author: ELY, C. J.

text:
    McCALEB et al. v. BOERNE ELECTRIC POWER & MFG. CO. et al.

    (No. 5410.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 3, 1915.
    Rehearing Denied March 3, 1915.)
    CORPORATIONS <&wkey;467 — Powers—Ultra Tires Acts.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1164, 1165, providing that no corporation shall employ its assets for any purpose other than to accomplish the objects of its creation, and shall not create any indebtedness except for money paid or labor done or for property actually received, a corporation organized under Rev. St. 1911, art. 1121, subd. 29, for the accumulation and loan of money has no authority to bind itself as accommodation indorser as. against one having knowledge that it is an accommodation indorser.
    [Ed. Note. — B’or other casos, see Corporations, Cent. Dig. § 1831; Dec. Dig. <&wkey;>467.]
    Appeal from District Court, Kendall County; R. H. Burney, Judge.
    Action by the Globe Eire Insurance Company against the Boerne Electric Power & Manufacturing Company and others, in which Walter E. McCaleb and the West Texas Bank & Trust Company intervened. Erom a judgment in favor of defendant the Farmers’ Mortgage Loan Company,'the interveners appeal.
    Affirmed.
    Swearingen & Ward, J. H. Bickett, Jr., and H. C. King, Jr., all of San Antonio, for appellants. Kampmann & Burney and McFarland & Le wright, all of San Antonio, for appellees.

       Writ of error pending in Supreme Court.

   ELY, C. J.

This suit was instituted by the Globe Eire Insurance Company against the Boerne Electric Power & Manufacturing Company and ten individuals and the Farmers’ Mortgage Company, to recover upon a promissory note for $10,000, executed by the electric company in favor of the mortgage loan company, and indorsed by the latter to the insurance company, and also to foreclose a deed of trust given by the electric company to secure the note. It is unnecessary and unprofitable to set out the various and sundry amendments of the pleadings; it being sufficient to state that the insurance company in its first amended original petition made additional parties, alleging that they were members of the electric company, “an alleged corporation,” and formed a copartnership, and prayed for judgment against them individually, or, in the alternative, against the corporation, if it was found by the court that it was a corporation. The Farmers’ Mortgage Loan Company, in its third amended original answer, alleged that the electric company was not legally incorporated, and that the individual defendants were liable on the note as partners ; that its act in indorsing the note was ultra vires, which was known to appellant; that it was not liable as an indorser because the note had not been protested for nonpayment, and suit had not been filed at the first or second term after it became due against the maker, and asked, in case of a recovery against it, for judgment over against all the other defendants. Walter F. McCaleb and the West Texas Bank & Trust Company filed pleas in intervention, alleging that the Boerne Electric Power & Manufacturing Company was a corporation duly organized and incorporated under the laws of Arizona, and that McCaleb had become the owner and holder of the note during the pendency of the suit; and the West Texas Bank & Trust Company alleged that the note and mortgage had been deposited with it as security for a loan made by it to said McCaleb.

The cause was tried by jury, and, upon hearing the evidence, the court instructed the jury to return a verdict in favor of Mc-Caleb against the Boerne Electric Power & Manufacturing Company for the amount of the note and for foreclosure of the lien as evidenced by the deed of trust, and to find that the note and mortgage were held by the West Texas Bank & Trust Company as collateral security for a loan made to McCaleb, and to return a verdict in favor of the Farmers’ Mortgage Loan Company. As instructed, the verdict was returned, and judgment was accordingly rendered thereon. This appeal is prosecuted by W. F. McCaleb and West Texas Bank & Trust Company.

There are ten assignments of error, which, taken together, amount to the contention that the court should not have instructed a verdict in favor of the Farmers’ Mortgage Loan Company, but should have instructed a verdict in favor of the intervener W. F. Mc-Caleb. This requires a review of the facts.

In 1912 the electric company was in debt, owing the West Texas Bank & Trust Company over $6,000, and the Boerne State Bank $3,500. C. J. Loe was president of the electric company, and also of the Bo.erne State Bank. The electric company desired to raise the sum of $10,000 to pay oft its indebtedness, and it executed to the Farmers’ Mortgage Loan Company its note for $10,000 and executed a deed of trust on its property to secure the loan. The mortgage loan company indorsed the note and deed of trust to the Globe Fire Insurance Company. The application for the loan was made to the insurance company by the electric company, but also, after considering the matter for some time, the insurance- company demanded the indorsement of the mortgage loan company and of C. J. Loe. Up to that time the loan company had never been mentioned in the transaction, and then it was spoken of as the “trust company,” but it was shown that the mortgage loan company was meant. The West Texas Bank & Trust Company was engaged with the insurance company in negotiating for the loan, for as early as March 29, 1912, McCaleb, president of the bank, wrote Eoe, president of the Boerne State Bank, in regard to the loan. All of them knew that the Farmers’ Mortgage Eoan Company received nothing for the indorsement of the note, did not own it, had no conceivable interest in it, and were charged with the knowledge that the mortgage loan company had no power or authority to act as a guarantor or surety.

Fully three months had been consumed in negotiations for the loan to the electric company, when it occurred to the insurance company that it desired the indorsement of the mortgage loan company on the notes. The insurance company knew the details of the loan; knew it was for the benefit of the electric company; knew that it was in part to pay a debt to the bank and trust company ; and, as it had the mortgage loan company to indorse the notes, knew that the latter had no interest in the note. The insurance company at least had full knowledge that the notes were for the benefit of the Boerne Electric Power & Manufacturing Company, and that the mortgage company had no interest in it whatever, McCaleb, the president of the West Texas Bank & Trust Company, was in on the deal in the interest of his bank, and he testified:

“I understood the real beneficiary of the transaction was to be the Boerne Electric Power & Manufacturing Company, and in the last analysis was to get the $10,000. I think it was understood that the $10,000 note was to take up the indebtedness. I understood that to be a fact when I acted as a member of the finance committee of the Globe Fire Insurance Company.”

That he was representing his bank appears from his testimony:

“I know at the time that the Boerne Electric Power & Manufacturing Company owed a note to the West Texas Bank & Trust Company which was overdue, which was to be retired out of the loan; but, as to the proceeds, I knew' nothing and cared nothing for it.”

lie also stated:

“Mr. Eoe discussed with me the condition of the Farmers’ Mortgage Eoan Company prior to this loan.”

Why should the president of the bank be discussing the financial condition of the mortgage company before the loan except as to its being sufficient security for the $10,000 that was to be loaned to the electric power company. McCaleb was not only interested in lending the money for the insurance company, but he was also- interested, as president, in getting the bulk of the loan to pay the over-due debt of the West Texas Bank & Trust Company.

The evidence presents a fine object lesson 'on the subject of interlocking directorates and officials, a system that has had a most baleful influence on the business of the country. C. J. Eoe was the president, of the electric power company, which owed $3,500 to the Boerne State Bank, of which Mr. Eoe was president. 1-Iis electric company also owed the West Texas Bank & Trust Company over $6,000; so he desired to raise $10,-000 to pay off the indebtedness to the two banks. As president of the Boerne Electric Power & Manufacturing Company, he sought to borrow the $10,000, and went to the insurance company of which McCaleb, president of the West Texas Bank & Trust Company, was a committeeman on finances, and it was agreed that the insurance company would lend the money, if the Farmers’ Mortgage Eoan Company and Mr. Eoe would indorse the note of the electric power company. Mr. Eoe was not only president of the electric company and president of the Boeme State Bank, but he was also president of the Farmers’ Mortgage Loan Company. He declined to immolate himself on the note, but was willing to make a vicarious sacrifice of his Farmers’ Mortgage Eoan Comimny on the note of his insolvent electric power and manufacturing company, and a note for $10,-000 payable to the order of the Farmers’ Mortgage Loan Company was drawn up and signed by the Boerne Electric Power & Manufacturing Company, acting by its president, C. J. Loe, and then was indorsed by the 'Farmers’ Mortgage Eoan Company, “by C. J. Loe, Pres.” Poo Bali, in the musical comedy of Mikado, did not occupy more offices and do more in them than these interlocking directorates of four corporations. The money was forthcoming from the insurance company; a large portion of it going to liay McCaleb’s bank and the other to pay Eoe’s bank. To argue that every one connected with the plan for raising the money did not know all of its details would be to argue in the face of the facts, reason, and common sense. They all knew that the credit of the mortgage loan company was being pledged to secure a debt in which it did not have a dollar’s interest, and all of them were charged with the knowledge that the mortgage loan company, under its charter, had no power or authority to act as a surety on promissory notes in which it could have no possible interest. It did' not, in fact, receive anything whatever from the transaction. If it had no power to act as a surety on the note of another, the promise of the maker of the note to pay it $100 as surety would not render the transaction lega!. Surety companies are chartered to act as sureties and receive pay therefor, and they alone. The Farmers’ Mortgage Loan Company did not lend any money to the electric power company, had no interest in that company, and had no right, power, or authority to guarantee payment of any of its debts.

Webster, who was president of the insurance company, testified that he knew nothing about where the proceeds of the note were to be applied, but, if so, he was the only one connected with his corporation that did not know. He stated, that the Boerne Electric Power & Manufacturing Company was the owner of the note when he bought it for his company, but how it could have been the owner'of a note executed to another by itself. unless the payee was placed in the note to indorse the note for the maker’s benefit, is not explained, and cannot be explained. It is true this witness testified that ho bought the note belonging to the maker from the indorser, hut he must have known that the indorsement was one merely for accommodation.. He may have been ignorant of the facts, but his corporation knew. The finance committee of the insurance company knew how the money was to be applied, if its president did not. W. F. McCaleb testified that they made the loan, and that they knew “that $6,000, and interest, should come out of the loan whenever consummated, to cover its indebtedness to the West Texas Bank & Trust Co.” Webster, president of the Globe Fire Insurance Company, may not, as he swore, have known that the money was for the electric power and manufacturing company, but the corporation knew it, for it was entered on its minutes on March 27, 1912, that the application to the insurance company for a loan of $10,000 to the Boerne Electric Power & Manufacturing Company be approved subject to the approval of Mc-Caleb, Groos, and Webster. Again, the loan was approved on May 24, 1912. “as based on letter written them [Boerne Electric Power & Manufacturing Company] by Mr. Webster on April 29, 1912.” On April 29, 1912, a letter written by the Globe Insurance Company, “Van A. Webster, President,” was sent to C. J. Loe in regard to “the loans submitted by you for the Boerne Electric Power & Mfg. Co.” Vet Mr. Webster swore that he did not know that the loan was being made to the electric power company. I-Ie, .however, on cross-examination, seemed to remember that letter, and admitted that his company considered the loan to the electric power company, but insisted that he still thought the money was being loaned to the Farmers’ Mortgage Loan Company. Mc-Caleb, of the finance committee of the insurance company and president of the West Texas Bank & Trust Company, approved the loan. The assistant secretary of the insurance company wrote Loe, as president of the electric power and manufacturing company, that the loan had been approved. The attorney of the insurance company knew all about the loan to the electric power company. It would seem that every one connected with the insurance company should have known about the loan to the electric power company, although the president swore he knew nothing about it.

It was admitted that the Farmers’ Mortgage Loan Company was chartered under the provisions of subdivision 29 of article 1121 of the Revised Statutes which is as follows:

“The accumulation and loan of m.oney; but these subdivisions shall not permit incorpora-tions with banking or discounting privileges.”

In subdivision 37 of the same article corporations are permitted to be incorporated “to act as surety and guarantor,” but no such power was granted to the Farmers’ Mortgage Loan Company. This was, in effect, what was attempted by that company in taking a note to itself and indorsing it to another corporation in order to raise money for still another corporation, which was the maker of the note. It undoubtedly had no such authority, and all the parties to the loan were charged with knowledge of such lack of authority. The Farmers’ Mortgage Loan Company received no consideration for its indorsement, but, if it had, that would not change the condition of affairs. It received no part of the proceeds of the loan for which the note was executed, and is not liable thereon. It was a direct attempt to lend the credit of one corporation chartered for specific purposes to another chartered for other purposes, which attempt was null and void. Northside Railway Co. v. Worthington, 88 Tex. 562, 30 S. W. 1055, 53 Am. St. Rep. 778; Gaston v. Campbell, 104 Tex. 576, 140 S. W. 770, 141 S. W. 515; Bank v. Oil Mill Co., 40 S. W. 328; Deaton v. Harvester Co., 47 Tex. Civ. App. 267, 105 S. W. 556; Deposit Co. v. Bank, 48 Tex. Civ. App. 301, 106 S. W. 784; Carla Land Co. v. Bank, 164 S. W. 1066.

The act of the Farmers’ Mortgage Loan Company in indorsing the note for the Boerne Electric Bower & Manufacturing Company was gratuitous, without consideration, and directly in the face of the statute, which is declaratory of the common law. Yernon’s Sayles’ Stats, articles 1104, 1165. In the last-named article it is provided:

“No corporation, domestic or foreign, doing business in this state, shall create any indebtedness whatever except for money paid, labor done, which is reasonably worth at least the sum at which it was taken by the corporation, or property actually received, reasonably worth at least the sum at which it was taken by the corporation.”

What money was paid, what labor done, or property actually received by the Farmers’ Mortgage Loan Company in consideration of the creation of the indebtedness evidenced by the indorsement of the note to the Insurance Company? It is not claimed that the mortgage loan company received anything for-indorsing the note. Appellants not only knew that the mortgage loan company received nothing for the indorsement, but were parties to the procurement of a violation of the law.

If the Farmers’ Mortgage Loan Company had the right under its charter to sell and indorse bona fide notes executed to it, that authority could not save appellants in this ease, because appellants and the insurance company knew that the note was not executed for a debt due by the electric power company to the mortgage loan company, hut that the note was executed to obtain a loan for the payor of the note, and not for the payee. The insurance company and McCaleb devised the plan to obtain the indorsement of the mortgage loan company, and the West Texas Bank & Trust Company, through its president, knew of the plan. It was planned and executed by all of the parties.

One of the .propositions under the first assignment of error is:

“The undisputed evidence showing that the defendant Farmers’ Mortgage Loan Company, the payee in said note,- for a full and valuable consideration, indorsed, transferred, assigned, and delivered said note before maturity to the Globe Fire Insurance Company, said defendant is thereby estopped from asserting that it had no authority under its charter to indorse said note, and to bind itself as indorser thereof.”

The proposition might be tenable if the evidence showed that the Farmers’ Mortgage Loan Company indorsed the note for “a full and valuable consideration” to an innocent purchaser of the note. But there is not one word of testimony in the record that shows that the Farmers’ Mortgage Loan Company received one cent for its indorsement, but the “undisputed evidence” is directly to the contrary and all of the testimony tends to show that the insurance company not only knew that there was no consideration for the in-dorsement, but that it actually procured the indorsement to obtain security for money loaned to the Boerne Electric Power & Manufacturing Company. The authorities cited by appellants have no application to the facts of this case. There can be no doubt, as stated by Waterman in his work on Specific Performance (section 22c), that:

“It is now settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith fully performed by the other party and the corporation has had the full benefit of the performance of the contract.”

That is the sum and substance of the authorities, but they cannot have any force in a case where the corporation performed the ultra vires act at the request of the other party, and not only did not receive “the full benefit of the performance of the contract,” but received none at all as the other party knew. As substantiating the assertion of this court, we quote the following from Kincheloe Irr. Co. v. Hahn, 105 Tex. 231, 146 S. W. 1187, which is cited by appellants:

“It may be stated as a rule of law that an action for damages for breach of contract will not be avoided by the plea of ultra vires, when the corporation has received benefits under the alleged * * * contract.”

That case was carried to the Supreme Court from this court, and the quotation is sound law, although it had no more applicability to the facts of that case than it has to those in this case. The only point in that case was the power of the general manager to bind the corporation. The whole brief of appellant is based on hypotheses that are not sustained by the facts.

Corporations organized and incorporated for the purpose of the “accumulation and loan of money” may have the authority to “sell any paper taken or purchased by them at any price they may see fit to sell it,” as quoted by appellant from an opinion from the Attorney General’s office in February, 1914, but that would not authorize such corporation to indorse notes in order to raise money for another corporation. The language “for the accumulation and loan of money” cannot, by the most liberal construction, authorize a gratuitous indorsement for the benefit of another, and if the opinion from the Attorney General’s office were authority, to be followed by the courts of Texas, still there is not one word or syllable in it upholding any such proposition.

It is contended that subdivision 37, art. 1121, does not provide for surety companies indorsing notes, and it is argued that such indorsement by a company organized for accumulating and lending money would not interfere with any privilege granted by that subdivision. But, if that were true, what about those incorporated under the provisions of subdivision 71 of the statute, which permits incorporation “for the purpose of guaranteeing and assuring the validity of bills of lading and other contracts”? However, in subdivision 37 the corporation is allowed to “guarantee any contract between private individuals or corporations,” and clearly any guarantee for pay by a corporation organized under subdivision 29 would be an invasion of the field occupied under 37. But after all we return to the proposition that No. 29 does not authorize a corporation to lend its credit to another. The parties dealing with such corporation were charged with knowledge of the limits of its authority. As said by the Court of Civil Appeals of Georgia in Savannah Ice Co. v. Bank & Trust Co., 12 Ga. App. 818, 79 S. E. 45:

“Certainly the bank was not justified in assuming that charter authority had been granted. On the contrary, persons dealing with a corporation must assume that it has no power to use its assets or pledge its credit, except to subserve the interests of the stockholders and the enterprise which the corporation is authorized to carry on.”

The transaction in this case disclosed on its face that the Farmers’ Mortgage Loan Company was pledging its'credit not to forward its interests, not to obtain money for itself, but to get money to pay the debts of another corporation. They knew the indorser of the note could not have secured itself, because they knew that they had a lien on all the property of the maker of the note to secure the note given to obtain money to pay the debts of an insolvent corporation. They knew the actual facts surrounding the transaction, but, independent of those, the very transaction itself gave them notice that the Farmers’ Mortgage Loan Company was an accommodation indorser.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    SCHULMAN v. STATE.
    (No. 3433.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    1. Criminal Law <&wkey;182 — Former Jeopardy —J URY.
    Defendant, who had been before a jury on the same charge, and who agreed that the court should discharge a juror whose child was sick, and to a trial before the remaining five jurors, and who objected to the court’s discharge of the jury, was in jeopardy, and on a subsequent trial her plea of former jeopardy should have been sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-332; Dec. Dig. <&wkey;> 182.]
    2. Jury <&wkey;29 — Waiver of Right — Criminal Case.
    The state cannot waive a jury, but the defendant may waive a trial by jury, and has the further right to agree to be tried before less than six jurors.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 197-203; Dec. Dig. &wkey;29.]
    Appeal from Harris County Court, at Law; C. C. Wren, Judge.
    Mollie Schulman was convicted of keeping a disorderly house, and she appeals.
    Reversed and remanded.
    Heidingsfelders, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was. convicted under the second count of the information charging her with keeping a disorderly house in that she permitted men and women to meet by mutual appointment and by appointment made by another for the purpose of sexual intercourse. It seems to charge that the house was an “assignation” house.

Appellant had been previously before a jury for trial, and, when three witnesses had been introduced, a juror approached the court and informed him that his child was sick; at least the court informed counsel that such was the statement of the juror. It became a question as to whether the juror should be permitted to go home. The defendant's counsel agreed that the juror could be discharged, and that they would try the case before the remaining five jurors. The juror left the courtroom. The state’s counsel had remained silent, and, if consent could be imputed to him, it is by reason of the surrounding facts or what occurred at the time. The court announced, after the juror left the room, that he would discharge the jury. To this appellant strenuously objected, and asked that the case be tried before the five jurors. This was not done, but the jury was discharged, over appellant’s objection. Without going into a further detailed statement, this is the substance of the facts.

When the case was called for trial again, ■which resulted in the conviction, appellant interposed the plea of jeopardy, setting up the facts, and about which there seems to be no controversy. The court did not submit the issue of jeopardy to the jury, but refused to do so. Appellant also urged objection to this ruling of the court. In other words, we have a case in which the accused was placed on trial before six jurors in a misdemeanor prosecution. One of the jurors was excused by express authority of the defendant and implied authority by state’s counsel, with the request, on the part of appellant, that they proceed to trial before the five jurors. The court, discarding and overruling his contention, discharged the jury over her protest. Under this state of case, we are of the opinion that, inasmuch as the facts are admitted to be true, the plea of jeopardy should have been sustained.

The state cannot waive a jury; the defendant can. This has been the established rule in Texas at least since the case of Moore v. State, 22 Tex. App. 119, 2 S. W. 634. It is also the well-settled rule that the defendant, under his right to waive a trial by jury, has the further right of agreeing to be tried before less than six jurors. This has been settled in Texas by decisions since Stell v. State, 14 Tex. App. 59. The latest case so holding, that has come to our attention, is Mackey v. State, 151 S. W. 802; the opinion being delivered by Presiding Judge Prendergast.

That appellant was in jeopardy under these facts cannot be questioned. Vestel v. State, 3 Tex. App. 648; Brink v. State, 18 Tex. App. 347, 51 Am. Rep. 317. These cases seem to have been followed, and settle the law] in Texas on that question. Under these authorities, without going further into this question, this ease must, be reversed.

The judgment is reversed, and the cause is remanded.


author: PRENDERGAST, P. J. HARPER, J. DAVTDSON, J.

text:
    PERRYMAN v. STATE.
    (No. 3406.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 3, 1915.)
    1. Intoxicating Liquors <&wkey;-222 — Negativing Exceptions.
    An indictment charging that defendant did unlawfully bring, transport, and carry into the county intoxicating liquors for one E., and did then and there deliver intoxicating liquors to E., and did receive for transportation, carriage, and delivery to E., in said county, intoxicating liquors, said liquors being received by defendant in D. county, Tex., from person or persons unknown, was sufficient under Act Aug. 21, 1013 (Acts 33d Leg. First Called Sess. e. 31), for section 12 provides that it shall not be necessary to negative exceptions contained in the act, but that they shall be available as purely defensive matter.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 240-248; Dec. Dig. <&wkey;> 222.]
    2. Criminal Law &wkey;>365, 372 — Evidence of Other Offenses — Res Gestas.
    In a prosecution for carrying liquor into prohibition territory and delivering it there to a person named, evidence that other persons had given defendant money to get liquor for them, which liquor was delivered at the same time as was that for the person named in the indictment, was properly admitted as part of the res gestae and as showing system.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 807', S33¡ 834; Dec. Dig. <&wkey;365, 372; Intoxicating Liquors, Cent. Dig. § 286.]
    3. Witnesses <&wkey;255 — Examination — 'Refreshing Memory.
    It was not error to permit the prosecuting attorney, in examining a witness, to read to him, in the presence of the jury, his testimony given on the examining trial, for the purpose only of refreshing his memory; the witness being reluctant, and the court, both orally and by written charge, instructing the jury not to consider the testimony read for any other purpose.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. &wkey;255.]
    Davidson, J., dissenting.
    Appeal from District Court, Titus County; H. F. O’Neal, Judge.
    Homer Perryman was convicted of carrying intoxicating liquor into prohibition territory, and appeals.
    Affirmed.
    T. C. Hutchings and Rolston & Rolston, all of Mt. Pleasant, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The indictment in this case avers that the law prohibiting the sale of intoxicating liquors had beou put in full effect in Titus county in 1913, and that on or about May 30, 1914, in said county, appellant “did then and there unlawfully bring, transport, and carry, into said county, intoxicating liquors for one Ed Ervin, and did then and there deliver intoxicating liquors to said Ed Ervin, and did receive for transportation, carriage, and delivery to Ed Ervin, in said county, intoxicating liquors; said liquors being received by said I-Iomer Perryman, in Dallas county, Tex., from some person or persons, who are to the grand jurors unknown.” This indictment was preferred under Act Aug. 21, 1913, p. 62, of the First Called Session of the Thirty-Third Legislature.

The appellant made a motion to quash the indictment “because it charges no offense against the laws of this state.” The indictment is clearly sufficient under the provisions of said act. While it is true the act specifies many things as exceptions which would not be unlawful in bringing, transporting, carrying, and delivering intoxicating liquors into prohibition territory, by section 12 it is specifically provided that it shall not be necessary, in any prosecution under said act, to negative the exceptions, but such exceptions shall be available to the defendant as purely defensive matters. Johnson v. State, 171 S. W. 211.

The evidence is amply sufficient to sustain the conviction. It shows, in effect, that said Ed Ervin was a minor 16 years of age; that he and several other persons gave appellant money to go to Dallas, get intoxicating liquors, bring it from there back into Titus county, and deliver it to them; that ho did go to Dallas county, procured the liquor, carried it back into Titus county, and at the same time and place delivered part of it to said Ervin and other parts of it to the said several other persons. He himself testified that these several persons gave to him money to go to Dallas and get them intoxicating liquors, and that he did do so, and carried it back into Titus county; that, after he got back into Titus county with the liquor, he got with a companion, and they drank part of it themselves, and that he got drunk, and that, if he delivered any of the whisky to them, he did not know it, because he was drunk; that he made no profit out of the whisky, and what he did was an accommodation for said parties; that they paid his expenses, railroad fare, and hotel bills, in addition to giving him the money with which to buy the liquor.

By one bill it is shown that the court permitted over his objections, Birt Binnion to testify that on or about May 30, 1914, he gave appellant $3 in money to go to Dallas and get him some whisky; and by another that the court permitted Geo. Tosh to testify that on the same date he gave appellant $10 for the same purpose; and by another that he required appellant to testify that Fon Dee, said Binnion, and Tosh gave him money to go to Dallas and bring back whisky into said county for them. In each of said first two bills the court explained that he permitted this testimony because the liquor was carried into Titus county at the same time, delivered at the same time and place, and was part of the res gestfe, and showed system. And to the latter he made the same explanation, and in addition that said whisky was brought into the county for all of said parties at the same time as for said Ervin, and was delivered at the same time and place, and was part of the res gesta:, and showed system; and that the said Ervin at the time was a minor, only 16 years of age, and that the bringing of said whisky into Titus county was for a minor and for an unlawful purpose. As explained and qualified by the judge, which was accepted by appellant, no error in the admission of said testimony is shown. Hardgraves v. State, 61 Tex. Cr. R. 327, 135 S. W. 132, and cases cited; Ware v. State, 36 Tex. Cr. R. 597, 38 S. W. 198; Kelley v. State, 31 Tex. Cr. R. 216, 20 S. W. 357; Kaufman v. State, 159 S. W. 60; Dugat v. State, 160 S. W. 377, and cases cited therein.

By another bill it is complained that the court, over his objections, permitted the testimony of said Ed Ervin on the examining trial to be read to him in the presence of the jury. The court, in approving the bill, qualified it by stating that said Ervin was a- very unwilling witness, and that it was with very great- difficulty tiiat tlie district attorney could get Mm to testify; that lie permitted the district attorney to read over his said testimony on examining trial for the purpose only of refreshing his memory, which seemed to be a blank; and that he instructed the jury at the time, orally, and also in his written charge, not to consider his testimony at the examining trial read over to Mm, for any purpose, as it was only permitted to refresh the memory of the witness. As qualified, this bill shows no error. The lowest penalty prescribed by law was assessed against appellant.

No reversible error being shown, the judgment will be affirmed.

HARPER, J.

As the evidence does not disclose that the whisky was intended for the personal use of the persons receiving same, and this being an affirmative defense, and the amount of money contributed for the purchase of liquor strongly tending to exclude that such was the case, I agree to the affirmance.

DAVTDSON, J.

I dissent. Longmire v. State, 171 S. W. 1165, and Ex parte Hopkins, 171 S. W. 1163, recently decided. These cases are in direct conflict with this opinion.
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author: PRENDERGAST, P. J.

text:
    VANDEVEER v. STATE.
    (No. 3394.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 3, 1915.)
    1. Criminal Law <&wkey;814— Instructions — Circumstantial Evidence.
    Where the state introduced, in addition to evidence of circumstances tending to show the commission of arson by the accused, an admission by him that he set fire to the house, it was not error to reíase a requested charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1S39, 1860,1865, 1883, 1890, 1924, 1979-1985, 1087; Dec. Dig. <&wkey;>814.]
    2. Criminal Law <&wkey;1091 — Appeal— Bill of Exceptions — Exclusion of Evidence.
    A bill of exceptions to the exclusion of an answer to a question asked a witness for the state on cross-examination whether she thought the defendant was joking when he admitted that he set fire to the house, which bill does not show what the witness’ answer would have been, is insufficient to present error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Doc. Dig. &wkey;>1091.]
    Appeal from District Court, Mason County; Clarence Martin, Judge.
    Herman Vandeveer was convicted of arson, and he appeals.
    Affirmed.
    J. A. Adkins, of Brady, and M. Fulton, of Mason, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for arson with the lowest penalty assessed. We think it unnecessary to state the evidence. It was amply sufficient to sustain the verdict.

It is the well-settled law of this state that no charge on circumstantial evidence is necessary except when the evidence to establish guilt is purely and wholly circumstantial. Also that, where, in addition to circumstances, the state has introduced the admission of the accused to the effect that he has committed the act which constitutes ttye crime, the ease is not one of circumstantial evidence, and the court is not required to submit such a charge to the jury. See article 715, § 813, White’s Ann. Code Cr. Proc., where- some of the cases are collated. In addition to circumstantial evidence tending to show that appellant set fire to and burned the house with which he is charged in this case, the state proved his admission that he had done so. Hence the court did not err in not charging on circumstantial evidence as contended for by appellant.

Appellant has some bills of exceptions to what he claims was the exclusion of some proposed testimony. We have considered all these bills. They are so meager and insufficient under all of the established rules that they do not present the questions in such a way that the court can review them. But, even if it could, as qualified by the judge, none of them present reversible error.

Stress is laid upon one of them by appellant to the effect that he asked one of the state’s witnesses, Mrs. Kiser, in substance, whether or not, when the appellant, in talking to her, told her he set. fire to the building, she understood or thought he was joking; but the bill does not disclose what her answer would have been. So far as the bill is concerned, we cannot tell but that she may have testified that he was not joking. The court qualified it by stating, among other things, that he advised her to state all that was said between her and defendant on the occasion referred to and the way in which the entire conversation occurred, and that she did so. At any rate, the bill, as presented, shows no error.

We have deemed it unnecessary to take up each error assigned by appellant and discuss them separately. We have considered them all.

No reversible error is presented, and the judgment will be affirmed.
      @=r>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HERRIN v. STATE.
    (No. 3434.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    Ckiminai, Law <&wkey;1088 — Record—Testimony on Motion eor New Trial.
    Where the record contained what purported to be the alleged newly discovered testimony presented on motion for new trial, certified by the stenographer alone, and in no way authenticated or approved by-the trial judge, or agreed to by the parties, it could not be considered for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676, 2746-2751, 2757, 2766, 2782-2802, 2899; Dec. Dig. &wkey;1088.]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Robert Herrin was convicted of manslaughter, and appeals.
    Affirmed.
    Brooke & Wool worth, of Carthage, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of manslaughter, and assessed the lowest punishment.

There is no bill of exceptions nor complaint in any way of the charge of the court. But two questions are raised. The first is appellant claims that the evidence is insufficient to sustain the verdict; and the second that he ought to have been granted a now trial because of claimed newly discovered testimony.

Appellant’s only defense was self-defense. The evidence tending to establish that was sufficient to have done so, if it had been believed by the jury. The state by its evidence amply established the guilt of appellant, and was sufficient to authorize the jury to find him guilty and disbelieve his claimed self-defense. We think it unnecessary to recite the evidence. We have carefully considered it, and in our opinion it sustains the verdict.

Clearly appellant failed, under all the authorities, to show that he was entitled to a new trial because of claimed newly discovered evidence. He attached to his motion no affidavit by either of the parties whom he claimed would testify to material facts which could be claimed as newly discovered testimony, and gave no reason whatever why he did not do so. However, the record shows that the court heard the evidence on the hearing of the motion for new trial by the persons whom he claimed would give newly discovered testimony,' and the judgment of the court recites that, after hearing all this evidence, he overruled the motion for a new trial on that ground. What that evidence was is in no way properly disclosed. There is, however, in the record, what purports to be that testimony, certified by the stenographer alone. It is in no way authenticated or approved by the trial judge, nor is it agreed to as correct by the parties. Hence it cannot be considered for any purpose. Even if we could consider it, it would show that the testimony of the witnesses was neither newly discovered testimony nor of such material character as to authorize the court to grant a new trial. So that, in no contingency, is any reversible error shown.

The judgment will therefore be affirmed.
      !5&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    EUELL v. STATE.
    (No. 3432.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge. Robert Euell was convicted of rape, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was convicted for rape of his own daughter, she being the age of between 13 and 14 years, and his punishment assessed at 59 years in the penitentiary. There is neither a bill of exceptions nor a statement of facts in the case. No question is raised in the motion for new trial, or otherwise, which can be reviewed in. the absence of these. The judgment must therefore be affirmed.


text:
    GARFIOS v. STATE.
    (No. 3445.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge. Gonzalo Garfios was convicted of burglary, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted' of burglary; his punishment being assessed at two years’ confinement in the penitentiary. The record is before us without a statement of facts or bill of exceptions. As thus presented' there is no question suggested in the motion for new trial that can be reviewed. The judgment is affirmed.


text:
    HOGAN v. STATE.
    (No. 3270.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.)
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge. Polly Hogan was convicted of an assault to murder, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault to murder. There is neither a statement of facts nor a bill of exceptions. No question is raised which can be considered in the absence of these. The judgment is therefore affirmed.


author: CONNER, C. J.

text:
    KING COUNTY v. MARTIN.
    (No. 8044.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 9, 1915.)
    On motion for rehearing.
    Overruled.
    For former opinion, see 173 S. W. 960.
   CONNER, C. J.

Appellant’s motion for rehearing merely presents questions that were presented on the original hearing, without anything, new being urged in its support.' The motion will therefore be overruled without discussion. Appellee, however, while concurring in the final conclusion originally reached, insists that in the interest of uniformity of decision we should modify our conclusion that, under the general objection that the evidence of the usual rate of interest in sales of lands by private persons was “immaterial,” we could not consider, the objection that “the conditions were not shown to be similar.” The insistence is that, while the general rule is as we applied it where evidence is admitted over a general objection, a distinction is to be made in instances where evidence is excluded on such objection. The authorities seem to support the distinction in cases where neither the trial court nor opposing counsel call for specific objection at the time of the exclusion of the testimony. See 5 Jones on Evidence, 377 et 894; Mine & Smelter Supply Co. v. Park & Lacy Co., 107 Fed. 881, 47 C. C. A. 34; Tooley v. Bacon, 70 N. Y. 34; Hurlbut v. Hall, 39 Neb. 889, 58 N. W. 538; Storms v. Lemon, 7 Ind. App. 435, 34 N. E. 644; Adams v. Southern R. R. Co., 166 Ala. 449, 51 South. 987; Rosenberg v. Sheahan, 148 Wis. 92, 133 N. W. 645; Flanagan v. Womack & Perry, 54 Tex. 45. In the case of Tooley v. Bacon, supra, the court say: “Where evidence is excluded upon a mere general objection, the ruling will be upheld upon appeal if any ground in fact existed for the exclusion; it will be assumed, in the absence of any request on the part of the opposing party or the court, to make the objection more definite, that it was understood that the ruling was placed upon the right ground.” In the Texas case just cited, the court, among other things, said: “The court may in its discretion refuse to entertain an objection to a question propounded to a witness unless the ground of objection be stated; but, should a general objection be entertained and correctly sustained, it would be no ground for reversal, no substantial error having been committed.” In the present case it is by no-means clear that conditions were shown to be similar. Nor does it appear that either court or opposing counsel requested a more specific objection to the testimony referred to than was made. Had such request been made, the objection that conditions were not shown to be similar might have been obviated. In the absence of such request, however, we should perhaps assume, as stated in the quotation from the New York decision, that it was understood at the time of the exclusion of the evidence relating to the interest demanded in sales of lands by-private parties that the ruling was placed upon. the ground that the conditions were not shown to be similar. But, if this be assumed, it merely affords an additional reason for overruling, as we did, the assignment of error to the action of the court in excluding the evidence, and we hence need do no more than to note the distinction mentioned.


text:
    TEXAS & P. RY. CO. v. CAVE et al.
    (No. 8033.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 12, 1914.)

    Dissenting opinion.
    For majority opinion, see 178 S. W. 988.
   CONNER, C. J.

(dissenting). I feel unwilling to deny any litigant a hearing on the merits of his case on the grounds herein presented. The good faith of counsel-claiming the execution of the original agreement to waive the filing of his briefs in the court below is unassailed, and is manifest, I think, from the record. He asserted this claim in letters to counsel now denying the agreement, to which he received no answer, as early as June 1, 1914, and he states that he did not know with certainty until about September 13, 1914, that counsel for defendant in error would refuse to execute another, or substituted, agreement. Afterwards, on October 10th, the counsel for plaintiff in error filed in this court his verified motion to file his briefs, with co-pies of same accompanying the motion, but which motion we passed, to be considered with the merits of the case. The motion shows, and it is not denied, that as early as about May 12, 1914, a copy of plaintiff in error’s brief was mailed to and received by counsel for defendant in error. This brief was deficient in the citation of authorities, and perhaps in other respects, and later, to wit, on October 5, 1914, as shown by the motion, an amended or corrected brief, substantially as now presented to us, was delivered to counsel for the defendant in error. This case was not submitted until the 24th day of October, 1914, and in the motion to dismiss the appeal, filed on the same day, it is not even suggested that counsel for defendant in error have not had ample time to answer the brief presented for filing, or even that they desire to yet do so. Under such circumstances, it seems to me, we should permit the briefs presented to be filed, and determine whether there is any merit in plaintiff in error’s appeal. To refuse to do so, I think, is to sacrifice substance for form. Counsel for the respective parties live in counties distant from each other, and the trouble seems to be at worst one of forgetfulness on the part of one or the other of the contending sides, mixed possibly with some negligence on the part of counsel for plaintiff in error in failing- to not earlier present his motion to file his briefs. But the ground of the motion to dismiss at best is one of mere form, and, as said in the case of Hunt v. Glasscock, 27 Tex. Civ. App. 322, 65 S. W. 209: “The object of the law was to afford the appellee, or defendant in error, a convenient opportunity and sufficient time to prepare his brief in answer to that of his adversary. We do not think that it was the purpose of the Legislature to authorize a dismissal of the appeal on account of every slight departure from the rule. It was 'doubtless intended that, in case of a failure to comply with the provisions, the court should give such directions to the case as to secure to the appellee the substantial benefits intended to be secured to him by the act. The Legislature contemplated no greater penalty when there was neither a willful nor grossly negligent infraction of the rule.” See, also, S. A. & A. P. Ry. v. Holden, 93 Tex. 211, 54 S. W. 751; I. & G. N. R. Co. v. Walters, 161 S. W. 916.


author: PHILLIPS, J.

text:
    DILWORTH et al. v. ED. STEVES & SONS.
    (Supreme Court of Texas.
    March 10, 1915.)
    Appeal and Ere ok <®=»387 — Appellate Jurisdiction — Necessity of Bond — Time of Filing.
    An appeal bond, filed in the trial court more than 20 days after the term, being too late under Rev. St. 1911, art. 2084, the Court of Appeals was without jurisdiction of the appeal, as was the Supreme Court on writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. <®=> 387.]
    Error to Court of Civil Appeals of the Fourth Supreme Judicial District.
    Action by Ed. Steves & Sons against R. S. Dilworth and others. From a judgment for plaintiff, defendants appealed to the Court of Appeals, and, on judgment of af-firmance there (169 S. W. 630), apply for writ of error.
    Application dismissed.
   PHILLIPS, J.

The case was tried in the district court of Bexar county for the Seventy-Third judicial district at a term beginning October 6, 1913, and ending November 29, 1913, and which could not by law continue more than eight weeks. The appeal bond of the plaintiffs in error was filed in the trial court December 29, 1913, more than 20 days after the expiration of the term. It was therefore filed too late. R. S. art. 2084. The matter does not appear to have been brought to the attention of the Court of Civil Appeals; but, the bond not having been filed in time, it was without jurisdiction of the appeal, as is this court of the application for writ of error, which is accordingly dismissed. El Paso & Northeastern Railway Co. v. Whatley, 99 Tex. 128, 87 S.W. 819.


text:
    ATCHISON et al. v. HANNA.
    (No. 2356.)
    (Supreme Court of Texas.
    March 10, 1915.)
    1. Public Lands ⅞=>173 — School Lands — Loss of Rights by Purchaser.
    Under Acts 29th Leg. c. 103, providing for the sale and lease of school and asylum lands, cancellation of a sale and resale to another by the Commissioner of the General Land Office for failure to file an affidavit of settlement, as required by section 4 of the act, was unauthorized when the plaintiff purchased under section 5.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <⅜=>173.]
    2. Limitation of Actions <⅜=>118 — Commencement of Action — Time for New Suit after Dismissal.
    The filing of mandamus proceedings in the Supreme Court to compel the Commissioner of the General Land Office to cancel a resale of land previously purchased by plaintiff under Acts 29th Leg. c. 103, § 5, providing for the sale and lease of school and asylum lands, was a sufficient institution of “suit” to recover the land to remove from the operation of Rev. St. 1911, art. 5458, fixing one year as the statutory period of limitation on actions for lands purchased or leased from the state, a suit of trespass to try title, brought by the petitioner against defendant after dismissal of the for--mer’s petition for mandamus.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 527, 528; Dee. Dig. <©=» 118.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by S. W. Hanna against John Atchi-son and another. Judgment for defendants was reversed by the Court of Civil Appeals (141 S. W. 190), and they bring error.
    Affirmed.
    John B. Howard, of Pecos, for plaintiffs in error. Charley Gibbs, of Midland, Theodore Mack, of Ft. Worth, and Chas. Rogan, of Austin, for defendant in error.
   PHILLIPS, J.

The suit was one in trespass to try title, instituted by Hanna, the defendant in error, against John Atchison and B. Armstrong, the plaintiffs in error, for the' recovery of four sections of public school land in Andrews county. The lands were originally covered by a state school land lease, owned by Hanna, as assignee. In accordance with the provisions of section 5 of the act of 1905 (General Laws 1905, pp. 159-67), under the preference right bestowed by the act, Hanna duly filed his application for the purchase of the four sections in the General Land Office on June 15, 1907, and thereon they were awarded to him on June 30, 1907. In accordance with the provisions of the act and within the time prescribed he duly perfected his settlement upon the land, but failed to file in the Land Office his affidavit showing such settlement as required by the provisions of section 4 of the act. On account of such failure the Commissioner canceled the sale to Hanna, and thereafter on application to purchase the four sections were awarded to Armstrong who made his settlement, and filed his affidavit to that effect in the Land Office within the required time. After residing on the land continuously for more than a year Armstrong sold to Atchison, who thereupon became an actual settler, having fully complied with the law in respect to substitute purchasers, and was in possession at the time of the suit. Within a year after the award to Armstrong, Hanna, joined by his wife, filed in this court a motion for leave to file a petition for mandamus against the Commissioner of the General Land Office and Armstrong, seeking to have canceled the award to Armstrong, and to have themselves recognized as the lawful purchasers of the land. The motion was granted, and the petition for mandamus permitted to be filed. It was afterwards dismissed for want of jurisdiction, caused by the interposition of Armstrong’s answer, which presented a question of fact as to whether in his original purchase Hanna had acted in collusion with one Allen. To meet the plea of limitation interposed by the defendants, Hanna pleaded that Armstrong had injected, by Ms answer, the question of fact in the mandamus proceeding in tbis court fraudulently, for ,tbe purpose of ousting tbe jurisdiction of tMs court in that proceeding. Upon the trial the proof was uncontradicted that there was no collusion between Hanna and Allen in the original purchase by the former of the land' from the state. In the trial court judgment was rendered for the defendants. This judgment was reversed by the honorable Court of Civil Appeals for the Second District, and judgment rendered in Hanna’s favor for the land.

The ease turns upon the question whether, as determined by the provisions of the act of 1905, there was a lawful forfeiture of Hanna’s purchase of the land from the state.

Sections 3 and 4 of the act contain certain general provisions which are applicable to all sales of surveyed land made under its terms, since they relate to sales, generally, of such land. Among them are the provisions in section 4 in respect to forfeiture for default in the payment of ‘interest, and for transfer of his land by a purchaser prior to his actual settlement.

Section 5, however, very plainly relates to sales under the act of a particular class of the surveyed lands, namely, sales of lands out of those held under lease from the state, and was intended to confer upon such lessee or his assignee a preferential right to purchase of such lands the quantity allowed one purchaser under the general provisions of the act. It was under this latter section that the sale to I-Ianna of the land in dispute was made; it being then held by him as an assignee under lease from the state.

In relation to the occupancy and settlement required of a purchaser of surveyed land, the' act contains two distinct forfeiture provisions, found respectively in sections 4 and 5; one having reference to sales, generally, and the other relating to sales of the particular class of land purchasable under section 5. The provision in section 4 is in the following language:

“The applicant shall have ninety days from the date of the acceptance of his application within which to ⅜ * * settle upon the land so purchased, and he shall within thirty days after the expiration of said ninety days given within which to make settlement,. file in the Land Office his affidavit that he has in good faith actually in person settled upon the land purchased- by him. Should the applicant fail ■to make and file the affidavit and proof of settlement as herein, provided within the time specified, the Commissioner of the General "Land Office'shall indorse that fact upon his application, canceling the.same, and immediately place the same upon the market,” etc.
That in section 5 is as follows:
“One who buys out of a lease as above provided and does not comply with the law as to settlement and residence, the Commissioner shall, when sufficiently informed of that fact, cancel such sale and place the land upon the market for sale as provided in this act for canceled leases.”

WMle, according to section 4, the failure to make the required proof of settlement within the prescribed period is constituted a ground for cancellation of sales generally, it is distinctly omitted as a ground of forfeiture from the provision on the same subject found in section 5. In the latter section a failure “to comply with the law as to settlement ana residence” is made a ground of forfeiture, but not the failure to malee proof that the law had been complied with.

The language used in the above quoted provision of section 5 plainly indicates that as to sales under that section the filing of proof of settlement was not contemplated as the means of affording information to the Commissioner that the law as to settlement and residence had been complied with, the only purpose of a requirement to that effect, and that the section was not framed with the view of constituting the failure to make such proof a ground of forfeiture. It will be noted that under that provision the authority of the Commissioner to cancel a sale for failure to comply with the law as to settlement and residence exists only when “he is sufficiently informed of that fact.” This reveals that the Legislature intended that Ms exercise of the power should be dependent upon his having positive information of the fact, and not upon Ms want of information, or a failure of the purchaser to furnish it.

If it was intended that the quoted forfeiture provision found in section 4 should apply in respect to sales under section 5, why was a forfeiture provision on the same subject of settlement and residence, but couched in different terms, incorporated in section 5? If it was the legislative purpose to authorize cancellation of sales made under section 5 for failure on the part of the .purchaser to furnish proof of his compliance with the law as to settlement and residence, why, under the terms of that section, was the Commissioner’s authority to cancel for noncompliance with such law conferred in terms which, for its lawful exercise, require that he have positive information of the fact? The difference between the two provisions found in the respective sections cannot be ignored. It is no part of our province to inquire why it exists. We are governed only by the statute as we find it.

There is no question but that I-Ianna fully complied with the law in respect to the settlement and residence upon the land, and the cancellation of his purchase was, in our opinion, unauthorized.

The filing by Hanna of the mandamus proceeding in this court under its leave, to compel the restoration of his rights1 as a lawful purchaser of the land, cannot be considered other than as the institution of “a suit” within the contemplation of Rev. St. 1911, art. 5458, and was therefore sufficient to save his present action from the limitation prescribed 'by that article. The proceeding was an appropriate one for that purpose,. one which it was. within the power of this court to entertain, .and the issue of which it would have determined but for the injection of an issue of fact upon the question of collusion between Hanna and Allen in the former’s purchase of the land, raised by the answer filed by the respondent, Armstrong, one of the plaintiff's in error. According to the findings of the Court of Civil Appeals the proof upon the trial of the present ease was undisputed that there was no such collusion; the defendants having offered no testimony whatever to the contrary. This strongly indicates that that was an unfounded issue in the mandamus proceeding. We think, therefore, that the plaintiffs in error are in no position to contend that the institution of that proceeding was not the filing of a suit within the contemplation of the statute.

The judgment of the Court of Civil Appeals is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILGIPS, J.

text:
    WISEMAN v. COTTINGHAM et al.
    (No. 2397.)
    (Supreme Court of Texas.
    March 10, 1915.)
    1. Judgment <S=u335 — Bill of Be view — Non-joinder of Codefendants.
    In petitioning for new trial of a controversy by bill of review, under Bev. St. 1911, art. 2026, providing for such new trial when judgment has been rendered upon service of process by publication, and under article 2027, requiring service of process on bill of review to be made upon parties adversely interested, it was not necessary for petitioners to join their coheirs, who had appeared personally in the suit brought against them and petitioners by one asserting a paramount title in land of their ancestor; the interest of such parties not being adverse.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 647-663; Dec. Dig. <S^335.]
    2. Election of Bemedies <®=>7 — Acts Constituting Election.
    Whore plaintiff held by assignment a note secured by lien on deceased’s land and secured an allowance of the claim against deceased’s estate in administration, there was no election to preclude her from asserting against the land a superior title thereto, acquired by purchase from deceased’s vendor subsequent to her filing claim against the estate; the doctrine of election applying only where two inconsistent remedies are at the plaintiff’s disposal.
    [Ed. Note. — For other cases, see Election of Bemedies, Cent. Dig. § 12; Dec. Dig. ®=37.]
    3. Judgment <®=»145 — Setting Aside Default Judgment — Grounds.
    Where petitioners, by tender of amount due on their ancestor’s note, could have defeated plaintiff’s recovery of their ancestor’s land, in a suit asserting the superior title plaintiff had acquired from such ancestor’s vendor, and where petitioners were served with process only by publication, the facts sufficiently justified the award of a new trial on petition, brought under Bev. St. 1911, art. 2026, providing for bill of review and new trial in suits by publication.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 271, 292-295; Dec. Dig. ⅞=>145.]
    4. Judgment @=^335 — Setting Aside Default Judgment — Proceedings—Order of Judgment.
    Where certain coheirs who had been served only by publication in suit by plaintiff to recover inherited land, petitioned for a new trial; under Bev. St. 1911, art. 2026, providing for new trial on bill of review in suits begun by publication, the judgment was also vacated as to two other heirs who had appeared personally in the suit, and, all issues being open for determination anew, the court could allow a perfect defense shown at the hearing and render judgment for petitioners.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 047-063; Dec. Dig. <S=>335.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by I. E. Wiseman against J. B. Cot-tingham and others. Judgment for plaintiff, and bill of review brought under Bev. St. 1911, art. 2026, by defendants, served only by application. Judgment for defendants (141 S. W. 817), and plaintiff brings error.
    Affirmed.
    Canfield & King and D. B. Wiseman, all of Floresville, for plaintiff in error. Webb & Goeth and Shook & Vander Hoeven, all of San Antonio, for defendants in error.
   PHILGIPS, J.

In the year 1906 T. A. Gottingham purchased from James P. West a tract of land comprising 25 acres, situated in Wilson county, paying $150 cash, and executing a vendor’s lien note for $125, the balance of .the purchase price, due October 1, 1907. The note was thereafter assigned by West to the plaintiff in error, Mrs. I. E. Wiseman. Cottingham died, and J. B. Cot-tingham qualified as administrator of his estate under appointment of the probate court of Bexar county. In the -fall of 1907 Mrs. Wiseman presented the note as a claim against Cottingham’s estate, and it was so allowed on December 4, 1907. She at that time only held the note and lien. The note was not paid, because the estate had no funds available, nor was any sale of the land had for that purpose in the course of the administration. Thereafter, on January 14, 1909, Mrs. Wiseman acquired the superior title to the land, and, with the note past due and still unpaid, on February 26, 1909, instituted a suit in the district court of Wilson county for the land against J. B. Cottingham, administrator of the estate of T. A. Cotting-ham, and individually, W. H. Cottingham, two of the heirs of T. A. Cottingham, and the unknown heirs of T. A. Cottingham, alleging the nonpayment of the note, and that, as its owner/ she had exercised her option to abandon the note and recover the land as the holder of the superior title. J. B. Cot-tingham and W. I-I. Cottingham were each personally served with citation, and due service by publication was had upon the unknown heirs. J. B. Cottingham and W. H. Cottingham made default. A guardian ad litem was appointed by the court to represent the unknown heirs, who interposed in their behalf a plea of not guilty. Upon the hearing judgment was rendered on December 22, 1909, in favor of Mrs. Wiseman, against all the defendants for the land.

On October 11, 1910, Mamie Cottingham Chambliss, joined by her husband, and Clive Cottingham, one the niece and the other the nephew of T. A. Cottingham, and representing in interest one-seventh of his estate, filed their bill of review in the district court of Wilson county, seeking to have vacated the original judgment rendered in Mrs. Wise-man’s favor. As grounds for such relief they asserted, in substance, that they resided in North Carolina and Missouri, respectively; that they had no previous knowledge of the pendency of the suit, and were not bound by the judgment because not personally served; that Mrs. Wiseman had obtained the allowance against Cottingham’s estate of her claim represented by the $125 vendor’s lien note; that the full amount due upon the note was $193, which, prior to the filing of the bill,' they had tendered to Mrs. Wiseman, and which had been paid into court for the purpose of satisfying the note; that they were entitled to have Blrs. Wiseman accept the amount due upon the note and were willing to pay her the full amount due in satisfaction of her claim for the protection of their interest in the land, which had increased in value and was worth the sum of. $1,000. J. R. Cottingham and W. H. Cottingham were not parties to the bill of review. On hearing, judgment was rendered in accordance with the prayer of the bill, vacating the original judgment entirely, requiring Mrs. Wiseman to accept $205.80, the principal, interest, and attorney’s fees due upon the note, then in the registry of the court, and a further sum amounting to all the costs, and decreeing the land to the plaintiffs for the benefit of all the heirs and the estate of T. A. Cottingham. The judgment was affirmed by the honorable Court,of Civil Appeals, and its correctness is the question presented for decision.

proceeding was under Rev. St. 1911, art. 2026, which provides that, in eases where judgment has been rendered on serv-servby publication, a defendant not appearing may obtain a new trial for good cause shown upon a sworn application, filed within two years after the rendition of the judgment. It was but a continuation of the original suit, and did not possess the character of an independent action in equity to review the judgment. While the petition was styled, un-unthe statutory term, as a bill of review, it amounted to no more than a motion for new trial, permitted in such cases by virtue of the statute, to be 'filed and heard after ad-adof the term. Mussina v. Moore, 13 Tex. 7; Miles v. Dana, 13 Tex. Civ. App. 240, 36 S. W. 848; Glaze v. Johnson, 27 Tex. Civ. App. 116, 65 S. W. 662; Wolf v. Sahm, 55 Tex. Civ. App. 554, 120 S. W. 1115, 121 S. W. 561; Ered Fred Fred (Civ. App.) 126 S. W. 900. While it is provided by article 2027 that in such cases ' the petition shall be filed and service of process made, upon “the parties adversely interested in the judgment,” it was not necessary that J. R. Cottingham and W. H. Cottingham be made parties to the proceeding and be served with process. Their interests were not adverse to those of the parties seeking the new trial, but were in common with them. Relief against the judgment was sought for their benefit, as well as heirs of T. A. Cottingham.

Mrs. Wiseman was not, in our opinion, concluded in her right to sue for the land because she had previously obtained an allowance of her claim represented by the vendor’s lien note in, the administration of Cotting-ham’s estate, upon the theory, as held by the Court of Civil Appeals, that she had elected that remedy and therefore could not pursue another. The rule of election of remedies has application only where the party against whom it is invoked has two inconsistent remedies at his disposal at the time of the supposed election. It could not reasonably have force, where at that time, he pursued the only one available to him. When Mrs. Wise-man presented her claim upon the note for allowance in the administration of Cotting-ham’s estate, she did not hold the superior title to the' land, and could not have maintained a suit for the land. She only held the note and lien, and her only remedy, therefore, was upon the note. The record shows that the estate was without any funds to pay the claim, and, after it had remained unpaid for more than a year aftet its allowance, she acquired the superior title to the land from West, the original vendor, and then, abandoning her claim upon the note, brought suit for the land as the holder of such title. Under these circumstances, she was clearly entitled to assert her subsequently acquired title. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734.

In the suit for the recovery of the land, Mrs. Chambliss and Clive Cottingham, for themselves and the other heirs of Cotting-ham, would have had the undoubted right to tender to Mrs.'Wiseman the amount due upon the $125 vendor’s lien note, and thereby defeat her action. It was a defense, the presentation of which would have resulted in the rendition of a different judgment. They were denied the opportunity of making it through not fault of their own, as it does not appear that they had any knowledge of the pendency of the suit. Upon its assertion, therefore, and the tender into court in this proceeding of the amount due upon the note, sufficient cause was shown for the award of a new trial upon their petition. A liberal discretion should be employed in the granting of a new trial under this statute. It is plainly authorized where it appears that a defendant cited by publication has a good defense to' the suit which he was denied the opportunity of presenting, and his application is made in accordance with the statute

Under our practice the granting of a new trial upon the motion of one of several defendants vacates the judgment as to all of them. Long v. Garnett, 45 Tex. 400; Wooters v. Kauffman, 67 Tex. 488, 3 S. W. 465; Railway Co. v. James, 73 Tex. 12, 10 S. W. 744, 15 Am. St. Kep. 743. The effect, therefore, of the award of a new trial upon the petition of Mrs. Chambliss and Clive Cotting-ham was to set aside the judgment as to J. R. Cottingham and W. H. Cottingham as well, restoring the status the case had before the rendition of the judgment, and leaving the issues to be determined anew. Under this situation, it was competent for the court to allow the defense presented and render judgment accordingly.

The judgments of the Court of Civil Appeals and the district court are affirmed.
      «gusoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    NICHOLS v. SCHMITTOU et al.
    (No. 2390.)
    (Supreme Court of Texas.
    March 3, 1915.)
    Deeps <&wkey;120 — Inteeest Conveyed — Quitclaim Deeds.
    A deed “granted, sold and conveyed, and by these presents do grant, sell and convey * * * all that certain tract,” etc., and then recited “intention of the parties is to convey any and all right, title and interest they may have either from purchase, gift, devise or inheritance in and to the above lands” followed by the clause “to have and to hold the above * * * together with all and singular, the rights and appurtenances thereto in any wise belonging * * * and we hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises to said [grantees] and their heirs and assigns, against every person whomsoever lawfully claming.” Held, that such deed amounted to a conveyance of the. land to the full extent of the grantor’s interest, and was not a quitclaim.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dec. Dig. &wkey;120.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by T. H. Nichols against Joseph Dun-ham and another. Mrs. S. E. Schmittou, being made a party on suggestion of defendant, appealed from the judgment, and on reversal by the Court of Appeals (142 S. W. 941) plaintiff brings error.
    Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.
    W. T. Allen, of Petrolia, and Taylor & Humphrey, of Henrietta, for plaintiff in error. Speer & Weldon, of Bowie, and Montgomery & Britain, of Wichita Falls, for defendants in error.
   PHILLIPS, J.

The suit was instituted by the plaintiff in error, Nichols, against Joseph Dunham and Henrietta Dunham, minors, to partition a tract of land of 221 acres, approximately, in which he claimed to own an undivided three-fourths interest. The minor defendants in their pleading asserted their ownership of the remaining one-fourth interest in the tract, and impleaded the defendant in error, Mrs. Schmittou, alleging that they were the owners of an undivided one-fourth interest in certain lands comprising 170 acres claimed by her, praying for a partition of both tracts accordingly. All of the land in question was the community property of Joseph A. Dunham and Emily Dunham, the grandparents of the minor defendants, and the parents of Mrs. Schmittou. Joseph A. Dunham died prior to the year 1899, leaving surviving him his wife, Emily Dunham, and two children, Mrs. Schmittou and H. O. Dun-ham, the father of the minor defendants. H. O. Dunham died in the year 1899. Following his death, Mrs. Emily Dunham, the surviving wife of Joseph A. Dunham, on September 29, 1899, conveyed her community, interest in these lands to Liza Dunham, the surviving wife of H. O. Dunham and the mother of the minor defendants, and Mrs. Schmittou, her daughter. On the same day Mrs. Liza Dunham and Mrs. Schmittou executed partition deeds in favor of each other, whereby the 221 acres, in which Nichols' asserted his three-fourths interest, were conveyed to Mrs. Dun-ham, and the 170 acres, sought by the minors to be partitioned against Mrs. Schmittou, were conveyed to the latter. Thereafter Mrs. Liza Dunham married E. O. White. On February 11,1905, she and her then husband conveyed the 221 acres to Will Simpson by deed in the following form:

“State of Texas, County of Montague.
“Know all men by these presents: That we, Liza White, formerly Liita Dunham, joined by my husband E. O. White, of the county of Wise and state of Texas, in consideration of fifteen hundred and fifty dollars to us in hand paid by Will Simpson and Alice Simpson, the receipt of which is hereby acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey unto Will Simpson and Alace Simpson of the county of Clay, state of Texas, all that certain tract or parcel of land, each of said tracts being in Clay county, Tpxas, as follows, to wit:
[Here follows a description by metes and bounds of the 221 acres.]
“The intention of the parties hereto is to convey any and all right, title and interest they may have either from purchase, gift, devise or inheritance in and to the above lands and all the lands of Joseph Dunham and his wife Emily Dunham.
“To have and to hold the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging, unto the said Will Simpson and Alice Simpson, and their heirs and assigns forever. And we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Will Simpson and Alice Simpson and their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness our hands,” etc.

Thereafter the 221 acres were conveyed, by Simpson and wife to Nichols by special warranty deed.

Mrs. Schmittou pleaded that the partition of the lands had been made between Mrs. Biza Dunham and herself, investing her with the full title to the 170 acres; that the 221 acres were at that time conveyed by her to Mrs. Biza Dunham in trust for the minor defendants, of which the plaintiff Nichols had notice in his purchase, and that he was not an innocent purchaser of the tract. She further asserted that the consideration for her conveyance of the 221 acres to Mrs. Biza Dunham was the latter’s conveyance to her of the 170 acres, and that if the minor defendants recovered any interest in the latter tract, the consideration for her conveyance would have failed, and she prayed, in such event, for a rescission and the cancellation of her conveyance, and that she be reinvested with the title to the 170 acres. The trial court found that Nichols purchased the 221 acres from Simpson for $3,000 with notice of the interest of the minor defendants in the tract, which interest Nichols recognized in his suit, but without notice of any of the matters set up by Mrs. Schmittou. Judgment was rendered decreeing to Nichols an undivided three-fourths interest in the 221 acres; to Mrs. Schmittou a similar interest in the 170 acres; to the minor defendants an undivided one-fourth interest in both tracts— ordering a partition of the lands accordingly, and denying to Mrs. Schmittou any recovery against Mrs. Biza Dunham Staats (Mrs. Biza Dunham having again married and being the wife of T. N. Staats at the time of the trial) and her huáband. The honorable Court of Civil Appeals held that the evidence established that the conveyance by Mrs. Schmittou of the 221 acres to Mrs. Biza Dunham was in trust for the minor defendants, and that the clause which we have italicized in the deed of Mrs. Biza Dunham White and husband to Simpson rendered it merely a quitclaim deed, and therefore incapable of sustaining Nichols’ claim as an innocent purchaser. It reversed the judgment and remanded the cause. Upon the death of Joseph A. Dunham, H. O. Dunham, the father of the minor defendants, inherited an undivided one-fourth interest in the lands involved in the suit, and upon the death of H. O. Dunham this interest passed to the minor defendants. The so-called partition between their mother, Mrs. Biza Dunham, and Mrs. Schmittou was, ,of course, ineffectual to divest them of it. The conveyances made by Mrs. Emily Dun-ham, the widow of Joseph A. Dunham, to Mrs. Biza Dunham and Mrs. Schmittou passed to them an undivided one-half interest in all the lands. Mrs. Schmittou had inherited an undivided one-fourth interest upon the death of .her father, Joseph A. Dunham, and, upon the conveyance by Mrs. Emily Dunham of her interest, she accordingly became invested with an undivided three-fourths interest. Her deed to Mrs. Biza Dunham passed such interest in the 221 acres. It likewise passed to Simpson, and Nichols’ claim as an innocent purchaser from him was entitled to be sustained, under the findings of the trial court, unless the conveyance by Mrs. Biza Dunham White and her husband to Simpson had only the legal effect of a quitclaim deed.

It is clear, we think, that this deed amounted to a conveyance of the land to the full extent of Mrs. White’s interest as distinguished from merely such title as she then possessed. The granting clause plainly recites the sale and conveyance of the land itself, describing it fully. The habendum clause is, “to have and to hold the above described premises,” etc.; and it is followed by a general warranty clause which “warrants the premises” unto the grantees, and their heirs and assigns. Taken in connection with these other parts of the deed, the clause to which we have referred was evidently intended, not as a limitation of the conveyance to merely such title as the grantors held, but to emphasize that their full interest in the land, whether derived by “purchase, gift, devise or inheritance,” was granted. A deed which purports to convey the full interest of the grantor in the land described is plainly distinguishable from a mere grant of a title, whatever it may be. White & Newman v. Frank, 91 Tex. 66, 40 S. W. 962; Lindsay v. Freeman, 83 Tex. 259, 18 S. W. 727; Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102; Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850; Moore v. Swift, 29 Tex. Civ. App. 51, 67 S. W. 1065.

We think the trial court correctly determined the case. The judgment of the Court of Civil Appeals is accordingly reversed, and that of the district court is affirmed.
      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes