text:
    McCONNON & CO. v. McCORMICK et al.
    (No. 7391.)
    (Court of Civil Appeals of Texas. Dallas.
    June 19, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Appeal and Error <&wkey;724, 736, 742 — Assignment of Errors— Indefintteness.
    An assignment of errors which is multifarious, indefinite, and not supported by a sufficient statement will not be considered.
    TFd. Note. — For other cases, see Anneal and Frror, Cent. Dig. §§ 2997-3001. 3022, 3028, 3029; Dec. Dig. &wkey;724, 736, 742.]
    2. Principal and Agent &wkey;>22 — Evidence! of Relation — Testimony of Agent.
    Where the issue is whether one is an1 agent with authority to bind his principal and to vary the terms of a written contract, his own statements as to the relationship are incompetent, and it is error to admit them.
    ' [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. <§=»22.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by McConnon & Co., a corporation, against W. A. McCormick and others. Judgment for defendants, and plaintiff appeals.
    Revei’sed and remanded.
    Terry & Brown, of Kaufman, and Tawney, Smith & Tawney, of Winona, Minn., for appellant Fred Rogers, of Dallas, for appel-lees.
   TALBOT, J.

The appellant in this case is a Minnesota corporation engaged in the manufacture and sale of proprietary medicines, extracts, spices, stock tonics, and other articles. On the 23d day of January, 1911, it entered into a written contract with the appellee W. A. McCormick, of Kaufman county, Tex., by the terms of which appellant agreed to sell and deliver to said appel-lee f. o. b. cars at Winona, Minn., in such reasonable quantities as the appellee might from time to time require in Kaufman county, Tex., or in such other territory as appellant might direct at the usual and customary wholesale prices at which the same are sold and delivered by appellant in other similar territories. The appellee upon his part agreed to sell goods delivered to him under the contract in Kaufman county, Tex., or such other territory as the appellant might direct from the date of the contract until the 1st day of March, 1912, at which time the agreement should terminate. It was further stipulated in the contract that appellee should keep a complete record of the goods disposed of in his territory and on hand and to make a written report of the same to appellant as it might require, and that at the expiration of the contract appel-lee would pay to appellant the whole amount then remaining unpaid for goods sold and delivered to him. The contract was signed by appellant in its corporate name, by Henry J. McConnon, president, and by appellee W. A. McCormick. Indorsed on or attached to this contract is a writing signed by the ap-pellees M. L. McCormick and W. E. Jones in which they, for the recited consideration of $1, the execution of the written contract sued on by appellant, and the sale and delivery of its goods to the appellee McCormick, jointly and severally guarantee to the appellant the full payment of all indebtedness of appellee W. A. McCormick to appellant according to the terms and conditions of the contract executed by appellant and said appellee. On March 14, 1913, appellant instituted this suit against the appellees, W. A. McCormick, M. L. McCormick, and W. E. Jones, to recover the sum of $878.28 alleged to be the balance due and unpaid for goods sold to appellee W. A. McCormick under the contracts mentioned. In answer u> appellant’s suit, the appellee W. A. McCormick, alleged fraudulent representations made to him by one J. H. Sturdevant, charged to be the agent of appellant, which, he says, induced him to sign the contract sued on, the nature of which alleged representations will sufficiently appear in the discussion of the questions raised by the assignments of error. The appellees M. L. McCormick and W. E. Jones also filed answers, but we deem it unnecessary, in view of the disposition we shall make of the appeal, to state the nature of their answers. The case was tried and submitted to a jury on special issues, and, their findings being favorable to appellees, judgment was rendered thereon that appellant take nothing by its suit, and that the appellees recover their costs. Appellant filed a motion for a new trial, which was overruled, and it appealed.

A consideration of appellant’s first assignment of error is objected to, in effect, on the grounds that it is multifarious, does not definitely point out tifie several errors complained of, and is not followed by a sufficient statement in explanation and support thereof to enable the court to determine the questions raised without searching the record for the facts in relation thereto. The objections are well taken, and the assignment will not be considered.

The second assignment of error is as follows:

“The court erred in admitting in evidence the alleged statements of J. H. Sturdevant to establish his agency of and authority to represent the plaintiff, over the objections of appellant, to which exceptions were duly taken, and erred in refusing to give appellant’s special charge No. 1, instructing the jury to disregard the evidence of such statements, to which refusal appellant duly excepted, and also erred in giving the last paragraph of the charge to the jury instructing them ‘that the fact of agency cannot be established upon the declarations of the agent alone that he was such agent, but may be established by proof of circumstances, or other facts which satisfy the minds of the jury that such relation of agency existed,’ because no such other facts had been proven, to which appellant duly excepted, all of which appears in plaintiff’s bill of exceptions, and was complained of in the third, fourth, and fifth grounds of appellant’s motion for a new trial.”

The consideration of this assignment is also objected to on the ground that it is multifarious, but the rulings of the court therein complained of relate to the same subject, and the objections will be overruled. The proposition propounded under this assignment is to the effect that declarations of an agent as to his authority are incompetent to prove agency, and, there being no other evidence in the case sufficient to prove the agency or authority of J. H. Sturdevant to represent the appellant, the rulings complained of were errors, for which the judgment should be reversed. The main defense to appellant’s suit, in substance, was and is that J. H. Sturdevant, the authorized agent of appellant before and at the time the written contract declared on was executed, represented orally to appellee W. A. McCormick, among other things, that if he, appellee, would enter into the written contract declared on, appellant would furnish him their goods to be sold in his territory; that he would be required to make cash, credit, and trial sales to his customers of said goods; that in the event he was unable to make cash or credit sales, he was to leave a considerable amount of goods with prospective customers as a “trial sale, and if the articles of goods so left were found to be satisfactory, and the prospective customer desired to keep them, after using a portion of them, he was to pay for same, but, if not, he (ap-pellee) was to take back such of the goods which had not been used”; that in making such “trial sales” there would be no risk on appellee’s part, as appellant was anxious to introduce its goods in the state of Texas, and that he (appellee) would not have to stand any loss by reason of his failure to collect’ outstanding accounts resulting from time or trial sales; that these representations were relied upon in good faith by the defendant at the time he entered into the written contract with appellant, and they were the “sole inducing cause which resulted in the consummation of said contract; that said representations were willfully and fraudulently made for the purpose of intentionally inducing appellee to enter into said contract ; that he made at least $2,000 worth of trial sales, $1,800 of which cannot be collected.” These alleged representations are materially variant from the terms of the within contract sued on, and therefore the authority of J. H. Sturdevant as the agent of appellant to make and bind appellant by said alleged fraudulent representations was a vital issue in the case. The jury found in response to questions asked by the trial court that said representations were made by Stur-devant, and that he was authorized by appellant to make them; that appellee relied upon said representations, and was thereby induced to execute the written contract declared on.

That the declarations of an agent are incompetent to establish his agency is so elementary that we need not cite authorities in support of the proposition. Hence the admission in evidence of the declarations of the witness Sturdevant to the effect that he was the authorized agent of appellant, clothed with authority to bind it by his representations, was clearly error, and; in view of the state of the evidence as shown by the record sent to this court, was prejudicial error. The testimony offered by appellant upon the question was to the effect that Mr. Sturdevant was not clothed with any such authority, and the facts and circumstances shown, independently of the declarations of agency admitted over the objections of appellant, were not sufficient, in our opinion, to justify the findings of the jury. At all events, it is clear, we think, that the admission of the declarations and the refusal of the court to instruct the jury, as requested by appellant, not to consider them, resulted in material injury to appellant and requires a reversal of the case.

There is but one other assignment of error, and a consideration of it is objected to by appellees on the ground that it too is not briefed in accordance with the rules. The objection should probably be sustained, but, as we think it points out no reversible error, it will be overruled.

For the reason indicated, the judgment is reversed, and the cause remanded for a new trial.

Reversed and remanded.
      ©=oFor other casés see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    HARPER v. STEWART et al.
    (No. 7375.)
    (Court of Civil Appeals of Texas. Dallas.
    June 26, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Trespass to Try Title <@=527 — Judgment —Parties.
    A judgment for plaintiff in an action of trespass to try title was void where the land at the time was the homestead of defendant and his wife, but the wife was not a party to the suit, and it was not res judicata in a subsequent action against the husband, though the wife had in the meantime died childless, as the homestead interest is analogous to an estate by the entirety, and the interests of the husband and wife are not separable.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 33; Dec'. Dig. <§=527.]
    2. Injunction <@=5109 — Enjoining Trespasses — Defenses and Counterclaims.
    In a suit to enjoin trespasses upon lands, it was proper for defendant to deny plaintiff’s title and assert ownership in himself and to set up a claim for damages for being unlawfully dispossessed of his lands during the time plaintiff had asserted title and ownership.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 187; Dec. Dig. <@=5109.]
    3. Appeal and Error <@=o 1010 — Review — Questions of Fact.
    Where an issue of fact was not requested to be submitted to the jury, but was determined by the court, the Court of Civil Appeals could only inspect the evidence to ascertain whether the finding was supported thereby.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. <@=51010.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by X. H. Harper against Cicero Stewart and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Bumpass & Crumbaugh, of Terrell, for appellant. Huffmaster & Huffmaster, of Kaufman, for appellees.
   RASBURY, J.

Appellant, Harper, sued appellees, Cicero, Gus, Guy, Buck, and Dan Stewart, alleging that he was the owner of certain lands in the town of Lawrence, Kaufman county, Tex., including block 41 thereof, and that appellees were interfering with his use and enjoyment thereof by disputing his title thereto, thereby preventing him from selling or renting same, whereby said premises had been vacant for a period of six months. Judgment was sought for damages for the use and rental of said premises at $10 per month for six months, and for injunction pendente lite, restraining the ap-pellees from disputing his title, trespassing upon, occupying, or using his premises or interfering with his tenants. Upon filing the petition injunction was issued in the terms prayed for. Subsequently all the appellees, except Dan Stewart, in response to the suit, tendered the general issue. Dan Stewart, in effect, pleaded that said block 41 was his homestead, notwithstanding which the appellant, prior to the commencement of his suit, unlawfully entered thereon and took possession of same, and has since, without right, asserted ownership therein. By cross-action said Dan Stewart charged, among other matters, that by the issuance of the said injunction he was deprived of the use of his said homestead premises for a period of several months, whereby he was damaged in the sum of $10 per month, for the reason that said injunction was unlawfully procured. By appropriate pleading appellant denied that block 41 was appellee Dan Stewart’s homestead, or that he had been damaged as alleged, and, in addition, pleaded the.facts constituting his title thereto. There was trial by jury to whom was submitted the facts upon special issues. Upon the find-' ings of the jury the court by appropriate judgment decreed the title to block 41 to be in Dan Stewart, and awarded him $147.50 damages for loss of rentals. The injunction as to the other lands was perpetuated against all the appellees. From the judgment thus outlined, this appeal is taken.

The essential and material facts adduced at the trial are, in substance, these: Dan Stewart and wife married in the year 1897. In the year 1900 he bought block 41 in Lawrence from Sarah E. King, and moved thereon with his wife, occupying and using same as their homestead, although he did not secure deed until March 19, 1901. Stewart and his wife lived upon block 41 eight years. In 1908 Stewart, who by occupation is a machinist, was employed in the town of Talty. While so employed he went to and from his place of employment to Lawrence where his wife remained until the spring of 1909, at which time he rented a residence in Talty, whence he removed his wife and household goods. When Dan Stewart and his wife removed to Talty they did so temporarily, intending to return to Lawrence when his employment permitted. They did leave Talty in September, 1911, and returned to Lawrence. They attempted, but failed, to secure possession of their homestead, due to the refusal of one Rhodes to surrender possession of same. Rhodes went in possession of the premises as a tenant of Stewart, and claimed to have leased the house for a year, which had not expired, while Stewart claimed his tenancy was from month to month. Except for a short period of time at Terrell, Stewart and wife continued to live in Lawrence after their return from Talty, maintaining block 41 was his homestead', and attempting to secure possession of same until the commencement of this suit.

In the meanwhile appellant had recovered judgment in the district court of Kaufman county upon simple debt against Cicero and Dan Stewart. Upon that judgment. execution was-issued and levied by the constable March 21, 1912, upon certain lands, among them being block 41. In the manner provided by law said block 41 was sold May 7,1912, at public auction to appellant for the sum of $40. Thereafter, on May 8, 1912, said constable by deed conveyed said block 41 to appellant, Harper. Subsequently appellant sued Dan Stewart in statutory form of trespass to try title to recover block 41, conveyed to appellant by the constable’s deed noted. In that suit Stewart defaulted and on August 1, 1912, judgment was. entered decreeing that appellant recover of appellee Dan Stewart block 41, and awarded appellant writ of possession and costs. The judgment was not ágainst Dan Stewart’s wife, who was living at the time the judgment was rendered, and was not made a party thereto. I-n such connection it appears from the evidence that she died in the summer of the year 1913, childless. The sole issue submitted to the jury was this question:

“On August 1, 1912, the date of the judgment of the plaintiff against the defendant Dan Stewart, and at the time of the levying of the execution on said judgment and the sale of the land thereunder, was the land described in the answer of the defendant Dan Stewart the homestead of Dan Stewart and his wife, Bessie Stewart?”

The answer of the jury was, “Yes.”

It is first urged under appropriate assignment of error that the court erred in rendering judgment for Dan Stewart for the title and possession of block 41, for the reason that, such title and possession having been adjudicated between the same parties in a former suit, Stewart was concluded thereby, and could not again urge in a similar suit his title thereto; in other words, that the issue was res judicata between Stewart and appellant. We recognize the nearly universal rule that the judgment of a court of competent jurisdiction upon an issue litigated between parties or an issue which the parties might have litigated is conclusive in all subsequent controversies directly involving the same or incidental issues, and the citation of authorities is unnecessary in support of the rule. But obviously such rule would have no application if the judgment asserted as a bar was void. Such was the claim made in the court below in reference to the judgment of August 1, 1912, against Dan Stewart, and the contention is renewed in this court. Hence the inquiry is: Was that judgment void? And upon the facts presented by the record we conclude it was. As we have shown in our statement of the case, at the time of the sale of block 41 to appellant under execution, and at the time of the rendition of the judgment in the suit of trespass to try title divesting title out of Dan Stewart and investing appellant with title thereto, said block 41 was the family homestead of Stewart and wife and exempt from forced sale for the payment of the character of debt for which it was sold. As much is admitted by counsel for appellant, but the contention is made that Stewart, failing to plead his exemption in that suit, was, on that issue, concluded thereby, and that, while the judgment against Stewart did not conclude the wife’s homestead right, yet upon her subsequent death, which occurred before the filing of this suit, her right of use and occupancy being personal ceased, as did her husband’s; in short, that Stewart’s right of use and occupancy after the judgment against him was merely incidental to such right on the part of the wife. The precise question under facts nearly analogous was decided adversely to appellant’s contention in the case of Mexia v. Lewis, 3 Tex. Civ. App. 113, 21 S. W. 1016. In that case, as in the instant one, judgment was secured against the husband, and not the wife, for lands constituting their homestead. Subsequently a second suit was filed, based on the claim that Lewis and wife had abandoned the homestead, which would in law entitle plaintiff to possession against both. In disposing 'of the case the court said:

“As to all of the land which was used and occupied as a homestead by Lewis and wife at the time of the institution of the first suit, the judgment obtained against Lewis in that suit was inoperative and of no effect as to either Lewis or his wife. Mrs. Lewis was not a party to that suit and the homestead right was not put in issue. Whatever may be said of the character of the homestead estate, it is considered as an entirety, and the interests of the husband and wife are not separable. The judgment against Lewis could have no prospective effect, and if at the time of its rendition it was inoperative, it could not be put into operation by a subsequent abandonment of the land as a homestead.”

To the same effect is the case of Campbell v. Elliott, 52 Tex. 151, where it is said:

“The homestead estate is more analogous to an estate by entirety than that of joint tenancy, they having alike the four unities of interest, title, time, and possession, while the estate by entirety has the fifth unity of person; that this, - unlike an estate of joint tenancy, can be vested in but two natural persons only, who are regarded as but one in law, who are seised not of an undivided moiety of the whole, but each takes an entirety and are seised per tout, but not per my, who cannot alienate separately, but must alienate jointly, who cannot sever at pleasure, but hold an estate which, while it remains theirs, is inseverable, who cannot have partition unless in a divorce proceeding severing their matrimonial relations, and who have not the right of survivorship, but upon the decease of either spouse the other continues to hold the entire homestead estate as such.”

It is unnecessary to discuss the obvious purpose of the rule quoted, since, being the rule, no beneficial purpose could be attained in that respect. It is sufficient to say that by the rule of entirety, or, as said in Campbell v. Elliott, supra, by the rule per tout et non per my, the judgment of August 1, 19i2, affected neither the homestead right of Stewart nor his wife and is void in that respect.

It is also urged that in a suit to enjoin trespass upon lands it may not be urged as defensive matter that the party sought to be enjoined is, in fact, the owner of such lands, and to incidentally sue for damages resulting from the issuance of such injunction. We are unable to agree with the contention. Appellant based Ms right to the injunction upon ownership. Appellee denied that appellant owned the land, and asserted ownership in himself. We can conceive no defense more natural or more responsive than such a one, nor one that more nearly subserves the purpose of the answer which is said to be to rebut the facts alleged by the petition. The claim for damages for being unlawfully dispossessed of his lands during the time appellant had asserted title and ownership was equally natural and responsive, and followed, as matter of course, if appellee was owner of the lands.

It is also urged that the court erred in allowing appellee damages in the sum of $147.50, in effect, because such finding is not sustained by the evidence. This was an issue of fact not submitted to the jury, nor requested to be submitted to the jury, but which was found by the court. In such cases our duty and authority is circumscribed, being confined to an inspection of the evidence to ascertain whether the finding of the court is supported thereby. This we have done, and, without attempting to set out the evidence, we conclude that there is in the record sufficient testimony to support the finding in that respect.

All other assignments of error raise in a different way the issues already discussed, and for that reason will be overruled.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    TITTERINGTON v. DEUTSCH et al.

    (No. 7400.)
    (Court of Civil Appeals of Texas. Dallas.
    June 26, 1915.
    Rehearing Denied Oct. 16, 1915.)
    Mortgages <§=3356 — Foreclosure — Notice.
    Where a builder’s contract conveyed the property to a trustee with power to sell at public sale on default and after the trustee had given public notice of the time prescribed by the statutes of Texas for the sale of real estate under deeds of trust, and that after such sale the trustee should make a deed, etc., a sale is not void; notice having been given in three public places in the county as required by statute, though the trustee himself had the notices posted by another and selected only one of the public places.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dec. Dig. <§=3356.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by George A. Titterington against B. Deutsch and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Geo. A. Titterington, of Dallas, pro se. Read, Lowranee & Bates, of Dallas, for ap-pellees.

      Writ ol error pending in Supreme Court.

   TALBOT, J.

Appellant, George A. Titter-ington, brought this suit against the appel-lees, B. Deutsch and W. F. Smith, to set aside a trustee’s sale of land made on the 4th day of November, 1913. The ground alleged for setting aside the sale is that the trustee had failed to properly post notices thereof. The case was tried before the court without the intervention of a jury and judgment rendered in favor of the defendants. The plaintiff’s motion for a new trial was overruled, and he appealed.

The court filed conclusions of fact and law; the substance of the conclusions of fact, so far as is necessary to be stated for the purposes of this appeal, which we adopt, being as follows: That on the 14th day of March, 1913, Leopole Schwarz and wife, Amelie Schwarz, executed a certain mechanic’s lien contract, granting and conveying to A. C. Schwarz Construction Company a mechanic’s and builder’s lien on lot 3 in block B. Warran’s revised addition to the city of Dallas, Tex., for the purpose of securing three notes of even date therewith, two of said notes for the principal sum of $300 each, and one for the sum of $450, and said notes for $300 each maturing respectively three and four years after date thereof, and the one for $450 maturing five years after date thereof. Said mechanic’s and builder’s lien contract provides that said notes bear interest at the rate of 8 per cent, per an-num, payable semiannually, and if default is made in the payment of any of said notes, or in any installment of interest on said notes when due, the holder thereof may mature said notes at his election. Said mechanic’s and builder’s lien contract also conveys to A. O. Moser, trustee, power and authority to sell said property at public sale at the request of the holder of said notes after default in the payment of said notes or any installment of interest thereof and provides that said trustee shall sell said property at public auction at the door of the county courthouse in the city of Dallas, Dallas county, Tex., “after having given public notice of the time prescribed by the statutes of Texas for the sale of real estate under deeds of trust,” and after such sale to make to the purchaser thereof a good and sufficient deed in fee simple for said premises, and also provides that the deed made by said trustee shall be prima facie evidence of the truth of all recitals as to default in the payment of said notes or interest, the request to the trustee to sell, to advertise such sale, the proceedings at such sale, and the facts, if any, authorizing the substitute trustee to act in the premises. Said mechanic’s and builder’s lien was duly acknowledged, as required by law, on March 14, 1913, and duly filed for record on the 15th day of March, 1913, recorded in volume 27, p. 87, of the records of mechanic’s liens, etc., of Dallas county, Tex. Said three notes as set out in said mechanic’s and builder’s lien contract were duly executed on, to wit, the 14th day of March, 1914, and delivered to said A. 0. Schwarz Construction Company. On said date the A. C. Schwarz Construction Company executed a written transfer, conveying said notes and the lien securing same to B. Deutsch, and said transfer was duly acknowledged on the 14th day of March, 1913, and filed for record on the 15th day of March, 1913, and recorded in volume 576, p. 392, of the records of deeds, etc., of Dallas county, Tex.

Default was made in the payment of the semiannual interest due on said notes on, to wit, the 14th day of September, 1913, and B. Deutsch thereafter declared said notes due and reguested the trustee, A. C. Moser, to sell said property after default had been made in the payment of said semiannual interest. That Tom P. Lewis was requested by B. Deutsch to prepare notices of sale of said property under said trust agreement, and said A. C. Moser, trustee, called at the office of Tom P. Lewis, and signed said notices, and requested said Lewis to post one of said notices at the courthouse door in the city and county of Dallas, Tex., and post the other two of said notices in public places in Dallas county, Tex. That said Lewis posted one of said notices at the courthouse door in Dallas county, Tex., and one on the Hutchins Road in Dallas county, and one on the White Rock Road in Dallas county, and all of said notices were duly signed by said A. O. Moser, trustee, and all of said notices were posted more than 20 days prior to the 4th day of November, 1913, but said trustee did not know where said other two notices were posted, and said notices duly stated the time, place, and manner of making said public sale, and said sale was made by A. O. Moser at the courthouse door in the city and county of Dallas, Tex., on the 4th day of November, 1913, between the hours of 10 o’clock a. m. and 4 o’clock p. m. That said trustee, A. O. Moser, duly made said sale of said property at said time and place and executed a trustee’s deed conveying said property to B. Deutsch, who bid in said property at said sale, and said trustee’s deed was duly acknowledged on the 4th day of November, 1913, and filed for record on the 4th day of November, 1914, and duly recorded in volume 598, p. 39, of the records of trustees’ deeds, etc., of Dallas county, Tex. That on the 12th day of May, 1913, Leopole and Amelie Schwarz executed a deed conveying said property to W. P. Smith, and said Smith assumed the payment of said three notes described in said mechanic’s and builder’s lien contract, and executed a note of even date therewith for the sum of $485 payable to the order of Amelie Schwarz, and due and payable in monthly installments of $15 each, the first installment being due on or before June 12, 1913, and one installment due on or before the 12th day of each and every month thereafter until paid, and said note bearing interest at the rate of 8 per cent, per annum, payable semiannually, and said deed and note expressly provided for a vendor's lien contract, and said note expressly provided that failure to pay any installment of principal or interest when due thereon should at the election of the holder thereof mature same. On the 15th day of May, 1913, Amelie Schwarz and Leopole Schwarz executed a written transfer, conveying said note and the lien securing same on said property to George A. Titterington, and said transfer was duly acknowledged, as required by law, and filed for record on the 21st day of May, 1913, and recorded in volume 583, p. 38, records of deeds, etc., of Dallas county, Tex., and said note was duly indorsed by said Amelie Schwarz and Leopole Schwarz, and made payable to George A. Titterington, without recourse on them. That $30 was paid on said note and credited on same on July 22, 1913. That George A. Titterington had no notice or knowledge of the sale of said property under said deed of trust, until several days after trustee’s sale, and after said property had been sold and the deed executed by the trustee on or about November 10, 1913, he went to see B. Deutsch and offered to redeem said property for his said sale and to pay B. Deutsch the amount of his notes and interest and costs of sale, but said B. Deutsch refused to accept same and claimed that he was the owner of said property. Said George A. Titterington made no further inquiry as to whether or not said interest had been paid on said three notes described in said mechanic’s and builder’s lien contract, at the time same became due on September 14, 1913, except prior to said date he inquired of W. P. Smith if said Smith would pay said interest, and was led to believe by said Smith that said interest would be paid when due.

The prayer of the plaintiff’s petition was that the deed made by Moser as trustee be canceled; that plaintiff be allowed to pay off the indebtedness due the defendant Deutsch, together with the expenses of the trustee’s sale; and that plaintiff’s junior lien on the property involved be foreclosed.

The court held, as a matter of law, that the sale by A. O. Moser, trustee, was valid; that defendant Deutsch by his purchase at said sale acquired a good title to the property in controversy; and that the plaintiff, Tit-terington, had no right to redeem the same or to foreclose his lien thereon.

The first assignment of error shows the appellant’s contention and presents the only question for our decision. This assignment is as follows:

“The court erred in rendering judgment against plaintiff and in favor of defendant B. Deutsch, and in refusing to allow plaintiff to redeem the property from the trustee’s sale which was made to B. Deutsch by the payment to him of his debt and interest up to the time of tender; the evidence showing that said defendant had a first and superior valid lien against the land described in plaintiff’s petition under mechanic’s lien and trust deed, in which there was a power of sale, upon default, given to A. C. Moser as trustee to sell the land covered thereby only after having given public notice of the time and place of sale in the manner and form and length of time prescribed by the statutes of Texas for the sale of real estate under deeds of trusts. And it further appearing that in foreclosure and sale to said defendant the said notices were not posted by said trustee ; that he turned over to T. E. Lewis — a stranger to said mechanic’s lien and trust deed— the posting of said notices; and that said A. C. Moser did not select the places where said notices were to be and were posted, and did not direct the posting of any one of such notices, and did not know where any one of them was posted, except that he told said Lewis to post one at the courthouse door at Dallas, Tex.; the evidence further showing that plaintiff had and held a valid and subsisting unpaid debt and lien against the same property second and inferior to that so held by defendant B. Deutsch; and the evidence further showing that the property was worth at least $1,600.”

The validity of the notes and mechanic’s lien, in its nature a deed of trust authorizing the trustee, A. C. Moser, to sell the property therein described upon default in the payment of the principal or interest of the notes held by the defendant Deutsch, is not questioned; and, as shown by our conclusions of fact, default was made in the payment of the installment of interest which became due September 14, 1913. After such default, the defendant Deutsch declared the notes due and payable and requested his attorney, T. P. Lewis, to prepare notices of the sale of the property covered by the deed of trust and requested the trustee, Moser, to call at the office of the said Lewis and sign said notices. The notices were prepared, and the trustee called and signed them as requested. The trustee, Moser, then requested Mr. Lewis to post said notices as provided for in the deed of trust, and this he did. The trustee, Moser, directed that one of the notices be posted at the courthouse door of Dallas county, Tex., and knew that direction was complied with. He directed that the other two notices be posted in two other public places in Dallas county, and this was done, but the trustee, Moser, did not himself know at what places they were posted. The trust agreement, with power of sale, provided that:

“The deed made by said trustee shall be prima facie evidence of the trust, of all recitals as to default in the payment of said notes or interest, the request to the trustee to sell, to advertise such sale, the proceedings at such,” etc.

The question then is: Was the sale by the trustee, Moser, and at which the defendant Deutsch bought, invalid and should have been set aside because the said Moser did not in person post the notices of said sale? The deed of trust under which the sale was made provided, as has been seen, that the trustee should sell after having given public notice of the time and place of sale in the manner and form and length of time prescribed by the statutes of Texas for the sale of real estate under deed of trust, and the statutes referred to are, in substance, that such sales shall be made at public ven-due in the county where the real estate is situated 'between the hours of 10 o’clock a. m. and 4 o’clock p. m. of the first Tuesday in any month, after giving at least 20 days’ notice thereof by posting written notices thereof in three public places in the county, one of which notices shall be posted at the courthouse door ’of said county. That the evidence was sufficient to show a compliance with the terms of the deed of trust and the the statutes referred to, in giving notice of the sale at which the defendant purchased, we have no doubt. Indeed, similar sales under practically the same state of facts have been upheld by decisions of our appellate courts. Roe v. Davis, 142 S. W. 951; Id. (Sup.) 172 S. W. 708; Walker v. Taylor, 142 S. W. 31; Adams v. Zellner, 174 S. W. 933. That the trustee, Moser, did not specifically name the places where two of the notices of the sale should be posted, does not materially affect the question and distinguish the case from those above cited. He did direct that one of said notices be posted at the courthouse door of Dallas county, Tex., and that the other two be posted in public places in said county, and that these instructions were literally complied with is not denied. The deed of trust provided that the sale should be made upon such public notice thereof as is prescribed by the statutes for the sale of real estate under such instruments, and among the things prescribed is that the notices shall be posted in three public places of the county. The notices of the sale in this instance were so posted, and hence we hold that both the terms of the deed of trust and the statutes were met and complied with.

The cases cited expressly hold that it is not necessary, in cases of this character, that the trustee should personally post the notices, but that this may be delegated to an agent, and we can see no good reason for holding that, notwithstanding this is true, the “public places” at which such several notices be posted, other than the courthouse door of the county, should be named by the trustee or the sale will be held to be void. If the opinion in the ease of Meisner v. Taylor, 56 Tex. Civ. App. 187, 120 S. W. 1014, embraces such a holding, the same was not necessary to a decision of that case, is not an authoritative expression upon the question, and has not been followed in subsequent cases of the appellate courts of this state. In our opinion the selection of the places by the trustee named in a deed of trust involves no such element of Judgment or discretion as requires either the posting of the notices of sale by the trustee in person or the naming by him, in the event he commits the performance of that duty to another, of the places where such notices shall be posted. The terms of a deed of trust requiring the sale authorized under it to be advertised in the manner prescribed by the statutes of this state for the sale of real estate is, in our opinion, satisfied when the notices thereof have been posted as required, whether posted by tlie trustee in person or by some person selected by him to perform that service, and without regard to whether such person so selected was instructed to post the notices at certain designated public places. Such is the effect of the holdings in the cases cited above, and especially in the case of Adams v. Zellner, supra, decided by this court, and in Walker v. Taylor, decided by the Court of Civil Appeals for the Fourth District. In Adams v. Zellner, one of the notices was posted by the trustee at the courthouse door in Hill county, one was mailed to some one at Whitney, and the other to some one at Hubbard or Itasca, with the request in each instance that the notice be posted. It does not appear that specific directions accompanied the notices that they be posted in places named by the trustee, and, notwithstanding this, it was held that the evidence justified a finding of compliance with the law and terms of the deed of trust. In Walker v. Taylor, supra, it is correctly said that:

“The strictness required in following the terms of the power granted by the deed of trust is to protect the property of the mortgagor, and when he is satisfied no one else can with reason complain.”

There is no one complaining in this case except the appellant, a junior lien holder, and there is no evidence of collusion or fraud to prevent the collection of his debt by means of the security he held. On the contrary, so far as the record discloses, the makers of the deed of trust in question and all others at interest, except appellant, were and are fully satisfied with the steps taken by the trustee in making the sale to the defendant Deutsch. Our conclusion is that the district court correctly held that the notices of the sale under which the defendant Deutsch claims the property in controversy were duly posted as required by the deed of trust in question and the statutes of this state, and that, as there is no other question raised which requires a reversal of the case, the judgment of the district court should be affirmed, and it is, accordingly, so ordered.

Affirmed.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PULKRABECK v. GRIFFITH & GRIFFITH.
    (No. 7385.)
    (Court of Civil Appeals of Texas. Dallas.
    June 19, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Interpleader <@=>23 — Grounds—Partiality op Stakeholder.
    In an action against brokers who employed plaintiff to assist them in selling farm lands in a certain county, they alleged that they had made a similar agreement with H., that on a certain sale a commission was due either plaintiff or H., and that according to their information and belief H. was entitled thereto and they 'tendered the money into court and made H. a party to the suit. Held, that the allegation on information and belief that I-I. was entitled to the commission did not show such partiality as prevented, defendants from interpleading H., since, while it is the duty. of a stakeholder to be fair and impartial, it is also his duty to disclose to the court all facts possessed in reference to the matters in issue, and the remedy of interpleader is so beneficial and so just that any reasonable doubt as to a party’s right to an interpleader will be resolved in his favor.
    [Ed. Note. — For other cases, see Interpleader, Cent. Dig. §§ 47, 51; Dec. Dig. <@=>23.]
    2. Evidence <@=>317 — Hearsay—Admissibility.
    In an action against brokers who employed plaintiff to assist them in selling lands in which they interpleaded H. with whom they had a similar an-angement, one of the defendants testified that I-I. brought the purchaser into the office, that defendant asked him whether or not plaintiff had sent him in with the purchaser, and that H. stated that he had not, but that he brought the purchaser himself, and that thereupon defendant told H. that he would pay him half of the commission to close the deal. Held, that this testimony was obviously hearsay and inadmissible.
    [Ed. .Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. <@=>317.]
    3. Appeal and Error <@=>1050 — Harmless Error — Admission of Evidence.
    Even though there was other competent evidence tending to sustain H.’s claim to the commission, it could not be said that the admission of such evidence was harmless, as it could not be told how much importance the jury attached to such evidence, and hence, though there was no statement of facts, the admission of such evidence could not be regarded as harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. <@¿¿31050.]
    4. Evidence <©=>314 — Hearsay Evidence — Admissibility.
    Except in cases of pedigree, relationship, marriage, death, age, and boundaries, hearsay evidence is inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 116&-1173; Dec. Dig. <©=3314.]
    5. Appeal and Error <@=>688 — Presumptions in Support of Judgment — Omissions from Record.
    Though the language of defendants’ counsel in stating in his argument that plaintiff was a liar was severe and might under certain circumstances constitute serious error, it could not be said that it was error, where there was no statement of facts, as counsel’s remark may have been reasonably deducible from the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2894^2896; Dec. Dig. <@=> 688.]
    Appeal from County Court, Kaufman County; James A. Cooley, Judge.
    Action by John Pulkrabeck against Griffith & Griffith. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Woods & Morrow and Huffmaster & Huff-master, all of Kaufman, for appellant. Terry & Brown, of Kaufman, for appellee.
   RASBURY, J.

There is no statement of facts in the record of this cause, but it does appear from the pleading that by mutual agreement appellees employed appellant to assist them in selling certain farm lands in Kaufman county for which appellees were j agents. By the agreement appellees were to divide their commissions with appellant on all sales made to customers introduced, procured, or brought to appellees by the efforts of appellant. Other provisions of the agreement need not be detailed. After the agreement was reáched, appellant sued appellees alleging generally that he had earned $250 under his agreement with appellees, which they refused to pay. Appellees, in answer to the suit, admitted the agreement, and alleged in addition that it made a similar agreement with one Holick and others, but had not made an exclusive agreement with any one; also, that a sale of certain of the lands was made to one Kovar upon which there was due either appellant or Holick the sum of $80, and that according to appellees’ information and belief Holick was entitled thereto. The money was tendered into court and Holick made a party to the suit. Hol-ick intervened in the suit, either voluntarily or in response to citation, and alleged a contract with appellees similar in all respects with the one between appellant and appellees and that he was the procuring cause of the sale to Kovar since it was through his efforts that the sale had been consummated. There was trial by jury to whom the court submitted two special issues of fact: The first being, “Was the plaintiff John Pulkrabeck the procuring cause of the sale of the 151-acre tract to Martin Kovar by Charles C. Cobb by reason of any aid or assistance rendered by him to the said defendants Griffith & Griffith?” and to which the jury answered “No.” The second being, “Was the intervener John R. Holick the procuring cause of the sale of the 151-acre tract of land to Martin Kovar by Charles O. Cobb by reason of any aid or assistance rendered by said John R. Holick to the said defendants Griffith & Griffith?” and to which the jury answered “Yes.” Upon the jury’s findings judgment was rendered that appellant take nothing by his suit against appellees and that intervener Holick recover of appellees the sum of $80, and from which judgment this appeal is taken.

The second, third, and fourth assignments of error challenge the right of appellees to interplead Holick in the suit on the ground that there is no privity of contract between appellant and Holick and on the ground of the partiality of appellees. While we are not unmindful of the rule invoked by the assignment, it has nevertheless been held by our Supreme Court that, “under our blended system, where law and equity are administered by the same court, and the rights of all parties to the suit in the subject-matter thereof may be adjudicated and fully protected,” a defendant, is entitled to the equitable remedy of interpleader. Also, that “the remedy is so beneficial and so just that any reasonable doubt as to his right to an interpleader will be resolved in his favor.” Nixon v. New York Life Ins. Co., 100 Tex. 251-262, 98 S. W. 380, 99 S. W. 403. See, also, Rochelle et al. v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S. W. 543. The rule being as stated and so highly favored by courts, we do not think that appellees should be denied the right to have the rival claimants to the commissions adjust their claims in one suit, merely because appellees assumed the position in their pleading based upon information and belief that I-Iolick was entitled to the commissions. Such pleading does not, in our opinion, constitute such partiality as will prevent the application of the rule. The pleading at most is but the expression of an opinion. Other portions of the pleading are clear in the statement that ap-pellees do not know who earned the commissions, but are willing to pay to whomsoever is entitled thereto and for that purpose tenders the money into court. While it is, clearly the duty of a stakeholder to be fair and impartial, it is also his duty to disclose to the trial court all facts possessed in reference to matters in issue, and to do so is not in law a showing of partiality.

The fifth and ninth assignments of error attack the action of the court in admitting certain testimony. By bill of exception it is shown that while the trial of the case was in progress T. B. Griffith, one of the appellees, was permitted over objection of appellant, after he had testified that appellant had not in any manner contributed to the sale of the land, to further testify:

“Holick brought Kovar into my office, and I stated to Holick that I wanted to know whether or not Pulkrabeck had sent him in with Kovar, * * * and jf not j would pay him half the commission to close the deal, and he stated he had not, that he brought him himself. X thereupon told him that I would pay him half of the commission to close the deal.”

Appellant was not present when the conversation took place between the witness, appellee, and intervener, Holick. Appellant contends that the evidence detailed was hearsay and self-serving and hence inadmissible. We concur in the contention. The testimony was obviously hearsay (Ross et al. v. Moskowitz, 95 S. W. 86), and its effect was clearly to support the contention of both ap-pellees and intervener that the latter was the procuring cause of the sale. Save in cases of pedigree, relationship, marriage, death, age, and boundaries, hearsay evidence is inadmissible. The fact, as contended by appellees, that a statement of facts is not in the record, will not support a finding that the admission of the evidence was harmless. Even though there was a statement of facts which disclosed other competent evidence tending to sustain intervener’s claim, we would yet be unable to say that the hearsay evidence was harmless. Appellees assumed correct an attitude of impartiality and admitted the debt. Occupying such a position, it is difficult to say exactly bow much importance the jury would attach to the statement of appellees that Holick had said that appellant had in no way contributed to the sale of the property to Kovar. Certainly we cannot say it was harmless, particularly in view of the further fact that appellees had testified that they had received no assistance from appellant in the sale of the lands.

In reference to the alleged misconduct of counsel in stating in argument before the jury “that old John Pulkrabeck was a liar,” it may be conceded that the language was severe, and might under certain circumstances constitute serious error if permitted, at the same time, in the absence of a statement of facts, we cannot say in this case that it was. Unlike the admission of hearsay evidence, it may be that if all the evidence was before us the remark of counsel could be reasonably deducible therefrom.

The remaining assignments of error have been carefully considered and in our opinion fail to disclose reversible error, and for that reason are overruled.

Because of the action of the trial court in admitting the evidence of the witness Griffith, the judgment is reversed, and the cause remanded for another trial not inconsistent with the views expressed herein.

Reversed and remanded.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    MASTERSON et al. v. HARRIS et al.
    (No. 5852.)
    (Court of Civil Appeals of Texas. Galveston.
    June 25, 1915.
    Rehearing Denied Oct. 7, 1915.)
    1. Appeal and Error <@=51195 — Rules of Decision — State Supreme Court.
    The answers to questions propounded by the Court of Civil Appeals to the Supreme Court are conclusive upon the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. <@=> 1195.]
    2. Wills <@=>2,30 — Withholding from Probate — Agreement Between Heirs — Estop-pel.
    The agreement between the widow and the children of a testator, whose will contained a devise of $3,000 to plaintiff’s mother for the education of her children, conditioned upon the widow’s acceptance of the will in lieu of her community interest, to withhold it from probate and to take agreed shares of the estate, at which time the plaintiff’s father stated that the other parties might do as they pleased and not consider his children, and the ratification of such agreement by acting thereunder for 21 years up to the widow’s death, did not estop them from claiming title under the will after it had been probated at the instance of purchasers of realty from the estate.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 555-559; Dec. Dig. «=>230.]
    3. Adoption <@=>6 — Evidence — Interest of Adopted Child.
    In an action for partition of the estates oi a decedent, his wife, and their daughter, evidence held not to sustain a finding that it was intended by decedent that a daughter of his intended wife, whom he adopted on his marriage to her mother, should be treated as his own and have a child’s interest in his estate, so as to be entitled to take in case of intestacy or testament equally with his own children.
    [Ed. Note. — For other eases, see Adoption, Cent. Dig. § 11; Dec. Dig. «=»6J
    4.Adoption <@=>6 — Pleading — Interest of Adopted Child.
    In such action, where no such contract of adoption was pleaded, but only a promise to adopt and performance by decedent on the day of his marriage with the child’s mother by executing and filing an instrument of adoption whereby she became his legal heir, proof that decedent had intended that the adopted child, under whom plaintiffs claim, should have the same interest in his estate as his own children, could not properly become the basis of a judgment in plaintiffs’ favor.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. § 11; Dec. Dig. <@=>6.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action for partition by Thomas W. Master-son and others against John W. Harris and others. Judgment for defendants, and plaintiffs appeal to the Court of Civil Appeals, which certified questions, answered by the Supreme Court. 174 S. W. 570.
    Affirmed.
    D. D. McDonald, of Galveston, and Mas-terson & Masterson, of Houston, for appellants. Edward F. Harris, Harris & Harris, and P. A. Drouilhet, all of Galveston, and W. H. Newton, of San Antonio, for appellees.
   McMEANS, J.

Appellants, plaintiffs in the court below, brought this suit against appellees, defendants, for partition of the property of the estates of John W. Harris, deceased, Annie P. Harris, deceased, and Rebecca P. Harris, deceased, alleging that appellants and appellees owned in undivided interests the property of the three estates in the proportions set out in the petition. The case was tried before the court without a jury, and resulted in a judgment for defendants from which the plaintiffs have appealed.

This case was submitted to this court on December 21, 1911. Thereafter, after mature consideration, we concluded to certify to the Supreme Court two questions raised by appellants by appropriate assignments of error, a decision of which we then thought would practically settle the case, and we see no reason now for changing the conclusion then reached. The statement of the case embraced in our certificate is a sufficiently clear statement of the issues presented by the pleadings of the parties and the facts proved at the trial, and we now here adopt and copy the same as a part of this opinion:

“The plaintiffs are the sole devisees under the will of Mrs. Annie Masterson, who died in 1900, leaving a will duly probated (except that one of the plaintiffs is sole beneficiary under the will of one of such devisees). Of the defendants, John W. Harris and Mrs. Cora Davenport are children of John W. Harris and his wife Annie P. Harris, both deceased. Frederick Kenner Fisher is only child and heir of one of such children, Mrs. Elizabeth Byrd Fisher, deceased, and B. R. A. Scott is one of the executors of the will of Mrs. Annie P. Harris. John W. Harris, the executor, is also sued in such capacity. Plaintiffs under appropriate averments, which need not be here more particularly set out, seek partition of the property of the estates of John W. Harris, Mrs. Annie P. Harris, and Miss Rebecca P. Harris,. another of the children of John W. and Annie P. Harris, who died intestate in 1900. It was alleged that these three estates of John W. Harris, Annie P. Harris, and Rebecca P. Harris owned in undivided interests the property sought to be partitioned, and that plaintiffs and defendants owned in undivided interests the property of said estates. There is no controversy as to the interests of the parties, respectively, in the property of the estates of Mrs. Annie P. Harris and Miss Rebecca Harris, but defendants deny that plaintiffs have any interests in the property of the estate of John W. Harris proper. Upon the trial the court decreed partition, recognizing the interests of plaintiffs in the property of the estates of Mrs. Harris and Miss Harris, but denied them any interest in the property of the estate of John W. Harris. From this judgment this appeal is prosecuted by plaintiffs.
“John W. Harris died in 1887, leaving surviving him his widow, Mrs. Annie P. Harris, and four children of their marriage, to wit, John W. Harris, Mrs. Cora Davenport, Mrs. Elizabeth Byrd Fisher, and Miss Rebecca P. Harris. There also survived him an adopted daughter, Mrs. Annie W. Masterson, mother of plaintiffs, who was a daughter of Mrs. Annie P. Harris by a former marriage, and who had by instrument of writing duly executed by John W. Harris in 1852, on the day of his marriage to her mother, been adopted ‘as his legal heir’ under the terms of the statute, which instrument was duly recorded in the records of Mata-gorda county, where the parties lived; but none of the parties in interest knew anything of this act of adoption until it was discovered by one of plaintiffs in 1906. By the terms of his will John W. Harris devised his entire estate as follows: To his wife, one-fifth of all the property which he acquired before the marriage, and one-fifth of that portion which had been and may be hereafter acquired during the marriage, together with the Galveston homestead during her life, with power to bequeath the same at her death to any one or more of their four children. The bequest was stated to be an extinguishment of all claims which Mrs. Harris had to any of his separate property, or to the community estate, it being stated that much the greater portion of the property theretofore acquired was his separate estate. The rest and residue of his property was left to their four children, to wit, Rebecca P. Harris, John W. Harris, Lillie B. Harris (afterwards Fisher) , and Cora L. Harris (now Davenport), share and share alike. There was also left to Branch T. Masterson, husband of Annie W. Masterson, the sum of $3,000, to be used in the education of their children, the present plaintiffs, but this legacy was made conditional upon Mrs. Harris accepting the terms of the will. Mrs. Annie P. Harris, John W. Harris, Branch T. Masterson, and Miss Rebecca P. Harris were appointed independent executors of the will without bond, and were each given $500 as compensation for their services. The will was dated in 1880. Judge Harris died in 18S7. Immediately after his death, upon reading of the will in presence of the widow and four children and Mr. Masterson, Mrs. Harris expressed great dissatisfaction with its terms to herself, and also on account of its failure to make any provision for Mrs. Masterson. The four children also thought that the will was unjust to their mother, and that to probate it would ‘be a reflection upon their father’s memory.’ This feeling led to, and resulted in, a family compact between Mrs. Harris and her said four children that all of the property should be treated as community, that Mrs. Harris should take one half, and that the heirs at law of John W. Harris should take the other half. In order to carry out the compact, it was agreed that the will should not be probated. This was done, and the property has been since managed by John W. Harris as a whole for the benefit of the parties named and those claiming under them. The right of Mrs. Masterson, or her children after her death, to share in the property was not considered, in so far as the estate of John W. Harris proper is concerned. The legacy to Branch T. Masterson was never paid or demanded.
“In 1906 Thomas W. Masterson, one of the plaintiffs, found upon the records of Matagorda county, duly recorded on the day of its date, in all respects duly executed according to the provisions of the act of 1850 (articles 1, 2, title 1, R. S.), an instrument, signed by John W. Harris, as follows:
“ ‘The State of Texas, County of Matagorda.
“ ‘Know all men by these presents, that I, John W. Harris, a resident of the county and state aforesaid, have adopted and do hereby adopt, as my legal heir, Annie W. Dallam, the only child of the late Mrs. Annie P. Dallam, whom I have this day married. Given under my hand and seal this 1st day of July, one thousand eight hundred and fifty-two.
“ ‘John W. Harris. [Seal.]
“ ‘Signed, sealed, and delivered in the presence of C. R. Patton. I. R. Lewis.’
“At the time of this discovery Mrs. Annie P. Harris was living, but shortly afterwards she died, leaving a will whereby she left her property to her two surviving children by Judge Harris, Frederick Kenner Fisher, son of Elizabeth Byrd Fisher, and the children of Annie W. Masterson, her child by the former marriage. As stated, the other child of John W. and Annie P. Harris had died in 1900 intestate.
“Upon the filing of this suit in 1908, setting up the rights of Mrs. Annie W. Masterson, or her children, she being deceased, as an adopted ‘legal heir’ of John W. Harris, to participate in the distribution of his estate, St. Mary’s Orphan Asylum of Galveston, a corporation, filed an application in the probate court at Galveston county to have probated the aforesaid will of John W. Harris, alleging as ground for such application that it had in 1901 purchased from the heirs of John W. Harris certain lots in the city of Galveston, that at the time of their said purchase it believed that John W. Harris had died intestate, and that its vendors were entitled to his estate, ‘and a probate of the will is necessary and proper to complete, protect, and make good of record and in fact applicant’s title to the above mentioned lots.’ It was further alleged that applicant was not in default in applying for the probate of the will, because it did not know of its existence until about two weeks before the filing of the application.
“To this application John W. Harris made answer (which answer was adopted by Kenner Fisher, by his guardian, and Mrs. Davenport), setting up the execution of the will, the death of John W. Harris, and the family compact herein referred to. They admitted the allegations of the Orphan Asylum and its interest in the probate of the will, and that such probate was necessary and proper ‘to complete, protect, perfect, and make good of record and in fact its title’ to the property mentioned. It was further represented that about 80 other persons, citizens of Texas, occupied the same attitude as purchasers of lands from said heirs as the Orphan Asylum, and that there was as to them the same necessity to probate the will for the purpose of protecting their titles, and in addition that about 250 persons had leased lands from said heirs, and for the protection of their rights there was the same necessity to probate the will. Respondents specially admit and recognize the right of the estate of Mrs. Annie P. Harris to one-half of the property of John W. Harris and Annie P. Harris, as fixed by law at the date of the death of John W. Harris. The further allegation is made as to the necessity for the probate of the will arising from the fact of the discovery of the act of adoption by John W. Harris of Mrs. Annie W. Masterson, as herein set out, and the filing of this suit for partition. W. T. Ilofloy intervened, also praying for the probate of the will, alleging that he was also purchaser of certain lands from the heirs of John W. Harris, that the probate of the will was necessary to protect, perfect, and make good his title, alleging substantially the same grounds that are set out in the petition of the Orphan Asylum.
“The probate of the will was contested by the plaintiffs in the present action, devisees of Mrs. Annie W. Masterson, deceased. In their answer, which is very lengthy, they alleged that ‘John W. Harris and Annie Pleasants Dallam, who was then a widow, then citizens of the county of Matagorda and state of Texas, entered into an antenuptial marriage contract, in which they agreed to be married, and John W. Harris agreed that on that day of the marriage he would adopt as his leg-al heir Annie W. Dallam, who was a child of said Annie Pleasants Dallam by her former marriage; that in conformity with said contract said John W. Harris and Annie Pleasants Dallam were married on the 1st day of July, 1852, and on the same day he, the said John W. Harris, by an instrument in writing duly executed by him and duly filed and recorded in the office of the clerk of the county court of Matagorda county, adopted said Annie W. Dallam as his legal heir and thereby faithfully performed his aforesaid contract; that thereupon the said Annie W. Dallam became the legal heir of said John W. Harris, and became entitled to all of the rights and privileges in law and in equity of a legal heir of said John W. Harris.’ They also alleged substantially the facts hereinbefore set out with regard to the death of John W. Harris and the family agreement not to probate the will, setting out in detail the circumstances with regard' thereto. They disclaim any right to or interest in the lands or other property conveyed to the Orphan Asylum or Hefley, or others, and admit the validity of all such conveyances; and of all leases executed by said heirs, and disclaim any desire or intention to disturb the same. The said contestants conclude: ‘And these contestants say that the legacy of three thousand dollars directed to be paid over to Branch T. Masterson to be expended in the education of these contestants by reason of said agreement not to probate either of said alleged wills and the actual failure and refusal to probate the same by said John W. Harris, Jr., Rebecca P. Harris, Lillie B. Fisher, and Cora L. Davenport, deprived these contestants of the benefit of said legacy, and the same remained in the estate in which each of said parties have been receiving and are entitled to receive their respective shares, and by asserting their right thereto as heirs at law each of said parties is estopped to deny that they hold their respective shares as such heirs, and by asserting their right thereto as heirs at law each of said parties are estopped to deny that they hold their respective interests as heirs at law of said John W. Harris, and are estopped from having either of said alleged wills probated, and are estopped to claim as devisees under said alleged wills, or either of them, and these contestants deny that said alleged will attached to the application of said St. Mary’s Orphan Asylum, or said Exhibit X, and attached to the answer of said John W. Harris, or either of said papers, is the last will of said John W. Harris, deceased. Wherefore these contestants pray that all of said applications for probate of said alleged wills of said John W. Harris, deceased, be refused and dismissed at the cost of the respective applicants.’
“The county court in this proceeding admitted the will to probate upon the application of all the persons praying therefor. On appeal to the district court, probate was refused upon any of the applications. From this judgment the Orphan Asylum, I-Iefiey, and John W. Harris, Kenner Fisher, and Mrs. Davenport appealed. The Orphan Asylum and Hefley gave separate appeal bonds, and John W. Harris, Kenner Fisher, and Mrs. Davenport executed a joint appeal bond. By the judgment of the Court of Civil Appeals of the Fourth District the judgment of the district court was reversed, and judgment rendered ‘that the applications of appellants, St. Mary’s Orphan Asylum of Galveston, Texas, and W. T. Hefley, for the probate of the last will and testament of John W. Harris, deceased, be and the same is hereby granted.’ The opinion of that court upon the original submission, and also upon motion for rehearing (which is reported in 57 Tex. Civ. App. 640, 122 S. W. 587, case styled St. Mary’s Orphan Asylum of Texas v. T. B. Masterson et al.) is referred to and made a part of this statement to illustrate and explain the questions here presented. _ All of the facts herein set out were embraced in the pleadings of the parties by appropriate averments. Conclusions of fact and law were filed by the trial judge. The conclusions of fact, with slight exception, are adopted by us. At the risk of repetition of much that has been heretofore stated, we here set out such conclusions :
“ ‘In the early part of the summer of 1852 Judge John Harris and Mrs. Annie P. Dallam, a widow with one child (Annie W. Dallam, about five years old, afterwards Annie W. Mas-terson, by marriage with Branch T. Masterson), became engaged to be married. In his proposal of marriage to Mrs. Dallam, Judge Harris said that he would adopt her daughter, Annie W. Dallam, as his own child, and urged this as a consideration for Mrs. Dallam’s accepting his proposal. She did accept his proposal so made, and on the day they were married, July 1, 1852, Judge Harris duly adopted the said Annie W. Dallam by an instrument in writing duly acknowledged and filed on the 16th day of that month in the office of the county clerk of Mata-gorda county, where at the time both parties resided. The fact that he had so adopted her was not known to any of the parties to this suit, or to any other member of the Masterson and Harris families, as far as disclosed by the evidence, until the month of July, 1906, when Mr. Thomas W. Masterson happened to discover the act of adoption in the office of the county clerk of Matagorda county. The court finds as a fact that it was intended by Judge Harris in his proposal to Mrs. Dallam that the child should be treated as his own, and that she should have a child’s interest in his estate.
“ ‘So far as disclosed by the evidence, Mrs. Annie P. Harris never mentioned the fact of Judge Harris’ promise to adopt the child of her first marriage to any member of the family until on the 1st day of April, 1887, after Judge Harris’ death, when the two purported wills were produced by John W. Harris, Jr., son of Judge Harris, who, for some time previous to his father’s death and on account of his failing health, had charge of his father’s business affairs and custody of his papers, at a meeting of the members of the Harris famjly, consisting of Mrs. Annie P. Harris, her daughters, Lillie, Rebecca, and Cora, and son, John W. Harris, Jr., and at which Mr. Branch T. Masterson was also present by invitation. She did not then mention it in the meeting, but after both instruments had been read and general surprise expressed at their contents, particularly at the attempt to dispose of the entire estate as though it were his separate property, when it was notorious that it was community of the marriage, she called Mr. Branch T. Masterson aside in another room and expressed her own surprise that Judge Harris had not made provision for their daughter, Annie W., and then stated to him Judge Harris’ promise at the time she accepted his proposal of marriage, and added that she had always supposed that he had kept his promise, but now that it seemed he had not. She subsequently made the same statement to one of her grandchildren, probably on more than one occasion.
“ ‘At said meeting it was agreed by Mrs. Harris and her children by Judge Harris, they being the exclusive devisees under each of said instruments, not to offer the same for probate, because they thought what they considered to be the injustice of the wills to Mrs. Harris would be a reflection on Judge Harris-’ memory, and it was agreed between them that the whole estate should be considered as community, Mrs. Harris taking one half interest and Mr. Harris’ four children the other half in equal parts, as though he had died intestate; and Mr. Master-son, being asked what he thought of this, assented to it, saying, in substance, that they could do what they pleased, that if they did not offer the wills for probate he would not, and that they need not consider his children (referring to the legacy of $3,000 for their benefit), as he was able to care for his own children. The wills were accordingly withheld from probate until after the discovery of the act of adoption, more than 20 years after Judge Harris’ death; Mrs. Annie P. Harris and her daughter, Mrs. Annie W. Masterson, having died in the interim.
“ ‘The will of Judge Harris was duly probated in Galveston county on the 10th day of February, 1910, pursuant to the decree of the Court of Civil Appeals of the Fourth Supreme Judicial District, in the case entitled “In the Matter of the Estate of John W. Harris, Deceased, Application for Probate of Will,” No. 26,731 in this court, and to the orders of this court also made pursuant to said decree, and copy is hereto attached and marked Exhibit B. The case is reported in 57 Tex. Civ. App. 587, 122 S. W. 587. The plaintiffs and those under whom they claim are the only devisees of Mrs. Annie W. Masterson; and the defendants (other than the executors and administrator) and those under whom they claim are the only devisees of Judge John W. Harris; and said plaintiffs and defendants and those under whom they claim are the only devisees of Mrs. Annie P. Harris. These estates consist of a large number of tracts of land in different parts of the state, and other property, which it is agreed, for the purposes of this case, was all originally community of the marriage of Judge John W. Harris and his wife, Annie P. Harris. The accounts of John W. Harris, Jr., who has had charge of the property since his father’s death, have been audited and found correct.’ ”

. Under the foregoing facts it was the contention of appellants that: First. The probate of the will of John W. Harris by the Court of Civil Appeals is a limited probate, inuring to the benefit of the Orphan Asylum and W. T. Hefley, and that appellees John W. Harris, Kenner Fisher, and Mrs. Davenport, having been held in default by said court in failing to probate the will within four years, can take no benefits thereunder, but that, as to them, John W. Harris must be treated as having died intestate. Second. That by virtue of the antenuptial agreement of John W. Harris with Mrs. Annie P. Dallam and the subsequent act of adoption of her child, Mrs. Annie W. Masterson, he was estop-ped and prevented from making any will which by its terms did not make provision for his said adopted child equally with his own children.

The questions propounded to the Supreme Court are:

“First. Did the probate of said will inure to the benefit of appellees as devisees thereunder, or is the same to be limited in its operation to the parties upon whose application it was probated, to wit, St. Mary’s Orphan Asylum and W. T. Hefley?
“Second. Does the verbal agreement between John W. Harris .and Mrs. Annie P. Dallam, made in prospect of their marriage, and the subsequent act of adoption by John W. Harris of the child of said wife, operate to prevent or interfere with his right to make such disposition of his property and estate by will as was done by the will admitted to probate?”

The Supreme Court, in reply to these questions (see Masterson v. Harris, 174 S. W. 570), answered that the probate of the will in question inured to the benefit of the appellees, and decided the second question in the negative. -These answers are conclusive upon us, and require us to overrule all of appellants’ assignments of error in which the questions are presented.

-By their fifth assignment of error appellants complain that the court erred in holding that the agreement between John W. Harris, Jr., Cora L. Davenport, Rebecca P. Harris, and Lillie B. Harris, and their mother, Annie P. Harris, not to probate the will of John W. Harris, and to set said will aside and ignore it, coupled with their ratification of such agreement by acting under it for 21 years, did not preclude them from now claiming title under said will. Under this assignment there is urged a proposition to the effect that, where the widow and children of deceased, having custody of the will, agreed with each other to not have the will probated, and that one of the children, John W. Harris, should be manager of the estate, and the property would be treated as if the deceased had died intestate, and the widow was agreed by them to be the owner of one-half of the property and should take against the will, and the will was in the custody of the widow and the manager and other children of the. deceased for more than 20 years after the death of the deceased, and during that entire period the agreement was carried out by all the parties to it, and large amounts of .money drawn from the estate by each of the parties to the agreement, and several thousand acres of land belonging to the estate were sold by said widow and children as heirs, and the proceeds used by them, the agreement is binding on all of the parties to it, and after the death of the widow and two of the children, who were parties to the agreement, the other children cannot repudiate the agreement, retain the proceeds of the land sold and money of the estate received by them under it, and claim the estate as devisees under the repudiated will, which the court refused to probate on their application; that under such state of facts the agreement is binding on the parties, and that they did not acquire any right under the will, and could not take as devisees under the will, but only as heirs at law according to the agreement. The facts upon which the plea of estoppel is predicated are set out in our findings of fact, supra, and will not be here repeated. We agree with the trial judge that:

“What transpired at the meeting of the members of the Harris family and Mr. Branch T. Masterson at the time of the reading of the wills, immediately after Judge Harris’ death, did not constitute such an agreement as the plaintiffs can avail themselves of, and does not operate to estop the devisees under Judge Harris’ will from availing themselves of the probate thereof.”

Certainly estoppel cannot he predicated upon the agreement of Mr. Masterson not to insist upon receiving the $3,000 bequeathed to him in trust for his children and to be used for their education. This bequest was conditioned on Mrs. Harris’ acceptance of the will in lieu of her community interest, and the evidence clearly shows that she rejected it. On this point Mr. Masterson testified that at the meeting at which the wills were read 'Mrs. Harris expressed dissatisfaction with the will and said that she did not think it was just to her, that it was not the will she had understood Mr. Harris intended to make, and that she would not recognize it. The fact that the will was not offered for probate, and that all of the parties to the agreement agreed that Mrs. Harris, instead of taking under the will, should take a half interest in all the property, and the fact that this agreement was recognized and acquiesced in during the remainder of Mrs. Harris’ life is proof that the contingency under which the bequest of the $3,000 to 'Mr. Masterson should be payable never arose. 1-Iis response, upon being asked by the parties to the agreement as to what he thought of it and in assenting to it, that “they could do as they pleased, that if they did not offer the wills for probate he would not, and that they need not consider his children (referring to the legacy for their benefit), as he was able to care for his own children,” was not of a contractual nature, “but rather the spirited reply of an independent gentleman, who thought his wife had not been teated in the alleged wills with the consideration she had a right to expect from one who from early childhood had otherwise shown her paternal affection.” The assignment cannot be sustained.

We come now to a consideration of a cross-assignment of error presented by the appellees. It is as follows:

■ “The court erred in finding as a fact that it was intended by Judge Harris in his proposal to Mrs. Dallam that the child should be treated as his own, and that she should have a child’s interest in his estate — meaning thereby such an interest as the child would be entitled to take in case of intestacy, or in case of last will and testament by equal provision with his own children, if any, and it was so understood by Mrs. Dallam.”

The assignment contains the exact language of the finding complained of. In our statement made in certifying questions to the Supreme Court, which is adopted as our statement in this opinion, we omitted therefrom that portion of the court’s findings which reads as follows:

“Meaning thereby such an interest as the child would be entitled to take in case of intestacy, or in case of last will and testament by equal provision with his own children, if any, and it was so understood by Mrs. Dallam.”

We did this because, after a careful consideration of all the evidence bearing upon the point, we concluded that the finding was not justified. The evidence upon this issue consists of proof of statements made by Mrs. Harris as to what the antenuptial agreement between herself and Mr. Harris was. On this point Mr. Branch T. Masterson testified that just after the reading of the wills Mrs. Harris said to him, quoting the language of the witness:

“Well, she said to me that, at the time she became engaged to Mr. Harris, engaged to marry him, he had promised to adopt her daughter as his daughter.”

Miss Reba Masterson, one of the plaintiffs, a granddaughter of Mrs. Harris, testified to a conversation she had with her grandmother on this subject, as follows:

“She said they were standing at the gate, my mother was standing beside them, and that he was saying how much better it would be for the child, too, if she would consent to marry him. He said that he would adopt her as his own, and then grandma went on to say that he did adopt her.”

Again she says;

“She laid special stress upon his having promised to adopt her; * * * that he said as soon as they were married he would make her his own child.”

The findings of fact in the probate proceedings, which were introduced in evidence, and to the introduction of which no objection is here urged, contain the following:

“Here Mr. Harris promised to adopt her little child, Annie W. Dallam, about four years old, for whom he had already shown affection, then in company with her mother. He said he would adopt her legally the day they were married.” “The next day Mrs. Harris told Mr. Branch T. Masterson she wished to see him privately, and when they were alone she said that Mr. Harris had promised her at the time they were engaged to be married that he would adopt her daughter, Annie, legally, and treat her as his own child. She said she had never asked him whether he had in fact legally adopted her or not, but had always supposed he had, but now saw he had not kept his word to her, referring to no provision being made for her in his wills.”

We think that this evidence proves nothing more than a promise upon the part of Mr. Harris that he would adopt Annie W. Dallam as his heir under the statute as it then existed, and falls short of proof that he contracted with Mrs. Dallam' that her child should have an interest in his estate— meaning thereby such an interest as the child would be entitled to take in case of intestacy, or in case of last will and testament by equal provision with his own children. But if we are mistaken in this, and even if the evidence had shown the existence of a binding contract upon the part of Mr. Harris to give to the child such an interest in his estate as a child of his own would take in case of intestacy, or in case of last will and testament by equal provision with his own children, we do not think, in view of the state of the pleadings of the plaintiffs, that the proof of such facts could properly in any event have become the basis of a judgment in their favor. No such contract was pleaded, but only the promise to adopt, and the fact that the promise was faithfully performed by Mr. Harris on the day of his marriage with Mrs. Dallam, by executing an instrument of adoption and filing the same for record in the office of the county clerk of the county of their residence. Their pleading on this point is as follows:

“That heretofore, to wit, in 1852, John W. Harris and Annie Pleasants Dallam, who was then a widow, then citizens of the county of Matagorda and state of Texas, entered into an antenuptial marriage contract in which they agreed to be married, and she and John W. Harris agreed that on the day of the marriage he would adopt as his legal heir-Annie W. Dallam, who was a child of said Annie Pleasants Dal-lam by her former marriage. That in conformity with said contract said John W. Harris and Annie Pleasants Dallam were married on the 1st day of July, 1852, and on the same day he, the said John W. Harris, by an instrument in writing duly executed by him and duly filed and recorded in the office of the clerk of the county court of Matagorda county, adopted said Annie W. Dallam as his legal heir, and thereby faithfully performed his aforesaid contract. That thereupon the said Annie W. Dallam became the legal heir of said John W. Harris, and became entitled to all the rights and privileges in law and equity of a legal heir of said John W. Harris.”

For these reasons the findings of fact by the trial court, complained of in the cross-assignment, cannot be adopted by us as a part of our findings of fact. In view of the importance of the legal principles involved in the questions presented for review upon this appeal, and of the magnitude of the estate in litigation, we have given mature consideration to all the questions presented by appellants for a reversal of the judgment appealed from; but it is our conclusion that none of their assignments point out reversible error. The only two questions in regard to which we have had serious doubt have been decided by the Supreme Court adversely to appellants. We think the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
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