author: PRENDERGAST, P. J. DAVIDSON, P. J. PRENDERGAST, J.

text:
    NORWOOD v. STATE.
    (No. 4262.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.
    On Motion for Rehearing, Feb. 14, 1917.)
    1. Criminal Law <&wkey;1159(2) — Appeal—Review — Verdict — Duty of Appellate Court.
    In view of Code Cr. Proc. 1911, arts. 734, 786, declaring that the jury shall be the exclusive judges of the facts proved, and of the credibility of the witnesses, an appellate court cannot in reviewing the sufficiency of the testimony take the place of the jury and disturb a conviction because the court would not have rendered the same verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3075.]
    2. Homicide <&wkey;250 — Actions—Evidence.
    Evidence held to sustain a conviction for murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517.]
    On Motion for Rehearing.
    3. Witnesses <&wkey;52(7), 188(1) — Husband and Wife — Testimony.
    Under Code Cr. Proc. 1911, art. 794, declaring that neither a husband nor wife shall in any case testify as to communications made by one to the other while married, nor shall they after the marriage relation ceases bo witnesses as to any such communication made while it subsisted, except in a case where one or the other is prosecuted for an offense, and a declaration or communication made by the wife to the husband, or,by the husband to the wife, goes to extenuate or justify the offense for which either is on trial, and article 795, declaring that husband and wife may in all criminal prosecutions be witnesses for each other, but they shall in no case testify against each other, save in a criminal prosecution for an offense committed by one against the other, a husband or wife is not, save in a prosecution for an offense committed against him or her, a competent witness against the other spouse, nor can one spouse testify as to incriminating communications made by the other while the marriage relation existed.
    [Ed. Note. — For other cases, see Witnesses, Gent. Dig. §§ 132-134, 734.]
    4. Criminal Law &wkey;721%(2), 1171(1) — Trial —Comments by Prosecutor.
    In a prosecution for murder, where accused objected to the state’s cross-examination of his wife as to a conversation he had with her after securing a gun and just before he left his house to kill deceased, statements by prosecutor to the effect that the state was not allowed to develop such testimony, made in connection with the argument that the defense was manufactured, were improper in view of Code Cr. Proc. 1911, arts. 794, 795, and- prejudicial.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1673, 3127.]
    Prendergast, J., dissenting.
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Wiley H. Norwood was convicted of murder, and he appeals.
    Reversed and remanded.

      J. F. Cunningham, of Abilene, for appellant. O. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was •convicted of murder, and bis punishment assessed at 15 years in the penitentiary.

Appellant earnestly contends that the evidence was insufficient to sustain a conviction for murder, that no motive was shown except an insult to his wife, and that, if guilty at all, his offense would have been manslaughter and not murder. When such contention is made, the rule is that, in passing upon the question, this court must take all the incriminating testimony and all reasonable and proper deductions which may be drawn therefrom and determine from all this the legal proposition of whether or not the evidence was sufficient. In considering such question, the court does not look to the testimony which might authorize the acquittal of an accused nor the testimony which might be sufficient to justify the jury to find a lower grade of offense, but solely as stated to the incriminating testimony and reasonable and proper deductions which may be drawn therefrom. It must also be borne in mind:

“This court cannot legally take the place of the jury and determine whether or not it will believe any witness, or witnesses, and from all of the testimony, as put' down on paper and sent to this court, it would have found a different verdict from that of the jury and if so reverse the case on that account.” Kearse v. State, 68 Tex. Cr. R. 635, 151 S. W. 827.

Our statute expressly provides:

“The jury, in ail cases, are the exclusive judges of the facts, proved, and of the weight to be given to the testimony.” Articles 786 and 734, O. O. P.

And it Is the exclusive province of the jury to pass upon the credibility of tbe witnesses.

The jury consists of 12 intelligent, disinterested, impartial, unprejudiced, and unbiased men, selected from different portions of the county and from different avocations, each of whom hears all the witnesses, sees them when testifying, and observes their manner and the method of their examination by the respective attorneys. The statement of facts brought to this court cannot portray the manner, the acts, and the deportment of the witnesses, nor the manner of their examination and cross-examination. In addition, the trial judge hears, sees, and observes all this, and he sustains the verdict of the jury in overruling the motion for a new trial. Kearse v. State, supra.

As stated by this court, through Judge Ramsey, in Reeseman v. State, 59 Tex. Cr. R. 436, 128 S. W. 1129:

“Many things occur in the presence of the jury that do not appear in the written record before us; references to the manner of witnesses, their ■ hesitation, and a thousand things which may affect their credibility are the subject of comment as matters happening in the presence of the jury which cannot appear in the printed record.”

It is also universal that:

“The jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are the most worthy of credit, and to give credit accordingly.
“That the jury are the judges of the credibility of the witnesses, and of the weight to be attached to the testimony of each and all of them; and the jury are not hound to take the testimony of any witness as absolutely true, and they should not do so, if they are satisfied from all the facts and circumstances proved on the tidal that such witness is mistaken in the matters testified to by him, or that, for any other reason, his testimony is untrue or unreliable.
“The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and they are not bound to believe anything to be a fact because a witness has stated it to be so, provided the jury believe, from all the evidence, that such witness is mistaken or has knowingly testified falsely.”

Sackett on Instructions to Juries, p. 29; Melton v. State, 71 Tex. Cr. R. 143, 158 S. W. 550.

We cannot undertake to give all of the testimony, but we will give, in substance, some of the most material. Appellant and L. H. Becker, the deceased, had lived neighbors about a quarter of a mile apart just a short time more than one year. Both were tenants on the farm of appellant’s father. The deceased lived north, and one of the material witnesses, Mr. Eipham, lived west, of appellant about a quarter of a mile distant. The houses and premises of appellant and deceased were plainly visible, one from the other, a pasture with only some low, scattering mesquite intervening. There was a ravine, or branch, running about north and south west of the premises of each, extending from one to the other and beyond each. A person could get into this ravine near appellant’s and go from there in it to a point near deceased’s house and behind his barn, and then after emerging from the ravine continue behind deceased’s barn so as to be unseen from deceased’s house until he emerged very close thereto from behind the barn. This ravine was of sufficient depth to conceal a person all this distance.

About 11:30 a. m. on February 17th, and about an hour or a little longer before appellant shot and killed deceased, appellant was at work in his young orchard with trees of only one year’s growth, watering his grapevines. This orchard was about 50 or 60 yards from his residence and extending perhaps 100 yards further therefrom. While thus engaged, deceased went from his residence to where appellant was. At this time George Sampson, another neighbor, was talking to appellant. When deceased reached there, the three stood talking for some minutes, when deceased said to appellant he wanted to borrow some tobacco and to know if he could get it. Appellant told him that he could, to go up to his house and get it from his wife, and that he was coming on. Mr. Sampson swore that there was nothing between the orchard and the house but a wire fence. Sampson and deceased left appellant together, Sampson going to his home in the neighborhood. Deceased went direct to the back door of appellant’s house. Sampson saw him go to the west door and stop there. He said that when he saw deceased standing there appellant was going from the lot up to his house, and the lot was 50 or 60 steps from the house. When deceased reached appellant’s back door, he asked appellant’s wife for the tobacco. She told deceased to hollow and ask appellant where the tobacco was which he did. Appellant answered, telling where it was, and she then got and handed it to him. Mr. Gleaton was at work in Mr. Lipham’s field, about 160 yards from where said parties were, and saw Sampson and deceased when they left appellant in his orchard. He swore that deceased went on to appellant’s house, but just before reaching the west side the house obstructed his view of deceased, but that he was near appellant’s back door at the time; that in four or five minutes after this he saw deceased going from appellant’s ; that deceased was not out of his sight from the time he saw him going towards appellant’s back door until he saw him emerge from behind the house again, going towards his home, but 4 or 5 minutes. Appellant swore that it was some 20 to 30 minutes from the time deceased left him to get the tobacco until he went into his house and saw and talked to his wife. The other testimony was sufficient to show that the time was much shorter than he testified.

Appellant introduced his wife as a witness-for him, and had her sworn and testify in his behalf. In her direct testimony she swore that she was IS years old, and married appellant November 26, 1914; that she saw deceased at her house about 11:30 o’clock a. m. before he was killed the day he was killed; that he came to the house and in it, and asked for a can of tobacco, which he said her husband had told him he could get, and asked her where it was; she went to the buffet to get it, and deceased hollowed and asked her husband where it was, and then followed her in the dining room and tried to put his arms around her; that she fought him off, told him that she would tell Mr. Norwood, and he told her that she had better not, and that he then left; that when he got outside of the door he asked her to meet him down at the straw stack at 3 o’clock that evening, and she told him she was not going, and he told her that if she did not at 6 o’clock there would be hell to pay around there; “that was all he said to me on that occasion;” that on other occasions prior to that time he had said insulting things to her; one time in 1914, when she had spent the night at his house, she had to go home the next morning to do some phoning, and that he went with her to feed the stock, he said, and went in the house and opened it up; she told him he need not mind that, and he said he wanted to see if there were burglars in the house; that she sat down to phone, and while phoning, he put his arm on her shoulder, and she told him to remove it and get away, and he did not bother her further until she finished phoning; that when she finished and turned around he tried to pull her on the bed, and she fought him off and told him she was going to tell her husband, and “he told me if I did he would kill me”; that he insulted her the day before he was killed while she was down in the field cutting stalks; that he tried to get her to go down in the bed of the creek with him, which she refused to do, and that he said that he had sent Mike, a Mexican, to talk to her husband so that he would not catch them; that she went on with her work, and when she came down the next time she met Mike, and he asked where her husband was, and she told him at the house, and he said he wanted to see him on some business, and he left; that the next time she came back down in a little while she met the Mexican coming back; that was about 2:30 o’clock in the afternoon of the day before deceased was killed; that there was a creek where deceased then was; she did not know how deep it was, but “you can’t see anybody down in there”; that she did not go down in the creek with him.

On cross-examination she said she first got acquainted with deceased in 1914; that he had approached her three times. “There might have been other times I have not told of.” She then states that after at least the first claimed insult by deceased of her she went to his house while her husband was gone to Abilene and stayed all night at deceased’s house, and was over at his house just a few days before the killing; that she would go there to stay all night when her husband was gone; that she sometimes, when her husband was away, stayed at a neighbor’s, Mr. Gleaton’s, who lived about a half mile from her, but she never went to Mr. Lijjham’s to stay all night. She said she remembered that the district attorney came to her house after the killing; that when deceased was after the tobacco, as stated, he put his arms around her and tried to hug and kiss her, and she fought him away, and he wanted to know if she would not go into the other room and have intercourse with him; she told him she certainly was not going ; that she gave him the tobacco, and he left; she remained at the house and went on cooking her dinner, and was doing this when her husband came to the house; that her husband was at the orchard during all this time; that at least after that first claimed insult of her by .deceased she went to his house and stayed all night and visited there; that she stayed all night there after Christmas, between Christmas and the day he was killed.

Appellant swore that when he came in his house from his orchard he asked his wife where deceased was; she told him he had gone home; he then asked her about the dinner, and she was not then crying; that soon afterwards he saw her crying and asked what was the matter; that she then told him of the said several insults by deceased of her; he said he asked her questions about deceased; that she had never told him of these claimed insults before. He said: “I don’t think my wife told me anything more on the morning Becker was killed.” But after she told him this he got up and went across to Mr. Lipham’s and borrowed a shotgun. Nowhere in his testimony, on either direct or cross examination, does he say that what she told him in any way aroused any passion. Mr. Lipham, a disinterested witness, told what occurred when appellant came over to his house and borrowed his gun. There is no material difference between them on this subject. Appellant in his testimony substantially and fully corroborated what Mr. Lipham testified. The substance of Mr. Lipham’s testimony was that he was out in his lot feeding his stock just at noon, when appellant came to him in his lot. Each spoke to the other and asked about one another. Lipham says he knew that appellant had been sick the week before, and he had been over to see him a few times while he was sick, and that on this occasion appellant said he was doing very well, just a little tired. They started to his house, walking along talking. He did not' know what appellant was there for at the time, thinking he might have come to phone or go on to Mr. G-leaton’s and the witness told him about working on his tank and the trouble he was having with it, and that it was a big job, and just before he got to the gate deceased asked him if he had a shotgun. He answered that he had, and he asked if he could get it to kill some rabbits. They then went in the house. He went and got the gun, set it down behind the door and appellant sat down, and they talked for some time, about various business matters, and when he got the gun for him, he told him he had but few cartridges, and appellant said he had some over at his house which his father had left there. In that talk appellant said to him the rabbits were thick late in the evening. He asked him to phone his father and tell him to come down there the next day. The witness asked him why he could not phone, and he replied that his father was out in the field, and he could not reach him at that time. They then talked about the appellant owing the witness for some telephone calls. They discussed that back and forth, and he said that he thought he only owed one, not two, that his wife had paid Mr. Bond for the other call, but that he would see her, and if she had not paid it, he would. Then he stated that he guessed he had better be going. That he got up, picked up the gun and walked out. The witness said: “I did not notice any excitement about him. There was nothing about him to attract my attention. I didn’t notice any agitation about him.” Appellant says that he then went back to his own home with the gun, went in, got some buckshot cartridges, loaded the gun, and walked over to the deceased’s; that while he was gone his wife left home and went over to Mr. Lipham’s. He claimed that he walked straight across from his home to deceased’s in plain open view of deceased’s. The state’s testimony was clearly sufficient to show that he was back-tracked from the place of the killing, which showed that he went from his house in said ravine, where he could not be seen from deceased’s until he emerged from behind deceased’s barn. The deceased, after he ate his dinner, went out with his little .22 target rifle behind his barn, not however, where he could see appellant after he emerged from the ravine until he got right on him. John Perrin, a disinterested witness, who was at work at deceased’s at the time, and who was out near the bam when appellant appeared upon the scene and saw the killing, said it occurred in'this way: That when he first saw appellant emerge from behind deceased’s barn, he had his gun in his hand; appellant said in his right hand lying across his left arm. Perrin said that he walked up in about 16 feet of deceased, who was then standing, holding the little target gun down on his shoe; that deceased just said, “Howdy;” appellant made no reply to this, but walked on up a few steps further towards deceased, and said to deceased, “Damn your soul, Becker,” and shot him; that deceased immediately dropped his little target gun on the ground, staggered back, and attempted, it seems, to run to get out cff the way some ten steps, when appellant then fired a second shot into his heart, felling him, and that he died immediately; that deceased’s wife, hearing the shooting, ran out of the house to them and asked appellant why he did it, and he replied because he had been interfering with his wife. The witness said he did not say that he had been insulting his wife, but interfering with her; that appellant then went and picked up the little target rifle where deceased had dropped it when first shot, and with both guns walked on off towards his home. Perrin’s testimony was to the effect that, at the time appellant shot deceased, deceased did not present his gun towards appellant, or attempt in any way to. do anything to appellant. Appellant went on to his home, left the target rifle there, and followed his wife over to Mr. Lip-ham’s. Mrs. Lipham testified that appellant brought her husband’s gun back at this time, and when he first came up he asked if his wife was there; that she hesitated to tell him that she was, and then he called his wife a time or two and handed the gun to her and said, “This is awful,” and she replied, “Yes,” it was an awful surprise to them; that he then called his wife again, and she came out in the yard where he was, and he said they must go; he then told his wife to go and phone his father to bring a lawyer; that his wife went in and got his mother on the phone, and he then told her to tell his mother, and his wife asked him. “Have you shot him?” and he said, “Yes,” and she then told his mother oyer the phone that appellant had shot deceased. Appellant by his testimony stated, in substance, that he got the shotgun from Lipham and took it over with him to deceased’s for protection and to see if he had any reason to offer why he had approached his wife; that he went there for an explanation, but he said after he got there he did not call upon deceased for any explanation. Substantially the whole point of his testimony then was that he shot deceased both times in self-defense. He did not say that he was mad or in any way outraged or any passion was aroused because of the claimed insults. He does say that he was excited at the time he shot deceased both times, but that excitement was caused, as he claimed, by deceased’s attempt to present his gun towards him, and he thought he was going to try to shoot him.

The court gave a most full and complete charge in every way in appellant’s favor and aptly and correctly submitted every issue that was in any way raised in appellant’s favor. No complaint whatever is made of the charge of the court. The charge submitted manslaughter in his favor and in every possible way raised by the testimony. He also submitted self-defense without reference to threats, and then self-defense in connection with threats. He properly submitted murder correctly in every respect.

The statute is plain and clear that, in order to reduce a homicide from murder to manslaughter, the homicide must be committed under the immediate influence of sudden passion arising from adequate cause; that under the immediate influence of sudden passion means that the provocation must arise at the time of the commission of the offense, and the passion must not be the result of a former provocation; that the killing must be directly caused by the passion arising out of the provocation; and that it is not enough that the slayer’s mind is merely agitated by passion arising from some other provocation. Without all this, an unlawful killing cannot be reduced from murder to manslaughter.

Erom all the testimony in this record we think it is without question that the jury were clearly authorized to believe: (1) That deceased had not insulted his wife; (2) that she did not, as he claimed, tell him at the time he claimed she did that the deceased had insulted her; it is very noticeable that in neither her direct nor cross examination did she say directly or indirectly that she had told appellant of said insults when he claimed she did nor before he killed deceased; (3) that if she did tell him, what she told him was not the cause of any sudden passion on his part, and that the cause of the killing must have been from some other motive. The testimony of Mr. Lipham' would exclude the idea of any sudden passion from any claimed insult by deceased of his wife. It would show that appellant had no passion arising therefrom.

Now as to the motive for the killing other than said claimed insults. This court, in Preston v. State, 8 Tex. App. 38, on this subject said:

“It is true that no motive on the part of appellant to commit this crime is shown, but it is never indispensable to a conviction that a motive for the commission of crime should appeal. The People v. Robinson, 1 Park. Cr. 655; Roscoe’s Cr. Ev. 88. Who with mortal ken can fathom the human heart and expose all its mysterious promptings? Crimes the most horrible are often committed without apparent motive save an insatiate deviltry which mocks at social restraint and recklessly defies the laws of God and man.”

The Supreme Court of Missouri, in State v. Davis, 226 Mo. 515, 126 S. W. 477, said:

“The fact of motive or the absence of motive is _ always an important inquiry in a case of this character, but the absence of an. apparent motive is not conclusive of the innocence of the defendant. Experience has demonstrated that the motives for crime are so numerous, so hidden, and often so utterly unreasonable that it is impracticable to require the state to make them manifest. It does not follow that there was no motive because the state was unable to show any or that the only one shown would seem inadequate; neither is it true that there can be no murder because there is no motive for it. State v. Coleman, 20 S. C. 441; People v. Ah Fung, 17 Cal. 377; Clifton v. State, 73 Ala. 473; Preston v. State, 8 Tex. App. 30; Green v. State, 38 Ark. 304; McLain v. Com., 99 Pa. 86; State v. David, 131 Mo. loc. cit. 397, 398, 33 S. W. 28.”

See, also, to the same effect, White’s Ann. P. C. § 1231; State v. David, 131 Mo. 398, 33 S. W. 32; Thurman v. State, 32 Neb. 225, 49 N. W. 338; State v. Hembree, 54 Or. 475, 103 Pac. 1008.

On cross-examination, when appellant was asked how many times he had been mad at deceased, he said that he did not know of anything serious; that the only trouble between them came up when deceased tried to get some blank checks from him, and the deceased got angry about it; that deceased got mad because he thought he had the blank checks, and just would not let him have them. Of course, deceased, having been' killed by appellant, could not tell what the motive was.

We therefore conclude that the evidence was amply sufficient to sustain the verdict for murder, and that the jury were not bound under the evidence to find him guilty only of manslaughter.

Upon cross-examination of appellant’s wife the state asked her to relate the conversation between her and-her husband after he returned from Lipham’s with the gun and at the time he got the cartridges with which he loaded it and just before he left his house to kill deceased. Appellant objected to this, and the court sustained the objections, and the wife was not permitted to testify to this. The district attorney, in his closing argument, among other things, in substance said to the jury that this tale about an insult to defendant’s wife was the same old story that all defendants bring into court when they have committed murder, and that he wanted to tell them that the motive for this killing was not an insult to defendant’s wife; that claim was a mere “frame-up” by the defendant; the motive of the killing was something else; and, further, that the appellant himself admitted that there had been at one time a difference or falling out between him and deceased about a check book, saying to the jury:

“You remember the testimony.”

Following this in his speech he then said:

“You remember, gentlemen, that we were not allowed to prove the conversation between defendant and his wife after he had gotten the gun and returned home. The defendant objected to this testimony, and they would not let us develop what was said between the defendant and his wife at that time, because the defendant’s lawyers objected to it.”

To this latter part only just quoted appellant objected, claiming that it was inflammatory, prejudicial, and not a legitimate discussion of the facts of the case. The court said, “I don’t know so much about that,” and the district attorney then urged his right to comment on these matters, claiming that the authorities authorized him to comment on the failure of the defendant to put his wife on the stand. Whereupon the court overruled the objections and permitted said argument to remain with the jury. Appellant requested no written charge of the court to disregard this argument.

This court has uniformly, in a great many decisions, held that, when it developed upon the trial that an accused’s wife must know some material facts and he fails to put her on the stand to testify in his behalf, or if after having put her on the stand he objects to her testifying to such material facts upon inquiry thereabout by the state, such action on his part is a proper subject of argument and comment by the prosecution before the jury.

This court, through Judge Willson, in Mercer v. State, 17 Tex. App. 467, said:

“We do not think the remarks of the prosecuting attorney, in his closing argument to the jury, which are complained of by the defendant, were beyond the scope of legitimate argument. It was disclosed by the evidence that the defendant’s wife must have known important facts bearing directly upon the issue in the case, and that she was within easy reach of the process of the court. She could have explained fully the occurrence testified about by his two daughters when he got his gun and said he would blow his brains out. She could have testified, perhaps, to many other facts which would have shed light upon this horrible transaction. It was not within the power of the prosecution to adduce her testimony, because, being the defendant’s wife, she was not permitted' under the law to testify against him in this case. He alone could call for her testimony, and compel its production. Her knowledge of the facts, whatever that knowledge might be, was at his command — was within his reach — and without he produced it, or consented to its production, it was a sealed book, which no human tribunal had the power to open against him. Under these circumstances we think the prosecuting attorney was justified in the remarks complained of, and that the court did not err in its action in relation thereto.”

Again, this court, in Armstrong v. State, 34 Tex. Cr. R. 250, 30 S. W. 235, said:

“Nor, in our opinion, was any error committed by the attorney for the state animadverting on the fact that the defendant had refused to permit Mrs. Armstrong, the wife of appellant, to be interrogated as to arms at her husband’s house at the time of the robbery. The defendant put her on the stand, and had examined her as to other matters, when the state, on cross-examination, proposed to interrogate her on the matter stated. Defendant objected, and the court sustained the objection. The attorneys for the prosecution, in the argument, alluded to this as a suppression of evidence which it was in the power of defendant to 'produce, or to have permitted its introduction, but that he interposed an objection to it. If the effect of her testimony had not been criminative, _ unquestionably no objection would have been interposed, and in our opinion, it was the subject of legitimate criticism.”

Then Judge Henderson, who wrote that opinion, cited and quoted from the Mercer Case, supra.

To the same effect are the decisions in McMichael v. State, 49 Tex. Cr. R. 424, 93 S. W. 723; Tabor v. State, 52 Tex. Cr. R. 393, 107 S. W. 1116; Eggleston v. State, 59 Tex. Cr. R. 550, 128 S. W. 1105; Bost v. State, 64 Tex. Cr. R. 475, 144 S. W. 589; Hall v. State, 22 S. W. 141; Harris v. State, 47 S. W. 643; Grammer v. State, 42 Tex. Cr. R. 518, 61 S. W. 402; Smith v. State, 65 S. W. 186; Richardson v. State, 44 Tex. Cr. R. 211, 70 S. W. 320; Locklin v. State, 75 S. W. 308; Battles v. State, 53 Tex. Cr. R. 208, 109 S. W. 195; Burnam v. State, 61 Tex. Cr. R. 616, 135 S. W. 1175; Black v. State, 65 Tex. Cr. R. 116, 143 S. W. 932; Bybee v. State, 74 Tex. Cr. R. 213, 168 S. W. 526; Fondren v. State, 74 Tex. Cr. R. 561, 169 S. W. 411; Gomez v. State, 75 Tex. Cr. R. 239, 170 S. W. 713; Marshall v. State, 182 S. W. 1108-1109. The case of Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 146, is not applicable.

Appellant’s bill presenting this question shows no error. Appellant has other bills to questions asked his wife on cross-examination by the state. None of them present any error. The court really excluded some questions which he should have permitted the state to ask. It is unnecessary to state these matters. There is no error in the record.

The judgment is affirmed.

On Motion for Rehearing.

DAVIDSON, P. J.

The motion for rehearing insists the court erred in the original opinion holding the argument of the district attorney was not improper. The bill of exceptions is substantially set out in the original opinion.

The court recognized the rule that confidential communications of the wife could not be used or introduced against her husband. The statute (article 794, C. C. P.) provides that:

“Neither husband nor wife shall, in any case, testify as to communications made by one to the other, while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial.”

This statute, therefore, directly and positively interdicts the use of such confidential communication. This has been the law in Texas from the inception of our jurisprudence. It has been held that one spouse cannot be used to impeach the testimony of the other, by proving contradictory statements, as this would be allowing testimony of communications made while the marriage relation subsisted between them. Roach v. State, 41 Tex. 261. The defendant’s wife testifying for him cannot be cross-examined relative to privileged communications. This was decided in Owen v. State, 7 Tex. App. 329. In Spivey v. State, 45 Tex. Cr. R. 496, 77 S. W. 444, it was held that in a murder prosecution it was shown that appellant had been laboring under an insane delusion that his wife had been intimate with deceased. His wife testified that after the arrest her husband told her that he wanted her to testify that deceased had made indecent proposals to her and that it would go hard with him if she did not. It was held this testimony was inadmissible, and should have been excluded. In McDonald v. State, 73 Tex. Cr. R. 125, 164 S. W. 831, it was held that a statement by accused to her husband made on the latter’s request as to the cause of the trouble between accused and the husband’s wife that accused had heard that the wife had had intercourse with other men was privileged as .a confidential communication. It has also been held in Pace v. State, 61 Tex. Cr. R. 436, 135 S. W. 379, that a confession by a husband to his 'wife that he killed a man is absolutely privileged and cannot be used, even though he be dead. Again, in Miller v. State, 65 Tex. Cr. R. 305, 144 S. W. 239, it was held that confidential communications of a wife to her husband cannot, after their divorce, he testified by him for the state on a prosecution of her. The same rule was laid down in Davis v. State, 45 Tex. Cr. R. 292, 77 S. W. 451. It was held in that case that the testimony of a divorced wife to a threat made by her former husband against one with whose murder he is charged, in the course of a conversation with the witness prior to the divorce, is inadmissible. These cases are cited in connection with the statute quoted to show how that statute has been construed and held by the appellate courts in Texas. In fact, there could be legally no other sound construction; the words being express and implicit. The same rule was laid down in Gant v. State, 55 Tex. Cr. R. 284, 116 S. W. 801; Gross v. State, 61 Tex. Cr. R. 176, 135 S. W. 373, 33 L. R. A. (N. S.) 477; McDonald v. State, 73 Tex. Cr. R. 125, 164 S. W. 831; and Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 145. It is also laid down in Owen v. State, 7 Tex. App. 334, that no inference of the truth of the facts sought to be elicited can be deduced where the question is privileged and unanswered. This language is used:

“If the witness declines answering, no inference of the truth of the fact is permitted to be drawn from that circumstance. And no answer forced from him after he has claimed protection can afterwards be given in evidence against him.”

We have another statute (article 795 of the Code of Criminal Procedure) which provides that:

“The husband and wife may, in all criminal actions, be witnesses for each other; but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other.”

This statute has been held to be mandatory, and that the wife will not be permitted to testify to criminative facts against her husband, and the judgment has been reversed where this has been permitted, although no exception had been taken. Among the cases so holding is Brock v. State, 44 Tex. Cr. R. 335, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859. That case has been followed in a number of opinions. Among the later cases is the Eads Case, supra. That opinion was by Judge Harper and is here directly in point. Judge Harper uses this language:

“However, we have never gone to the extent of holding that the estate, while introducing its evidence, could so use the wife as to convey to the jury that if permitted the wife would testify against the husband and give the lie to the testimony introduced by him and testified to by him. Appellant had not closed the mouth of his wife; the law did that. Whether it is best for the law to do so may be a question about which minds differ, but we do not think any one can question that it is the law that does so now. Neither, under the authorities, was it a provision of law which appellant could waive in behalf of the state, and counsel for the state was in error in so stating in the presence of the jury, and it was highly improper for him to ask appellant while on the witness stand ‘if he, appellant, would waive his objections and permit his wife to testify in behalf of the state.’ This was unfair cross-examination, for the law does not sanction him giving such waiver. He had killed his wife’s father. If he did not desire his wife to testify that continued friendly relations might continue between her and her mother, this was commendable in him. If, on the other hand, his wife had turned against him because he had killed her father, the law says that the communications that took place between her and -appellant should not' be disclosed by the wife, and she cannot testify against Mm, now that perhaps she feels unfriendly towards him because he is charged with killing her father. The state by its remarks and by its conduct could not have done otherwise than to have created the impression on the minds of the jury that, if ‘appellant had not closed the mouth of his wife,’ she would have denied communicating any such threat to appellant as he testified to, and the witness Hill testified she did communicate, and this was the object and purpose of the state in. its conduct and by its remarks. Such evidence from that source, the law says, is inadmissible, and it was such erról-as ought to and will cause a reversal of this case.”

A portion of that opinion shows the condition of the case under which the matter arose. The state asked, in the Eads Case, this question of appellant while he was testifying:

“ ‘You know that under the law your wife cannot testify in this case unless you waive your objections to her testimony?’ and when appellant’s counsel objected to the question, state’s counsel remarked: ‘AH' the authorities hold that a wife can testify unless the defendant objects to same; we can tender this woman as a witness, and if they object, her mouth is closed, but if they do not object, the law books say that the witness is competent.’ * * * After appellant had testified counsel for the state called Mrs. Eads, appellant’s wife, around and had her take the witness stand, and forced appellant then and there in the presence of the jury to object to her testifying; and * * * in his closing argument to the jury state’s counsel argued to the jury that ‘appellant had closed the mouth of his wife by refusing to waive objections to her testimony with reference to the threats made which had been testified about, which she communicated to the defendant,’ etc. It was highly improper to permit state’s counsel to call appellant’s wife to the witness stand. Article 795 of the Oode of Criminal Procedure provides that ‘the husband and wife may in all criminal cases be witnesses for each other, but they shall in no case testify against each other except in criminal prosecutions for an offense committed by one against the other.’ This provision of the statute is discussed at length in Brock v. State, 44 Tex. Cr. R. 335 [71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859], and the authorities digested, and it was there held that was a matter the person on trial could not waive, because the statute had provided that she was an incompetent witness; that she can be a witness for him, but not against him, and when called by him she can only be cross-examined about matters which he had elicited on direct examination. Of course, this would embrace matters which would tend to show that her testimony was false, but in no instance can the state .first call the wife as a witness except in case of an offense committed by him against her. The rule * * * announced in the Brock Case, supra, has been adhered to in Davis v. State, 45 Tex. Cr. R. 292 [77 S. W. 451]; Spivey v. State, 45 Tex. Cr. R. 496 [77 S. W. 444]; Yeiral v. State, 56 Tex. Cr. R. 267 [119 S. W. 848]; Woodall v. State, 58 Tex. Cr. R. 513 [126 S. W. 591].”

That rule was recognized under article 795 that such testimony was inadmissible and would cause a reversal. Confidential communication under article 794, once made under the statute, shall forever remain inviolate and privileged. If the testimony is not admissible, any attempt to prove it before the jury would be an attempt to violate its mandatory provisions. If it could not be introduced directly, it could not be so introduced or used indirectly. This would be an evasion of the statute to its destruction. The law closes the mouth of the spouse. It is not the accused who does so.

The Mercer Case, 17 Tex. App. 467, has been referred to and relied upon by the state. That opinion has, we think, no reference to article 794, even if it be correct in its enunciation. The question of privileged communications was not in that case.

The Armstrong Case, 34 Tex. Cr. R. 250, 30 S. W. 235, is not analogous, nor on the same question. The testimony there, however, was not confidential communications. Moore’s Case, 45 Tex. Cr. R. 234, 75 S. W. 497, 67 L. R. A. 499, 108 Am. St. Rep. 952, 2 Ann. Cas. 878, was reversed because the state called the wife of the defendant to the witness stand and tendered her to the defendant as a witness.

The Eads Case, supra, is in harmony with the statute in reference to confidential communications. The court recognized in this case that the wife could not testify to communications made to her by her husband immediately after the killing, because it was privileged as confidential. Had he ruled otherwise it would have been making the wife a state’s witness with reference to such communications. This, of course, could not be done. In Gross v. State, supra, the matter was pretty fully discussed, and authorities reviewed. It was there held, upon trial of incest, to be reversible error to admit in evi-. dence the contents of a letter which the defendant had written his wife wherein he implored her to get his daughter and her husband out of the way, as they could put him to death; and this although the letter came into possession of state’s witness with or without connivance of the wife, as the same was a privileged communication. This follows the rule laid down in Cole v. State, 48 Tex. Cr. R. 439, 88 S. W. 34, and other cases cited in that opinion. See, also, Hearne v. State, 50 Tex. Cr. R. 431, 97 S. W. 1050. In Hearne’s Case letters seem to have been writ-; ten by the husband to his wife, and the case was reversed because of the admission of those letters. From the Gross Case, supra, this quotation is made:

“The same rule has been laid down in Cole v. State, 48 Tex. Cr. R. 439 [88 S. W. 341]; Burke v. State, 15 Tex. App. 156; Davis v. State, 45 Tex. Cr. R. 292 [77 S. W. 451]; Gant v. State, 55 Tex. Cr. R. 284 [116 S. W. 801]. In the latter case the court said: ‘The privilege extends beyond dissolution of marriage relation by death or divorce. Ency. of Ev.,pp. 196, 197; note 43 for collation of authorities. It includes letters from one spouse to the other.’ Mitchell v. Mitchell, 80 Tex. 101 [15 S. W. 705]; Mercer v. State, 40 Fla. 216 [24 South. 154, 74 Am. St. Rep. 135]; Midland Lumber Co. v. Kreeger, 52 Mo. App. 418; Com. v. Sapp [90 Ky. 580, 14 S. W. 834], 29 Am. St. Rep. 415; Stein v. Bowman, 13 Pet 209 [10 L. Ed. 129]; Saunders v. Hendrix, 5 Ala. 224; 1 Greenlf. on Ev. §§ 254, 337, 338, and notes; Cook v. Grange, 18 Ohio, 526; Brown v. Wood, 121 Mass. 137; Maynard v. Vinton, 59 Mich. 139 [26 N. W. 401, 60 Am. Rep. 276]; Jacobs v. Hesler, 113 Mass. 157; Hitchcock v. Moore, 70 Mich. 112 [37 N. W. 914, 14 Am. St. Rep. 474]; Smith v. Potter, 27 Vt. 304 [65 Am. Dec. 198]; Brock v. Brock [116 Pa. 109], 9 Atl. 486. The above list of cases is cited in Gant’s Case, supra.”

It is contended by appellant in his bill of exceptions that state’s counsel’s argument was harmful, prejudicial, inflammatory, and clearly inadmissible from any standpoint. We agree with his contention.

For the reasons indicated, the motion for rehearing is granted, the affirmance set aside, and the judgment reversed, and the cause remanded.

MORROW, J., concurs.

PRENDERGAST, J.

I respectfully protest and dissent. The original opinion by the whole court at the time is unquestionably correct. The motion should be overruled, and the judgment affirmed; it should not be reversed.
      <§£»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    CRAWFORD et al. v. EL PASO LAND IMPROVEMENT CO.
    (No. 668.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 8, 1917.)
    Injunction i&wkey;136(2) — Temporary Injunction — Allowance.
    Where the title to land on which improvements had been placed was in controversy, and a suit was pending, it was proper to enjoin appellants from removing or destroying any of the improvements until final determination of the suit.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 306.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action between the El Paso Land Improvement Company and L. M. Crawford, trustee, and others. From a decree temporarily enjoining the latter, they appeal.
    Affirmed.
    . Jones, Jones, Hardie & Grambling, of El Paso, for appellants. T. A. Falvey and J. F. Woodson, both of El Paso, for appellee.
   HIGGINS, J.

Appellant Crawford is the owner of a part of block 2 in city of El Paso, upon which is situate the Crawford Theater. Adjoining the same is property owned by ap-pellee, upon which is situate the Angelus Hotel. The improvements adjoin each other. Litigation between the parties has arisen involving the title and right of possession to a part of the realty upon which a part of the improvements is situate. At the instance of appellee, the court has granted a temporary injunction restraining appellants from removing or tearing down any of the improvements upon the premises in dispute, and from interfering therewith, altering, or destroying the same or any portion thereof until the final determination of the cause. From this order, the parties enjoined prosecute this appeal. Upon an examination of the appellee’s petition and the evidence adduced upon the hearing, we think the court properly granted an injunction •as stated. The title to the land upon which a part of the improvements is situate, being in dispute, a temporary injunction wa3 very properly granted to restrain any interference with or removal of the improvements until the issue of title could be finally adjudicated so as to preserve the status quo. We have considered the brief filed by appellants, and are of opinion it shows no reason why the action of the lower court should be set aside. The propositions presented are outside of any issue involved on this appeal. They relate to the merits of the right of recovery, and it would be improper to pass upon same in advance of the determination upon its merits of the issue of title. They have no proper place in determining the propriety of an order to maintain the status quo.

Affirmed.


text:
    FINNIGAN-BROWN CO. v. ESCOBAR et al.
    (No. 660.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 1, 1917.
    Rehearing Denied Feb. 22, 1917.)
    1. Judgment <&wkey;273(l) — “Nuno Peo Tunc” Entry.
    The purpose of a “nunc pro tune entry” and its only legitimate function is to correctly evidence upon the records of the court a judgment, decree, or order actually made by it, but which for some reason has not been entered of record at the proper time.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 525, 530-534.
    For other definitions, see Words and Phrases, First and Second Series, Nunc Pro Tunc.]
    2. Judgment <&wkey;273(4) — Nunc Pro Tunc Entry.
    A judgment nunc pro tunc should not be entered unless some proper and sufficient evidence be adduced to show that the court had in fact pronounced or entered the judgment which it is the purpose of the nunc pro tunc entry to correctly evidence.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 528.]
    3. Judgment <&wkey;273(4) — Nunc Pro Tunc Entry.
    Entry of a nunc pro tunc judgment, without evidence showing the same judgment had been in fact previously rendered, and with refusal of evidence offered to show that the proposed entry evidenced a judgment which in fact was not rendered, was error.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 528.]
    4. Judgment <&wkey;273(6) — Nunc Pro Tunc Entry.
    In action to recover title and possession of goods, where appeal from the judgment entered upon answers of the jury to special issues was dismissed for want of finality in the judgment, the trial court upon return of the case could not enter nunc pro tune a judgment varying materially from the prior judgment, merely upon the prior judgment and_ findings of the jury, and without further evidence or proceedings, since in case of a special verdict it is necessary for the court to announce the judgment thereon, because the law is not determined nor the rights of the parties fixed by such verdict, it not being sufficient to authorize nunc pro tunc judgment that the findings or prior judgment show what judgment should have been rendered.
    [Eld. Note. — For other cases, see Judgment, Cent. Dig. § 535.]
    5. Judgment &wkey;>273(l) — Nunc Peo Tunc Entry.
    If there is simply a general verdict in a case, with failure to announce a judgment or a correct judgment thereon, such verdict alone authorizes the entry of a nunc pro tunc judgment, correctly pronouncing the legal consequences resulting from the verdict, since in such case the judge has nothing to do but simply enter upon his docket the fact of the return of the verdict, and judgment follows as a matter of course.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 525, 530-534.]
    Error from District Court, El Paso County; Dan M. Jackson, Judge.
    Suit by the Finnigan-Brown Company against Leon Escobar and another, to recover title and possession of goods, in which Winceslao Garcia intervened. Judgment for intervener, and plaintiff brings error;
    Reversed and remanded.
    W. M. Coldwell and Jos. TJ. Sweeney, both of El Paso, for plaintiff in error. T. C. Lea, Jr., C. L. Vowell, and Walthall & Gamble, all of El Paso, for defendants in error.
   HIGGINS, J.

Finnigan-Brown Company brought suit against Leon Escobar and T. J. Woodside to recover the title and possession of certain hides. It caused a writ of sequestration to be issued, and the property in litigation was seized thereunder. It replevied the property and received possession thereof from the sheriff. Thereafter Winceslao Garcia, intervened, claiming the property in litigation adversely to all parties.

Upon trial before a jury, the cause was submitted upon special issues. The answers returned to the questions submitted found, in effect, that the property in litigation was owned by Finnigan-Brown Company, Garcia, and Martinez in the proportion stated in the answers, and also found the values of the different hides. Thereupon the court rendered and caused to be entered upon its minutes its judgment in the cause. Finnigan-Brown Company appealed from the judgment so entered, and the appeal was dismissed by this court for want of finality therein. 179 S. W. 1127. When the case was returned to the court below, the intervener, Garcia, filed a motion to have judgment entered nunc pro tunc on the verdict of the jury rendered in the case. Proper notice of this motion was had by all parties. Finnigan-Brown Company filed exceptions and an answer to the motion of Garcia. The exceptions questioned the sufficiency of the allegations of the motion, and the answer denied upon oath that the district court had ever rendered or pro-' nounced any judgment in the cause other than the one from which it had theretofore attempted to appeal, and which was held by this court not to be a final judgment. The motion came on to be heard, and the exceptions uf Finnigan-Brown Company to its sufficiency were overruled. Thereupon Garcia asked for judgment as prayed for in his motion, and Finnigan-Brown Company objected on the ground that they had denied under oath the merits of the motion, and demanded that evidence be produced in support of the motion, which evidence Garcia declined to produce or offer, and was sustained in so doing by the court on the ground that no evidence was requisite or advisable. Thereupon Finnigan-Brown Company offered to prove and tendered evidence that the court had never in truth and in fact rendered or pronounced the judgment which Garcia asked be entered nunc pro tunc, or any judgment other than that which this court had declared not to be a final judgment. Whereupon Garcia objected to the court receiving or hearing such evidence tendered by Finnigan-Brown Company, on the ground that the same was unnecessary, immaterial, and inadmissible, which objection was sustained by the court, and the court refused to receive or hear the tendered evidence, to all' of which Finnigan-Brown Company excepted, and over its objection and exception the court then entered judgment finally disposing of all issues in the case, varying materially from the judgment previously entered in the ease, and which was before this ciourt upon a former appeal.

Thereupon Finnigan-Brown Company filed a motion, asking the court to file findings of fact and conclusions of law in so far as relates to the action of the court and the matters on which it based its aetipn in ordering judgment to be then entered nunc pro tunc. This motion was overruled, and the court refused to file such findings and conclusions upon the ground that it was neither requisite nor advisable., Finnigan-Brown Company thereupon sued out this writ of error from the .judgment entered nunc pro tunc, assigning as error: First, that the court erred in ordering the" judgment to be entered nunc pro tuno as asked for upon the motion of Garcia without hearing evidence in support of the same; and, second, that the court erred in refusing to allow it to offer evidence to show that the judgment asked to be entered nunc pro tunc, and which was so entered, was never in truth and in fact rendered or pronounced, nor any other judgment rendered except that which this court had declared not to be a final judgment.

Tlie purpose of a nunc pro tunc entry and its only legitimate function is to correctly evidence upon the records of the court a judgment, decree,- or order actually made by it, but which for some reason had not been entered of record at the proper time. A judgment nunc pro tunc should not be entered unless some proper and sufficient evidence be adduced to show that the court had in fact pronounced or rendered the judgment which it is the purpose of the nunc pro tunc entry to correctly evidence.

Here, as the bill of exception shows, the court not only failed to require the production of some evidence to show that it had in fact rendered the judgment which it was then proposed to enter upon its minutes, but it refused to receive evidence offered to show that the proposed entry evidenced a judgment which was not in fact rendered. This was error. Reed v. Robertson, 106 Tex. 56, 156 S. W. 196; Frank v. Tatum, 23 S. W. 311; Camoron v. Thurmond, 56 Tex. 22; Wheeler v. Duke, 29 Tex. Civ. App. 20, 67 S. W. 909; Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040; Moore v. Irrigation Co., 179 S. W. 552.

But defendants in error say:

“There could be no stronger proof that the judgment in this case as rendered disposed of Finnigan-Brown Company and awarded special hides than the fact that the verdict of the jury did so unequivocally. The court had authority to correct the judgment of its own motion without any action on the part of the parties merely on an inspection of the verdict contained in the record.”

It is very true the answers of the jury to the special issues submitted to them very unequivocally found that FinniganBrown Company, or their agent, was in possession of a certain number of the hides sued for and the value thereof, and the same finding was made as to Martinez and Garcia. But these findings of fact by the jury do not show what judgment was in fact pronounced by the court upon the same, or that the entry proposed to be made nunc pro tunc correctly evidenced the'judgment which was in fact rendered. It is not sufficient that the findings should show the judgment which should have been rendered. There must be evidence of what judgment was in fact pronounced. If there had been simply a general verdict in the case, such verdict alone would have authorized the entry of a nunc pro tunc judgment pronouncing the legal consequence resulting from the verdict. In such a case— “the judge has nothing to do but simply enter upon his docket the fact of the return of the verdict, and judgment follows as a matter of course, but in case of special verdict, the judge receives the verdict and passes upon it, determining what the judgment shall be, and renders judgment thereon; that is, pronounces the judgment which the clerk shall enter upon record. The reason is plain; upon a general verdict for the plaintiff or defendant there is no need for any action of the court, as the law determines what the judgment shall be, but in case of special verdict, the facts being found by the jury, it is necessary for the court to announce the judgment, the legal conclusion thereon, because the law is not determined by the special verdict, nor are the rights of the parties fixed thereby.” Carwile v. Cameron & Co., 102 Tex. 171, 114 S. W. 100.

So the special verdict returned in this case does not show the judgment which was in fact rendered in response to the findings. It was sufficient to show what judgment should have been rendered, but that is not the point.

Again, defendants in error say:

“The recitals in the original judgment of themselves furnished sufficient data upon which to dispose of Finnigan-Brown Company, and upon which _ to make an alternative award of hides or their value in the manner accomplished by the amended judgment.”

That, too, is true, but the fact remains that the judgment as originally entered did not dispose of all issues and make the alternative award of the hides or their value to the various parties entitled to the same as shown by the facts found. The nunc pro tunc entry varies materially from the original judgment entry.

It is not at all a question of whether there was sufficient data before the court to enable it to determine what judgment he should have rendered. The question is, Did the court in fact render the judgment which the nunc pro tunc entry evidences, and is there any proper evidence to show that such was the fact? The record here fails to show such judgment to have been in fact rendered. It shows that no evidence was received in support of the entry, and evidence was rejected, showing that the entry would evidence a judgment which in fact had not been pronounced. This necessitates a reversal.

It thus becomes unnecessary to pass upon the assignment which complains of the court’s refusal to file his findings of fact and conclusions of law relating to its action in making the nunc pro tunc entry.

Reversed and remanded.
      ©soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «ScíjFor other cases see same topic and KEY-NUMBER in all Key-Numfcered Digests and Indexes


author: HAfePER, C. J.

text:
    PUTNEY v. LIVINGSTON et al.
    (No. 658.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1917.
    Rehearing Denied Feb. 15, 1917.)
    COURTS ,<&wkey;472(3) — Claims Against Decedent’s Estate — Jurisdiction.
    Const, art. 5, § 16, gives the county court the general jurisdiction of a probate court, and Rev. St. 1911, art. 3206, provides that it shall transact all business appertaining to estates of deceased persons, while article 3457 .provides that no judgment shall be rendered upon any claim for money unless first presented to executor or administrator and rejected. Held that, in an action against sureties and administrator of a deceased surety, and administrator of principal maker of a note, secured by a trust deed, the claim being liquidated, but not having been presented to administrator, the county court has exclusive original jurisdiction of claim against principal, in view of Rev. St. 1911, art. 1843, providing that, when the principal maker is dead, sureties may be sued alone; necessity of suit against sureties not affecting jurisdiction of- county court.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. &wkey;472(3)J
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Action by Morgan Livingston against W. D. Hudson and. others, in which R. E. Put-ney intervened. From a judgment for plaintiff, intervener appeals.
    Reversed, and judgment rendered according to the rights of respective parties.
    Clay Cooke, of Pecos, for appellant. J. W. Parker, Jno. B. Howard, and J. A. Buck, all of Pecos, for appellee.
   HAfePER, C. J.

This suit was instituted in the district court of Reeves county, Tex., by appellee Morgan Livingston against "W. D. Hudson, R. N. Couch, Mrs. Callie T. Ross, administratrix of the estate of W. L. Ross, deceased, T. H. Beauchamp, as administrator of the estate of T. F. Tucker, deceased, and the heirs of T. F. Tucker, viz. Isaac Tucker, George Tucker, A. D. Tucker, and Mrs. Mary B. Massey. By his second amended original petition, filed July 22, 1916, he alleges that July 26, 1911, T. F. Tucker, as principal, and W. D. Hudson, R. N. Couch, and W. L. Ross, as sureties, executed and delivered to him their promissory note bearing said date for $5,000, with interest at 10 per cent, per an-num from date and setting forth the amount due upon said note, and that on the same date and for the purpose of securing said note the said T. F. Tucker executed to J. C. Love, trustee, a deed of trust upon certain lands described in said petition. Said petition alleges that W. L. Ross is now dead, and that Mrs. Callie T. Ross is the duly appointed administratrix of the estate of said W. L. Ross, deceased, and that T. F. Tucker is now dead, and T. H. Beauchamp is administrator of the estate of T. F. Tucker, deceased. Said petition prays judgment against all of said defendants for the amount of said note and interest and attorney’s fees, and for the foreclosure of said deed of trust lien upon said real estate. Said petition does not allege the presentation of said claim to the administrator of the said Tucker estate nor its rejection by him.

T. H. Beauchamp, the administrator de bonis non of the estate of T. F. Tucker, deceased, waived citation and entered his appearance, but filed no other pleadings.

On November 9, 1915, defendant R. N. Couch filed a first amended original answer and cross-petition, setting up, in substance, the same allegations contained in plaintiff’s petition, and further alleging that R. E. Put-ney was claiming some right, title, or interest in the lands sought to be foreclosed on account of having filed a claim with the administrator of the said T. F. Tucker estate, and that said R. E. Putney was asserting a superior lien upon said lands by reason of filing said claim, hut that said Putney’s lien was in fact an inferior lien, and praying citation upon said Putney and foreclosure of said deed of trust lien set forth .in plaintiff’s petition, etc.

Mrs. Ross adopted the pleadings of plaintiff.

Appellant filed his petition in intervention under leave of court and answer to the cross-action of Couch, alleging, - in substance, the facts set out in the agreed facts hereinafter copied, that Tucker was dead and administration pending on his estate, and that the claim sued upon had never been proved and presented to said administrator for allowance or rejected by him, and that appellant’s claim had been duly presented, allowed, and approved, questioning the court’s jurisdiction over said claims against and the property of said estate then in course of administration, and further alleged that the administrator of the said Tucker estate would not appear and protect appellant’s rights in the property of said estate, hut was colluding with defendants to force a sale of said property under said proceedings and hinder, delay, and, if possible, defeat appellant’s rights, and his remedies against same as a creditor of said estate. Appellant prayed that said suit as against the estate of T. F. Tucker, deceased, and so far as it sought to subject the property of said estate to said liens, or to adjudicate priorities as between the plaintiff, defendants, and interveners, be dismissed, and that, if said lien be foreclosed, appellant’s claim be first paid out of the sale of property.

The case came on for trial before the court on May 26, 1916, and judgment was rendered in favor of Morgan Livingston against the defendants W. D. Hudson, R. N. Couch, T. H. Beauchamp, administrator of the estate of T. F. Tucker, deceased, and Mrs. Callie T. Ross as administratrix of the estate of W. L. Ross, deceased, for the sum of $7,-447.09, with 10 per cent, interest, and the foreclosure of the said deed of trust lien against all defendants, including appellant, and that order pf sale issue directing the sheriff to sell said property and appropriate the proceeds to the payment of said judgment and the surplus, if any, to be paid to the defendant T. H'. Beauchamp, as administrator of the estate of T. F. Tucker, deceased, and if the proceeds are insufficient to satisfy said judgment, then execution shall issue against the defendants Hudson and Couch, and that claim for the balance also may be proved in the probate court as a claim against the estate of W. E. Ross, deceased, and that no execution shall issue for such balance against the estate of Tucker and Ross, and further giving the defendants Hudson and Couch a judgment against T. H. Beauchamp, administrator of the estate of T. F. Tucker, for the amount of said judgment, but providing that no execution shall issue in favor of said sureties, and that in event the proceeds of said sale shall fail to pay said judgment, and said sureties shall pay same, the same may then be collected through the probate court of Reeves county as other claims are collected during the administration of said Tucker estate, and further ordering that any cloud upon the title of said land created by virtue of appellant’s claim be forever removed.

Findings of Fact.

First. That T. F. Tucker, the principal obligor upon the note sued upon, died on or about December 19, 1912; that April 17,1913, W. L. Ross, one of the sureties upon said note, was appointed administrator of the estate of T. F. Tucker, deceased, by the county court of Reeves county, Tex., a court having jurisdiction of said estate; that the said W. L. Ross duly qualified on July 18, 1913, by filing and causing to be approved his oath and bond as such administrator, and on November 1, 1913, filed and caused to be approved his inventory and appraisement of the estate of said T. F. Tucker, deceased, wherein he inventoried the property described in plaintiff’s petition herein, and upon which it is sought to foreclose said lien.

Second. That on March 16, 1914, and within 12 months from the appointment of the said administrator, the intervener, R. E. Put-ney, duly filed with the administrator his claim against the estate of T. F. Tucker, deceased, which was duly allowed by said administrator and approved by said court, and entered upon the claim docket of said court on or about July 16, 1914, said claim being approved and allowed for the amount of $1,-718.62, with interest thereon from said last-named date at the rate of 12 per cent, per annum, said claim being based upon a contract executed in the state of New Mexico, and providing for interest at the rate of 12 per cent, per annum until paid, which said rate is the legal and lawful rate of interest in the state of New Mexico, and providing for interest at the rate of 12 per cent, per an-num until paid, which said rate is the legal and lawful rate of interest in said state. No part of said claim has been paid.

Third. That the said W. L. Ross, administrator of the estate of T. F. Tucker, deceased, gave due notice of his appointment as required by law.

Fourth. That the said W. L. Ross, administrator, died September 8, 1915, and that thereafter the county court of Reeves county, Tex., appointed T. H. Beauchamp administrator de bonis non of the estate of T. F. Tucker, deceased, who duly qualified as such by filing his oath and bond, and is now the duly qualified and acting administrator of the estate of T. F. Tucker, deceased; that the said estate is still pending and in the course of administration in the county court of Reeves county, Tex.

Fifth. That the claim set up and sued upon by the plaintiff herein in this suit has never been presented to the administrator, nor has same ever been presented to the county court of Reeves county, Tex., for allowance and approval as a claim against the estate of T. F. Tucker, deceased, nor have any proceedings been had thereon in the county court of Reeves county, Tex., in the matter of the said estate of T. F. Tucker, deceased.

Appellant urges three assignments of error, to the effect: (1) That the court erred in overruling the special exception to the petition, for the reason that, so far as it prays for foreclosure of deed of'trust lien upon the property of the estate of Tucker, deceased, the county court of Reeves county has exclusive jurisdiction, and that there is no allegation that the claim has been proved and presented to the administrator of the estate for allowance; (2) the court erred in rendering any judgment against the estate of Tucker or the administrator fixing any indebtedness or a lien or classifying same because, the said estate being in course of administration in the county court, the latter had sole jurisdiction; (3) the court erred in rendering any judgment in the said cause against the administrator of the estate of T. F. Tucker, deceased, either upon the said debt or to foreclose said alleged lien, because the said note sued on and the said alleged lien were never presented to the administrator of the said estate of T. F. Tucker, deceased, nor allowed or approved, nor any said proceedings thereon had in the county court of Reeves county, Tex., and said county court has sole and exclusive jurisdiction over the property of said estate, and claims against same, and this court was without jurisdiction and should have dismissed the said suit so far as the estate of T. F. Tucker, deceased, is concerned.

By article 5, § 16, Constitution of Texas, the county court is given “the general jurisdiction of a probate court,” and article 3206, Revised Statutes 1911, provides that “it shall probate wills, grant letters testamentary or of administration, settle the accounts of executors and administrators, and transact all business appertaining to the estates of deceased persons, including the settlement, partition and distribution of such estates,” and article 3457, R. S. 1911, provides that “no judgment shall he rendered in favor of á claimant upon any claim for money which has not been legally presented to the executor or administrator, and rejected * * * in whole or in part.”

This being a claim for a definite sum of money owing by Tucker during his lifetime and against his estate after his death, the county court sitting in probate, as the facts show it to have been in this case, had exclusive original jurisdiction to allow it, after the statutes regulating its proof and presentation to and approval by the administrator had been complied with (Planters’ Bank v. Robertson, 86 S. W. 645; Whitmire v. Powell, 117 S. W. 433), unless the remedy provided by statute does not, because it cannot, meet all of the exigencies of the particular ease because of the complicated questions arising under the facts.

Appellee urges that this is one of the cases where the plaintiff cannot, under the law and facts, get full and adequate relief in the probate court, without splitting up his claim; that therefore the district court had concurrent, if not original and final, jurisdiction to adjudicate the matters in controversy, for the reason, he says, that he could not have procured a judgment in the probate court against the sureties, Hudson, Couch, and Mrs. Ross, administratrix of the estate of W. L. Ross, deceased, one of the sureties.

The answer to this is that article 1843, R. S. 1911, provides that, when the principal maker is dead, the sureties may be sued alone, and need not present the claim to the administrator. But if the plaintiffs would hold the estate of Tucker, they must present their claim to the administrator before bringing their suit against the estate. There being no question in this case of the liability of the estate for the whole claim, and no question of the existence of the lien upon the property described, it follows that there was no necessity for suit against the administrator of the Tucker estate. At least not unless the administrator refused to allow the claim. If the powers of the county court were inadequate for any reason, the district court would have jurisdiction. Cannon v. McDaniel, 46 Tex. 303. For instance, if plaintiff’s claim against the estate of Tucker had been unliquidated or uncertain, it would necessarily have to be adjudicated by the court having jurisdiction before it could be approved by the administrator and allowed by the probate court, but there is no such condition in this case. The cause of action is based upon promissory notes for definite amounts and for which deceased was primarily liable for the entire amounts.

Did the fact of death of Ross, one of the sureties, and the further fact that his estate was in course of administration, constitute a case where the probate court’s power was inadequate? And would the enforcement of the statute requiring plaintiff to present his claim to the administrator of the Tucker estate before bringing suit against it require the bringing of a multiplicity of suits? Under the agreed facts in this record, there is no question of the adequacy of power in the probate court to adjudicate the plaintiff’s claim and to enforce its collection to the extent of the lien and to the further extent or limit of the assets of the estate not exempt, and not, under the law, required to be applied to the payment of other claims. So, if it was necessary to sue the estate of Ross to fix the amount such estate was liable to plaintiff for, that could in no sense affect the jurisdiction or the powers of the county court to finally and fully adjudicate, allow, and order paid plaintiff’s claim against the Tucker estate, and those interested in this. estate, by reason of having just claims against it, such as the appellant here are entitled to have it, the probate court, finally wind up the estate, it having first taken jurisdiction.

It follows, therefore, that the appellant’s exceptions to the jurisdiction of the district court should have been sustained.

For the reasons given, the judgment of the court below is reversed, and this court here renders the'judgment which, under the admitted facts, should have been rendered by that court:

First Plaintiff’s suit against T. H. Beau-champ, administrator of the estate of T. F. Tucker, deceased, be, and the same is hereby, dismissed.

Second. Thatj plaintiff take nothing against Isaac Tucker, George Tucker, A. D. Tucker, and Mrs. Mary E. Massey, heirs of T. F. Tucker, deceased.

Third. That plaintiff have and recover against W. D. Hudson, R. N. Couch, and Callie T. Ross, administratrix of the estate of W. L. Ross, deceased, the sum of $7,447.-09, with interest thereon at the rate of 10 per cent, per annum from May 26, 1916, until paid.

Fourth. Proper judgment for contribution by and between Hudson, Couch, and the Ross estate.

Fifth. All relief asked by any of the parties not hérein granted is refused.

Sixth. That all costs of the trial court not incurred by appellant and the Tucker estate and the Tucker heirs, or by reason of the fact of their having been made parties to the suit is taxed against defendants Hudson, Couch, and the estate of Ross, deceased, and all other costs both of the trial court and of appeal are taxed against plaintiff, Livingston.

Reversed and rendered.
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author: FLY, C. J.

text:
    BOYD v. DUDGEON et al.
    (No. 5860.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1917.
    Rehearing Denied Feb. 14, 1917.)
    1. Appeal and Error <@=>71(3) — Injunction <@=>118(5) — Decisions Appealable — Refusal .of Injunction — Sustaining Demurrer.
    Under Rev. St. 1911. art. 4644, providing for appeals from orders granting, refusing, or dissolving temporary injunctions, where the pleadings did not seek a temporary injunction, the prayer being for a permanent injunction, no appeal lies from an order sustaining a demurrer and denying the injunction.
    [Ed. Note. — For other cases, see Appeal.and Error, Cent. Dig. §§ 393 — 398; Dec. Dig. <@=> 71(3); Injunction, Cent. Dig. §§ 239-241; Dec. Dig. <@=>118(5).]
    2. Injunction <@=>140 — Pleading — Prater for Relief.
    Injunction will not be granted under _ a prayer for general relief, and a temporary injunction will not be granted unless specifically prayed for.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 312; Dec. Dig. <@=>140.]
    Appeal from District Court, Calhoun County; John M. Green, Judge.
    Suit by Alexander Boyd against. F. M. Dudgeon and others. From a decree for defendants, plaintiff appeals.
    Cause dismissed.
    Willett Wilson and Newton & Newton, all of San Antonio, for appellant. R. H. Hamilton, of Port Lavaca, for appellees..
   FLY, C. J.

This is a suit brought by appellant to enjoin appellees, who form the commissioners’ court of Calhoun county, “from opening the polls * * * and counting the votes cast thereon of a certain local 'option liquor election,” "and from mailing an order declaring the result of said election,” and “from causing the publication of the order of the court declaring the result and prohibiting the sale of liquors.” The matter was heard in chambers in De Witt county by the district judge, and a general demurrer sustained to the pleadings, and the injunction denied.

This appeal cannot he sustained unless it was taken from an interlocutory order refusing a temporary injunction, as provided in article 4644, Rev. Stats. The pleadings in this case did not seek a temporary writ of injunction, but the prayer is for a permanent injunction. It has been held in some states and is found in the chancery practice of others, that a temporary writ or restraining order will not be granted unless specifically prayed for in the bill. Savage v. Parker, 53 Fla. 1002, 43 South. 507; Church v. Conover, 27 N. J. Eq. 157; Joyce on Inj. §§ 132, 133, and notes. As said in the Florida case:

“Obviously this prayer cannot be held to relate both to a restraining order, or temporary injunction, and to a perpetual injunction, and, to say the least of it, it is left in doubt as to which was intended. That it is irregular and improper to grant a preliminary or temporary injunction or restraining order, unless [it] is specifically prayed for in the bill. See equity rule 25. * * * ”

See, also, Beach on Injunctions, § 132. An injunction will not be granted under a prayer 'for general relief. ‘

The cause will be dismissed.


author: CONNER, C. J.

text:
    KING et al. v. DIFFEY et al.
    (No. 8338.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 2, 1916.
    On Motion for Rehearing, Jan. 6, 1917.)
    1. Deeds <@=>211(3) — Delivery Obtained by Fraud — Evidence.
    Evidence held to sustain findings that defendant fraudulently induced plaintiff husband to surrender deed to property owned by wife in exchange for stock of goods.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 644, 645; Dec. Dig. <@=>211(3).]
    2. Vendor and Purchaser <@=>239(9) — Bona Fide Purchaser — Fraud.
    Where defendant induced plaintiff husband to surrender deed to property owned by wife, upon false representations and under materially different terms from those previously assented to by the wife and without her authority, such deed conveyed no title, which the grantee could convey to a bona fide purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 595; Dec. Dig. <@=> 239(9).]
    3. Vendor and Purchaser <@=>239(9) — “Bona Fide Purchaser” — Rights Acquired.
    To enable one to claim as a “bona fide purchaser” without notice, the title purchased must be apparently perfect, legal, and regularly conveyed, and where the deed is void, one who purchases from the grantee gets no title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 595; Dec. Dig. <@=> 239(9).
    For other definitions, see Words and Phrases, First and Second Series, Bona Fide Purchaser.]
    4. Vendor and Purchaser <@=>239(9) — Bona Fide Purchaser — Rights Acquired.
    As a general rule a bona fide purchaser without notice from a grantee who has received no valid delivery of his deed acquires no title as against the grantor, unless by estoppel.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 595; Dec. Dig. <@= 239(9).]
    5. Cancellation of Instruments <@=>52 — Suit to Cancel — Estoppel—Findings.
    In a suit to cancel deeds, findings of court held not to authorize the conclusion that plaintiff was estopped from claiming invalidity of deeds as against one claiming as a bona fide purchaser from the grantee.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 107; Dec. Dig. <@=> 52.]
    6. Deeds <@=>26, 56(5) — Requisites of.
    To pass title to lands the conveyance must be in writing, and a delivery made with the grantor’s consent, and a deed obtained by fraud, is wholly insufficient to pass title.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 50-52; Dec. Dig. <S&wkey;26, 56(5).]
    7. Deeds <&wkey;208(l) — Suit to Cancel — Evidence.
    In a suit to cancel deeds, evidence held to show that tbe plaintiff wife never consented to delivery of deeds by ber busband under materially different terms than those she bad previously assented to.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 625, 630; Dec. Dig. &wkey;208(l).]
    On Motion for Rehearing.
    8. Appeal and Ebboe <&wkey;832(l) — Reheabing —Inaccueate Finding.
    The inaccuracy, if any, of a statement in tbe appellate court’s finding that parties entered “into a written contract” on a certain date was not ground for rehearing, where tbe evidence shows that the agreement mentioned was actually made in terms set forth in the instrument reduced to writing on that date.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3218, 3220, 3223-3225; Dec. Dig. &wkey;832(l).]
    Appeal from District Court, Clay County; J. W. Akin, Judge.
    Suit by Laura V. Diffey and another against E. G. King and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed, and rehearing denied.
    Wantland & Parrish, of Henrietta, and W. R. Booth, of Ft. Worth, for appellants. J. A. Templeton, of Ft. Worth, for appellees.
   CONNER, C. J.

As finally presented this suit is one by Laura Y. Diffey, joined by her husband, J. B. Diffey, to cancel, on the ground of fraud, a deed from the plaintiffs to E. E. King, Jr., and a trust deed executed by said E. E. King in favor of the Collin County National Bank, Y. T. Manning, and C. E. Lewis. The facts out of which the controversy arises are, substantially, as follows:

Laura Y. Diffey and her husband, J. B. Diffey, occupied as their homestead lot 11, block 15, of the old town of Henrietta, Clay county, and known as the “Imperial Hotel,” which was conducted by the plaintiffs, and which was the sole and separate property of Mrs. Diffey. On the 27th day of May, 1913, E. E. King and the plaintiffs entered into a written agreement for an exchange of said hotel property of an agreed value of $15,000, for a certain stock of dry goods owned by King and situated at Anna in Collin county. The contract provided that the stock of goods was to be free of debt, invoiced “at the marked cost price,” if any, etc., and that if the total value of the stock of goods was not sufficient to pay said $15,000, the said King was to execute his promissory notes for the remainder secured by a vendor’s lien upon the property. There were some other details relating to the agreement not material to notice. Upon the execution of the contract referred to, Mrs. Diffey, joined by her husband, executed a conveyance to said E. E. King to said lot 11, and J. B. Diffey, the husband, took the: same and retained it in his possession and went to Anna in Collin county to invoice the stock of goods. Upon arrival at Anna, King expressed dissatisfaction with the contract as it had been reduced to writing in Henrietta, and induced J. B. Diffey to enter into another and a different contract in writing. Whereupon the invoice proceeded in accordance with the new contract, and it was found that the value of the stock of goods as thus ascertained exceeded the value of the hotel property as had been agreed upon. Before the invoice prices, however, had been aggregated, King induced J. B. Diffey to cause the delivery of the deed to the hotel property, which he at once forwarded and caused to be duly recorded in Olay county. J. B. Dif-fey at the same time over the telephone directed his wife to deliver the iotel property to an agent of King, which was done on Saturday, June 1, 1913.

On June 4th, thereafter, Mrs. Diffey went to Anna and saw the stock of goods for the first time, and she testified that she at once knew they had been swindled, and at once began an effort to induce the cancellation of the deed. Mrs. Diffey testified that this was consented to, but in fact it appears that King negotiated a loan from the Collin County National Bank at Anna, executing his note therefor in the sum of $3,000, signed by E. E. King, as principal, and by Y. T. Manning and C. E. Lewis, as sureties. The bank declined to make the loan or accept the note unless it was secured by a trust deed upon the Henrietta property, which was thereupon duly executed by E. E. King, Jr., and also forwarded to Henriettá for record. Upon notification of the record of the trust deed at Henrietta, which, as shown by the clerk’s indorsement, was about 8 o’clock a. m. of the 16th day of June, 1913, the bank accepted the note of King, and placed to his credit on the books of the bank the sum of $3,000. On the same day, however, the plaintiffs filed their suit to cancel the deed made by them conveying the said lot 11, they at that time not knowing of the execution of the trust deed; the parties claiming under this instrument having later been made parties defendant. Upon the filing of the plaintiffs’ suit they caused to be duly recorded notice thereof under our lis pendens statute. See 4 Vernon’s Say les’ Texas Civil Statutes, art. 6837. This lis pendens notice was filed at 11:30 a. m. on said 16th day of June, 1913, some 3% hours after the filing of the trust deed. The proof shows that while a credit of $3,000 had been entered upon the books of the Collin County National Bank at the time of its acceptance of the note of King and Manning and Lewis, no money was paid out until the following day, June 17, 1913, upon which day one or more checks drawn by E. E. King, Jr., were paid and subsequently thereto the full amount of $3,000 was paid out upon his checks; these payments all having been made without any actual notice on the part of the bank of the institution or pendency of the plaintiffs’ suit.

The case was tried before a jury and submitted upon special issues. The issues are numerous, but we think it will be sufficient to say that the jury found, in substance, that the material allegations of the plaintiffs’ petition of fraud on the part of the Kings were true, and that the new contract above mentioned executed by King and J. B. Diffey at Anna was materially different from the original contract executed at Henrietta by Mrs. Diffey and her husband; that Mrs. Diffey did not know and was not informed of these material changes; that J. B. Diffey was induced by false representations to deliver the deed that had been executed by himself and wife*to King; and that he so made delivery upon the changed contract without authority from his wife, Laura V. Diffey. Other findings are in harmony with the facts as we have before stated them, and the court upon the incoming of the verdict entered up a judgment in favor of the plaintiffs as against all defendants, canceling the several conveyances mentioned, and the defendants have appealed.

Some of us are inclined to the view that, under the operation of the lis pendens notice provided for in the statute, the appellant bank at least is not in the position of an innocent purchaser for value, and as such entitled as against the plaintiffs to protection; the bank in fact not having actually paid money out upon the note executed by King, Manning, and Lewis before the filing of the lis pendens notice, though, perhaps, it cannot be so clearly said as to the appellants Lewis and Manning; there being evidence tending to show that these parties became sureties upon the note without notice of the fraud of King, or of the pendency of the plaintiffs’ suit prior to the time they became bound as sureties. However, the record is not in a favorable condition for the determination of the sureties’ rights, inasmuch as the surety Manning, while he pleaded'want of notice of the fraud of the Kings and of the pendency of the suit, secured no finding of the jury in his favor on that issue. He requested an instruction to elicit such a finding, but it was refused, and we have no exception to the court’s action in refusing to submit it, nor has he an assignment of error which, as we think, seems to properly enable us to determine' his precise right arising from such want of notice. The appellant Lewis sought and secured a finding in his favor on the issue presented in his pleadings that he was without notice of the fraud or of the suit, but we find no assignment urging a reversal of the judgment in his behalf which seems to authorize a consideration of his right: said' sureties having contented themselves with an adoption of the brief of the appellant bank, which seems only to present questions relating to the bank’s effort to reverse the judgment in its own behalf.

We have therefore concluded to pretermit a discussion of the rights of the parties as they might arise under the doctrine of lis pendens in view of the fact that we have all agreed that the judgment must be affirmed upon another ground.

As stated, it was found, in effect, by the jury, as alleged by the plaintiffs, that King secured the delivery of the deed to the hotel property by means of false representations and under a contract materially different from that executed by Laura Y. Diffey, and that J. B. Diffey so delivered said deed without knowledge on the part of Laura Y. Diffey of the material changes that had been made in the original contract, and without authority from her to deliver the deed under the new contract. We are of opinion that the evidence sustains these findings, and that, therefore, no title passed to King by reason of the conveyance to him, and no title being in him at the time of the execution of the trust deed, no right thereunder can be asserted by any of the parties appellant.

As said in 39 Oyc. 1690 (II):

“To enable one to claim the rights of a bona fide purchaser without notice, the title purchased must be apparently perfect, good at law, and made by a regular conveyance. Where the attempt to acquire title wholly fails, and the deed is void., and therefore conveys no title to be transmitted, one who purchases from the person named as grantee in such void deed gets no title to be protected.”

The same author on the next page says:

“As a general rule a bona fide purchaser without notice from the grantee named in a deed who had possession, thereof, but to whom there had been no valid delivery, acquires no title as against the grantor named in the original deed. • * * *»

The rule stated, does not apply, of course, where the facts are sufficient to constitute an estoppel against the grantor, but in the case before us we have no findings which authorize the conclusion that Laura Y. Diffey is estopped from claiming the invalidity of the deeds under which appellants claim. The texts quoted are fully supported by the decisions.

Thus in the case of Spotts v. Whitaker, by the El Paso Court of Appeals, reported in 157 S. W. 422, it is said:

“A deed, however, is not effective unless it has been delivered into the control of the grantee with the intention on the part of the grantor that it shall become operative, and a deed obtained from its depositary without the consent of the grantor, through the fraud of the grantee, is wholly insufficient to pass title, and parties claiming thereunder as innocent purchasers or incumbrancers will be protected only upon an estoppel based upon a showing that the grantor was guilty of negligence which brought about the unauthorized delivery.”

In support of the statements so made the court cites numerous authorities which we need not set out. In the case of Tyler Building & Loan Ass’n v. Baird & Scales, reported in 165 S. W. 542, the Dallas Court of Appeals said:

“To pass title to land the conveyance must be in -writing and a delivery thereof must be made with the consent of the grantor, and with the intention on the grantor’s part that it shall operate as a conveyance of the title. The allegations of the petition show that there was no legal delivery of the deed, and therefore no legal title passed to the dry goods company, and we cannot see how the dry goods company can pass title to an innocent purchaser. Wo agree with appel-lee: the law is that ‘a deed which comes into possession of the grantee without assent of the grantor and without his intention that the same shall operate as a conveyance is ineffectual to pass the title to the property which it purports to convey, even as against an innocent purchaser for value and without notice’ ’’ — citing a number of cases.

See, also, Houston Land & Trust Co. v. Hubbard, 85 S. W. 474; Steffian v. Bank, 69 Tex. 513, 6 S. W. 823; Everts v. Agnes, 65 Am. Dec. 314.

The rules so announced seem hardly open to controversy, and under the findings and evidence in this case, we find no sufficient support for a contention that Mrs. Diffey ever consented to an effectual delivery of the deed to King. True, there is evidence tending to show that she knew her husband, to whom the deed had been intrusted for delivery, had or would in fact deliver the deed to the hotel property in Henrietta under a changed contract, but the findings are clearly to the effect that the new contract was materially different from the contract executed by Mrs. Diffey, and clearly to the effect that she was not informed of such material changes, and that her husband was unauthorized by her to deliver the deed except upon terms in substantial compliance with the original contract made by her. It cannot be said, we'think, that the evidence fails to support these findings, and we think, therefore, that as against plaintiffs neither appellant secured any right under either the deed to King or under the trust deed executed for the benefit of appellants.

The assignments of error not disposed of by conclusions already stated have been examined, but we find nothing that we think requires discussion or a reversal of the judgment.

The judgment will accordingly be affirmed.

On Motion for Rehearing.

It is insisted that we -were in error in finding that E. E. King and the Diffeys “entered into a written agreement” for the exchange of properties in Henrietta on May 27, 1913; the insistence being that neither finding nor evidence shows that the agreement then and there made was signed by the parties. If it be assumed that it is to be implied from what we said in our original opinion that the Henrietta agreement was actually signed by the respective parties, then to that extent we were in error. The inaccuracy, however, if any, is wholly immaterial as we view it, for the reason that both the evidence and findings sufficiently show that the agreement mentioned was made in the terms set forth in an instrument then and there reduced to writing. So that the fact that it was not signed cannot materially affect our original conclusion. The essential inquiry in this respect was, Did the parties actually enter into an agreement at Henrietta, whether written or oral, with definite terms, and upon the faith of which Laura Y. Diffey executed her deed and authorized its delivery? In all these respects the record leaves no room for doubt, and the findings as a whole abundantly show that the deed was finally delivered by the husband, J. B. Diffey, upon terms materially different from those assented to by the wife.

In all other respects we think what was said in our original opinion sufficiently disposes of the questions reargued in the motion, and, believing that the findings of the jury, when considered as a whole, require the conclusions originally announced, the motion for rehearing is overruled.
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