author: PHILLIPS, J.

text:
    PASCHAL v. INMAN.
    (Supreme Court of Texas.
    June 18, 1913.)
    1. Courts (§ 247) — State Courts — Texas— Jurisdiction op Supreme Court.
    Under Rev. Civ. St. 1911, art. 1522, providing that all causes shall be carried up to the Supreme Court of writs of error upon final judgment and not judgments reversing and remanding causes, the Supreme Court can take jurisdiction on the ground of conflict of decisions only in cases in which the jurisdiction of the Court of Civil Appeals is not final and in which it has reversed and remanded the cause, but, where a writ of error is allowed on the ground of conflict of decisions in a case in which the Supreme Court could have assumed jurisdiction upon other grounds, it will, if deemed sufficient, be adjudicated.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dee. Dig. § 247.]
    2. Weights and Measures (§ 1) — Right to Engage in the Occupation.
    The business of private weighing is a legitimate vocation and falls within those ordinary occupations which a citizen is privileged to follow as an inalienable right, subject only to the valid exercise of the police power of the state.
    [Ed. Note. — For other cases, see Weights and Measures, Cent. Dig. § 1; Dec. Dig. § 1.]
    3. Weights and Measures (§ 8) — Private Weigh Masters — Right op Public Weigh-er to Enjoin.
    Rev. Civ. St. 1911, art. 7828, providing for the appointment by the Governor of public weighers in cities receiving 100,000 bales of cotton annually and for the appointment and election of public weighers for each justice precinct which was first enacted in 1883, omitted the proviso that nothing should be construed so as to prevent any other person from weighing cotton, wool, or hides when requested to do so by the owners. Pen. Code 1911, art. 996, which is a re-enactment of section 7 of the act of 1879 (Acts 16th Leg. c. 108), declares that it shall not be lawful for any person other than the regularly appointed weigher or his deputy to weigh any cotton, wool, sugar, or hides required to be weighed, sold, or offered for sale in any city having a public weigher. Held, that as section 1 of the act of 1879 provided only for the appointment of public weighers in certain ■designated cities, which by act of 1883 were fixed as cities receiving 100,000 bales of cotton annually, and as Rev. Civ. St. 1911¡ art. 7S30, prescribing the duties for public weighers, imposed the same duties upon private weighers, and as article 7833 declares that it shall not be lawful for any factor, commission merchant, or other person to employ any other than a public weigher or his deputy, a public weigher elected in a justice precinct cannot enjoin a private weigher from carrying on his business; the purpose of the restrictive statute being to re-huiré cotton factors and persons receiving much merchandise, as brokers, to patronize public weighers so as to avoid fraud, and the penal provisions, in view of their enactment, only applying to that purpose.
    [Ed. Note. — For other cases, see Weights and Measures, Cent. Dig. § 10; Dec. Dig. § 8.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by Sam Paschal against Hugh Inman. A judgment dissolving a temporary injunction was affirmed on appeal to the Court of Civil Appeals (151 S. W. 569), and plaintiff brings error.
    Affirmed.
    J. H. Beavers, of Winnsboro, for plaintiff in. error. Wilkinson & Wilkinson, of Mt. Vernon, for defendant in error.

       For other oases sea same topic and section NUMBER in Dec. Dig. & Am: Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

Alleging himself to be the duly elected and qualified public weigher of justice precinct No. 4 of Wood county, Sam Paschal instituted this suit to restrain Hugh Inman from conducting the business of a private weigher in such precinct and for the recovery of damages. Inman was not a factor or commission merchant or engaged in like business, and is not charged with having been employed to do any weighing for those engaged in such business. A temporary restraining order was issued by the district judge and afterwards dissolved upon hearing at chambers. The 'honorable Court of Civil Appeals for the Fifth District affirmed the order of dissolution, holding that Inman was entitled to pursue his business of private weighing in the precinct notwithstanding Paschal’s election and qualification as the official public weigher. 151 S. W. 569. A writ of error was granted because of the conflict with this holding produced by the decision of the honorable Court of Civil Appeals for the Seventh District in the case of Perry v. Carlisle, 151 S. W. 1155; to the effect that a duly elected public weigher of a justice precinct is entitled to enjoin the pursuit of the business of the private weighing of cotton, wool, sugar, or hides by other persons in such precinct.

This was not a ground authorizing the granting of the writ, and it was improperly granted, since our jurisdiction, because of such a conflict of decision, exists only in cases of which the jurisdiction of the Court of Civil Appeals is not final, and in which it has reversed the judgment of the trial court and remanded the cause. Article 1522, Revised Statutes 1911; Gallagher v. Rahm, 88 Tex. 514, 32 S. W. 523. But as the case is one of which we could have assumed jurisdiction upon other grounds, if deemed sufficient, and is before us, it is probably best that we settle this conflict of decision.

We shall only briefly express our views, as in our opinion, the holding of the Court of Civil Appeals in the present case is in accord with the established rule of decision upon the question. Hedgpeth v. Hamilton Warehouse Co., 140 S. W. 1084; Id. (Civ. App.) 128 S. W. 709; Whitfield v. Terrell Compress Co., 26 Tex. Civ. App. 235, 62 S. W. 116; Galt v. Holder, 32 Tex. Civ. App. 564, 75 S. W. 568; Davis v. Melnnis, 35 Tex. Civ. App. 594, 81 S. W. 75; Gray v. Eleazer, 43 Tex. Civ. App. 417, 94 S. W. 911.

The decision of the Court of Civil Appeals for the Seventh District in Perry v. Carlisle is based upon the omission from article 4308, tit. 90, of the Revised Statutes of 1895, as amended by the act of 1899 (Acts of 1899, p. 264) and now article 7828, tit. 132, Revised Statutes of .1911, of ttie proviso originally enacted as a part of section 1 of the act of 1883 (Acts of 1883, p. 83), as follows: “Provided nothing herein contained shall be construed so as to prevent any other person from weighing cotton, wool or hides when requested so to do by the owners thereof”— and also upon article 996, Revised Criminal Statutes of 1911, which is: “It 'shall not be lawful for any person other than a regularly appointed weigher, or his deputy, to weigh any cotton, wool, sugar or hides required to be weighed, sold or offered for sale in any city having a public weigher duly qualified. Any person or persons so offending shall be deemed guilty of a misdemeanor, and, upon conviction before any court of competent jurisdiction, shall suffer a fine of five dollars for each and every bale of cotton, bale or sack of wool, hogshead or barrel of sugar, bale or loose hide, so weighed.” Its holding is that, because the proviso noted was omitted in the enactment of present article 7828 and by article 996 of the present Penal Code, it is made unlawful for any person other than “a regularly appointed weigher, or his deputy,” to weigh certain products in “a city” having a duly qualified public weigh-er, the business of the private weighing of such products in a justice precinct where an official public weigher has been elected may not be conducted. The business of private weighing is a legitimate vocation and falls within those ordinary occupations of life which the citizen is privileged to follow as an inalienable right, subject only to such restraints and limitations as may be imposed in a valid exercise of the police power of the state. Since the liberty of pursuit as to such a calling is not dependent upon legislative sanction, the authority for its abridgment must rest in some positive and valid legal inhibition. The omission from the amendment of 1899 of the proviso of the act of 1883 would not of itself, therefore, operate as a proscription of the business of private weighing.

It is clear that article 996 of the Penal Code does not relate to the private weighing of any products in a justice precinct where a public weigher has been elected. It is a re-enactment of section 7 of the act of 1879 (Acts of 1879, p. 116). It was not carried forward into the Revised Penal Code' of 1879. Its provisions were partly embraced, however, in article 4088 of the Revised Civil Statutes of 1879, as were the provisions in part of section 8. In this article civil damages only were made recoverable for its violation. Article 4088 of the Revised Civil Statutes of 1879 was not re-enacted in the Revisiop of 1895, but.in its exact language section 7 of the act of 1879 was enacted as article 577 of the Revised Penal Code of 1895 and has been carried into the present code as article 996. .

Section 1 of the act of 1879 provided only for the appointment of public weighers in six designated cities of the state and in such other cities and towns as the Governor might deem expedient. As amended by the act of 1883 and re-enacted as article 4308, Revised Statutes 1895, it provided for two distinct classes of public weighers, one appointive by the Governor in cities receiving annually over 100,000 bales of cotton, and the other elective for cities, towns, and railroad stations receiving annually less than 100,000 bales.

Article 7828, Revised Statutes of 1911, being article 4308 of the Revised Statutes of 1895, as amended by the act of 1899 (Acts of 1899, p. 264), likewise provides for two distinct classes, one appointive in cities receiving annually 100,000 bales of cotton and the other elective in justice precincts in counties having no city or cities for which the Governor is by the act authorized to appoint public weighers. The article- of the Penal Code, upon which the decision in Perry v. Carlisle was in part predicated, attempts to make unlawful only the weighing of certain products in “a city" by persons other than “a regularly appointed weigher or his deputy.” The history of the legislation and its own terms plainly reveal that it has no application to private weighing in a justice precinct having a regularly elected weigher, which was the character of case presented in Perry v. Carlisle and is here involved, even if it is conceded to be a valid qualification of the dominion of an owner over his property and the right of the citizen to engage in such an occupation.

It is clearly recognized in the present statutes that the election of a public weigher in a justice precinct shall not operate as a denial to all persons of the right to therein pursue the business of private weighing. Article 4314, Revised Statutes of 1895, as amended by the act of 1899, now article 7833, Revised Statutes 1911, is as follows: “It shall not be lawful for any factor, commission merchant, or other person or persons, to employ any other than a public weigher, or his deputies, to weigh cotton, wool, sugar, hay, or grain, or other produce, sold or offered for sale in any city or justice precinct having a public weigher duly qualified; "and any person or person^1 violating the provisions of this article shall be liable at the suit of the public weigher of such city or justice precinct to damages in any sum' not less than five dollars for each bale of cotton, bale or sack of wool, ton of hay, or ton of grain, so unlawfully weighed, to be recovered in any court having jurisdiction thereof.”

It was held by this court in Hedgpeth v. Hamilton Warehouse Company, 140 S. W. 1084, in keeping with the construction given in Whitfield v. Terrell Compress Co. and Galt v. Holder, that this article applies only to factors and commission merchants and I persons engaged in similar business and does not deny to others the right of private weighing or the privilege of availing themselves of the services of private weighers. The Legislature re-enacted the article as article 7833 in the Revision of 1911 after it had received this construction in the two cases last named, in both of which writs of error were denied. As stated in Whitfield v. Terrell Compress Company, the purpose of this statute is not to protect a public weigher in his office but to secure to owners of certain factored or consigned produce the rendition of honest weights and true accounts. To insure the weighing of the produce named by a public weigher in cities and justice precincts having such an official as a means for the accomplishment of this purpose, it is made unlawful for factors, commission merchants, and other persons engaged in like business to employ any other weigher to perform the service, which would also prohibit thejr weighing it themselves. The statute, however, does not propose to limit the right of other persons than the class named to make use of the services of private weighers, but leaves it unimpaired. With the right in all such other persons to employ their services there necessarily exists a corresponding right in private weighers to render the services and pursue the business. The article of the Penal Code was not adverted to in either of these decisions, but there can be no doubt that this statute permits private weighing for the public in justice precincts having an official weigher, except as limited under this established construction of its provisions.

Eurthermore, article 7830, Revised Statutes 1911, being article 4310, Revised Statutes 1895, as amended by the act of 1899 and that of 1903 (Acts of 1903, p. 216), contains an express recognition of the right of private weighing for the public. After an enumeration of certain requirements to be observed by public weighers in respect to the marking of weights, the delivery of certificates, the keeping of records, etc., it concludes as follows : “The provisions of this article shall also apply to private weighers who are engaged in. weighing for the public as well as to public weighers.”

We are constrained, therefore, to disapprove of the holding of {he honorable Court of Civil Appeals for the Seventh District in Perry v. Carlisle, with due deference to that able court and the learned judge who wrote its opinion.

The judgment of the Court of Civil Appeals is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ERP et al. v. ROBISON, Land Office Com’r.
    (Supreme Court of Texas.
    June 27, 1913.)
    Public Lands (§ 173) — School Lands — Sale —Pbice.
    A sale of public school lands at a price less than the appraised value is invalid.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. 8 173.]
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 155 S. W. 180.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

We have carefully considered the motion for rehearing, but adhere to our original disposition of the case.

. In the opinion filed appears this language,: “It furthermore appears from the petition that, when the land was awarded to Erp at the price of $3 per acre, it stood appraised at $5 per acre; whereby a sale was effected for less than the appraised value of the land, contrary to law.” This is possibly subject to the construction that a reappraisement of land of this character before its award, whereby its appraised value is increased, would of itself render invalid a sale made for a price at which it stood appraised when the application to purchase was filed. It was not our purpose to determine this question, since its decision was unnecessary in the case. What we intended to make clear was that the land here involved was not sold at its appraised value, and for this reason in itself the sale was invalid. This is true since the land was not capable of sale until after a legal cancellation of the. Chambers-Schmitz sale, which did not occur until March 25, 1905, at which time the land stood reappraised at $5 per acre, whereas the sale to Erp, upon which the application for a mandamus is based, was made at $3 per acre under his premature application of February 8, 1905.

The motion for rehearing is overruled.


author: HAWKINS, J.

text:
    TRAMMELL et ux. v. ROSEN.
    (Supreme Court of Texas.
    June 25, 1913.)
    1. Appeal and Error (§ 76) — '“Final Judgment’ ’ — Essentials.
    To be final, a judgment must contain tbe declaration of the court pronouncing the legal consequences of the facts found; and recital therein of the verdict cannot take the place of the court’s conclusion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426-428, 430, 431, 435-443; Dec. Dig. § 76.

    Eor other definitions, see Words and Phrases, yol. 3, pp. 2774-2798; vol. 8, p. 7663.]
    2. Appeal and Eeeob (§ 80) — Final Judgment-Disposition op Matter by Implication.
    Though as matter of practice, to avoid confusion, every final judgment should plainly, explicitly, and specifically dispose of each and every party to the cause, and of each and every issue therein presented by the pleadings, it is not necessarj', under Rev. Civ. St. 1911, art. 1994, as to form of judgment, that this be done to make a judgment final, and so ap-pealable ; but an issue may be disposed of by necessary implication, as does a judgment for the amount sued for, and for foreclosure of lien on all the property, dispose of the defense of homestead as to one of the tracts, and the counterclaim for damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Sam Rosen against W. M. Tram-mell and wife. Appeal by defendants from a judgment for plaintiff was dismissed by the Court of Civil Appeals (153 S. W. 164), and defendants bring error.
    Reversed and remanded.
    Harris, Harris & Young, of Ft. Worth, for plaintiffs in error. Slay, Simon & Wynn, of Ft. Worth, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HAWKINS, J.

Defendant in error sued W. M. Trammell upon certain notes executed by him for and «purporting to be secured by a vendor’s lien upon certain land, including lot 7 in block 56 of Rosen Heights addition to Ft. Worth, praying judgment upon said «notes and for foreclosure of said lien upon all of said land. Defendant’s wife made herself a party defendant. Defendants pleaded that lot 7 was their homestead under an oral contract of purcha'se, possession, and occupancy, and valuable improvements made by them, thereon, all made prior to purchase by the husband of the other lands and execution and delivery of deed conveying to him all of said lands, including lot 7, and prayed that lot 7 be established as their homestead and exempted from said lien. Defendants also alleged that plaintiff wrongfully and maliciously sued out a writ of sequestration under which, by direction of plaintiff, said alleged homestead and certain personal effects, furniture, etc., were seized and withheld from them, wherefore, they prayed for actual and exemplary damages. The trial court peremptorily instructed the jury to bring in a verdict against W. M. Trammell for the amount of notes sued on, and against both defendants for foreclosure of said lien upon all of the property described in plaintiff’s petition, and against defendants on their counterclaim; and the jury did so. Thereupon the court entered judgment accordingly, in usual form, except that it made no express mention of said counterclaim. The verdict of the jury was set out at length in said judgment.' Neither verdict nor judgment expressly mentioned said homestead claim. The terms of said judgment appear more fully in the opinion of the Court of Civil Appeals, reported in 153 S. W. 164. Defendants appealed, but the Court of Civil Appeals dismissed the appeal upon the ground that said judgment of the district court is not final, in that it fails to dispose of appellants’ cross-action.

The Court of Civil Appeals correctly held as follows: “It can make no difference that the verdict of the jury does dispose of the defendant’s cross-action, and that such verdict is recited in the judgment. The verdict but constitutes the facts as ascertained in one of the methods provided by the law, and cannot be made to supply the court’s conclusion thereon. To be final, the judgment should further contain the declaration of the court pronouncing the legal consequences of the facts found. See Fitzgerald v. Evans et al., 53 Tex. 461; Mayfield v. State, 40 Tex. 289; Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39; the unpublished opinion of this court in cause No. 5324, Van Chapman v. Warden, 153 S. W. 937; section 2, ÍTreeman on Judgments.”

The controlling issue here, as this case is presented to us, is, Was the judgment in question final? If final, the appeal of plaintiffs in error should have been entertained by the Court of Civil Appeals; if not final, the action of that court, dismissing said appeal must be sustained. Upon that issue there have long been in this state, two well-defined and sharply conflicting lines of decisions by 'Courts of Civil Appeals. Such conflict arises, principally, it seems, upon the construction given to article 1994, Revised Statutes 1911, relating to the form of judgments of district and county courts; those Courts of Civil Appeals who adhere to a strict rule of construction in the premises, holding that a judgment which does not, in express terms, specifically dispose of a cross-action or counterclaim is not a final judgment such as will support an appeal, and those who adhere to a more liberal rule of construction, holding that a judgment may be final even though it disposes of such cross-action or counterclaim by necessary implication only, without expressly mentioning it. Said statute is as follows: “Article 1994 (1335). Tlie judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.”

As pointed out in this case by Chief Justice Conner, of the Court of Civil Appeals for the Second District, that court has steadily and consistenly held to the stricter rule of construction, and has repeatedly refused, as in this case, to entertain jurisdiction of an appeal from a judgment which disposed of a cross-action or counterclaim by implication only. Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1061; Huggins v. Reynolds, 51 Tex. Civ. App. 504, 112 S. W. 116; Lewis v. Kelley, 146 S. W. 1197. See, also, Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 837. To the same effect are the following decisions of the Court of Civil Appeals for the Third District: G., C. & S. F. Ry. Co. v. Stephenson, 26 S. W. 236; Clopton v. Herring, 26 S. W. 1104; Sapp v. Anderson, 135 S. W. 1068. See, also, Hedrick v. Smith, 146 S. W. 305.

The Court of Civil Appeals for the Fourth District holds in accordance with the more liberal rule of construction, treating as final certain judgments which did not specifically mention or expressly dispose of pleas of re-convention, set-off, etc. Hoefling v. Dobbin, 40 S. W. 58; Lewis v. Smith, 43 S. W. 294; Bemus v. Donigan, 18 Tex. Civ. App. 125, 43 S. W. 1052; Kirby v. Linn, 34 S. W. 162. See, also, American Road Mch. Co. v. City of Crockett, 49 S. W. 251; Woolley v. Sullivan, 43 S. W. 919; N. Y. & T. Land Co. v. Votaw, 52 S. W. 125; Swearingen v. Williams, 28 Tex. Civ. App. 559, 67 S. W. 1061.

To the same effect were the decisions of the Court- of Civil Appeals for the Fifth District in Bowman v. Saigling, 111 S. W. 1082, and Crain v. Ins. Co., 56 Tex. Civ. App. 406, 120 S. W. 1099, citing Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77; and Davies v. Thomson, 92 Tex. 391, 49 S. W. 215; Lewis v. Smith, supra; Bemus v. Donigan, supra.

These decisions of the Courts of Civil Appeals for the Fourth and Fifth Districts, respectively, proceed upon the theory that the general judgment in favor of plaintiff against the defendants adjudicates all matters pleaded in the cross-action as effectually, for all practical purposes, as though the judgment embodied an express finding thereon in a specific sum in favor of defendants, and then deducted that sum from the gross amount found for plaintiff. We think that reasoning is sound, although the form of such judgment is not commendable.

In son)e of the foregoing cases Linn v. Arambould, 55 Tex. 611, and Texas & Pacific Ry. Co. v. Ft. Worth Street Ry. Co., 75 Tex. 82, 12 S. W. 977, are cited in support of the strict construction and holding above mentioned.

It must be conceded that certain expressions of the Commission of Appeals in the Linn Case tend that way. But we do not attach much importance to that case, in considering the question before us, because the judgment of the trial court therein recited that the decree in that cause canceling the deeds should be held in abeyance until that court should determine the amount of purchase money paid by defendants, and that a new trial had been granted for that purpose. The judgment upon which the appeal in that case was based was therefore clearly not a final judgment; but that case and this are obviously and essentially different on the facts. Moreover,' much of the discussion of principles in the Linn Cases tends to support the more liberal rule of construction.

In the Railway Case, supra, this court, citing and following the Linn Case, dismissed the appeal, holding that the judgment of the trial court was not final; but that judgment was one wherein, at plaintiff’s request, its application for an injunction was dismissed, at its cost, leaving entirely undis-posed of the defendant’s plea in reconvention ■for damages for wrongfully suing out the injunction, so that case is not in point.

In Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77, this court held: “The proposition seems to be sound in principle and well supported by authority that where the pleadings and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff’s right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the" other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause.”

Davies v. Thomson, 92 Tex. 391, 49 S. W. 215, was a suit by the heirs of Thomson, deceased, against the heirs and administrator of Davies, deceased, for recovery of one-half of certain real and personal property held and controlled by Davies at the time of his death, and one-half of all increase and gains in said property since his death, and one-half of all money received from sales of any of said property since that time. If the allegations of the petition were true, plaintiffs were entitled to recover everything sued for by them. The jury found simply “for the plaintiffs in the sum of $14,000.” The court entered judgment accordingly. Upon appeal, this question was certified to this court: “Is the judgment a final judgment from which an appeal may be taken? The contention is that the verdict and judgment should have in terms made some disposition of the real estate.” In answering said question this court quoted approvingly the foregoing excerpt from its opinion in the Rackley Case, and added: “The proposition there announced was directly involved in the decision of that ease, and is decisive of the question certified. The judgment, in our opinion, should be construed to mean that the plaintiffs recover of the defendants the sum of $14,000 and costs, and that they are to take nothing more either in the property claimed or in money. We answer the question in the affirmative.”

The principle which controlled the last-mentioned two cases is, we think, applicable in great measure to this case. The rule is thus stated in Freeman on Judgments, § 279, and note 1: “There is no doubt that if a set-off is presented by defendant in his pleadings, and attempted to be supported by evidence to the jury, it will, whether allowed or disallowed, become res judicata. It is settled by the judgment as conclusively, when it does not appear to have been allowed, as though there were an express finding against' it.” “Wright v. Salisbury, 46 Mo. 26; Nave v. Wilson, 33 Ind. 294; Howe v. Lewis, 121 Ind. 110 [22 N. E. 978]; Stevens v. Miller, 13 Gray [Mass.] 283; Worrel v. Smith, 6 Colo. 141; Ruegger v. Indianapolis, etc., R. R. Co., 103 Ill. 449. Nor is it material that the evidence to support a set-off was excluded because insufficient. Green v. Sanborn, 150 Mass. 454 [23 N. E. 224].”

We feel constrained to hold that the judgment of the trial court, although irregular and imperfect in form, is sufficient to support the appeal. However, we feel impelled to say, also, that we think that, as a matter of practice, and to avoid confusion, every final judgment should plainly, explicitly, and specifically dispose of each and every party to the cause, and of each and every issue therein presented by the pleadings.

The judgment of the Court of Civil Appeals is reversed, and the cause is remanded to that court


author: BROWN, C. J.

text:
    CITY OF BROWNWOOD et al. v. BROWN TELEGRAPH & TELEPHONE CO.
    (Supreme Court of Texas.
    June 18, 1913.)
    1. TELEGRAPHS AND TELEPHONES '(§ 10)— Right to Roads and Streets.
    Rev. Civ. St. 1911, art. 1231? authorizing corporations created for constructing magnetic telegraph lines to set their poles and wires along roads and streets, includes long-distance telephone lines.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. S 10.]
    2. Telegraphs and Telephones (§ 10)— Control op Streets — Right op City.
    Under Rev. Civ. St. 1911, arts. 1231, 1235, providing that telegraph corporations may set their poles and wires along and across any of the public roads and streets of the state in such á manner as not to incommode the public use thereof, and that the corporate authorities of any city, town, or village through which the line of any telegraph corporation is to pass may, by ordinance, specify where the poles shall be located, and after the erection may direct alterations, the right of a long-distance telephone company to pass through a city or town over and upon its streets is absolute, although the city may enforce reasonable regulations.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    3. Telegraphs and Telephones (§ 10) — Use of Street — Application for Permit — Certified Check.
    A city cannot refuse a long-distance telephone company a permit to erect poles in the streets on the ground that it deposited a certified check instead of money to cover any damages, and accepted only the civil ordinances of the town, for the check was equal to cash, and the acceptance of civil ordinances embraced all that were regulatory.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    4. Telegraphs and Telephones (§ 10) — Use of Street — Adoption of Ordinance.
    A municipal corporation cannot require a long-distance telephone .company to adopt its ordinances as a condition precedent to the use of the streets granted by Rev. Civ. St. 1911, art. 1231, for it is the right and duty of the city to enforce its ordinances prescribing reasonable regulations, whether acceptable to the company or not.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    5. Telegraphs and .Telephones (§ 10)— Rights to Street — Regulation by City-Waiver.
    A city, being without right to exclude a long-distance telephone company from using its streets, but having merely a right to regulate the same, waives the right of regulation by refusing to prescribe the streets to be used and the details of construction, and having threatened to criminally prosecute and punish the employes of the company for using the streets, the company’s right will be enforced by injunction.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by the Brown Telegraph & Telephone Company against the City of Brownwood and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (152 S. W. 709), and defendants bring error.
    Affirmed.
    Paul Harrell and Harrison & Waymann, all of Brownwood, and Chilton & Chilton, of Dallas, for plaintiffs in error. I. J. Rice, of Brownwood, and E. B. Anderson, of Gold-thwaite, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

The writ of error was granted in this case in order that this court might have the benefit of a discussion of the issues of law which are important. We have heard counsel on each side present ably and elaborately the issues as they respectively believe them to be applicable to the facts.

In his usual careful and thorough manner Judge Rice has stated the case and carefully analyzed the facts. We adopt his statement as follows:

“This suit was brought by appellee to restrain by injunction the officers and agents of appellant from prosecuting, arresting, or in any manner interfering with appellee or its servants in tlie erection and construction of a telephone line in and upon certain streets of the city of Brownwood, wherein a temporary restraining order was issued as prayed for.
“Prior to the institution of this suit, ap-pellee, who is duly incorporated under the laws of this state for conducting a telegraph and telephone business, filed with the city council of the city of Brownwood, which is a city incorporated under the general laws of this state, its petition, stating that its domicile was at Goldthwaite, Tex., and that it desired to build a telephone line for long-distance service from the city of Temple, along the right of way of the Gulf, Colorado & Santa Fé Railway to Brownwood, and presented therewith for its inspection and approval a map or plat of the route of the proposed telephone line into said city, showing the streets and alleys to be occupied and the location of each pole and fixture to be constructed, representing that, in accordance with said map they would erect 36 poles, for which it tendered a certified check for the sum of $90, payable to the city treasurer of said city, for the purpose of holding the city harmless against any damage that might be done to its sidewalks, streets, or alleys in the erection thereof, to be returned when the city marshal should report that the conditions of the ordinances relating to telephone lines shall have been complied with. Further representing that it desired to erect poles and fixtures for the aforesaid line under the provisions of the ordinances having reference to' the construction of telephone lines, the same being articles 108 to 116, inclusive,'of the civil ordinances of said city, declaring its acceptance of all the provisions of said ordinances, and agreeing to abide by all ordinances and regulations thereafter to be adopted relating to such lines, and further agreeing to permit the city of Brown-wood to occupy and use the top cross-arm of any poles so to be erected by it, for telephone, telegraph, police calls, or fire alarm purposes, free of charge, praying that said city council accept the tender so made, approve the map and plat and the proposed setting and construction of the poles and fixtures, and in the event said plat or route may, for any reason, be objectionable, or any part of the same, then asking the council to point out such objection, to the end that such plat and route along the streets and alleys of the city may be changed to meet such objection.
“Said city had theretofore enacted the following ordinances relating to the construction of telephone lines, designated under the head of ‘Criminal Ordinances,’ to wit:
“ ‘Art. 108. All telegraph and ■ telephone poles as herein provided shall' be of sound timber, not less than five inches in diameter at the upper end, straight, shapely and of uniform size, neatly planed or shaved and thoroughly painted with lead and oil,' paint of such coloring as the city council may direct, and shall be supplied with iron steps commencing within twelve feet of the ground and reaching the arms supporting the wires. Said wires shall be run at a height of not less than twenty-four feet from the ground, and the arms’ lengths shall be determined' by action of the city council. When poles or other fixtures are erected on a street they shall be placed if practicable, on the outer edge of the sidewalk just inside of the curbstone or a line dividing the lots of property owners, but in no case to be placed so as to interfere with, or damage the curbstone, trees or other public or private property.’
“ ‘Art. 110. That any person or corporation desiring to erect or construct said poles or fixtures, shall make a deposit of $2.50 for each and every pole to be erected, and the same shall be held by the city treasurer for the purpose of holding the city harmless against any damage caused to sidewalks, streets and alleys in the erection of poles, and the said deposit shall be returned to the parties making the same when the city marshal shall report that the conditions of this chapter have been complied with, and such persons shall first submit to the city council for its approval a map or plat of the route of the proposed line or lines, showing the streets and alleys to be occupied and location of each pole or fixture to be constructed. Unless the city council approves of the same, such person or corporation or their agents shall have no right to erect such poles, or construct such fixtures. All work pertaining to the erection or construction of such poles on any sidewalk or alley, shall be done under the supervision of the city council, and the pavement shall be restored to its original condition as soon as possible.’
“Article 112 provides that ‘all persons, companies or corporations desiring to erect poles and fixtures under the provisions of this ordinance shall first file, in the office of the city secretary a written acceptance of all the provisions of this ordinance; also a written agreement permitting the city of Brown-wood to occupy and use the top cross-arms of any pole erected for the use of said city for telegraph, telephone, police calls or fire alarm purposes, free of charge.’
“Article 114 of said ordinances provides that ‘every violation of any of the provisions of the articles under the subject of “offenses pertaining to poles and wires” shall constitute a misdemeanor, and the persons or companies or corporations, or any employé, agent, local manager or officer thereof in Brown-wood violating any of said provisions shall, upon conviction in the corporation court, be fined in any sum not less than twenty-five dollars nor more than one hundred dollars for each offense.’
“On the 16th of April, 1912, by motion, said petition was referred to the street committee to investigate' and make a report at the next regular meeting of said counsel, which on the 7th of May thereafter reported, to the effect that they had investigated the route over which said company proposed to enter said city, and that they found no objection to the use of the streets and alleys for the construction of said line into the city of Brownwood as designated on the map of said route, provided that the construction of the same complied in all respects with the ordinances relative to the construction of such lines in said city, and that the legal rights of all other telephone, telegraph, and electric light companies be respected. Hearing upon this report was postponed until the 21st day of May thereafter, whereupon, after being duly considered, the council refused to concur therein, and denied such permit to the company, ordering that its petition, map, and certified check be returned. At this time appellee had already constructed its line from Goldthwaite to the city of Brownwood, some $700 worth of material, with the view of constructing its line in said town, but was prevented from so doing by threats of prosecution on the part of the officers of said city, in' the event it undertook so to do. Thereupon appellee presented its petition to the district judge, setting up these facts, as well as others which may hereafter be noticed, praying for a writ of injunction as .heretofore indicated, which was granted and the case set for hearing.”

Article 1231, Revised Statutes 1911, reads: “Corporations created for the purpose of contracting and maintaining magnetic telegraph lines are- authorized to set iheir poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such road, streets and waters.” In San Antonio & A. P. Ry. Co. v. S. W. Tel. & Tel. Co., 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884, this court said: “We conclude that, when the Legislature of 1891 enacted the law in its present form, it intended to express that ‘telephone’ was within the broad meaning of ‘telegraph,’ and that corporations formed under subdivision 8 of article 641, Revised Statutes, are ■“created for the purpose of constructing and maintaining magnetic telegraph lines,’ and are authorized by article 699 to condemn right of way for their lines.” We could cite many authorities in support of that conclusion but deem it unnecessary, and will proceed upon the assumption that the language of the statute includes long-distance telephones, but we express no opinion as to the rights of local telephone companies or the local business of long-distance companies.

It will be observed that the grant to such corporations by article 1231 is qualified by this important language, “in such manner as not to incommode the public in the use of such road, streets and waters.” The effect of the limiting clause is to declare the right of the public to be superior to the rights granted to the corporation. Article 1235, Revised Statutes 1911, reads: “The corporate authorities of any city, town or village through which the line of any telegraph corporation is to pass may, by ordinance or otherwise, specify where the posts, piers or abutments shall be located, the kiiid of posts that shall be used, the height at which the wires shall be run; and such company shall be governed by the regulations thus prescribed ; and, after the erection of said telegraph lines, the corporate authorities of any city, town or village shall have power to direct any alteration in the erection or location of said posts, piers or abutments, and also in the height at which the wires shall run, having first given such company or its agents opportunity to he heard in regard to such alteration.” It is apparent that the right of the telephone company to pass through the city or town, over and upon its streets, is absolute, and a city has no authority to deny that right. The interest of the public in convenient service by such means of communication is the basis of the grant, and is superior to any private interest. On the other hand, the interest of the city in the manner in which the corporation exercises its right is the foundation of the authority vested in the city to control the occupancy and use of the streets by such corporations, and a reasonable exercise of the power is equally absolute. The limitation embodied in the grant to the corporation would alone be sufficient to subject it to a reasonable restraint. But the grant to the authorities of the city by article 1235 invests the municipal government with power to enforce any reasonable regulations as to the use of the streets by the city, but such city cannot use its power to regulate in such manner as to deny the corporation- the right to pass through the town, and in so doing to use the streets in “such way as not to incommode the public.”

It appears that the telephone company complied. with the requirements of the city, except that it deposited a certified check instead of money and accepted “civil” ordinances. The check was equal to cash, and the acceptance of civil ordinances embraced all that were regulatory.

But the city had no authority to require the telephone company to accept its ordinances as a condition precedent to entering the city. The right and duty of the city was to enforce such ordinances as prescribed reasonable regulations, whether acceptable to the telephone company or not.

When the city refused to take any action in the matter it abandoned- its right to prescribe the streets to be used and the 'de•tails of construction, and the telephone company had the right to construct on the streets, as shown upon the plat presented in compliance with the city ordinance. The threat to prosecute and punish the employes of the telephone company was unreasonable, arbitrary, and obstructive to a degree that justified the injunction.

The telephone company will be authorized to construct its line over the streets of the city under and in accordance with the reasonable requirements of the city. The effect of the injunction will not be to take from the city its right of control over its streets, sidewalks, in fact all public places in the city. The telephone company is entitled to all the privileges necessary to its construction and operation as a “distance telephone.” But it is not to be inferred from this opinion, that this company can, without consent of the city, transact the business of a local company. Our conclusions have been reached by applying to the long-distance telephone the rules of law which would be applicable to the telegraph line under similar conditions, and we expressly reserve from any implication the relative rights of local telephone companies and city governments. Nor do we intend to imply any limitation upon the authority of a city in the regulation of placing of poles, etc., or placing wires underground when necessary to avoid “incommoding” the public. We deem it proper to limit this opinion to the class of cases to which this belongs. The trial court did not err in granting and perpetuating the injunction; it was the only fully adequate remedy, and was fully justified by the arbitrary and unreasonable methods of the city government.

Finding no error in the judgment of the Court of Civil Appeals, it is accordingly affirmed.


text:
    STATE v. TEXAS BREWING CO.
    (Supreme Court of Texas.
    June 25, 1913.)
    1. Intoxicating Liquors (§ 45) — Penal Statutes — Strict Construction.
    Acts 1909, c. 20, § 1 (Rev. Civ. St. 1911, art. 7479), as to taxation of one pursuing the business of selling intoxicants in territory where it is prohibited by local option vote, being highly penal, is to be strictly construed against the state.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 47; Dee. Dig. § 45.]
    2. Intoxicating Liquors (§ 15*) — Local Option — Effect of Adoption.
    The voters of a county having by local option election, as authorized by Const, art. 16, § 20, adopted prohibition, the Legislature cannot authorize sale therein.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 17, 18; Dec. Dig. § 15.]
    3. Intoxicating Liquors (§ 15) — Occupation Tax — Prohibition Territory.
    Acts 1909, c. 20, § 1 (Rev. Civ. St. 1911, art. 7479), levying a tax on any one pursuing the, business of selling or offering for sale any intoxicating liquors by soliciting or taking orders therefor in any quantities in any county in which the voters thereof have determined that sale of intoxicating liquors shall be prohibited, is a levy of an occupation tax for the illegal business of selling in prohibition territory, and therefore void.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 17, 18; Dec. Dig. § 15.1 4. Intoxicating Liquors (§ 53) — Occupation Tax — Place of Tax.
    Sales are in T. county so as not to subject one to the occupation tax of pursuing the business of selling intoxicating liquors in C. county, where he sends circulars from T. county to C. county, soliciting orders, and on orders being received delivers the liquor in T. county to the buyer or to a carrier for him; the seller not undertaking to deliver in C. county.
    [Ed. Note. — For other cases; see Intoxicating Liquors, Cent. Dig. § 54; Dec. Dig. § 53.]
    Hawkins, J., dissenting.
    Certified Question from Court of Civil Appeals of Second Supreme Judicial District.
    Action by the State against the Texas Brewing Company. From a judgment for defendant, plaintiff appealed to the Court of Civil Appeals, which certifies a question to the Supreme Court.
    Question answered.
    P. M. Stine and Leslie Humphrey, both of Henrietta, for the State. R. E. Taylor, of Henrietta, and Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

The honorable Court of Civil Appeals of the Second District certifies to this court the following statement and question:

“This suit was instituted in the name of the state of Texas and of Clay county by the county attorney of Clay county against .the Texas Brewing Company, which was alleged to be incorporated under the laws of the state of Texas, with its principal office and place of business in Ft. Worth, Tarrant county, Tex., to recover $8,000 for the state and $4,000 for Clay county alleged to be due by the defendant as taxes for ‘pursuing the business of selling and offering for sale intoxicating liquors by soliciting and taking orders therefor in said Clay county, Tex.,’ for the years 1911 and 1912. It was further alleged that by election duly held the sale of intoxicating liquors in Clay county had been prohibited ; all the facts necessary to show the adoption of local option in that county being duly set out and alleged in the petition, with the additional allegation that local option was in full force and effect in that county during the years 1911 and 1912. It was further alleged that the commissioners’ court of Clay county had duly levied a tax of $2,009 a year for the years 1911 and 1912 upon ‘all firms, persons, associations of persons, and corporations that pursue the business of selling or offering for sale any intoxicating liquors by soliciting orders therefor in said Clay county, Tex.’; the taxes claimed being those provided by chapter 20 at page 53, Acts of Legislature of 1909, article 7479, Revised Statutes 1911. In addition to special pleas, the defendant filed general demurrer and general denial to plaintiff’s petition.
“A jury was waived and the trial judge filed findings of fact and conclusions of law upon which the judgment was predicated. The following are the findings of fact by the trial judge: ‘That the local prohibition law was in force in Clay county during the years 1911 and 1912, and that the commissioners’ court of Clay county duly levied a tax of $2,000 upon the occupation sued on. That during said years the Texas Brewing Company at Ft. Worth, Tex., during the year 1912, mailed circulars to various citizens in Clay county, giving prices and soliciting orders for household lager beer and other products of the Texas Brewery located at Ft. Worth, Tarrant county, Tex. That, as a result of such solicitations and such advertising, several orders for beer were sent to the company and such orders were filled at Ft. Worth and the beer shipped to the parties ordering the same in Clay county.’
“After referring to the Acts of Legislature 1909, p. 53, in the conclusions of law filed, the following occurs: ‘The controlling question, therefore, is: Did the Legislature, in passing the act in question, intend to tax persons soliciting business by mail — persons who have their domicile in other counties and transact their principal business in the county of their domicile? If the act was so intended, and if its language sufficiently expressed such intention, then the acts of the defendant would bring it within the purview of the statute and it would be liable. In the opinion of this court the act was leveled at the peripatetic liquor drummer who operates in a local option county and personally takes orders or solicits orders for liquor. I do not .think that the Legislature contemplated or intended to tax those who, having their domicile or place of business outside of the county, send out circular letters or advertising literature to the people of a local option county inviting the people to patronize them. If such had been the Legislature^ intent, it would have been easy to have expressed it in simple words so as to make such intention clear. But this the Legislature failed to do, and this court cannot add to the expressed will of the Legislature, however much he may be inclined to deplore the practice of receiving orders from and shipping liquors into a county that has adopted the local option laws. Therefore it is the opinion of the court that defendant is not liable for the taxes sued for, and consequently the judgments of the court will be for the defendant.’
“There was no evidence in the record to show that the defendant brewing company ever had a personal representative in Olay county, and the evidence without controversy shows as found by the trial judge, the correctness of which finding is not challenged, that the only solicitation of orders for beer made by the defendant in Clay county was by circular letters mailed to various citizens of Olay county giving prices and soliciting orders for such beer. The conclusion reached by the trial judge upon the facts so found are assigned as error by appellant.
“We have deemed it advisable to certify to your honors for determination the following question: Did the acts of appellee in mailing the circular letters in Ft. Worth to citizens of Clay county, soliciting orders for beer, without sending a personal representative into the county, constitute pursuing the business or occupation in Olay county ‘of selling or offering for sale intoxicating liquors by soliciting or taking orders therefor’ within the purview of the act of the Legislature above mentioned?” In other words, if the foregoing question be deemed too restrictive, under the facts so alleged and found, was the appellee, the Texas Brewing Company, liable for the payment of the taxes sought to be recovered?”

We answer: Neither the state nor the county shows, a right to recover against the brewing company.

The statute under consideration is highly penal in character and must be strictly construed against the claim of the state. H. E. & W. T. Ry. Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225; T. & P. Ry. Co. v. Hughes, 99 Tex. 533, 91 S. W. 567.

The twentieth section of article 16 of the Constitution provides: “The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice’s precinct, town, city (or such subdivision of a county as may be designated by the commissioners’ court of said county) may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.”

All powers of government reside in the people, and the officials of the different departments exercise delegated authority; however, the Legislature can exercise all legislative power not prohibited by the Constitution. But the section of the Constitution quoted provides a method (a referendum) by which the voters of a given territory may exercise the sovereign power of legislating upon this subject, which places the law adopted by them above legislative authority, as if it had been embraced in the Constitution, and we must so consider the local option law adopted by the voters of Clay county, for that, like the Constitution, is the exercise of primary sovereignty; therefore, what is prohibited by the local option law to be done in Clay county, as to sale of intoxicating liquors, cannot be authorized by the Legislature to be done there.

In order to determine the effect of the law which we have under examination, we will assume that the brewing company procured a license from the state and county. Under such license it could by solicitation or taking orders sell and deliver intoxicating liquors in Clay county, because a sale implies a delivery of possession of personal property. Authority to pursue the business of selling intoxicating liquors in a county includes authority to deliver the liquor in that county, because the business could not be pursued if no sales were made, and no sale could be without delivery, actual or constructive. The words, “by soliciting or taking orders,” do not limit the effect of the sale to pass title, nor do they exclude the delivery of the thing sold at the place where the business is pursued. Those words are descriptive of the method of selling. The local option law and the Constitution prohibited the sale of intoxicating liquors in Clay county, and the Legislature could not authorize the pursuit, by any method, of the business of selling such liquor there. The state cannot levy an occupation tax on a business that, being pursued, would be a violation of the law and Constitution. Such 'license would not protect the licensee against prosecution for sales made under it.

It logically and necessarily follows that, if the “business to be licensed” included the sale of intoxicating liquors in Clay county, the levy of the tax was void. The third section of the act provides: “Each person and each firm and each corporation and each association of persons desiring to engage in the business mentioned in section 1 and 2 of this act in said local option territory before engaging in same shall file with the county clerk of the county in which the business is to be pursued, an application in writing for a license to engage therein and shall state the county or portion of the county in which the business is to be pursued, and if within the corporate limits of any incorporated city or town, that fact shall be so stated,” etc.

It is beyond all question that the license must have been issued by the clerk of the county in which the business was to be pursued, and the business of selling intoxicating liquors in Olay county, by any method, being unlawful, it was not the subject of taxation by the state or county.

If, however, it were held that the business of selling intoxicating liquors in Olay county might be pursued by mailing circulars in Tarrant county to residents in Olay county, inviting them to buy beer in Ft. Worth, that would not sustain a recovery, because a sale made in Tarrant county would pass title there and no sale would be made in Clay county; therefore the business of selling would be pursued in Tarrant county. Dolan v. Green, 110 Mass. 322; Sarbecker v. State, 65 Wis. 171, 26 N. W. 541, 56 Am. Rep. 624; Garbracht v. Commonwealth, 96 Pa. 419, 42 Am. Rep. 550; Abberger v. Marrin, 102 Mass. 70; Woolsey v. Bailey, 27 N. H. 217; United States v. Orene Parker Co. (D. C.) 121 Fed. 596.

Assuming that the letters mailed to persons in Clay county constituted a solicitation there, the delivery of it in Tarrant county constituted the place of sale, being the place where the liquor was received by the purchaser. Hence there was no business of selling intoxicating liquors pursued in Clay county by such soliciting. Surely a circular inviting patronage could not be more effective than the solicitation and contract of sale by an individual representative taking orders to be filled in territory where the sale was legal. The authorities are unanimous that such transactions are governed by the law at the place of delivery to the buyer. There is no evidence that the brewing company undertook to deliver beer in Clay county.

There can be no reasonable doubt that the language of the statute designates as taxable a business pursued, in Clay county; the language is definite; but it is rendered more certain by the association of the business of cold storage which must necessarily be in the county. If we concede that the language in section 1 may be construed to mean that a sale may be made in Clay county by means of soliciting or taking orders to be filled in another county, then the facts certified do not establish liability, because if the beer was delivered in Tarrant county it was not a sale in Clay county where forbidden, but in Tarrant county where it was lawful. The sending out of circulars into prohibition territory is not forbidden nor taxed. In the prohibition states the sale of intoxicating liquor within the state was unlawful, and the question of law that we have under examination has been passed upon in many cases by courts of different states, and it has been uniformly held that the title to the liquor vested at the place where delivery was made to the buyer in person or to carrier for delivery unless the seller contracted to deliver at the home of the buyer. Where an agent of the dealer, whose business was in New York, solicited and took orders for liquors to be shipped to Michigan or other prohibition state, it has been held that the title passed to the buyer „in the place of delivery to the carrier, and said sale has been uniformly held to be valid. The case of United States v. Orene Parker Co., cited above, is a fair illustration of the rule. The ease is very similar in its facts to this case. We have cited a small per cent, of the cases which have dealt with this subject, but those cited are conclusive of the main question in the case as certified.

There is no limitation upon a sale to be made under the license to' a purpose which would be lawful under the local option law, but it would permit and authorize such sale generally. Attention has been called to Snearley v State, 40 Tex. Cr. R. 507, 52 S. W. 547, and to the same case reported in 53 S. W. 696. Those cases are wholly irrelevant to the question in this ease.

HAWKINS, J., dissents.


text:
    CARTER v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (Supreme Court of Texas.
    June 25, 1913.)
    1. Courts (§ 42) — Establishment—AUTHORITY 0]? LEGISLATURE.
    Const, art. 5, § 1, empowering the Legislature to establish such other courts as it may deem necessary, and to prescribe the jurisdiction and organization thereof, authorizes the Legislature in its discretion to create emergency courts with such jurisdiction as it deems best.
    [Ed. Note. — For other cases, see Courts, Cent. Big. §§ 103-170, 181-183; Dec. Dig. § 42.]
    2. Courts (§ 42) — Special Courts — Statutes — Validity.
    Acts 33d Leg., creating a special district court for Grayson county to cease December 1, 1914, creates a valid court, and by reference to the existing district court of the county it sufficiently expresses the subjects of jurisdiction, and the territory within which it may exercise jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 163-170, 181-183; Dec. Dig. § 42.]
    3. Courts (§ 42) — Appointment— Statutory Authority.
    The Legislature empowered by Const, art. 5, § 1, to create such other courts as it may deem necessary, may provide for the appointment by the Governor of a judge of a special court to exist until a designated future date, and may limit the term of office to that date.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 163-170, 181-183; Dee. Dig. § 42.]
    4. Courts (§ 42) — Special Courts — Creation — Legislative Authority.
    The Legislature empowered by Const, art. 5. § 1, to establish siich other courts as it may deem necessary, may limit the existence of a special court created by it.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 163-170, 181-183; Dec. Dig. § 42.]
    5.Clerks oe Courts (§ 2) — Special Courts —Clerks—Statutory Provisions.
    Acts 33d Leg., creating a special district court for Grayson county, and providing that the cleric of the district court of the county as previously constituted and his successors in office shall be the clerk of the new court, and perform the duties pertaining to the clerkship of each, imposes additional duties on the clerk of the district court, but creates no additional office.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 2, 3; Dec. Dig. § 2.]
    Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Mack Carter against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for defendant, plaintiff appealed to the Court of Civil Appeals, and it certifies questions to the Supreme Court.
    Questions answered.
    J. E. Cawthon, of Denison, and Jones & Hassell, of Sherman, for appellant. A. S. Coke, of Dallas, and Head, Smith, Piare, Maxey & Head, of Sherman, for appellee. Wolfe, Wood & Haven, of Denison, amicus curise.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

Certified questions from the Court of Civil Appeals for the Fifth Supreme Judicial District. The statement and questions are as follows:

“This suit was instituted by appellant in the Fifteenth judicial district court of Gray-son county, Tex., on the 19th day of July, 1912, to recover damages in the sum of $30,-000 for personal injuries which he alleged he sustained through the negligence of appellee, the Missouri, Kansas & Texas Railway Company of Texas.
“On the 13th day of May, 1913, by an order entered upon the docket of the Fifteenth judicial district court by the judge thereof transferring this case, this ease was ordered transferred to the ‘special district court of Grayson county.’ On the 20th day of May, 1913, the Missouri, Kansas & Texas Railway Company of Texas, defendant in the court below, appellee herein, filed and presented in the special district court of Grayson county its plea to the jurisdiction attacking the validity and jurisdiction of said special district court; said plea being as follows, to wit:
“ ‘Now comes the defendant in the above styled and numbered cause, and objects to the hearing and determination of this cause by this court, and says that this court is without any validity or jurisdiction whatever because it says the act of the Legislature creating this court is unconstitutional and void, and therefore no power rests in it to try and determine this cause, for the following reasons:
“‘(1) The terms of said act do not bring this pretended court within the terms and provisions of section 1, art. 5, of the Constitution of the state of Texas, as adopted September 22, 1891, but it is an attempt to establish a district court under the terms and provisions of section 7, art. 5, of the amendment to the Constitution of the said state of Texas, as adopted September 22, 1891, and said act is in violation of the provisions of said constitutional requirement, and therefore void.
“‘(2) Said act is in violation of section 7, art. 5, of the Constitution of the state of Texas, in that said constitutional provision requires that a district shall be established and defined, before a district court, for the same, can be established and said act of the Legislature in no manner defines said district, does not show of what county or counties it is composed, but merely indicates where the court shall be held.
“‘(3) Section 7, art. 5, of the Constitution of the state of Texas, provides that the term of office of a district judge shall be four years. The act of the Legislature in attempting to establish this court does not comply with this constitutional requirement, but attempts to establish a district court for a less period of time.
“‘(4) Section 28, art. 5, of the Constitution of the state of Texas, provides that vacancies in office shall be filled by the Governor until the next succeeding general election. In this act of the Legislature, in attempting to establish this court, it is provided that the Governor shall appoint a district judge, who shall hold his term of office through and after a general election in the state of Texas.
“ ‘Wherefore, this defendant prays to be discharged.’
“Said plea to the jurisdiction was overruled, and cause proceeded to trial in the court below and resulted in verdict and judgment for the Missouri, Kansas & Texas Railway Company of Texas, from which verdict and judgment Mack Carter has appealed to this court. In the appeal is involved the validity of the special district court of Grayson county, a court created by an act of a regular session of the Thirty-Third Legislature of the state of Texas, being the court in which this ease was tried.
“Because of the importance to the litigants in cases pending in said special district court of Grayson county, and the urgent necessity of a final determination and adjudication of the question of the validity of said court, we deem it proper to certify the questions involved to the honorable court for determination. The act of the Thirty-Third Legislature creating a special district court for Grayson county is as follows:
“ ‘An act to create a special district court for Grayson county, to prescribe its jurisdiction, to limit its existence, to fix its terms, to conform all writs and process from said court and the other district courts in said county to such changes as are made in the jurisdiction of any of said courts by this bill, to empower the judge of said special district court and the judges of the Fifteenth and Fifty-Ninth judicial districts in Grayson county to transfer eases from their respective courts to the other of said courts, to provide for the appointment of a judge for said special district court, to fix his salary and term of office, and declaring an emergency.
“ ‘Be it enacted by the Legislature of the State of Texas:
“ ‘Section 1. That there is hereby created a court to be held in Grayson county to be called the “special district court of Grayson county.”
“ ‘Sec. 2. Said special district court of Grayson county shall have jurisdiction concurrent with the district courts of the Fifteenth judicial district and the Fifty-Ninth judicial district of all matters and causes of a civil and criminal nature over which, under the Constitution, and by general laws of the state of Texas, any district court of Grayson county, Texas, has original and appellate jurisdiction.
“ ‘Sec. 3. The judge of the district court of Grayson county, of either the Fifteenth judicial district or the Fifty-Ninth judicial district may, in their discretion, either in term time or in vacation, by an order entered upon the minutes of their respective courts, transfer any case or cases, that may at any time be pending in his court to the special district court of Grayson county created by this act, and the special district court shall have the same power and authority to try and finally dispose of such causes so transferred as the court from which the same were transferred, and the judge of the special district court of Grayson county may at any time, in his discretion, either in term time or in vacation, by an order, or orders, entered upon the minutes of his court, transfer any causes pending upon his docket to either the Fifteenth judicial district or the Fifty-Ninth judicial district court of Grayson county, and when said cause or causes are so transferred, the court to which such transfer is made shall have the same right and authority to try and finally dispose of the same as was originally had by said special district court of Grayson county.
“ ‘Sec. 4. Any party or person desiring to bring a suit over which any of the district courts of Grayson county, Texas, have jurisdiction shall have the right to file the same either in the district court for the Fifteenth or the Fifty-Ninth judicial district, or in said special district court hereby created, subject to the right of the judges of said courts to transfer the same as herein provided.
“ ‘See. 5. The clerk of the district court of Grayson county as heretofore constituted and provided by law and his successors in office shall be the clerk of both the Fifteenth and Fifty-Ninth district courts, in said county, as well as of said special district court created by this act, and shall perform all the duties pertaining to the clerkship of each, and all of said courts.
“ ‘Sec. 6. The Governor of the state of Texas', is hereby authorized and empowered to appoint some person, having the qualification provided by law for district judges, as judge of said special district court of Gray-son county, who shall hold his office until the first day of December, 1914. The compensation of the judge of the special district court of Grayson county, shall be the same as paid to the judges of other district courts.
“ ‘Sec. 7. There is hereby conferred upon said special district court and the judge thereof, all the rights, powers and duties that are given by the law to the district courts and district judges of this state, and all laws of the state of Texas, in reference to district courts, and district judges shall be deemed and held equally applicable to said special district court, except as herein specifically excepted.'
“ ‘Sec. 8. The terms of said special district court created by this act shall be as follows: A term to begin on the third Monday in September, and last until Saturday before the third Monday in December; a term to begin on the third Monday in December which shall continue until Saturday before the third Monday in March; a term to begin on the third Monday in June and may continue until the Saturday before the third Monday in September; providing, however, that the first term of the said special district court shall begin on the first Mondáy after the qualification of the judge appointed by virtue of this act and end with the last Saturday before the first day of the next term.
“ ‘Sec. 9. Said special district court oí Grayson county created by this act shall cease to exist on the 1st day of December, 1914, at which time the term of office of the judge of said court shall expire by limitation of law, and the provision of this act except those embodied in section 10 herein.
“ ‘Sec. 10. That at the expiration of the term for which said special district court is created, the judge thereof shad deliver all the dockets and records of said court to the clerk of the district court of Grayson county for preservation, and any cause or causes pending upon the dockets of said court at the time shall be by said clerk transferred to the dockets of either the district court for the Fifteenth judicial district or the district court for the Fifty-Ninth judicial district of Grayson county, such cases to be transferred, alternately to such dockets, and each of said courts shall have the same right, power and authority to try and finally aispose of said cases so transferred as if the same had originated in one of said courts.
“ ‘Sec. 11. That all laws and parts of laws in conflict with the provision of this act be and the same are hereby repealed, but nothing in this act shall be construed as in any way affecting the process, terms, jurisdiction or authority of either the Fifteenth or the Fifty-Ninth judicial district courts for Gray-son county, except as herein specially conferred upon said special district court of Gray-son county and all process issued in any case pending in either of said courts shall be equally valid in any cause transferred to said special district court.
“ ‘Sec. 12. The crowded state of the dockets of the district courts of the Fifteenth judicial district and the Fifty-Ninth judicial district of Grayson county, and the inability of parties litigant to have their causes heard and disposed of without unusual and disastrous delays, creates an emergency and an imperative public necessity for the suspension of the constitutional rules, requiring bills to be read on three several days in each branch of the Legislature and that this act do take effect from and after its passage. Said constitutional rule is therefore hereby suspended, and it is enacted that this bill take effect and be in force from and after its passage.’
“Question 1. Does said act create a valid court in and for Grayson county with the powers and jurisdiction of a district court, tinder the Constitution and laws of the state of Texas?
“Question 2. Does said act sufficiently describe or specify the district in which said court shall exercise its jurisdiction?
“Question 3. Did the Legislature have the authority to create said court and in the same act limit the time of its duration?
“Question 4. Did the Legislature have the authority to authorize the Governor to appoint a judge for said court who should hold office coextensive with the life of said court; the end of his term, as well as the end of the existence of the court being after the next general election, but before a successor elected at such election could receive a certificate of election, and qualify?
“Question 5. Did the Legislature have the authority to provide that the clerk of the district court of Grayson county should be clerk of the special district court created by the act?
“Question 6. If the court should answer any of the above questions in the negative, what effect will such answer have upon the validity of said special district court?”

We answer each and all of the questions in the affirmative.

The third paragraph of article 5, § 1, of the Constitution, reads thus: “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and. may conform the jurisdiction of the district and other inferior courts thereto.” In the case of Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650, this court said: “In the case of Ex parte Towles [48 Tex. 414] and in some other cases the Supreme Court had held that by adopting article 5 of the Constitution a complete judicial system was established and all of the judicial power of the state was vested in the several courts named in section 1 as it was distributed in the several sections with reference to each particular court. The language, ‘and in such other courts as may be established by law,’ was nullified by the decisions of the Supreme Court in the cases mentioned. The courts and lawyers were in constant trouble as to the jurisdiction of courts, which greatly embarrassed the administration of justice; in fact, there were some subjects of which no court had jurisdiction. When the Legislature of the state came to formulate the amendment to be submitted to the people, one of the principal objects was to avoid the force of that class of decisions and to render elastic the judicial system provided for in the Constitution, so that the needs of the state, which might develop in its future growth, could be provided for by the Legislature from time to time. That there might be no question of the proper construction of the limitations placed by the Constitution upon the power of the Legislature to create eoilrts the last clause of- the section copied above was introduced, and the people of the state adopted the amendment for the purpose of ridding the state of the incubus which the construction contended for had saddled upon it.”

We are of opinion that the effect of that provision was to confer authority upon the Legislature to create emergency courts and in their organization to provide the means by which the existing evils could be remedied expeditiously. The manifest purpose of the people in adopting that amendment was to enable the Legislature to meet such conditions as are present in this case, and it is the duty of the courts to act in harmony with the spirit of that amendment, and to give to it a liberal construction. 'It would be difficult to express more definitely the authority conferred in that clause of the Constitution — to “establish such other courts as it may deem necessary” — which places in the discretion of the Legislature the character and number of courts that may be created as well as the manner in which the officers shall be chosen. The territory over which the jurisdiction of such court may be exercised and the subjects upon which its authority may be exerted are at the discretion of the Legislature.

The act under consideration creates a valid court, and by reference to the existing district courts of the county expresses the subjects of jurisdiction and the territory within which it may exercise its authority.

Under the broad power to establish the court and to prescribe its “jurisdiction and organization,” the Legislature had authority to provide for the appointment of a judge by the Governor and to limit his term of office. There could he no court organized without a judge — a necessary part of the court. The term of office of the judge will not extend beyond the time for the qualification of a successor, because the-court will cease to exist, and there could be no successor.

The Legislature had power to limit the existence of the court that it was authorized to create.

The act imposed additional duties upon the clerk of the district courts, but created no additional office.

We note here that this court held that the Legislature did not attempt to exercise the powers conferred by this article of the Constitution in enacting the law under examination in Whitener v. Belknap, 89 Tex. 273, 34 S. W. 594, hence the reasoning in that case is not applicable here. In Harris County v. Stewart we carefully examined and discussed the questions of law presented in this case.


author: RASBURY, J.

text:
    HOUSMAN v. HORN.
    (Court of Civil Appeals of Texas. Dallas.
    May 17, 1913.)
    1. Appeal and Error (§ 1041) — -Harmless Error — Rulings on Pleadings.
    Error in treating as a plea in abatement, and so filed too late, an amended answer, in an action to foreclose a vendor’s lien, setting up that defendant had neither actual nor constructive notice of the provisions of the purchase money notes, whereby they could be matured for default in' interest, is immaterial; this being available under the general denial, especially where no actual notice is proved, the question of the record of deeds in defendant’s chain of title expressly retaining a lien for purchase money notes being constructive notice of provisions of the notes being one of law.
    , [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. § 1041.]
    2. Vendor and Purchaser (§ 231) — Notice of Provisions of Note Referred to in Recorded Deed.
    Record of deed expressly retaining a vendor’s lien for purchase-money notes is constructive notice, putting a subsequent purchaser on inquiry as to provisions of the notes allowing them to be matured for default in interest, and for payment of 10 per cent, attorney’s fees in case of suit thereon.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. § 231.]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Action by W. H. Horn against S. H. Housman and others. Judgment for plaintiff. Defendant Housman appeals.
    Affirmed.
    G. R. Smith, of McKinney, for appellant. Garnett & Hughston, of McKinney, for ap-pellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURY, J.

Appellee instituted suit in the court below against James F. Acker, E. E. Rosenberry, W. G. Ashley, and appellant Housman, alleging that on January 20, 1911, appellee conveyed certain lands in Collin county, Tex., to said Acker for a recited consideration, part of which was represented by the three promissory negotiable notes of Acker, payable to appellee and secured in their payment by the vendor’s lien expressly retained in the deed made by appellee to said Acker, said notes being due, respectively, January 20, 1913, 1914, and 1915. It was alleged that the notes bore interest payable annually, and that by the provisions of the notes a failure to pay any annual installment of interest thereon at maturity would at the election of the owner mature all notes, and that at the time the suit was filed an annual installment of interest was in fact due, payment of which had been demanded and refused, and that appellee because of such refusal had declared the entire debt due, etc. It was further alleged that the other defendants had in the order named purchased the land from Acker with notice of the lien, all of whom were made parties to the suit. Judgment for the amount of the notes, principal, interest, attorney’s fees, and costs was asked against all the defendants, together with a foreclosure of the lien retained in the deed and notes and sale of the land as provided by law.

Appellant, Housman, answered by general demurrer and general denial. Subsequently, upon leave of court, he filed amended answer, which contained in addition to the general demurrer and denial, the plea that he was a bona fide purchaser of the land without actual or constructive notice of that clause in the notes which gave appellee the option of declaring the entire series due upon failure to pay when due any installment of interest, and that as a consequence the suit as to him was prematurely brought, and prayed that appellee take nothing against him by reason of the suit, and that he recover costs, etc. On motion of appellee, the court below struck from the record that portion of the pleading alleging want of notice of the option of the owner of the notes to declare same due, etc., because being a plea in abatement and having been filed after plea in bar it came too late.

A statement of facts was not filed, but the record does contain the lower court’s conclusions of fact, and the facts taken therefrom and material to the determination of this appeal are as follows: Appellee Horn on January 20, 1911, was the owner of the land securing payment of the notes in suit, and on that day conveyed same to James F. Acker by deed. This deed was filed for record with the county clerk of Collin county February 11, 1911, and thereafter properly- recorded. The deed expressly retains the vendor’s lien to secure payment of the three notes sued upon. Each note draws 8 per cent, per annum interest, payable annually, and provides that failure to pay any annual installment of interest thereon when due shall at the election of the holder mature all three notes, together with the further provision for the payment of 10 per cent, on the whole amount due, if said notes were not paid when due and placed with an attorney or suit filed thereon, etc. Neither of these provisions were set out in the deed from Horn to Acker containing the description of the notes. On January 24, 1912, after allowing three days grace, the first annual interest installment was due on each of said notes. Demand for payment was made of appellant Housman, who was in possession of the land. He failed to pay and whereupon appellee declared all notes due at once, and on January 25, 1912, delivered same to his attorney and caused suit to be filed thereon. After the conveyance of the land to Acker and prior to filing this suit, Acker conveyed the land April 3, 1911, to E. E. Rosenberry, who filed same for record on same day. Said deed recited that Rosenberry agreed to pay all the notes sued on according to their terms. Afterwards, in 1911 (the exact day and month is not given), Rosenberry conveyed the land to appellant Housman, the deed, which was not recorded, containing a clause in substance that Housman bought the land subject to payment of the notes, but did not undertake to describe them, nor did it mention the payment of attorney’s fees or the right to mature all notes upon failure to pay interest installments. None/ of the deeds recited that in the notes there was a provision for attorney’s fees or the provision permitting the holder to mature them upon failure to pay the interest as it matured. The findings further show facts sufficient to sustain the judgment of the court with reference to service and the amount due, etc.

The appellant by counsel contends the court erred in treating his amended answer as a plea in abatement. By this answer as we have said appellant alleged that he had neither actual nor constructive notice of the provision in the notes in reference to appellee’s right to mature the notes before the agreed period if the interest was not paid. From our view of the case the action of the court complained of is immaterial, since in our opinion the defense set out in the special plea could be urged under the general denial, particularly so since no actual notice was proven and any constructive notice arising because of the record of said several deeds would be constructive notice and hence became a matter of law solely.

In our opinion the issue below and here was and is purely one of notice. That being true, the question then is, Did the recitals in the deed from appellee to Acker in reference to the outstanding notes import notice to subsequent purchasers of all the undisclosed provisions thereof? We think so. As to what notice is imparted to subsequent purchasers by the record of deeds in such cases, it is said by an accepted authority that “an instrument properly recorded is notice, not only of facts therein expressly set forth, but also Of all other material facts which an inquiry thereby reasonably suggested would have disclosed.” 39 Cyc. 1720. The qualification of the rule is by the same authority said to be that “a recorded deed is constructive notice only of what appears on its face.” The application of the qualification to the facts in this case would be that the record of the deed from Horn to Acker was notice to all subsequent purchasers of the fact that there were three outstanding unpaid notes only, and that such subsequent purchaser would not be compelled to inquire if there might be more than three such notes. But under the rule announced it would in our opinion also he the duty of the appellant to inquire into the particular provisions of the notes of which the record gave him notice, since such inquiry would be reasonably suggested by his knowledge of the existence of the notes. As said by the judge who tried this case, “the recitation in the deed from Horn to Acker that there- were notes outstanding against the land in controversy made it the duty of all persons purchasing said land subsequeñt to Acker to investigate the notes,” and that “they were bound by the recitals (contained in) the notes whether in fact they had ever had actual notice of them or not.” One purchasing land burdened with a lien to secure an indebtedness represented by notes disclosed by the record is charged with notice of the fact that penalties and forfeitures are probable in case of refusal to pay the debt according to the contract of his vendor and such an inquiry is one reasonably suggested by the existence of the notes. , As said by our Supreme Court in Willis v. Gay, 48 Tex. 463, 26 Am. Rep. 328, which was a contest between a purchaser of land and one who claimed the vendor’s lien thereon, “the recital in this deed that the consideration was ‘secured to be paid to us * * * ’ clearly conveyed the intelligence to any one who might inspect it that the money was not paid down for the land.” The court then recites that, while the terms used are insufficient to create the vendor’s lien, “yet it is the recital of a fact which was well calculated to put a subsequent purchaser upon inquiry, which, if followed up in the right direction, would, as shown by the proof, readily and certainly have led to full notice that the purchase money had not been paid.” Anything disclosed by the record which would suggest as a matter of prudence any inquiry which would disclose the real situation must be reasonably pursued. Cook v. Caswell, 81 Tex. 678, 17 S. W. 385. In Olementz v. Jones Rumber Co., 82 Tex. 424, 18 S. W. 599, it was said that all the terms and conditions of a note secured by mortgage on real estate and referred to in the mortgage constitutes a part of the mortgage, and that, when the mortgage is recorded, notice of all the provisions of the note as well as those of the mortgage is imported to those subsequently dealing with the mortgaged land. Accordingly it follows that the notes given by Acker to Horn and secured by the vendor’s lien in the accompanying deed, and therein referred to, became in like manner a part of the deed, and it was the duty of all subsequent purchasers to inquire into the particular provisions of the notes which might in any manner affect the title to the land. If the recitals in the deed failed to state how the interest was to be paid, and what the penalty would be in case of default, such omission would itself suggest reasonable inquiry in that particular, since it was to be presumed that penalties and forfeitures followed such default.

It was also said in Tinsley v. Houston Land & Trust Co., 36 S. W. 815, that ignorance on the part of a purchaser of land burdened with a prior debt which he assumes of a provision in the notes that upon default in payment of same 10 per cent, should be added as attorney’s fees is inadmissible in testimony as a defense in a suit upon a note, for the reason that by his assumption of the note he is chargeable with knowledge of its contents, and will not be heard to say that -he was ignorant of the extent of the liability he assumed. The only dissimilarity between the facts in the case cited and the instant case is that in the former the obligation was assumed and in the latter the land was taken subject to the payment of the notes. In the case of assumption personal liability would exist while it would not where the land is bought subject to the prior lien and debt. Notice, however, would still be imported; and, while no personal judgment for the Horn debt could be entered against Housman, the debt could be declared due under the recited provision in the notes, the lien foreclosed, and the property sold unless appellant paid the debt. And in that connection the court below did not render personal judgment against appellant for the amount of the note, but merely foreclosed the lien on land as against him, directing that if upon sale the land should sell for more than the debt any excess should be paid to appellant Housman.

Finding no error in the judgment of the court below, the same is hereby affirmed.