author: LANE, J.

text:
    HOUSTON CHRONICLE PUB. CO. v. WEGNER.
    (No. 7004.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 11, 1915.
    On Motion for Rehearing, Jan. 22, 1916.)
    1. Libel and Slandee <&wkey;10 — Actionable Words — Misconduct in Oeeice.
    A newspaper publication that, as a result of an article printed in a Galveston paper, the city commissioners appointed a committee to investigate the charge that plaintiff, contrary to law, had his son on the city pay roll as confidential clerk, which charge had not been made by any one except defendant, and which, as published, was untrue, was a charge that plaintiff put his son on the pay roll intending that he should draw money from the city contrary to law, although it did not charge that any money was ever paid to plaintiff’s son, that the city ever sustained any loss by any fraud or secrecy practiced by plaintiff, or that the city was in any way defrauded, and was libelous per se.
    [Ed. Note. — For other cases, see Libel and Slander, Gent. Dig. §§ 41, 91-96; Dec. Dig. <&wkey; 10.]
    2. Libel and Slander <&wkey;56 — Defenses — Repetition.
    The fact that such false charge or statement published by defendant simply purported to be a statement or charge made by another, and that defendant itself neither asserted such charge to be true, or vouched for the truth thereof, did not relieve the publication of its libelous character.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 153-156; Dec. Dig. <&wkey;> 56.]
    3. Appeal and Error <&wkey;930 — Presumptions —Instructions Followed by Jurx.
    In an action for libel a refusal to strike so much of the amended petition as set up a publication on a certain date was not error, where the court instructed that no libel could be predicated on that publication, since it would be presumed, without any showing to the contrary, that the jury obeyed the instructions given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. &wkey;J 930.]
    4. Libel and Slandee &wkey;>33 — Damages — GeneRal Damages — Elements.
    In an action for the publication of a false and libelous charge of plaintiff’s misconduct in his office as chief of police, plaintiff was entitled to recover general damages without proof other than the fact of the libel.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 112, 277; Dec. Dig. <&wkey;> 33.]
    5. Libel and Slandee <&wkey;124 — Damages — Special Damages — Instructions.
    An instruction submitting as special damages items which would properly come under the head of general damages was technical error.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 365-370, 372, 373; Dec. Dig. <&wkey;>124.]
    6. Appeal and Ereor <&wkey;1140 — Harmless Eeeoe — Instructions.
    Such error was harmless, where all the items of damages allowed under the charge on special damages could have been recovered under the head of general damages; and the court on appeal required plaintiff to file a remittitur before affirmance.
    TEd. Note. — For other cases, see Appeal and Fii-ror, Cent. Dig. §§ 4462-4476; Dec. Dig. <&wkey;> 1140.]
    7. Appeal and Error <&wkey;1062 — Harmless Error — Instructions — Cure by Verdict.
    In an action for libel, error, if any, in submitting the question of exemplary damages was harmless, where the jury found that no exemplary damages were recoverable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey; 1062.]
    8. Libel and Slander &wkey;>124 — Instructions —Meaning oe Language.
    In an action for libel in charging on report that plaintiff, chief of police of another city, was to be investigated for carrying his son on the city pay roll as confidential clerk, in violation of the law, an instruction that the publication did not charge that the son was on the city pay rolls were properly refused.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 365-370, 372, 373; Dec. Dig. <&wkey;>124.]
    9. Libel and Slander <&wkey;124 — Libelous Per Se — Damages.
    In an action for damages for a publication libelous per se, an instruction that the jury might find for plaintiff such damages as from the evidence they believed he suffered was proper.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 365-370, 372, 373; Dec. Dig. <&wkey;124.]
    10. Libel and Slander <&wkey;5 — * ‘Malice”— “Inference.
    The publication of a libelous article upon the written communication of defendant’s correspondent, without any reasonable inquiry as to its truth when inquiry would have disclosed its falsity, was recklessly made without legal justification or excuse, and in a Spirit of wanton disregard of the rights of plaintiff, so that malice might be inferred therefrom.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 278; Dee. Dig. <&wkey;>5.
    For other definitions, see Words and Phrases, First and Second Series, Malice.]
    11. Libel and Slander <&wkey;121 — Damages— Excessive Damages.
    A verdict of $2,500 special and $10,000 general damages in an action for libeling plaintiff by a publication that, when chief of police of another city, he had carried his son on the city pay roll, in violation of law, was excessive, and would be reversed unless plaintiff’s widow and children filed a remittitur of $5,000.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig-. §§ 853, 354; Dec. Dig. <&wkey;> 121.]
    On Motion for Rehearing.
    12. Appeal and Error <3&wkey;1140 — Remittitur —Statute.
    When an error has been committed by the trial court, which has possibly caused the rendition of an excessive verdict, and it is impossible to mathematically determine the sum of the excess found in consequence of the error, Rev. St. 1911, art. 1631, requiring the Court of Civil Appeals, when of the opinion that the verdict is excessive and that the cause should be reversed for that reason only, to indicate to the party in whose favor the .judgment was rendered the amount of the excess, and the time within which he may file a remittitur, and requiring the court, if such remittitur is filed, to reform and affirm, and,. if not, to reverse, does not apply, and the entire judgment will be reversed, and the cause remanded for another trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462-A476; Dec. Dig. e&wkey; 1140.]
    13. Appeal and Error <&wkey;114&wkey;ExcEssivE Damages — Cure by Remittitur.
    When it can be determined by the appellate court what excessive amount has been erroneously found by the jury by reason of an erroneous instruction, the court is authorized to cure such error by requiring a remittitur.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. <&wkey; 1140.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Ernest Wegner, Sr., against the Houston Chronicle Publishing Company, continued after plaintiff’s death by his widow and children. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Kittrell & Kittrell, of Houston, and E. F. Harris and Harris & Harris, all of Galveston, for appellant. James B. & Charles J. Stubbs and Marion J. Levy, all of Galveston, for appellees.
   LANE, J.

For the purposes of this opinion the following statement of the case will be sufficient:

Shortly prior to the 5th day of December, 1912, there appeared in the Galveston Labor Herald, a paper published in the city of Galveston, the following:

‘‘We will ask this question until it is answered:

“Who is Chief of Police?
“Delenda Est Money Lender.
“ ‘And Jesus went into the temple of God and cast out all of them that sold and bought in the temple and overthrew the tables of the money changers (Loan Sharks, 1912) and the seats of them that sold doves. — Matthew xxi, 12. ‘And said unto them: It is written — My house shall be called the house of prayer, but ye have made it a den of thieves.’
“To Mayor-President Lewis Fisher and Commissioners Y. E. Austin, I. H. Kempner, A. P. Norman and M. E. Shay of the City of Galveston — Greeting: i
“In the issue of the Galveston Labor Herald of date November 9 we asked the question, ‘Whether there was such a position provided by the city charter as confidential clerk to the chief of police?’ No reply to the contrary has been received, therefore the query will be answered by the Labor Herald itself.”

On the 5th of December, 1912, on request of Commissioner Shay, the published communication as above set out was read by the city attorney to the board of commissioners, who then referred the same to the commissioner of fire and police of Galveston city for investigation and report. Thereafter, on the 6th day of December, 1912, the Houston Chronicle Publishing Company, a corporation which publishes the Houston Chronicle, a newspaper, in Houston, Tex., published in its said newspaper the following article:

“Galveston to Probe Police.
“Committee to Investigate Charge That Man Not Provided for is bn Pay Roll — Prizes Awarded.
“Special to the Chronicle.
“Galveston, Texas, Dec. 6 — As a result of an article printed in the Galveston Labor Herald, the city commissioners appointed a committee, consisting of Mayor Lewis Fisher, Commissioner of Fire and Police A. P. Norman, and City Attorney Mart H. Royston, to probe the matter. The charge is that, contrary to law, the Chief of Police, E. Wegner, has E. Wegner, Jr., on the city pay roll as ‘confidential clerk.’ It is said no provision is made for such employment.”

After such publication by said Plouston Chronicle Publishing Company, hereinafter called the Chronicle Company, Ernest C. Wegner, Sr., brought suit against said Chronicle Company for damages alleged to have been suffered by him as a result of said publication, which he alleged to be maliciously false and slanderous. After said suit was filed, and before the case was tried, plaintiff, Ernest C. Wegner, Sr., died, and thereafter his widow and children made themselves parties plaintiff and carried on the litigation. By amended petition of the new-made parties, filed after the death of Ernest C. Wegner, Sr., allegation is made that in repetition and aggravation of the alleged libel of December 6, 1912, said Chronicle Company, on the 8th day of December, 1912, published an additional libel in the following words:

“An illustration of Galveston commission methods has just been given. Mr. Blair, editor of the Labor Herald, wrote to the commission, charging that the chief of police was employing ‘a confidential clerk,’ and asking if there were any charter provision for such position. The commissioners acted promptly. Instead of following the immortal Vanderbilt in his attitude to the public, they considered the question seriously and appointed a committee to make a thorough investigation of the matter. There is no provision in the charter for the employment of a ‘confidential clerk’ by the chief of police, or by any other official of the city. From the moment of filing the charges until the- final verdict is rendered the people will know all about the case. There will be no secrecy about it, for there never is about anything the commissioners do.”

Prayer was for actual general damages in the sum of $10,000, special damages in the sum of $10,000, and exemplary damages in the sum of $5,000.

The defendant answered by various special exceptions, and admitted the publication of the articles above set forth in the Houston Chronicle, especially denied various allegations of the plaintiffs, and pleaded absolute privilege and qualified privilege, in that the articles published constituted a report of the proceedings of a public body charged with public and official duty, with the proper performance of which duty the public was concerned, and that the publications were a fair, true, and impartial account of executive and legislative proceedings, which were matters of record, and that said articles constituted a true and impartial account of a public meeting organized and conducted for public purposes only, and that said articles were a fair comment upon a statement concerning official acts of public officials, published for general information; that the defendant publishes a newspaper, and rests upon the obligation to furnish its readers with a true account of all matters of public interest, and that it endeavored to report concerning E. C. Wegner, Sr., only that which was true and which it believed to be true, and defendant had no purpose in making the publication other than to set forth to its readers what it believed to be the truth; that defendant entertained no feeling of ill will against the plaintiff, and neither it nor any officer nor any employé of defendant had any purpose to do any injury to the said Ernest O. Wegner, Sr.

The case was tried before a jury, which was instructed by the court that they could not predicate any verdict of libel based upon the editorial of December 8, 1912, being the •same set out in the amended petition filed by the substituted plaintiffs after the death of the original plaintiff, Ernest O. Wegner, Sr. The verdict of the jury was for appellees for $2,500 special and $10,000 general damages, and for no exemplary damages. Judgment was rendered in favor of appellees in accordance with said verdict, from which the Chronicle Company has appealed.

Appellant’s assignments 1 to 5, inclusive, insist that the trial court erred in overruling appellant’s special exceptions A. B. C. D. and E. to appellees’ petition, wherein it is alleged that the article published by appellant is libelous, because: (1) It does not appear from said article that any charge is made by the defendant that any person is (or was) on the pay rolls of the city of Galveston; (2) it is not libelous per se, nor can such language be amplified or extended or construed into libel by plaintiffs by innuendo; (3) it is not libelous because it does not charge that any mon•ey was ever paid to the said E. Wegner, Jr., by the city of Galveston or from its funds, or that the city of Galveston ever sustained any loss, or that any of the funds of said city were diverted or applied to the payment of or for the use or benefit of said E. Wegner, Jr., or the said E. Wegner, Sr.; (4) it is not libelous because it alleges no fraud or secrecy on the part of the plaintiff, and does not allege nor convey the meaning that plaintiff was using the services of his son otherwise than for his (plaintiff’s) convenience as his employé, and does not allege that the city of Galveston was in any wise defrauded or attempted to be defrauded; and (5) it is not libelous because it does not purport to be a charge made by the Chronicle Company against E. Wegner, Sr., but simply purports to be, and is, equivalent in law and in fact to a statement that such a charge had been made by another or other person, and that the Chronicle Company only so gave it, neither itself asserted it to be true, nor vouching for the truth thereof.

We will not undertake to consider these various assignments separately, as no good can be subserved in so doing, but will do so in a general way, as they practically present but one proposition; that is, that the alleged libelous article is, in fact, not libelous, and cannot be made so by innuendo averments.

The undisputed evidence shows that no such charge as was stated in said article had been made by any one except the Chronicle Company; that such charge, as published by the Chronicle Company, was untrue; and that appellant gave publication to the same recklessly, in a spirit of wanton indifference, and without reasonable, if any, effort whatever to ascertain the truth or falsity of the communication of its correspondent which contained the false charge before publishing same.

We think the indisputable substance of the alleged libelous article is that E. Wegner, chief of police of Galveston, had been charged with having, contrary to law, placed E. Wegner, Jr. (his son), on the pay rolls of the city of Galveston as his confidential clerk, intending that said E. Wegner, Jr., should draw pay from said city contrary to law. Such being the substance of such publication, it is, we think, unquestionably libelous per se, being admittedly untrue. To constitute such article libelous it was not necessary that it should charge that any money was ever paid to E. Wegner, Jr., by the city, or from its funds, or that it ever sustained any loss, or that any of its funds were diverted or applied to the payment of or for the use or benefit of the said E. Wegner, Jr., as suggested by appellant in its third assignment. A false charge that he had attempted to do the unlawful act alleged or charged was sufficient. Nor was it necessary that the libelous article should state that any fraud or secrecy was practiced by plaintiff, E. Wegner, Sr., or that the city of Galveston was in any wise actually defrauded, a's ! suggested in appellant’s fourth assignment, to constitute libel.

Nor does the fact that the false charge or statement made in said Chronicle simply purports to be a statement or charge made by another or other person, and that the Chronicle only so gave it, and that it neither itself asserted such charge to be .true nor vouched for the truth thereof, relieve such statement of its libelous character, as suggested by appellant’s fifth assignment. Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167; Walker v. Pub. Co., 70 S. W. 558; Cranfill v. Hayden, 97 Tex. 544, 80 S. W. 609; Belo v. Smith, 91 Tex. 225, 42 S. W. 850; Publishing Co. v. Lewy, 52 Tex. Civ. App. 22, 113 S. W. 574; Belo v. Fuller, 84 Tex. 450, 19 S. W. 616, 31 Am. St. Rep. 75; Sanders v. Hall, 22 Tex. Civ. App. 282, 55 S. W. 594.

In Patterson v. Wallace & Frazer, 93 S. W. at page 150, the court said:

“One who publishes a defamatory statement made by another cannot justify [himself] by proving that the other made the statement. By publishing it he becomes responsible for his. own act in so doing, and, if he seeks to justify, he must prove the truth of the charge published.”

And again, quoting from Nicholson v. Rust (Ky.) 52 S. W. 933:

“Nor is it any justification for a repetition of a slander that it had been reported in the neighborhood, or that appellant, at the time he communicated the slander, gave the party to whom he related it the name of the person from whom he learned said report; * *. * and it cannot bo relied on by way of justification that he did not intend to charge appellant with the offense of fornication.”
“It will afford no justification in any action for slander that the defamatory matter had been previously published by a third person, or that the defendant, at the time of his publication, disclosed the name of that third person, and believed all of the statements to be true.” Burt v. McBain, 29 Mich. 260; Newell on Defamation, Slander, and Libel, pp. 354, 355; and authorities above cited.

'In Kelley v. Dillon, 5 Ind. 426, the court said:

“Let it be understood that a bare rumor * * * is sufficient to justify the retailing of slander, and character would be at the mercy of the artful and designing, as such defenses could be * * * manufactured beforehand to suit any emergency.”

Every repetition of a slander is a willful publication of it, rendering the speaker liable to an action. Talebearers are as bad as tale-makers.

We construe the language of the publication complained of to be libelous per se, and that its publication by the Chronicle Company made it liable to the plaintiff Wegner, Sr., for any damages he suffered by reason of such publication. Whether the publication alleged that any moneys belonging to the city of Galveston were paid to Wegner, Jr., or that said city sustained any loss, or in any way suffered actual loss by the unlawful act .wrongfully charged to E. Wegner, Sr., or whether said publication was but a repetition of a charge made by another person, which the Chronicle Company believed to be true, are immaterial questions, especially so as no exemplary damages were recovered in this suit. We therefore overrule said assignments 1 to 5, inclusive.

Appellant insists by his sixth and seventh assignments that the court erred in not striking out so much of appellees’ amended petition as set up the editorial published in said Chronicle on the 8th day of December, 1912, for various reasons stated in its special exception thereto. There is no merit in this assignment, as the court in his charge instructed the jury as follows:

“You are further instructed that you cannot predicate any verdict of libel based upon the said publication of December 8, 1912, by defendant in said Houston Chronicle.”

Such charge in its practical effect was equivalent to sustaining appellant’s said exception. It must be presumed, in the absence of any showing to the contrary, that the jury obeyed the instruction given. Patterson v. Wallace & Flazer, 93 S. W. 146.

The eighth assignment insists that the trial court erred in refusing to give to the jury appellant’s special charge No. 2, which was, in substance, an instruction to the jury to find for the Chronicle Company on the issue of special damages, because there was no evidence authorizing a recovery of special damages, and because the only damages recoverable under the pleadings and proof are embraced on the charge of the court, given under the head of general damages.

When the article upon which the suit is based, is, as in this case, libelous per se, the plaintiff is entitled to recover such general damages as he has sustained thereby without proof other than of the fact of the libel. But, if he would enlarge the recovery beyond the general damages he has sustained, then only it is incumbent upon him to both allege and prove that he has suffered damages. The plaintiffs under the general allegations of damages may, upon proof of a libel per se, recover for injury to his reputation, mental and physical distress, sickness produced by humiliation, etc. These would be the direct result of the publication, and can be recovered for under the allegations of general damages, although not specifically pleaded as such.

In this case the court, in addition to submitting the question of general damages to the jury, submitted as special damages-several items which would properly under the head of general damages, and not special damages, and we think this was technical error, but that it could not possibly have been of harm to appellant, for the reason that after all such items of damages as were allowed under the court’s charge as a whole could have been recovered under the had of general damages, and the fact" that the court erroneously charged on special, and the jury designated some portion of such recovery as special damages, is immaterial. But, if it be conceded that tbe erroneous charge complained of tended to increase the amount of recovery, such error is rendered harmless in view of the fact that this court will require appellees to file with the clerk of this court a remittitur of $5,000 before affirmance. • Belo v. Smith, 40 S. W. 856.

Appellant’s ninth, tenth, thirteenth, fifteenth, twentieth, and twenty-first assignments insist that the trial court erred in instructing the jury on the question of exemplary damages, and in not instructing the jury, at the request of defendant, that no such damages could be recovered. In this case the jury found that no exemplary damages were recoverable; so, if the court erred in submitting the question to the jury, it was harmless error, as the jury found against plaintiff and for defendant upon this issue. We therefore overrule said assignments.

Assignments 11 and 12 complain of the action of the trial court in refusing appellant’s special charges 4 and 5. The substance of these special charges were that the publication complained of was not a charge by defendant that E. Wegner, Jr., was on the city pay rolls. It meant only that it was so rumored or reported, and the language therein was not libelous. The complaints made in these assignments are untenable. The court did not err in refusing to give said charges to the jury. Patterson v. Wallace & Frazer, 93 S. W. 146; Kelley v. Dillon, 5 Ind. 426, supra.

The fourteenth assignment insists that the main charge as a whole is erroneous because It, in effect, peremptorily directs a verdict against the defendant, and nowhere allows the jury to find for the defendant. We think the trial court properly held that the language of the article complained of is libelous per se, and therefore the court correctly instructed the jury to find for plaintiffs such damages as they should find from the evidence E. Wegner, Sr., suffered by reason of such libel, and, so believing, we overrule said assignment.

The same may be said of assignments Nos. 16 and 17 as of assignment No. 14, and for the reasons given for overruling assignment 14 we overrule assignments 16 and 17.

Assignment 18 insists that the trial court erred in defining the meaning of the term “malice,” because there is no evidence tending to prove malice, or any act on the part of the Chronicle Company showing a reckless disregard of the rights of E. Weg-ner, Sr.

We have already shown that the article complained of was published upon the written communication of appellant’s Galveston correspondent without any reasonable inquiry as to the truth of such communication, and that, had such inquiry been made, the falsity of the same would have been disclosed. We therefore conclude that said publication was recklessly made without legal justification or excuse, and in a spirit of wanton disregard of the rights of E. Weg-ner, Sr., and that from such publication malice may be inferred. Cotulla v. Kerr, 74 Tex. 90 and 95, 11 S. W. 1058, 15 Am. St. Rep. 819; JTorke v. Homann, 14 Tex. Civ. App. 670, 39 S. W. 213; Mayo v. Goldman, 57 Tex. Civ. App. 475, 122 S. W. 449; Ellis v. Garrison, 174 S. W. 964; Houston Chronicle Co. v. McDavid, 157 S. W. 224; Reid v. Publishing Co., 158 Ky. 727, 166 S. W. 245.

In Courier Journal Co., 104 Ky. 335, 47 S. W. 229, the court said:

“If, as a matter of fact, the words published were false, and tended to the injury of plaintiff, and were published recklessly, even without special ill will, defendant is equally guilty, and punitive damages may be recovered.”

We therefore overrule the eighteenth assignment.

We overrule the nineteenth assignment for the reasons already given for overruling the eighth assignment.

Assignments 20, 21, 22, 23, 26, and 27 have been considered, and are overruled for reasons given for overruling assignments here-inbefore considered.

The twenty-fourth and twenty-fifth assignments insist that the judgment for $12,500, rendered by the trial court is grossly excessive, and for that reason such judgment should be reversed, and the cause remanded.

After a most careful reading of the entire statement of facts, we have reached the conclusion that said judgment is excessive, and, so believing, it is ordered that the judgment of the lower court be reversed, and the cause be remanded for another trial, unless appellees shall, within ten days from the 25th day of November, 1915, file with the clerk of this court a remittitur of $5,000; but, in the event such remittitur is so filed, then in that event judgment shall be here entered for appellees against appellant for the sum of $7,500.

It appearing to this court that appellees have within the time stipulated in our opinion filed with the clerk of this court a re-mittitur of $5,000, judgment is here entered in favor of aiDpellees against appellant for the sum of $7,500.

On Motion for Rehearing.

In their petition appellees allege that the publication of the said libelous article by appellant injured Ernest O. Wegner, Sr., in his reputation, caused him to suffer pain, anguish, and distress, both mental and physical, and that the same greatly impaired and injured his health, and prayed for $10,000 actual and $10,000 special, and $10,000 exemplary, damages. The court instructed the jury: (1) That the publication complained of by appellees was libelous per se, and that plaintiffs were entitled to recover such general compensatory damages as the jury should find Ernest C. Wegner, Sr., suffered by reason of said publication to Ms character or reputation, and for such, damages as he suffered by reason of mental pain, if any, as the result of said publication; (2) that if the jury should find that by reason of said publication E. 0. Wegner, Sr., was injured and impaired in health, that plaintiffs were further entitled to recover such special damages as the jury might find from the evidence said Wegner, Sr., so suffered by reason of injury and impairment of his health, thus separating the alleged items of damages into two classes. Under this charge the jury found general damages in the sum of $10,000 and special damages in the sum of $2,500.

While appellees have alleged injury to the character and reputation, the mental and physical suffering, and impairment of the health, of said Ernest C. Wegner, Sr., by reason of said publication, and have prayed for both general and special damages, there is no allegation alleging special damages; and as the entire recovery to which appellees were entitled under their pleading could and should have been recovered under a charge submitting the question of general damages only, we held in the main opinion that the learned trial court erred in his charge in separating the different alleged items of damages into two classes, i. e., general damages and special damages, and in authorizing a recovery of general damages for a part of the alleged items of damage, and the recovery of special damages for another item of said alleged damage. But as it is clear that double damage was not authorized by such charge, and could not have been given by virtue of the court’s charge, the mere fact that recovery was permitted for the alleged items separately, when such recovery could have been had under a charge submitting all the items conjunctively, should not be cause for a reversal of the judgment of the trial court, especially so as this court has required a remittitur of $5,000.

Counsel for appellant has filed a motion for rehearing, in which he vigorously and earnestly attacks the holding of the court -referred to, and insists that said charge of the court authorized double damages, and that such double or excessive damages as was probably found by the jury by reason of said erroneous charge cannot be mathematically determined, and therefore the judgment cannot be legally cured by a remittitur of $5,000, or any other sum less than the whole. We think such contention untenable. Suppose the court had added to the items named in the first portion of his charge the further item of “physical pain resulting in the impairment of health,”' which was submitted in the second part of said charge as an element of special damages; would any one insist that it would have been possible that such addition would or could have had the effect to decrease the amount found by the jury as general damages? On the other hand, would not such addition have tended to furnish further reason for the jury to find $10,000 general damages, the full amount prayed for as general damages, as they did find? We think so, and, so believing, we think we can to a mathematical certainty say that such erroneous charge could not have increased and did not increase the amount of recovery found by the jury in any sum in excess of $2,500, and therefore a re-mittitur of $5,000 clearly rendered such charge harmless.

After a review of the cases cited by counsel in support of the motion we have concluded that they are not applicable to the facts in the present case. We are of opinion that when an error has been committed by the trial court which has probably, or perhaps even possibly, caused the rendition of an excessive verdict, and that it is impossible for the appellate court to mathematically determine the sum of such excess erroneously found by reason of such error, article 1631, Revised Statutes, would not apply, and the entire judgment should be reversed, and the cause remanded for another trial. Railway v. Wesch, 85 Tex. 593, 22 S. W. 957; Nunnally v. Taliaferro, 82 Tex. 286, 18 S. W. 149; Electric Co. v. Green, 48 Tex. Civ. App. 242, 106 S. W. 463; Railway Co. v. Bird, 48 S. W. 756.

But when it can be determined by the appellate court what excessive amount had been erroneously found by the jury by reason of an erroneous instruction, as in this case, the court is authorized to cure such error by requiring a remittitur. Railway v. Trawick, 80 Tex. 275, 15 S. W. 568, 18 S. W. 948; Railway v. Bellew, 22 Tex. Civ. App. 264, 54 S. W. 1079; Railway Co. v. Keel Grain Co., 132 S. W. 837; Petroleum Co. v. Townsite Co., 48 Tex. Civ. App. 555, 107 S. W. 609; Old River Irrigation Co. v. Stubbs, 137 S. W. 154. The case of Railway Co. v. Keel Grain Co., supra is one in which the court first ordered a reversal because of erroneous charge, but on motion for rehearing the judgment was affirmed upon appellee’s filing a remittitur, thereby rendering such charge harmless.

After a careful review and consideration of all the assignments in appellant’s motion, and the authorities cited in support thereof, we conclude that the motion should be refused; and it is so ordered.
      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=s>For other oases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J. HARPER, C. J.

license: Public Domain

text:
    GILBERT v. FUHRMAN.
    (No. 511.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 13, 1916.)
    Appeal and Error <&wkey;230 — Presentation op Grounds op Review In Court Below— Necessity.
    Under Rev. Civ. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), requiring the court’s charge to be in writing and to be submitted to the parties or their attorneys for inspection and a reasonable time given for examination, and providing that objections not then made shall be considered waived, defendant, who did not object to the court’s charge before it was given or present appropriate charges, waived any errors, and must be considered as .having adopted the charge.
    [Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. <&wkey;230; Trial, Cent. Dig. §§ 680-682.]
    Appeal from El Paso County Court; A. Pool, Judge.
    Action by S. A. Fuhrman against F. B. Gilbert. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Adolf Hoffman and Del W. Harrington, both of El Paso, for appellant. G. L. & Atlas Jones, of El Paso, for appellee.
   WALTHALL, J.

This suit was filed in the county court at law by appellee against appellant, in which he sought to recover judgment for the sum of $280, alleged to have been stolen from his grip in his room while a guest in appellant’s hotel. Appel-lee alleged that said loss of said money was occasioned through the negligence, carelessness, and default of appellant, in that appellant—

“had no safe or place of deposit in the office of said hotel for the money or valuables of its guests, and no notice, in any way, was given plaintiff by defendant as to depositing money or valuables of guests while plaintiff was abiding at said hotel.”

Appellant denied any knowledge of the fact that appellee had any money in his grip while he was a guest in the hotel; denied a knowledge of the loss of the money; denied that he was guilty of any act of negligence; alleged that while he had no safe for keeping valuables of guests, he had always safely kept valuables of guests when requested so to do; alleged that appellee at no time advised him that he had money in his grip, and made no request of appellant for its safe deposit or keeping. The case was tried to a jury. A verdict was returned in favor of appellee, on which the court rendered judgment in his favor.

Appellant presents four assignments of error, all complaining of the court’s charge. The court gave the following charge to the jury:

“The court instructs the jury that the only issues in this case for the jury to pass upon are the issues whether or not the plaintiff had in his possession $280, in good and lawful money, and whether or not he had the same stolen from the room occupied by him in defendant’s hotel, after plaintiff had locked the door to his room in said hotel and was absent from the same.”

The record filed in this court does not show that appellant, at any time, presented any objection or took any exception to the charge of the court. Article 1971, Revised Civil Statutes 1911, as amended by chapter 59, p. 113, Gen. Laws 33d Leg., requires the court’s charge to be in writing, and by the court submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine it and present objections thereto, and provides that all objections not so made and presented shall be considered as waived. We must therefore conclude that appellant was satisfied with the charge given and the issues therein submitted, and waived any errors in said charge he now offers to present to this court. He should have presented them to the trial court at such time as the statute requires, when the supposed errors, if any, could have been corrected, and when such additional issues as the pleadings and evidence would admit could have been submitted to the jury. As said by the appellate court for the Second district in Stephenville, N. & S. T. Ry. Co. v. Wheat, 173 S. W. 977: “The act is not only explicit, but it is also mandatory in its terms.” It seems to us quite clear that any error in a charge, though fundamental in its nature, can be and is waived by not presenting objections to it within the time and in the manner prescribed by the statute. To hold otherwise would make the statute of no effect.

For the reasons given, we cannot consider any of the assignments of error, and the ease is affirmed.

HARPER, C. J.

(concurring). This suit was instituted by S. A. Fuhrman against F. B. Gilbert, to recover $280 United States money, alleged to have been stolen from plaintiff’s (appellee’s) valise while a guest in defendant’s hotel. The defense was that appellant had no knowledge that appellee had any money; that he, defendant was not guilty of negligence. The cause was submitted to a jury by general charge, and resulted in verdict and judgment for appellee for the money sued for, from which this appeal is taken.

The appellant’s four assignments all complain of the following portion of the court’s charge:

“The court instructs the jury that the only issues of this ease for the jury to pass on are the issues whether or not the plaintiff had in his possession $280 in good and lawful money, and whether or not he had the same stolen from the room occupied by him in defendant’s hotel and was absent from same.”

First. Because it does not instruct the jury that the loss must have occurred by reason of the negligence of the defendant. Second. Because it limits the right to recover to the fact that the money was stolen from the room regardless of whether the defendant was negligent in not having an iron safe or sufficient lock to the door of the room, or keeping sufficient lookout. Third. Because the court charged that the jury were not to consider any evidence of negligence upon the part of plaintiff. Fourth. Because the charge given is tantamount to a peremptory instruction; is therefore fundamental error. The record does not disclose any proper exception to the charge as given, or that there were any special charges prepared and requested by defendant, as is now required by statute, as amended by chapter 59, p. 113, Gen. Laws 33d Leg. There appears in the transcript a statement that the appellant excepted to the charge of the court (no reasons given), which statement is from the stenographer reporting the case. It is not approved or signed by the court, nor does it show that it was urged or presented to the court at the time required by tbe statutes. Therefore, if it was error for the court to fail to instruct the jury that the loss must have occurred by reason of the negligence of defendant, in any respect, or if it was error for the court to charge the jury that they would not consider any negligence upon the part of the plaintiff, the error was waived as provided in the act cited, and as to the fourth, it is apparent from the portion of the charge quoted (and there is nothing in the other portions to the contrary) that the charge was not a peremptory charge as contended for.

I am therefore of the opinion that the assignments should be overruled, and the cause affirmed.
      ^other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    TEXAS & P. RY. CO. v. CONWAY.
    (No. 1548.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 4, 1916.
    Rehearing Denied Jan. 13, 1916.)
    1. Removal ojp Causes '<&wkey;107 — (Remand by Fedeeal Court — Review.
    Where, upon the removal of a cause from the state to the federal court, the latter remanded it, the state court’s jurisdiction to try the cause could not be questioned on the ground that the remand was wrongful, since the action 9f the federal court in that respect is not subject to review by the state courts.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 178, 225-232, 234; Dec. Dig. &wkey;5l07; Appeal and Error, Cent.Dig. § 725.]
    2. Railroads &wkey;>22 — Personal Injuries — Nonresident Plaintiee — Venue.
    Where plaintiff, while a resident of Texas, was injured by defendant railroad’s train, but had moved to another state at the time he commenced his action in Texas, the action was properly brought in a county other than that in which he resided at the time of the injury, and in which the accident occurred, since the provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 26, that a nonresident may sue in any county where the corporation operates its railroad, or in which it has an agent, refers to residence at the time when suit is commenced, and not to the time of injury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 46-50; Dec. Dig. <&wkey;>22.)
    3. Damages i&wkey;>132 — Injured Ehployé — Excessive Damages.
    Where plaintiff employe’s leg was injured by his slipping from the defective footboard of defendant railroad company’s tender, and it appeared that plaintiff was 40 years of age, with an earning capacity of $110 to $175 per month, that the injury would probably disable him from working and would cause him severe mental and physical pain and suffering for life, and that he was likely to die at any moment, a verdict of $20,000 was not so excessive as to indicate that the jury was influenced by other than proper motives in arriving thereat.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. &wkey; 132.]
    4. Master and Servant <&wkey;297 — Personal Injury — Findings—Consistency.
    Where, in an action for such injuries, the jury found that plaintiff’s duties required him to use the footboard, but that proper attention to such duties would not have caused him to observe its defective condition, such findings were not necessarily contradictory.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. &wkey;297.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by E. J. Conway against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    This was a suit by appellee against appellant for damages for personal injury suffered by him, in which judgment was rendered in his favor for $20,000. It was commenced in the district court of Harrison county, from which, on application of appellant, it was removed to the United States District Court for the Eastern District of Texas, which, on motion of appellee, remanded it to the court in which it was commenced.
    It appears from the record that during the night of April 3, 1914, appellee, in the performance of his duty as a switchman in appellant’s yards at Bonham, stepped upon the footboard attached to the tender ofl the engine then being used in switching cars. The footboard should have been level, but, instead, as the testimony conclusively showed, it was “very badly bent towards the ground,” which “gave it a slanting position.” Because of the position of the board, appel-lee’s foot slipped from and went under it when he stepped upon it. He testified:
    “In attempting to get on the footboard my left leg was caught between the footboard and the rail. My left hand was a hold of the grabiron on the flat car. My right hand was going everywhere trying to catch something. My left knee and leg was inside the rail, and my foot dragging on the ties. The footboard caught my knee, and was pressing my knee against the rail. I was dragged in this position, as near as I could estimate, about 70 feet. I realized at the time the danger-1 was in. It was hold on or get killed. I certainly realized the situation. I held on the best I could to the flat car with my left hand. I knew that I was in danger. but couldn’t tell what would be the result. My strength held out, and I didn’t get hung up on anything to tear my hold loose. I was a very strong man and had a very strong arm, and that was the only thing I had to rely on. It inflicted severe injuries on my leg. It sprained the left knee and ankle, and also my side, and caused a sprain of the shoulder. I could not raise the shoulder for several days. On the outside of the left knee the skin was scratched off and showed the white bone in one place, a cut across the cap here and one here. The right shin had a four-inch skin wound across it, and the big toe there was bruised on the right foot. The wheel caught the shoe here and the shoe bursted. The ligaments and muscles were twisted and torn. It twisted my leg like a rope. When my right foot came loose it threw me back down and left me hanging with one hand. My left leg was fastened between the rail and foot board, and was twisted.”
    The judgment involves findings, and we find that appellant, as charged against it, was guilty of negligence, which was a proximate cause of the injury to appellee, in that it permitted the footboard to become and be out of repair as stated above; that the risk appellee incurred in stepping upon the foot-board as he did was not one he assumed; and that he was damaged in the sum of $20,-000.
    F. H. Prendergast, of Marshall, for appellant. S. P. Jones and, T. P. Harte, both of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). After the cause was remanded by the federal to the state court, appellant insisted that the latter conrt thereby did not acquire jurisdiction to try it, because, it asserted, the federal court had power to try it, and therefore had no right to remand it to the state court; and further insisted that because the injury to appellee occurred in Fannin county, where he at the time resided, he must have commenced his suit in that court, and did not have a right to sue in Harrison county. The action of the court below in overruling these contentions is made the basis of the first and second assignments.

So far as the first of the two contentions is concerned, it is enough to say that the action of the federal court in remanding the cause is not subject to revision by this court. Telegraph Co. v. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 869.

It conclusively appeared (1) that appellee was injured in Fannin county, Tex., and that he resided in that county at the time he was injured; and (2) that he resided in Oar-roll county, Ark., at the time he commenced his suit. Therefore, whether the second of the two contentions should have been sustained or not depends, first, upon whether subdivision 26 of article 1830, Vernon’s Statutes, should have been so construed as to require him to sue in said Fannin county, or whether it should have been so construed as to authorize him to sue as he did in Harrison county, Tex.; and, second, upon whether, if he must have sued in Fannin county, it appeared that appellant had waived its right to insist that he do so.

The subdivision of article 1830 referred to is as follows:

“All suits against railroad corporations, or against any assignee, trustee or receiver operating any railway in the state of Texas, for damages arising from personal injuries, resulting in death or otherwise, shall be brought either in the county in which the injury occurred, or in the county in which the plaintiff resided at the time of the injury; provided, that if the defendant railroad corporation does not run or operate its railway in or through the county in which the plaintiff resided at the time of the injury, and has no agent in said county, then said suit shall be brought either in the county in which the injury occurred, or in the county nearest that in which the plaintiff resided at the time of the injury, in which the defendant corporation runs or operates its road, or has an agent; and provided, further, that, in case that the plaintiff is a nonresident of the state of Texas, then such suit may be brought in any county in which the defendant corporation may run or operate its railroad, or may have an agent; provided, that, when an injury occurs within one-half mile from the boundary line dividing two counties, suit may be brought in either of said counties.”

It will be readily seen that if the language used in the proviso, to wit, “in case the plaintiff is a nonresident of the state of Texas,” refers to the time when he commenced his suit, and not to the time when he was injured, appellee had a right to sue in Harrison county; for he was then a nonresident of this state and appellant then operated its line of railway and had an agent in that county.

Before the enactment of the subdivision set out above of article 1830, a person having a cause of action for damages for personal injury against a railroad company, without reference to whether he was a resident or nonresident of this state, might have sued thereon in any county in which the company had an agent or into which its line of railway extended. Subdivision 24, art. 1830, Vernon’s Statutes. The effect of the enactment of subdivison 26 was to so limit the right of a resident of this state having such a cause of action as to require him to sue thereon in the county where he was injured, or in the county where he resided when he was injured, unless the company did not have an agent or did not operate its line of railway there, in which event he was authorized to commence his suit in the county where the company had an agent or operated a line of railway nearest the one in which he resided at the time he was injured. The main purpose of the enactment of subdivision 26 seems to have been to so limit a resident plaintiff’s right; for the right of a nonresident of the state having such a cause of action to sue thereon in any county in the state where the company had an agent or where it operated a line of railway not only was not thereby in any way limited, but, on tbe contrary, was expressly affirmed. Why the Legislature thought it proper to discriminate against a resident of this state having a cause of action for damages for personal injury against a railway company, by limiting a right it conferred without limitation upon a nonresident having such a cause of action, is not disclosed by anything appearing in their enactment. But that they did so. is plain. As before the enactment of subdivision 26 a nonresident, without reference to whether he had ever been a resident of the state or not, and without reference to the county in which he was injured, might have commenced a suit for damages for personal injury he had suffered in any .county where the company had an agent or operated a line of railway, we see no reason why a statute expressly affirming such a right in a nonresident should be construed as denying it to him because he was a resident of the state at the time the cause of action arose in his favor. There is nothing in the statute indicating that the Legislature intended to discriminate between nonresidents by denying to one who had removed to another state a right it conferred upon one who had never resided here. On the contrary, the language used in the statute indicates, we think, that it was intended to apply in favor of all persons who were nonresidents of this state at the time they commenced suit against a railway company for damages for personal injury suffered by them in this state. Being of opinion that appellee, because a nonresident of the state of Texas at the time he commenced his suit, had a right to commence and prosecute it in Harrison county, where appellant had an agent and operated a line of railway, it is not necessary, as it would be if we were of a contrary opinion, to determine whether appellant had waived a right it would then appear it had to have the cause tried in Eannin county.

In the third and fourth assignments the verdict is attacked on the ground that it is excessive. It is not pretended that there is anything in the record, except the amount of the verdict, indicating that the jury in assessing the damages were influenced by other than proper motives. When the injury the jury had a right to believe from the testimony appellee suffered is kept in mind, we do not think the amount of their verdict indicates that their judgment was controlled by any other consideration than an honest desire to discharge their duty by. awarding to appellee a sum which would compensate him for the injury he sustained. At the time he was injured, appellee was 40 years of age and had an earning capacity of from $110 to $175 per month. The jury had a right to believe from the testimony that the injury he sustained probably would permanently disable him from engaging in remunerative labor. Moreover, they had a right to believe he would suffer severe physical and mental pain as a consequence of the injury as long as he lived, and that as a fur- ■ ther consequence thereof he was liable to die at any moment. They might very well, we think, have concluded that the condition the injury left him in was worse than it would have been had he lost his leg entirely as a result thereof.

Special issues were submitted to the jury. Among them were two, as follows:

(1) “Did Conway’s duties require him to use the footboard on the engine in performing his regular duties?” The jury answered that they did.
(2) “If Conway had given attention to the duties required of him in performing his duties, would he have observed the condition of the footboard?” The jury answered that he would not.

In propositions under the fifth, sixth, and seventh assignments the findings set out above are attacked on the ground that they contradict each other; and the second of the two is further attacked on the ground, it seems, that it was without support in the testimony. We do not think the findings are necessarily contradictory. The jury doubtless meant by the first that it would have been appellee’s duty, had an occasion requiring him to do so arisen, to use the foot-board; and by the second that in the discharge of his duties on the night when he was injured it had not been necessary for him to use the footboard before he stepped upon and slipped off of it, and he had not been called upon to observe, and therefore did not know, its condition. Appellee testified that he did not know the footboard was bent until after he was injured. The jury, we think, might very well have concluded that in giving the attention he should have given to the duties he was engaged in performing, and not having had occasion before he was injured to use the footboard, as he testified was true, he would not have discovered its condition.

The judgment is affirmed.
      ©u^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    AMERMAN et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 6990.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 17, 1915.
    Rehearing Denied Jan. 13, 1916.)
    1. Boundaries <@=»20 — Lot on Platted Street — Vacation—Title in Street.
    Where one of plaintiff heirs sold to defendant railroad company her lot abutting on a platted, but unopened, street, the conveyance being after an ordinance was passed by the city giving defendant the right to construct buildings and tracks over and across all streets crossing its yards, within which the lot in question was embraced, defendant acquired title to the middle of such street in front of the lot, since neither the existence of the street nor the rights of abutting owners thereon were' affected by the city’s abandonment of any rights it may have had therein.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 123-130, 132; Dec. Dig. <©=o20.]

      2. Dedication <®=>65 — Streets — Abandonment-Reversion.
    Where, in a partition of land among heirs, the tract was platted, reserving a strip for a street upon which the allotments were made to abut, but the street was never opened, and the city afterwards abandoned its rights therein by an ordinance granting a railroad company the right to erect buildings and tracks thereon, the absolute fee did not thereby revert in common to the heirs, since their vested abutting rights as distributees were not dependent upon whether the public accepted the dedication of the street, or abandoned its rights therein.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 103; Dec. Dig. <S¿»65.]
    3. Eminent Domain <@^317 — Abutting Lot —Condemnation—Title in Street.
    The condemnation by the railroad of other of such lots also passed title to the middle of such street, though the property was described in the proceedings simply by lot and block number, since the description which in a deed would include the vendor’s rights in a street is sufficient to pass title thereto in condemnation proceedings.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 834-840; Dec. Dig. <§=> 317.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Mary F. Amerman and others against the Missouri, Kansas & Texas Railway Company of Texas, to try title to real estate. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Fisher, Campbell & Amerman, of Houston, for appellants. Baker, Botts, Parker & Garwood and Walter H. Walne, all of Houston, for appellee.
   PLEASANTS, C. J.

This is an action of trespass to try title brought by appellants against the appellee. The land involved is a strip 40 feet wide and 522 feet long out of a tract of 13 acres in the John Austin -survey in the city of Houston, known as the G. W. Collings tract. The plaintiffs in the court bielow were Mrs. M[ary F. Amerman, a daughter of G. W. Collings and his wife, Catherine, both deceased, and C. J. Collings, C. B. Collings, and H. A. Collings, children of a deceased son of said G. W. and Catherine Collings. Pending the suit G. E. Col-lings- died, and the heirs made themselves parties plaintiff. The 13-acre tract, of which the strip of land in controversy is a part, was the homestead of G. W. -Collings and Catherine 'Collings. G. W. Collings died in 1889, leaving a will by which the 13-acre tract was bequeathed to his wife, Catherine. Mrs. Collings died intestate in 1890. After the death of Mrs. Collings her daughter, Mrs. A. E. Conn, brought suit for partition of her mother’s estate. All of the parties at interest were parties to this suit, in which a final decree of partition, to which all parties agreed, was rendered. By this partition decree the 13 acres* of land was subdivided into blocks A, B, C, D, and E, and block ’D was further subdivided into lots numbered from 1 to 8, inclusive. As shown on the plat accompanying the report of the commissioners- of partition, and which is referred to and made a part of the decree, a street 40 feet in width was reserved and designated between blocks C and D and block A. This street, which is the land in controversy, connected with Montgomery avenue, one of the principal streets of the city of Houston, and was named and designated on said plat as Pearl or Third street. A copy of this-decree of partition with the accompanying map or plat was duly recorded in the deed records of Harris county on June 24, 1891. By this decree subdivision or block A, which extends along Pearl street on its southeast side, was allotted to Mrs. Conn, subdivision or block D. which extends along the northwest side of Pearl street, was allotted to G. E., C. J., and H. A. Collings, who were then minors, and subdivision or block C, which lies immediately west of block D, and also extends- along Pearl street, was allotted to plaintiff Mrs. Amerman. In 1892 the ap-pellee railway company purchased from the remote vendee of Mrs. Conn subdivision A., allotted to her by said partition decree, and also purchased that portion of subdivision C, alloted to Mrs. Amerman by said decree, which abuts upon and extends along said Pearl street. By condemnation proceedings, in which the petition was filed July 16, 1892, and final judgment rendered October 8, 1892, appellee acquired for railway and depot purposes lots 1 to 8, inclusive, in subdivision D, alloted to G. E., C. J., and H. A. Collings by said partition decree. The parties last named were parties defendant in this condemnation proceeding. On June 20, 1892, the city council of the city of Houston passed an ordinance which authorized the railway company to construct such tracts and erect such buildings as it might find necessary over and across all parts of streets which might cross or intersect its depot, s-hop, or yard grounds between Montgomery avenue and White Oak bayou. Pearl street was one of the streets included in the boundaries named in said ordinance and to which it referred. The deed from Mrs. Amerman to appellee, conveying that portion of subdivision C lying along Pearl street, was executed subsequent to the passage of this ordinance. It is not shown that Pearl street was- ever opened or used as a public street of the city of Houston. All of the deeds under which appellee holds title to subdivision A, allotted to Mrs. Conn in said partition suit, refer to said partition decree, and call for Pearl or Third street as one of the boundaries of said subdivision, and appellants concede that by said deed appellee acquired fee-simple title to one-half of said street. The deed from Mrs. Amerman to appellee also calls for the north line of Pearl or Third street, and refers to said partition decree. The petition in the condemnation proceedings and the final judgment rendered therein describes the land condemned as:

“All of lots 1, 2, 3, 4, 5, 6, 7 and 8 of block D of the subdivision of the Golfings 13 acres.”

The questions presented by this appeal are thus stated in appellants’ brief:

“(1) Did the deed from Amerman to the railway company convey the title of the owners to the center of Pearl or Third street? (2) Did the condemnation of ‘lots 1, 2, 3, 4, 6, 6, ’7 and 8, in block D,’ in like manner pass title to the owners to the center of the street?”

At the outset appellants conceded that the railway company should recover the east half of Third or Pearl street, and this appeal affects only the west half of Third or Pearl street.

Appellants’ contention that the Amerman deed did not pass title to appellee to the center of that portion of Pearl street upon which the property described in said deed abuts is based upon the proposition that, because the city had released its rights in the street prior to the execution of said deed, the street had ceased to exist, and therefore the general rule that the conveyance of property bordering on a street or public highway, which calls for such street or highway, passes title to the vendee to the center of the street or highway is not applicable. The contention is not sound. The abandonment by the city of any rights it may have had in said street in no way affected the existence of the street. The rights of all persons owning property abutting thereon or adjacent thereto, and who held under conveyances referring to and calling for said street to keep the street open was not dependent upon whether the public accepted the dedication or abandoned its rights thereto; Oswald v. Grenet, 22 Tex. 94; Wolf v. Brass, 72 Tex. 133,' 12 S. W. 159. This street was reserved in said partition proceedings for the benefit of the parties to whom the abutting blocks were allotted, as well as for the public, and the title to the center of the street vested in the persons to whom such blocks were allotted by the decree, regardless of any rights therein that may have been conferred upon the public by the record of the map or plat and the decree of partition, and it necessarily follows that the release by the city of its rights in the street did not have the effect of destroying the street as an easement, and Mrs. Amerman’s deed, made after the city had released its rights in the street, conveying block C to appellee, in which the street is referred to and called for, was just as effective in passing her title to the center of the street as it would have been if it had been made before the release by the city.

What we have said in regard to the effect of this deed applies equally to the judgment in the condemnation proceedings. But appellants further contend that the judgment in the condemnation proceedings did not give appellee any right in that portion of the street upon which the lots condemned abutted, because the description of the property in the petition for condemnation and in the condemnation decree was not sufficient to include the rights of the owners of the property in the street. We cannot agree with appellants in this contention. The authorities sustain the proposition that a description which would be sufficient in a deed to include the¡ vendor’s rights in a street upon which the property conveyed by the deed abuts would be sufficient in a condemnation proceeding to subject to the purposes for which the condemnation was had the owner’s rights in the adjoining streets. We find no case in this state directly in point, but the authorities from other jurisdictions are abundant. In Railway Co. v. Patch, 28 Kan. 470, the Supreme Court of Kansas, in an opinion by Justice Brewer, speaking of the effect of the condemnation of lots fronting upon a street and described in the condemnation proceedings by lot and block number only, say:

“The report of the commissioners shows that they appraised the lots, naming them, without any survey or any special indication as to what was embraced by the terms ‘lots so and so.’ Now, the defendant in error contends that the portions of the street in front of her lots became her property upon the passage of the ordinance vacating the street, precisely as though the previous owner had conveyed to her by deed. That as the commissioners did not appear to have appraised that property, as it was not named in nor covered by their report, she is entitled to an injunction restraining the company from occupying such part of herprop-erty.”

The landowner’s application for an injunction was refused. Judge Brewer holding that condemnation proceedings were included within the term “any conveyance,” the opinion concluding with this language:

“Under these circumstances we think it fair to consider that it [the street] becomes, as it were, a part of the lot — something in the nature of an accretion to it — and,' if so, then any conveyance of the lot takes with it this attached portion of the vacated street.”

In the case of Challis v. Depot Co., 45 Kan. 398, 25 Pac. 894, the same court says:

“By the condemnation proceedings, the company acquired the perpetual use of the lot, a use which in its nature practically excludes any other use or occupancy. Through the appropriation of the lot, the company acquired the incidental and appurtenant rights in the street, and, upon the legal vacation of the street, that portion situated in front of lot 1 temporarily became, as it were, a part of the lot, and passed to the company.”

In the case of Railway Co. v. Miller, 172 Mich. 201, 137 N. W. 555, the Supreme Court of Michigan holds that under condemnation proceedings, in which the property was described as “lots number 259 and 263 of the subdivision of part of private claim 473, known as the Stanton farm, as per plat recorded in Liber 47 of Deeds, pages 558-559, Wayne County Records,” the Railway Company acquired the rights of the owners of ‘the property in the street upon which the lots abutted. The court says:

“While the owners of the lots in question had undoubted rights in the street in front of said lots, the condemnation by the jury of the lots themselves includes all rights in the ways appurtenant thereto. Cincinnati, etc., Ry. Co. v. B. C. etc., Ry. Co., 106 Mich. 473, 64 N. W. 471.”

In the case of Witt v. Railway Co., 38 Minn. 122, 35 N. W. 862, the Supreme Court of Minnesota says:

“As respects lots 8, 9, and 13, the trespasses complained of consisted in excavations or embankments caused to be made by the company in that half of the street in front of and next adjoining the lots. By the descriptions under which the lots were condemned and appropriated, the company took presumptively to the center of the street; and, subject to the rights of the public, the defendant may enter upon and may use that portion of the street, so acquired for its improvements, just as it may use and occupy any other portions of the lots in question. Under a description of village lots eo nomine, as platted, the land in the street passes as parcel of the lots, and not as appurtenant. In re Robbins, 34 Minn. 99, 24 N. W. 356 [57 Am. Rep. 40]. And under that description, the title, right, or interest acquired, whatever it be, in the street is presumed to be included in the estimation of the value of damages in the condemnation proceedings, and such estimation is usually deemed to be the value of the lot as described, whether in such proceedings, under railway charters, the company requires the fee or the land for its corporate purposes only. Robbins v. Railroad, 22 Minn. 287. No damages were recoverable by plaintiff for the alleged trespasses to these lots.”

■ The proposition also finds support in the following cases: Railway Co. v. Mims, 71 Ga. 242; Railway Co. v. Reading Paper Mills, 149 Pa. 18, 24 Atl. 205; Illyes v. Light & Power Co., 175 Ind. 118, 93 N. E. 670; Railway Co. v. Brewing Co., 174 Ill. 548, 51 N. E. 572. We think the rule announced in these cases is sound and should be followed by our courts.

It has been unnecessary to discuss appellants’ assignments in detail. The questions above discussed are the only material questions raised by the appeal.

It follows from the views above expressed upon these questions that the judgment of the court below should be aiiirmed; and it has been so ordered.

Affirmed.
      ^=)For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

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


text:
    HARDEE v. ALEXANDER.
    (No. 6994.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 2, 1915.
    Rehearing Denied Dec. 23, 1915.)
    1. Tenancy in Common <&wkey;38 — Mutual Rights oe Tenants — Acquisition oe Whole Title — Pleabing.
    Pleadings held insufficient to remove a transaction by one of two tenants in common from the rule that a tenant in common who discharges an incumbrance against the common property acquires only an equitable lien, and not the whole title.
    [Ed. Note. — Eor other cases, see Tenancy in Common, Cent. Dig. §§ 100-104, 107-118; Dec. Dig. <@=»38J
    2. Tenancy in Common <&wkey;33 — Mutual Rights — Agkeements eob Default.
    Where an agreement of tenants in common was that in case of default by either in payments for the common property the one paying should take the whole title, the forfeiture could not be effected unless one party defaulted in all payments due by him, since any other construction would be inequitable.
    [Ed. Note. — Eor other cases, see Tenancy in Common, Cent. Dig. § 25; Dec. Dig. <&wkey;33.]
    3. Equity <&wkey;65 — Tenancy in Common <&wkey; 33 — Mutual Rights — Equitable Relief.
    Where a tenant in common refused to permit a sale of the property to which he had agreed, thereby preventing his cotenant from making payments, he could not have the equitable relief of forfeiture of his eotenant’s interest to him under their contract providing for forfeiture of the rights of either to the other in case of default in payments, under the maxim that he who comes into equity must come with clean hands.
    LEd. Note. — For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. &wkey;>65; Tenancy in Common, Cent. Dig. § 25; Dec. Dig. i&wkey;> 33.]
    Error from District Court, Harris County; Norman G. Kittrell, Special Judge.
    Action by O. A. Alexander against Mrs. V. D. Hardee. From a judgment for plaintiff, defendant brings error.
    Reversed and remanded. ■
    Stevens & Stevens and A. R. & W. P. Ham-blen, all of Houston, for plaintiff in error. M. G. Fakes, of Houston, for defendant in error.
   PLEASANTS, C. J.

This suit was brought by appellee against appellant to have the title conveyed to defendant by two deeds executed to plaintiff and defendant, and conveying to them two tracts of land aggregating 744 acres, declared a trust in favor of plaintiff and have said title vested in plaintiff.

Plaintiff’s petition alleges, in substance, that in March, 1911, he and the defendant agreed to purchase and did purchase a tract of 300 acres of land from the First National Bank of yictoria, Tex., for the consideration of $227 in cash, and $207.11 to be paid in 6 months, $207.12 to be paid in 12 months, $021.37 to be paid in 24 months, and $621.40 to be paid in 36 months, and also purchased from the firm of A. Levi & Co. a tract of 444 acres of land, the consideration being $321 in cash, and the following deferred payments, to wit: $292.S9 payable in 6 months, $292.18 payable in 12 months, $878.63 payable in 24 months, and $878.60 payable in 36 months; that all of said notes for the purchase price of said two tracts of land were executed by the plaintiff and defendant jointly, and were secured by a lien upon fhe land, and bear 8 per cent, interest per annum, interest payable semiannually; that at the time of the purchase of said tracts of land on the 11th of March,' 1911, the plaintiff and defendant entered into a written agreement by the terms of which the plaintiff was to make the cash payment, and the defendant, Mrs. V. D. Hardee, was to take care of the first note for $500 due in 6 months, and that the remaining notes should be paid equally by the plaintiff and defendant; that the deeds to the property above set forth were taken in the joint names of plaintiff and defendant; that in case either party should default in their payments as aforesaid the party paying would derive all of the benefits from the purchase of the lands. The plaintiff further alleged that the defendant had made no payments upon the land, and that she had cut timber therefrom of the value of $105, for which she had made no accounting, that the plaintiff has paid all of the notes to the First National Bank, with the exception of the last note of $621.40, and that he has paid all of the notes which were executed to A. Eevi & Co., with the exception of the last note due them for $878.60, upon which he has paid $478.63. Plaintiff further alleged that whatever interest is shown on the face of said deeds, which were executed jointly to himself and Mrs. V. D. Hardee, as being vested in her, that the same is held -by the latter. in trust for the plaintiff, and that the same constituted a dry trust, making now a full title in plaintiff to all of the lands. The plaintiff, in his petition, estimated the value of the land at $7 per acre. He prayed that the deeds, in so far as they were shown to vest any title in the defendant, Mrs. V. J>. Hardee, be construed in favor of the plaintiff as being held by the defendant in trust, but that, in the event the defendant should have to pay any part of the notes outstanding against the lands so conveyed, the defendant be subrogated to all the rights in and to said notes as against said land. Plaintiff further asked for a personal judgment against the defendant for the value of the timber alleged to have been cut by her.

The defendant answered by a general demurrer and by special exceptions, setting up that the plaintiff was attempting to forfeit all of the rights of the defendant without placing the latter in statu quo, and further excepted to plaintiff’s petition because it appeared therefrom that the plaintiff and the defendant were tenants in common, and that the plaintiff was seeking to forfeit the entire interest of the defendant in the land in controversy in violation of the equities which obtained between tenants in common. The answer admits the allegations of the petition as to the purchase price of the land, the execution of deeds to plaintiff and defendant, and the execution by them of the notes given for the purchase money. It denies that these notes have been paid by plaintiff, and also denies that the agreement between plaintiff and defendant was as alleged by plaintiff. (A copy of this agreement was attached to the answer and will be hereinafter set out.) The defendant further answered as follows:

“Defendant admits that she received about $100 stumpage on account of timber cut from said land, but alleges that this timber, together with an additional quantity of the value of $150, was cut by one Walker with the knowledge and consent of the plaintiff; that before she collected any of the amounts for said timber, and that after she collected the amounts due for said timber, she tendered the same to the plaintiff, who declined to receive the same; that the plaintiff agreed to collect the remaining amount of $150 due for said timber on an order from the defendant, but afterwards declined to do so, 'wherefore this defendant says that plaintiff has been negligent in failing and refusing to collect, according to the agreement, the said fruits and revenues of said land, amounting to the sum of $150, and applying the same to the purchase money of said land. In this connection the defendant denies that she refused to make any accounting of the sale of said timber to the plaintiff, or declined to pay him for the same, but that, on the contrary, the plaintiff, under the pretended claim that, if he should accept or collect any of the stumpage due by said Walker for cutting said timber, he would thus recognize defendant’s interest in said land; whereas, as a matter of fact, the plaintiff has at all times recognized the interest of defendant in said land until he attempted to forfeit her rights by bringing this suit.
“This defendant says that she has not sufficient knowledge of which to form a belief as to the plaintiff having made great sacrifices in order to pay off the notes described in his petition, and this defendant denies that she is attempting to hold on to the deeds and abstract of title, and here now tenders the same into court to be delivered to the plaintiff.
“This defendant alleges that she performed valuable services in acquiring said land for the joint benefit of the plaintiff and herself at the price of $5 or $6 per acre; that said land at said time was worth much more than $5 or $6 per acre, and it is now of the value of not less than $10 per acre; that for this court to forfeit the interest which this defendant has in said land as a cotenant and her interest in the increased value thereof would be inequitable.
“Defendant alleges that she and the plaintiff purchased the land in controversy as tenants in common, and that, while the plaintiff may have paid more of the purchase price of said property than has been paid by the defendant, nevertheless the defendant was instrumental in acquiring said land at a price much less than its real value, to wit, approximately $5 or $6 per acre; that about the- day of --•, 1912, this defendant, with the concurrence of the plaintiff, procured a purchaser for the timber upon said land at the sum of $1,500, the purchaser being one Haralson; that the plaintiff agreed that the purchase price for said timber was to be paid by said Haralson either in cash or one-third cash, and the balance to be paid in installments, and that said purchase money for said timber should be applied to the retirement of the vendor’s lien notes outstanding against said land, which are described in plaintiff’s petition; that, after defendant had obtained the sanction of the plaintiff to make the deal for said timber at said price and terms, she succeeded in getting the said Haralson to purchase the same, but that the plaintiff, disregarding his agreement to sell said timber, refused to comply with the same; that after-wards, to wit, on the-day of March, 1914, the defendant obtained the plaintiff’s consent to sell said timber upon the said land to A. E. Kerr and J. J. Balderack, of Dayton, Tex., for the sum of $1,700, it being understood that the said purchase money for said timber should be applied to the extinguishment of the said vendor’s lien notes outstanding as aforesaid against said land, but that after this defendant had procured the said Kerr and Balderack as purehas-ers at the price named the plaintiff refused to comply with his agreement and to apply said purchase money for said timber to the payment of said notes; that either of the aforesaid sales of said timber would have been advantageous and a good price for the same, and would have enabled this defendant to have participated in the payment of said notes by using the fruits of said land for that purpose; that the plaintiff by his act in failing to comply with either of his aforesaid agreements to sell the said timber prevented this defendant from paying per pro rata of the purchase price of said land to the extent in the first instance of $700, and in the second instance to the extent of $850; that the timber on said land is not of much value, for the reason that it is known as ‘cut-over land’; that it would have been good business judgment to have closed the deal for said timber under either one of the propostions and agreements above set forth; that the plaintiff, in refusing to join the defendant in selling said timber as aforesaid, and in failing to comply with his agreement to sell the same, as above set forth, prevented the defendant from acquiring her interest in said land in the way of the fruits and revenues thereof to the extinguishment of said vendor’s lien notes.
“■Wherefore the defendant says that the plaintiff is not entitled to ask for contribution against her to the extent of one-half of the value of the purchase price of said timber as aforesaid, and of this she puts herself upon the country.”

The court overruled the defendant’s exceptions to the plaintiff’s petition touching the right of the plaintiff as tenant in common to forfeit the interest of the defendant without placing her in statu quo and adjusting the equities between the parties, to which action of the court the defendant excepted.

The case was tried before the court without the intervention of a jury; the court finding that the plaintiff was entitled to recover on all the matters as set out in his petition against the defendant.

The judgment of the court further “finds that the plaintiff and defendant purchased jointly the lands described in plaintiff’s petition, and that at the time of taking the deeds to the lands the plaintiff and defendant entered into an agreement under which, if either party failed to meet his or her part of the obligation, the other should derive all benefit therefrom; the defendant binding herself to pay off the first notes. The court finds as a matter of fact that said defendant has never paid any portion of any of said notes, either principal or interest; that she has not paid anything toward getting several of the notes extended for which the plaintiff has been compelled to pay bonuses; that plaintiff has borne the whole burden of paying off and carrying said notes; that, as set out in said plaintiff’s petition, he has paid off all the indebtedness due against said lands aforesaid, with the exception of the last note for $621.40, due the First National Bank of Victoria, and some $1,200 due on the third and fourth notes given A. Levi & Co.
“The court further finds that the defendant has unlawfully appropriated $100 for wood sold off aforesaid lands.
“Wherefore it is ordered, adjudged, and decreed by the court that all title in and to aforesaid lands above set out as vested in the defendant herein be divested out of her and vested in the plaintiff, C. A. Alexander, and he have all and full title thereto.
“It is further ordered, adjudged, and decreed by the court that said defendant, O. A. Alexander, shall pay off all the balance of the outstanding notes given for said land, he assuming all liability thereon; that in the event that said plaintiff shall fail to pay off any portion of said notes that she, the defendant, shall be subrogated to all the rights in and to said notes as against said land, and as agains-„ said plaintiff, in proportion to any moneys she may have to pay thereon.

“It is further ordered, adjudged, and decreed by the court that the plaintiff have judgment over against said defendant for $100, and for all costs of this suit.”

At the time the land was purchased plaintiff and defendant executed the following agreement:

“Witnesseth that in the purchase of seven hundred and fifty-eight acres (758) of land out of the north half of the Reason Green survey, Liberty county, Texas, from A. Levi & Co. and the First National Bank of Victoria, Texas, for a consideration of forty-five hundred and forty-eight ($4,548.00) dollars, payable as follows: Five hundred and forty-eight ($548.00) dollars cash, and the balance on the following terms, to wit; One note due and payable in six months for five hundred ($500.00) dollars; one note due and payable in twenty-four months for fifteen hundred ($1,500.00) dollars; and the last note due and payable in thirty-six months for fifteen hundred ($1,500.00) dollars. All notes dated from date of deed, interest eight (8%) per cent., payable semiannually.
“It is understood and agreed that the said C. A. Alexander, party of the first part, is to make the first cash payment of five hundred and forty-eight ($548.00) dollars on the said land, and the said V. D. Hardee is to make the payment of first note due and payable in six months for five hundred ($500.00) dollars. The balance of said payments are to be paid when due equally by the said Alexander and Hardee, and all interest that may accrue. It is understood and agreed that, in case either party defaults in payments on their part of this contract, the one paying will derive all benefits therefrom.
“It is further understood and agreed that the said O. A. Alexander, party of the first part, is to sign deed for any amount over and above the total costs of said land to the said Alexander and Hardee at any time the said V. D. Hardee finds purchaser at price agreeable to her; all profits to be equally divided on sale of this land, after deducting all expenses.
“The purpose of this written agreement is to show that we, the said Alexander and Hardee, purchased this land for speculation purposes only.”

Defendant has paid no part of the purchase-money notes given for the land, and plaintiff has paid all of said notes except those mentioned in the judgment of the court, aggregating the sum of $1,821.40; $600 of the amount paid by plaintiff was with borrowed money secured by deed of trust on the land, the amount still due on the land being between $2,400 and $2,500. The evidence shows that the land has enhanced in value since its purchase by plaintiff and defendant for $6 per acre, and is now worth $8 to $10 per acre. The undisputed evidence further shows that prior to the institution of this suit defendant, with plaintiff’s consent, had contracted to sell the timber upon the land for $1,750, and had arranged to borrow on the land enough additional money to pay off the outstanding purchase-money notes. At that time a suit of trespass to try title, brought by plaintiff against the defendant, for the land, was pending in Liberty county. When the time came to carry out the arrangement before stated which liad been agreed to by plaintiff, tlie parties wlio were to purchase the timber and furnish the money to pay off the vendor’s lien notes demanded that plaintiff dismiss his Liberty county suit. This he refused to do, and as a result defendant was unable to consummate her arrangements for the sale of the timber and loan of the money to take up the vendor’s lien notes.

Plaintiff very candidly testifies to this agreement, and gives his reasons for refusing to carry it out. He says:

“I agreed last March with Mrs. Hardee to sell the timber to Mr., Balderack for $1,750, but he refused to accept it; and I agreed then to apply the proceeds to these outstanding notes. I figured that was where the money was going, to the outstanding notes. When the matter came up I insisted on the money being deposited with Mr. Fox, of the Houston National Exchange Bank, but before I did that I saw Mr. Bal-derack, and he said they would trade, and they put the matter up to Ross & Wood, and he refused to do anything unless the suit was dismissed. I had it in my power to have the suit dismissed. If it was dismissed, Balderack and Kerr’s lawyer agreed to buy the timber; and if it was dismissed Mr. Penn agreed to furnish the money to take up what was due. I agreed to sell the timber to Kerr and Balderack and to take the loan from Mr. Penn if he would make it. I figured that I had been carrying the load for three years, and that was long enough. I agreed to all these things; I had the key to the situation, and I declined to dismiss the suit in order to pay the land out; that is a fact. 1 thought I would have to do that, but then 1 found out I could get the money without it, and I would not do it; that has been four months ago. I found I could get the money, and I refused to dismiss the suit.”

It is unnecessary to set out or discuss the several assignments of error presented in appellant’s brief in detail. Under appropriate assignments it is contended that neither the pleading nor the evidence is sufficient to sustain the judgment of the trial court forfeiting defendant’s title to the land.

We agree with appellant in this contention. The petition shows that plaintiff and defendant were tenants in common, and the allegations as to the agreement between plaintiff and defendant are not sufficient to take the case out of the general rule that a tenant in common who discharges an incum-brance against the common property only acquires an equitable lien on the interest of his cotenant to the extent of the cotenant’s liability on the discharged incumbrance, and does not acquire title to the cotenant’s interest. Moore v. Moore, 89 Tex. 29, 33 S. W. 217; Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1027.

The allegation in the petition that the agreement under which the land was purchased provided “that in case either party should default in their payments, as aforesaid, that the party paying would derive all of the benefits from the purchase of the land aforesaid,” is not an accurate statement of the agreement, which we have before set out. But, taking the allegation as true, we do not think it would sustain a forfeiture unless defendant had defaulted in all of her payments and plaintiff had paid the entire purchase money, and the facts alleged in the petition show plaintiff had not paid all of the notes. When we consider the agreement itself, we think it cannot be properly construed as providing for a forfeiture of title or that the parties so intended it. The purpose of the agreement, as stated therein, is to show “that the parties had purchased the land for speculative purposes only,” and plaintiff expressly agreed to permit the defendant to sell the land when she could find a purchaser at a price satisfactory to her, provided such price was in excess of the cost of the land. When the agreement is considered as a whole the provision “that in case either party defaults in payments on their part of the contract the one paying will derive all benefits therefrom” cannot be given the construction placed upon it by the trial court and authorize a forfeiture of the defendant’s title for her failure to pay her portion of the notes that have been paid. Under the construction placed upon the agreement by the trial court, if defendant had made all her payments but one, and plaintiff paid that one, defendant would lose her title to all interest in the land. No construction of a contract which would produce such inequitable results should obtain if the contract be susceptible of any other construction. As we have before said, we do not think a forfeiture could be based upon this provision of the contract, if at all, until there was default in all tffe payments. The evidence which we have before set out shows the agreement between plaintiff and defendant in regard to the sale of the timber and the loan of the money to pay off the purchase-money notes, and plaintiff’s action in the consummation of the agreement should defeat his right to a forfeiture, if any he had.

The admission of plaintiff that the land has greatly increased in value and that his reason for refusing to dismiss his suit, and thus enable defendant to carry out the agreement, was his desire to profit at the expense of his eotenant, does not accord with the rule of equity which requires that he who asks relief from a court of equity must come with clean hands. He cannot ask that defendant’s title in the property be declared forfeited and vested in him because of defendant’s failure to pay her portion of the purchase money for the land, when he admits that he has not kept his agreements with defendant in good faith, and that but for his refusal to carry' out his agreement defendant would have been enabled to discharge her obligations in a large measure, at least, if not entirely.

It follows that the judgment of the court below should be reversed, and the cause remanded ; and it has been so ordered.

Reversed and remanded.
      i&wkey;For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes