherwise proper, will not be reversed because it was excessive in the amount of $7.
    Appeal from District Court, Harrison. County; P. O. Beard, Judge.
    Suit by C. M. Abney against J. M. Bryson. From a judgment denying an injunction sought by plaintiff and awarding damages to defendant, defendant appeals, claiming that the amount was insufficient, and plaintiff files cross-assignments of error.
    Affirmed.
    Prendergast & Prendergast, J. H. T. Bibb, all of Marshall, for appellant.
    Cary M. Abney, of Marshall, for appellee.
   HODGES, J.

This is the second appeal in this ease. The first is reported in 171 S. W. 508. The suit was originally instituted by Abney to enjoin Bryson from erecting a building on ¿ lot in the town of Waskom. On the first trial Abney secured a perpetual injunction, from which Bryson appealed to this court. ■ The case was reversed and remanded, upon the ground that the evidence was insufficient to support the judgment.

Inasmuch as the testimony relied upon to support a right to the injunction is the same as that adduced in the first trial, we quote from the opinion rendered the material facts bearing upon that issue:

“It appears that appellee bought a tract of 3½ acres from J. W. Fu^rh about 22 years ago, and on the eastern part of this lot was located his dwelling, which fronts south. Was-kom is él village or community of few inhabitants, and the appellee’s land is in Waskom. It does not appear that Waskom was ever platted into a town site, or land sold with reference to its being laid off into lots and streets. A public road from the north runs on the east of appellee’s property and intersects on the south a road running from the west. Adjoining ap-pellee’s land on the south, and between it and the roads, there is located an open and vacant plat of land about 123 feet deep by 186 feet long. Between 10 and 12 years ago J. W. Furrh conveyed to appellee a strip off of the north of the above tract of about 30 feet by its length. Recently J. W. Furrh conveyed appellant a lot off of the west part of the strip of approximately 37 by 45 feet, and appellant undertook to erect a storehouse thereon. It is not deemed necessary to set out all the evidence. At the time appellee bought hig residence lot the entire strip on the south was open, vacant land, and was so* when he bought the 30-foot strip off of it. There is no evidence that any land was by the owners ever platted into lots or streets, or even laid off on the ground.”

The last trial was before the court, and resulted in a judgment refusing the writ of injunction and in favor of Bryson for $160 as damages on his plea in reconvention. Bryson appeals from that judgment, claiming that the amount was insufficient. Abney also files cross-assignments of error, attacking the allowance as excessive, and renews his contention that, under the evidence, he was entitled to the writ of injunction prayed for.

In what is styled a “supplemental answer” filed by Bryson in June, 1918, he alleged, in substance, that at the time the writ of injunction was sued out, in August, 1912, he was engaged in the mercantile business, and desired to erect the house in question to be used for that purpose; that the house would have been finished and ready for occupancy on October 1, 1912, had he not been restrained from building by the issuance of the injunction. He further alleged that the house when completed would have cost about $450, and the rental value thereof would have been worth $12 per mbnth; that after the injunction was served upon him he was forced to rent another building, at an expense of $12 per month, and had been forced to pay that amount as rent for a house in which to do business since the 1st day of October, 1912. He prayed for $700 as actual, and $200 as exemplary, damages. The record contains no reply to this plea in re-convention.

Upon the issue of damages the court filed his conclusions, in which he found as -follows: The rental value of the lot in question, with the house on it, would be worth $7.50 per month. The cost of erecting the house contemplated by Bryson would have been $500, and the value of the house and lot together would aggregate $600. The material used in the foundation, which had been placed on the lot at the time , the writ was served), amounted to $10. The net amount which Bryson was entitled to recover as damages on account of being wrongfully restrained from building upon the property, and which would compensate him for the damages sustained, was placed at $160. The appellant’s contention that the allowance was inadequate is based upon the assumption that the measure of damages, adopted by the court, the rental value of the house contemplated, was correct, and that the evidence showed a greater rental value than that found by the court. Upon that issue the testimony was conflicting, different witnesses giving different estimates, some of which were less than $7.50 per month. The appellee in his cross-assignments insists that the rental value of the house, which was never built, was not the correct measure of the damages.

By the issuance of the writ of injunction Bryson had been prevented from building a house on his own lot. He was entitled to compensation for the damages which, proximately resulted from that restriction. According to the pleadings and the proof, this house was intended for occupancy by Bryson in carrying on his own mercantile business, not for rental purposes. He does not allege, or offer to prove, that he could have rented it, or that he would have done so. His damages were the cost of securing another house in which to conduct his business, less the expense incident to doing business in the house he intended to erect. He testified that about 2 years after the issuance of the writ he rented another building at an expense of $8 per month. He has not claimed anything for being deprived of an opportunity to engage in his business during that 2 years. He offered no evidence to show how long he continued to pay that amount of rent; but, assuming that he paid it continuously till the date of the last trial, a period of approximately 46 months, the aggregate amount paid would be $368. Had he been permitted to build his own house he would have expended the sum of $500. The trial court concluded that'in estimating the damages Bryson should be charged with 8 per cent, per annum on that investment, as a legitimate expense incident to using his own building. If that sum be deducted from the rents paid it would leave a net loss of approximately $143. To this may be added the sum of $10, the value of the foundation lost. By this process the damages sustained by Bryson in being deprived of the privilege of building and occupying the house contemplated would be about $153, or $7 less than that allowed by the trial court. We regard’this difference as too insignificant to call for a reversal of the judgment upon the ground that it was excessive. •

The judgment will be affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: MOURSUND, J.

text:
    GRINER et al. v. TREVINO.
    (No. 6105.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 4, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Pleading <&wkey;49 — Nature and Object or Suit — Prayer.
    If petition contained prayer for cancellation of instruments unaccompanied by prayer for general relief, such special prayer determines the nature and object of the suit.
    2. Pleading <&wkey;49 — Natuee and Object of Suit — Peatee. '
    The cause of action depends upon the facts stated, rather than upon the specific relief prayed for, where there is a general prayer for relief.
    3. Cancellation of Instruments c&wkey;37(l, 6) —Fraud—Petition—Sufficiency.
    In suit praying, among other things, for cancellation of instruments with reference to cutting of guayule from land in Mexico, petition held, to disclose that court had jurisdiction, of persons of defendants, and that a frapd had been committed against plaintiff for which a remedy could be afforded by requiring defendants to reconvey to plaintiff.
    4. Judgment &wkey;>252(5) — General Prayer foe Relief — Jurisdiction—Lands in Foreign Country.
    Although court of forum would not have jurisdiction to cancel instruments as requested in special prayer, where petition stated facts showing jurisdiction of defendants, and that a fraud had been committed for which a remedy could be afforded by requiring defendants to re-convey, the court had jurisdiction to grant such relief under the general prayer.
    5. Pleading <&wkey;104(l) — Plea to Jurisdiction-Scope.
    In suit praying, among other things, for cancellation of instruments with reference to cutting of guayule from land in the Republic of Mexico, defendants’ plea to jurisdiction held not to go to the jurisdiction of the court to .inquire into the question of fraud, but to the power of the court to grant cancellation of instruments.
    6. Courts <&wkey; 18 — Jurisdiction — Lands in Foreign Country.
    The courts have no power to cancel a deed for land in another state or a foreign country.
    7. Couets <&wkey;18 — Jurisdiction — Lands in Foreign Country.
    Instrument purporting to convey right of entry upon lands in Republic of Mexico for purpose of severing guayule from soil, etc., purported to give an interest in land in Mexico, and courts of Texas would have no jurisdiction to decree cancellation, either under laws of Texas or under Statutes of the State of Coa-huila, Republic of Mexico, arts. 684, 1327 (book 3).
    8. Appeal and Erroe <&wkey;843(3) — Review-Questions Unnecessary to Decision.
    Assignments urging that evidence is insufficient to sustain that part of decree canceling instruments need not be considered in view of the holding that such portion of decree must be set aside for want of jurisdiction.
    9. Appeal and Error <&wkey;1175(7) — Judgment Warranted Only undee One Finding— Remand.
    Judgment being warranted only for fraud or upon some other equitable ground, the court on appeal will not render judgment, but will reverse and remand, where it is unable to determine whether court based judgment upon finding that power of attorney was insufficient or upon a finding of fraud.
    10. Trial <&wkey;392(3) — Findings of Court — Request in Wetting.
    Rev. St. 1911, art. 1989, providing that on trial by court, judge shall, at request of either party, state in writing his conclusions of law or fact, does not require that the request to the court be in writing.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.

      Action by J. G. Trevino against J. G. Griner,- and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part and reversed and remanded in part.
    Diedrieh A. Meyer and Don A. Bliss, both of San Antonio, for appellants.
    Chambers & Watson, of San Antonio, for appellee.
   MOURSUND, J.

J. G. Trevino, a citizen of the republic of Mexico, on April 3, 1917, sued J. G. Griner, Otto Graf, and Charles Perry, alleging that they were residents of Bexar county, Tex., the amended petition on which trial was had containing allegations to the effect that on or about December 18, 1915, said Griner, as attorney in fact or individually, without authority of law, entered into a contract with defendant Graf for the cutting and taking off, for 20 years, from certain land inherited by plaintiff from his father, situated in the republic of Mexico, of the shrub guayule, and that Graf transferred and assigned said “lease contract” to defendant Perry; that said contract was entered into without the knowledge or consent of plaintiff, and was without any consideration, and made by Griner and Graf and transferred to Perry for the purpose of defrauding plaintiff, and for the purpose of enabling defendants to sell the guayule and reap the benefits therefrom, and embezzle and misapply the same, and for the purpose of placing a cloud on plaintiff’s title to said property, and damaging his credit in the United States; that said “lease” was made as a result of a conspiracy between defendants for the purpose of robbing plaintiff, and was made at San Antonio, Tex., and that part of said contract is performable in the United States of America; that none of the terms or conditions of said contract have been carried out by defendants, and at the time same was made Griner was acting without authority, as the power of attorney under which he purported to act had been canceled, and for the further reason that said power of attorney did not confer authority to “lease” any of said property; that said Griner acted adversely to the interests of plaintiff, and for his own use and benefit, all of which was well known to the defendants, who acquiesced in and agreed to the same; that the purported lease contract, of which a copy was attached to the petition, was filed for record in Maverick county, Tex., and by reason of such filing great injustice and damages had been done by defendants, and that the unsettled conditions in Mexico were such as to prevent plaintiff from securing any relief; that defendants had sold, and were selling, large amounts of guayule taken from plaintiff’s land, the exact amount being unknown to plaintiff, but which he charged was worth $15,000; that in addition he had been damaged in the sum of $10,000 by the execution and recording of said contract. He prayed for judgment canceling and setting aside said contract, and for damages in the sum of $25,000, for costs of suit, and such special and general relief, in law or equity, as he might be entitled to.

The defendants interposed a plea to the jurisdiction of the court in so far as the suit involved an action to cancel the instrument executed by Griner and Graf, the contention being that such instrument on its face was a contract and lease of lands situated in the state of Ooahuila, republic of Mexico. • All of the defendants answered by general denial, and Perry pleaded that the rights of Graf by virtue of said instrument had been assigned to him for a valuable consideration on November 10, 1918, without knowledge or notice on his part of any vice in the transaction between Griner and Graf.

Plaintiff by supplemental petition denied the allegations contained in the answers.

The trial resulted in a judgment canceling the two Instruments described in plaintiff’s petition, and that plaintiff take nothing by his suit for damages. The defendants appealed.

If the petition had contained the prayer for cancellation of the instruments, unaccompanied by a prayer for general relief, such special prayer would be regarded as evidencing the nature and object of the suit, and in this respect as giving character to it. City of Houston v. Emery’s Sons, 76 Tex. 282, 13 S. W. 264.

But the cause of action, under our system of pleading, depends upon the facts stated in the petition that are appropriate for a recovery, rather than upon the specific relief prayed for, where there is a general prayer for relief, which, of course, must be understood to have reference and applicability to the facts alleged, whether the specific relief as specially prayed be granted or not. Lee v. Boutwell, 44 Tex. 151.

Applying the above rules, which are taken from the cited cases, to this case, we find that the petition discloses that the court had jurisdiction of the persons of the defendants, and that a fraud had been committed against plaintiff for which a remedy could be afforded by requiring the defendants to reconvey to plaintiff by instruments sufficient under the laws of the state of Coa-huila, republic of Mexico, all such titles or interest as- they might be entitled to by virtue of the instruments described in plaintiff’s petition. This being the case, the court, under the prayer for general relief, would be authorized to grant plaintiff relief by compelling such reconveyance. The jurisdiction of the court to grant such relief is recognized in the case of Holt v. Guerguin, 106 Tex. 185, 163 S. W. 10, and is fully discussed by Mr. Wharton in sections 288 and 289a of his work on Conflict of Laws (3d Ed.). In the exercise of this jurisdiction the courts make no distinction between cases in which the parties are foreigners and those in which they are subjects. Wharton on Conflict of Laws (3d Ed.) § 705.

It is apparent that appellants’ so-called plea to the jurisdiction does not go to the jurisdiction of the court to inquire into the question of fraud, and, if it finds it to exist, grant relief by a decree requiring a re-conveyance or release, but goes to the power of the court to grant the specific relief prayed for, namely, cancellation of the instruments. However, as the court not only overruled the plea to the jurisdiction, but proceeded to enter a judgment canceling the instruments, we are confronted with the question whether the court had jurisdiction to so decree; for, if it did not, the judgment must be set aside for error fundamental and apparent of record.

The courts have no power to cancel a deed for land in another state or a foreign country. Holt v. Guerguin, supra. We must determine whether the same rule applies to the instrument referred to in the petition as a contract, and also as a lease, the provisions of which, briefly summarized, are as follows: Trevino sells to Graf the entire guayule and the regrowth thereof for 20 years on 50 leagues of land bequeathed to Trevino by his father, the description thereof as contained in the will being copied, said land situated in the state of Coahuila, republic of Mexico. Graf agrees to pay the sum of $5 per ton for such guayule, in Amex--iean gold or its equivalent, and to be deposited to the order of Griner, as attorney in fact for Trevino, in some banking institution in the United States of America. Graf is given the right of ingress and egress; the right to use the waters and pasturage for animals during the life of the contract; the right to the use of “wood, timbers, or other material on the property necessary for the building, or the establishment of houses, factories, etc., thereon for machinery, em-ployés,” etc. All permanent improvements shall remain on the land, but with the distinct understanding that all machinery and movables can be taken off of said property upon the expiration of the contract. Full authority is granted to Graf to construct any and all things necessary for the carrying on of the business of manufacturing rubber from the guayule plant, and the cutting, pulling, and removing of such plant. Authority to assign or transfer the contract or sale over unto any individual or company that he may desire is also given. It was provided that “the time and duration of this •contract for the cutting and taking off of the shrub known as guayule shall be 20 years from this date, and the payment thereon shall be made monthly, the same to be paid according to the books or statements made by said Graf, his assigns, or the company that he may represent, the weights to be taken at the factory or railroad station.”

The guayule plant is a perennial shrub, which grows in desert countries, from which a rubber substance is extracted.

The Statutes of the State of Coahuila, Republic of Mexico, contain the following provisions :

“Article 684: Immovable properties are:
“I. Lands, buildings, iron ways and other constructions that cannot be transported.
“II. Plants and trees so long as they ai'e attached to the land; and the fruits hanging on such trees and plants so long as they are not separated from them by crops or regular cuttings.”

Article 1327 (Book 3):

“A real obligation or an obligation affecting l’ealty affects the thing or matter that may be possessed by any one and against any one possessing the same.”

Testimony was introduced in behalf of appellants to the effect that under the laws of said state of Coahuila every lease to a foreigner of real estate for a term exceeding 10 years will be regarded as a sale. However, as appellee introduced testimony to the effect that such provision had been repealed, we take it that the court was authorized to disregard the same in deciding the question of jurisdiction.

' So far as the definition of immovable properties above quoted is concerned we see no difference, as to matters involved an this case, from the doctrine of the common law that trees, turf, or grass, the natural produce of the earth, constitute real estate. The record contains no evidence to show whether under the law of Coahuila leases are personalty, as at common law, or im-movables, as by the Roman law; nor whether there can be made by contract such a severance, in contemplation of law, of trees and other natural products from the soil, as to constitute the sale thereof one of chattels instead of realty, as is the case under our laws. See Lodwick Lumber Co. v. Taylor, 100 Tex. 270, 98 S. W. 238, 123 Am. St. Rep. 803; Dunsmore v. Blount-Decker Lumber Co., 198 S. W. 603; Kreisle v. Wilson, 148 S. W. 1132; Davis v. Conn, 161 S. W. 39.

But for the purposes of this case we regard this as immaterial; for, even if our laws were the only ones to be considered, we believe the court was without jurisdiction -to enter a decree canceling the instruments. Mr. Wharton in his work on Conflict of Laws (3d Ed.) § 287, says: “Leaseholds, though personal estate by the English law, are yet regarded by English courts as immovables in. their international relations.” In the case of Waterman v. Charlton, 102 Tex. 510, 120 S. W. 171, it is held that, although unlocated land certificates for land in this state are regarded as personal property for various purposes, they are governed by our laws of descent and distribution. The court said:

“The title to its land is the very subject which every sovereignty maintains the exclusive right to control by its own laws. ‘A sovereignty cannot safely permit the title to its land to be determined by a foreign power. Each state has its fundamental policy as to the tenure of land; a policy wrought up in its history, familiar to its population, incorporated with its institutions, suitable to its soil.’ Wharton, Conflict of Laws, p. 686, § 278. This consideration of policy must necessarily govern the descent of the title to land certificates issued under the laws of Texas, since they constitute the foundation of the titles to a very large part of the lands in the state. This does nof conflict with the decisions which hold that the certificates, for many purposes, are to be regarded as chattels. Those decisions apply the law of this, not that of another, state. The mere fact that, for some purposes of our own, we treat such evidences of right as chattels does not justify the application to them of the principle that the title to movables is controlled by the law of the domicile of the owner, when the effect would be to subject titles to land in this state to a foreign law. That principle is generally, but not universally, true. It is not allowed to have the effect just stated. In some jurisdictions mortgages upon, and some leasehold interests in, real estate are regarded by the local law as chattel interests, but that is not allowed to subject them to a foreign law of the owner’s domicile. Wharton, p. 640,'§ 287, and cases dted.”

In section 289a Mr. Wharton says:

“And, first, it may be premised that real property is subject to the exclusive jurisdiction of the courts of the state or country in which it is located. No other courts may properly exercise any jurisdiction over it, and this is as true of courts of equity as of courts of law. Therefore it is beyond the power of a court of one state or country to entertain a suit in rem in respect of land in another, or to render a decree, either in a suit in rem or a suit in per-sonam, which shall, ex pfoprio vigore, affect the title to real property beyond its territorial jurisdiction. When, however, a case, otherwise properly cognizable in equity, is presented, a court of equity, having personal jurisdiction of the parties, may assume jurisdiction of the subject-matter, although land in another state or country may be affected, if it can grant effective relief by a decree acting solely upon the person whose title or interest in the land is to be affected. In other words, the court may, in a proper case for equitable interference, by virtue of its jurisdiction over such person, and its consequent power to enforce obedience to its decree in personam, compel him to do, with respect to land beyond its territorial jurisdiction, what it could not itself, and without his intervention, accomplish.”

The instrument under consideration in this case purports to convey to Graf a right of entry upon lands in Mexico for.the purpose of severing guayule from the soil, and to use portions of the land for buildings and other improvements necessary in carrying on the manufacture of rubber. Whatever aspect the rights granted might have in a suit for breach of the contract or for money due thereunder, the fact remains that it purports to give an interest in land in Mexico— to confer dominion and enjoyment thereof— and we believe that our courts have no power to divest such rights by means of a de’cree canceling the instrument. In support of this conclusion we make the following additional citations: Wharton on Conflict of Laws (3d Ed.) §§ 285, 286, 287, 288, 289a, and notes 567½; Thomas v. Hukill, 131 Pa. 298, 18 Atl. 875; Pomeroy’s Eq. Jurisprudence (3d Ed.) § 1318.

The assignments 3, 4, and 5, which attack the decree in so far as it cancels “the instrument,” urging that the evidence is not sufficient to sustain that part of the decree, present questions unnecessary to decide in view of the holding that such portion of the decree must be set aside for want of jurisdiction. However, if these assignments can be construed as raising the issue whether there is evidence sufficient to show plaintiff entitled to any relief, we hold that the evidence is sufficient to support findings that the instrument was executed pursuant to a scheme formed by Griner to share personally in the benefits thereby conveyed to Graf; that Graf was grantee for the benefit of himself and Griner, and thus participated in the fraud; and that Perry had notice of such facts as were sufficient to charge him with knowledge of the fraud.

We are unable to determine whether the court based his judgment upon a finding that the power of attorney was insufficient to authorize the execution of the instrument in question or upon a finding that fraud was shown. Believing, as we do, that a judgment requiring reconveyances or releases could be based only upon proof of fraud, or some other ground of equity jurisdiction, it would not be proper for this court to render judgment; for in order to do so we would have to assume that the trial court based his judgment on a finding that fraud had been proven.

In view of the reversal of that part of the judgment complained of by appellants, we will hot discuss the question of the failure to file findings of fact and conclusions of law further than to say that, as we construe the statute (article 1989, R. S. 1911), it does not require that the request to the court shall be made in writing. Landa v. Heermann, 85 Tex. 1, 19 S. W. 885; Dennis v. Kendrick, 163 S. W. 693; Riggins v. Trickey, 46 Tex. Civ. App. 569, 102 S. W. 919. In the case of Wandry v. Williams, 103 Tex. 90, 124 S. W. 85, and in other cases, our Supreme Court has spoken of the statute as providing for filing of the request; but as it is held that no order granting it is required,' it does not partake of the nature of a motion, but is simply a. request which may be preferred verbally or in writing.

The judgment is affirmed in so far as it-relates to damages sued for, and is reversed in so far as it undertakes to cancel the instruments, and the cause remanded for a trial on the issues made by the pleading other than those relating only to damages.

Affirmed in part and reversed and remanded in part.
      <§=»For otilar cases see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    MANTON v. CITY OF SAN ANTONIO.
    (No. 6091.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1918.
    Rehearing Denied Jan. 8, 1919.)
    1. Injunction <@=>119 — Answer — General Denial.
    Where an answer in an injunction proceeding contained a general denial pursuant, .to Rev. St. art. 4663, allowing a defendant in injunction proceedings to answer as in other civil actions, a demurrer to the answer must be overruled.
    2. Escrows <@=>3 — Depositaries.
    A deed cannot be delivered to the grantee as an escrow, and if delivered to him it becomes an operative deed, freed from any condition not expressed in the deed itself.
    3. Escrows <@=9 — Conditions.
    Where a deed was delivered in escrow, on condition that it should not be effective until certain acts were performed by the grantee, such condition was a condition precedent to the taking effect of the grant.
    4. Deeds <@=>162 — Conditions — Condition Subsequent.
    A substantial compliance with the terms of a condition subsequent will satisfy the law and prevent a forfeiture of title.
    5. Deeds <@=>155 — Conditions — Conditions Subsequent.
    The general rule is that where a deed is to take effect on the performance of a condition by the grantee, and the grant is without other consideration, no title will pass until the condition is performed; but where other conditions have been performed, and especially where full value has been paid, the condition will be considered a condition subsequent.
    6. Escrows <@=9 — Conditions Subsequent-Performance.
    Where a landowner who conveyed property to a city for a street, and received a valuable consideration, insisted that the deed should be held in escrow until the city widened a certain street according to its agreement, held that, as the failure of the city to widen the street within the time limit fixed did not injure the grantor or his property, such failure did not prevent the passage of title, for the condition should be treated as a condition subsequent.
    7. Appeal and Error <@=>544(1) — Review-Bill of Exceptions.
    Where no bill of exceptions was reserved to the admission of testimony, an assignment complaining of such testimony must be overruled.
    8. Appeal and Error <@=>1050(1) — Review-Harmless Error.
    Where similar testimony was admitted without objection, an assignment complaining of the admission of testimony must be overruled.
    9. Evidence <@=>419(2) — Parol—Consideration.
    Where a deed recited that the consideration was $1 and other considerations, parol evidence is admissible to establish the true consideration.
    Error from District Court, Bexar County; J. T. Sluder, Judge.
    Action by H. D. Mantón against the City of San Antonio. There was a judgment for defendant, and plaintiff brings error.
    Affirmed.
    J. F. Carl, P. H. Swearingen, Jr., and George G. Clifton, all of San Antonio, for plaintiff in error.
    R. J. McMillan, of San Antonio, and J. D. Dodson, of Laredo, for defendant in error.
   FLY, O. J.

This is a suit instituted by plaintiff in error to restrain defendant in error from entering upon and constructing a street upon his land on West Travis street, in the city of San Antonio, Tex., being 15 feet off the south end of his land conveyed to him by Henry Laager and Mrs. Augusta Weinert. The court granted a temporary injunction, which was continued in force by agreement until the final hearing, on October 13, 1917, when it was dissolved, and a permanent writ of injunction denied, and the land was decreed to defendant for street purposes.

It was answered by defendant that the property was taken by it, for the use of the state, at and before the filing of the original petition; that it was taken after adequate compensation had been tendered to and accepted by plaintiff, and was appropriated for a public street; that a deed was executed by plaintiff to defendant conveying the land in controversy, containing this provision:

“This deed is given, however, subject to the condition that Obraje or Travis street, between North Mores street and Main avenue, will be widened within two years from the date hereof; otherwise title to revert to the grantor herein.”

It was further alleged that the provision was a condition subsequent, and was substantially complied with, time not being of the essence of the contract, and that the street was widened within three or four months after the expiration of the two-year period; that plaintiff was estopped to set up the condition in the deed because he had acquiesced in the work of widening the street, and made no claim for any damages on account of the street not having been sooner widened. A general demurrer was urged to the answer, and its overruling is made the subject of the first assignment of error. •

It was further alleged in the answer “that on or about the 4th day of March, 1914, the plaintiff, I-I. D. Mantón, executed and delivered in escrow, to the city of San Antonio, a certain deed conveying all his right, title, and interest in and to an easement for public street purposes in and to the strip of ground described in plaintiff’s petitions”; and, further, “that the plaintiff did not intend that said condition in such escrow deed should present time as the essence of said contract of conveyance.” There was also a general denial of the allegations of the petition.

The first assignment of error assails the action of the court in overruling a general demurrer to the answer. The assignment is overruled. In article 4663, Revised Statutes, it is provided that a defendant in an injunction proceeding may answer- as in other civil actions, and it is the undoubted rule that, where the answer in an injunction case contains a general denial, it is not subject to attack through a general demurrer. This is the rule as well in any other civil action. Bedwell v. Thompson, 25 Tex. Supp. 245; Oliphant v. Markham, 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363; Murphy v. Smith, 38 Tex. Civ. App. 50, 84 S. W. 679.

The undisputed evidence in this case shows that a deed was executed by plaintiff to defendant conveying to him the land, but followed by the proviso or condition herein-before copied, and, after being acknowledged by plaintiff, was delivered by him to an agent of defendant, with the request that it be placed in escrow1 with a certain bank. If the agent had kept the deed and failed and refused to place it in escrow, it would have evidenced the transfer of the title to defendant with a condition subsequent attached. If, however, the agent delivered the deed to the bank it would not constitute a delivery of the deed to defendant, and the deed would be in escrow; and, if the sole consideration was the widening of the street, it would be subject to a condition precedent to its delivery. In the first instance the title would be vested in the grantee subject to a condition subsequently to be performed; in the second, the deed would be in escrow, to be delivered when the delivery was preceded by the performance of a certain condition, unless there were other considerations for the execution of the deed.

There is no exception to the rule that a deed cannot be delivered to the grantee as an escrow, but if delivered to him it becomes an operative deed, freed from any condition not expressed in the deed.itself. Dev. Real Est. § 314; Insurance Co. v. Clarke, 1 Tex. Civ. App. 238, 21 S. W. 277. The seeming exception, as said in the case cited, is really not one; for when placed in the hands of the grantee to be deposited with a third party there is no delivery. It has, however, been held, as hereinbefore stated, that if the grantee violates the agreement and retains the deed it will, not be in escrow. Dev. Real Est. § 317; Fairbanks v. Metcalf, 8 Mass. 230.

In this case the deed was placed by the agent of defendant in the possession of a bank, and at once became an escrow deed, and would become absolute only when the condition was performed by the grantee. The evidence does not show any attempt to alter, add to, or vary the written condition, if such evidence had been permissible, but it was delivered to the bank under the terms of the deed alone. •

If there had been no delivery of the deed to the bank to be held as an escrow, the law as to conditions subsequent would undoubtedly be applicable, and a substantial compliance with the terms of the condition would satisfy the law and prevent a forfeiture of the title. The law, much less equity, does not favor forfeitures, but, in the case of conditions precedent, it will not permit the title to pass until the condition is performed. Conditions subsequent are strictly scrutinized and rigidly construed. In cases of conditions precedent, however, it is ordinarily the case that the purchase money has not been paid and no title vested, and this is especially the case in connection with conditions precedent which are usually contained in escrow deeds.

The general rule is that if the grant is without other consideration than the performance of the specified precedent, and the t converse of this proposition must be just and beneficent, and where there have been other considerations performed, and especially where full value has been paid, the condition will not be considered a condition precedent, but will have applied to it the rules applicable to conditions subsequent. R. C. Law, § 156, p. 1098; Brennan v. Brennan, 102 Am. St. Rep. 368, note f. In the cases cited by plaintiff the lands were donated on consideration that certain improvements should be made in a certain time, there being no other consideration than the performance of the conditions, and the appellate courts properly held that under such circumstances conditions precedent had been created. We have seen no case in which it has been held that a condition was one precedent, where a full money consideration had been paid, and the condition was one involving the matter of time alone, when the condition had been fulfilled within a reasonable time after the time set out in the contract.

In this case plaintiff had been fully paid by defendant, and tbe money accepted by plaintiff, and be had agreed to convey the land to defendant. When the deed was presented to him he desired that a condition be ingrafted on the deed as to widening the part of Travis street between Main avenue and North Flores street, and not as to the street along his own property being west of North' Flores street. In his letter containing the terms on which he agreed to give a deed to the land in controversy he asked that Travis street be widened in six months as a part of the consideration, the other being in consideration of land conveyed to him for the Travis street as well as the North Flores land. He afterwards agreed to an extension of two years. Plaintiff swore that Travis street was not widened within two years, but it was widened in about three or four months after the two-year period had expired. Plaintiff swore that the widening of Travis street between Flores and Main avenue would not affect his property, and he claimed that was not the condition agreed upon. He said:

“That is my recollection; I couldn’t be certain about that. I am sure it couldn’t be any other way, because it wouldn’t affect me at all if they would widen property between bíain avenue and Flores; that is, it wouldn’t affect my property.”

He showed that there had been partial performance of the widening of Travis street before the expiration of two years by extending the curb on Flores street around the corners on Travis street. The curbing was at first put on the old line on Travis street, but was moved back within the two-year period on the new line as fixed by the deed. He testified:

“That semicircle curb going into West Travis street now lies upon the property line as it would be if the city had acquired title to the strip of ground which I conveyed in that deed which is held in escrow; but at first it did not —originally it did not. The curb as it now exists was completed approximately two years ago, during 1915, I think.”

He knew where the line of curbing was to be on the south of his property because it was marked by that part of the curbing completed within the two-year period, and there-was nothing to prevent improvements being made on the property.

In a letter written by plaintiff to defendant on January 15, 1914, it clearly appears that the negotiations for the widening of North Flores and Travis streets formed one and the same transaction, and that the land bought by defendant from Henry Laager and conveyed to plaintiff was accepted by plaintiff, and was intended by defendant as full compensation for the land which was used by defendant in widening the streets. .It is clear that time did not form any essential part of the contract. No valid reason was given why time was valuable, for the small improvements on the Travis' street side could have been just as easily moved back before the street was widened as after. Plaintiff at no time before the expiration of the two years complained to defendant about the street not being opened, and if time had been as precious as it is now claimed to have been, he could have had any houses ready, if he had desired, for occupation before the time expired. Plaintiff offers no reason why time could have been of any importance in the opening of the street. He testified:

“The way that I had been damaged by reason of the fact that the widening was not done until three or four months after the expiration of that optional period was that the property had naturally been in a state of litigation, part of it has been tied up, and I have not been able to offer it for sale or to make any improvements on it, and what improvements were there of course were destroyed. I destroyed the improvements to carry out my agreement.”

The old curbing along a part of the property of plaintiff on Travis street had been moved back on the line as designated in the deed made by plaintiff to defendant, and there was nothing to prevent improvements being erected with the new curbing in view. Plaintiff signed a receipt to a city voucher for amount paid for land on Travis and North Flores streets, staling:

“The warrant issued by the city of San Antonio and mentioned in the within voucher, being the true and full amount due me, has been received by me in full satisfaction and compensation as stated therein.”

Plaintiff had after receiving the Laager land practically the same amount of land he had before the two streets were widened. Plaintiff stated, in regard to what was written on the back of the voucher issued to him to pay for the land from Laager, that he had signed it. Plaintiff has been fully compensated for all property used by defendant' in widening the two streets. . .

Plaintiff at first contended for a six-months forfeiture, then for a year, and then agreed to two years, as to the widening between Main avenue and Flores street, and had no condition as to the widening along his own property. These • changes in time tend to show that it was not a matter deemed of importance, and it could not have been, because, if the street had been widened as contracted for in the deed, it could not have affected his property or made it any easier for him to improve it. He admitted this, and yet seeks a forfeiture on the ground that time was of the very essence of the contract. There was no contract to widen the street along his property within any certain time, and the contract as to time in connection with other parts of the street could not have been of any importance, because it did not, as plaintiff swore, affect his property in the least.

The third and fourth assignments are grouped, the one assailing the action of the court in admitting the testimony of Clinton G. Brown, and the other that of John, W. Warren; the objections, it seems, being directed to testimony by each of them tending to show additional considerations other than the one recited in the deed. No bill of exceptions was reserved to the testimony of Clinton G. Brown, and consequently the assignment complaining of his testimony must necessarily be overruled, and the one as to Warren’s testimony must be overruled, because not only Brown’s testimony, but Jordt’s, to the same effect, was admitted without objection.

It may be stated in this connection that the evidence of Brown, Warren, and Jordt did not tend to vary the terms of the deed. The consideration recited in the deed was $1 and other considerations, and the evidence was properly admitted to show the real consideration. This is always permissible. Lanier v. Foust, 81 Tex. 186, 16 S. W. 994; Johnson v. Elmen, 94 Tex. 168, 59 S. W. 253, 52 L. R. A. 162, 86 Am. St. Rep. 845; Robinson v. Clymer, 170 S. W. 107.

The judgment is affirmed.
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