author: CABL, J.

text:
    MARTIN et al. v. BURR et al.
    (No. 5358,)

    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Adverse Possession (| 1) — “Pbescsription” — “Limitation.”
    There is a distinction between title by limitation and a prescriptive title, in that the latter is based upon a presumed grant to the property or use, while the former is not.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 1-10, 12-65, 67 — 76; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, First and Second Series, Limitation of Actions; Prescription.]
    2. Adverse Possession (§ 58) — Hostile Possession-Ground oe Action.
    The entry and holding to build up a prescriptive title which is founded on uninterrupted use and enjoyment time out of mind or for such a length of time that the memory of man runneth not to Hie contrary must be hostile to the rights of the true owner, and such owner’s rights must be invaded by such hostile acts as would constitute grounds for action against the adverse claimant, and so as to make the possession appear to be for the benefit of the claimant.
    [Ed. Note.^-For other cases, see Adverse Possession, Cent. Dig. §§ 279-281; Dee. Dig. § 58.]
    8.Waters and Water Courses (§ 42) — -Riparian Owners — Right to Water.
    A riparian owner has the right to take all the water he needs, if such use does not injure other owners, in which latter case he may have his just proportion.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 33, 34; Dec. Dig; § 42.]
    4. Waters and Water Courses (§ 140) — Riparian Rights — Unusual Use.
    The natural uses of water by a riparian owner take precedence over such unusual uses as irrigation, mills, mining, etc.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 140.]
    5. Waters and Water Courses (§ 138)— Prescriptive Use oe Water — Necessity oe Cause oe Action.
    The right of action against riparian owners for using more than their just proportion of the water does not accrue, so as to be ground for a prescriptive title, .until an injury is caused or threatened to the complaining owner.
    [Ed. Note. — For other cases, see Waters and Water Courses, ■ Cent. Dig. §§ 150, 151; Dec. Dig. § 138.]
    6. Waters and Water Courses (§ 152) — Use oe Water — Prescription—Pleading.
    Where prescriptive title to the use of the water of a stream as against other riparian owners is set up in a suit to enjoin such use, it must be alleged and proved that none of the plaintiffs were under disability.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.]
    7. Waters and Water Courses (§ 152) — Use oe Water — Prescription—Evidence.
    In a suit to enjoin the unlawful use of water by riparian owners, in which prescriptive title to the use of the water is set up by defendants, evidence held to show that during the claimed prescriptive period some of the plaintiffs were under disability.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dee. Dig. § 152.]
    8. Husband and Wiee (§ 262) — Community Property — Presumptions.
    There is a presumption ■ of law that land acquired during coverture is community property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.]-
    9. Waters and Water Courses (§ 152) — Use oe Water — Prescription—Burden oe Prooe.
    In a suit to enjoin the unlawful use of water by riparian owners, in which prescriptive title to the use of the water is set up by defendants, defendants had the burden of showing with reasonable certainty which part of the flow of the stream they were claiming during the time they were maturing their prescriptive rights.
    [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.]
    10. Waters and Water Courses (§ 152) — Use oe Water — Prescription—Evidence.
    In a suit to enjoin the unlawful use of water by riparian owners, in which prescriptive title to the use of the water is set up by defendants, evidence held insufficient to show that there was during the prescriptive period any injury to the complaining owners which would constitute a cause of action.
    [Ed. Note. — For other cases, .see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.] 11. New Trial (§ 112) — Joint Motion — Sue-ficienoy oe Evidence.
    Where defendants filed a joint motion for a new trial, claiming that the verdict is against the weight of the evidence, the motion will be overruled if the evidence supports the verdict as to any of the defendants.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 233; Dec. Dig. § 112.]
    Appeal from District Court, Kinney County; W. C. Douglas, Judge.
    Suit by J. K. Burr and Mrs. Elizabeth Moore, as guardian for G. Bedell Moore, against T. J. Martin and others. From the decree rendered, part of the defendants appeal.
    Affirmed.
    Jones & Thurmond, of Del Bio, Baker, Botts, Parker & Garwood, of Houston, Bog-gess & Smith, of Del Bio, and W. B. Tea-garden, of San Antonio, for appellants. McFarland & Lewright, of San Antonio, and Murray & Murray, of Eagle Pass, for ap-pellees.

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

       Writ of error pending in Supreme Court.

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

   CABL, J.

This is a suit brought by ap-pellees, J. K. Burr and Mrs. Elizabeth Moore, as guardian for her minor son, G. Bedell Moore, plaintiffs in the court below, seeking to perpetually enjoin the appellants T. J. Martin, B. Stratton, and Chas. Gaebler from diverting from the channel of the Las Moras creek the waters of said creek and using the same upon their lands for irrigation purposes, and appellant Galveston, Harrisburg & San Antonio Bailway Company from diverting said waters and using same for supplying their steam engines used in transporting their trains in such quantities as to so reduce the waters flowing in said channel as to cause the same to cease to flow over and across the lands of appellees in sufficient quantities for their domestic purposes and to furnish drinking water for their stock. Each appellant specially denied all issues of fact in plaintiff’s pleadings, and by special answer claimed the right to use the water from said stream in the manner and for the purposes and to the extent by each particularly asserted, and that this right had been acquired by limitation and prescription. There were other- parties defendant below, all of whom are disposed of by the judgment, none of whom are appealing from the judgment entered except these appellants. The case was tried in the court below before a jury, but at the conclusion of the testimony the court peremptorily in-strueted the jury to return the following verdict:

“We, the jury, find and return our verdict as follows:
“(1) Plaintiffs, and each of them, shall recover and have a right to a continuous flow of the Las Moras creek along and through the lands described in their second amended original petition for the use of water for domestic purposes, including the watering of live stock upon said lands, against each of the defendants, Thomas J. Martin, Max Indlekoffer, John Gilder, Martin McGovern, Ghas. Gaebler, R. Stratton, Jack Gay, August Beidler, R. L. Dawson, Emmett Dawson, and Galveston, Harrisburg & San Antonio Railway Company to the use of said water for any purpose. '
“(2) Plaintiffs shall recover and have a writ of injunction against the defendants R. Strat-ton, Thomas J. Martin, R. L. Dawson, and Emmett Dawson restraining them and each of them and their agents, employés, and servants from diverting the waters of the Las Moras creek for irrigation purposes at such time or in such quantities as would cause the said.creek to cease to flow on or over the lands of plaintiffs or either of them; that plaintiff shall not recover nor have a writ of injunction against the defendants Max Indlekoffer, Jno. Gilder, Martin McGovern, Chas. Gaebler, Jack Gay, August ■Beidler, and Galveston, Harrisburg & San Antonio Railway Company.
“(3) That defendants Max Indlekoffer, Jno. Gilder, Martin McGovern, Chas. Gaebler, R. R. Stratton, Thomas J. Martin, and Galveston, Harrisburg & San Antonio Railway Company, and each of them, shall take naught by their respective cross-actions herein.”

The jury returned a verdict in accordance with the court’s instruction, and judgment was entered accordingly thereon.

The contentions of appellants, briefly stated, are: (1) That they were each entitled to judgment as a matter of law; or (2) in any event the issue was one of fact for the jury to determine.

Appellees contend that the court’s action is justified because appellants failed to allege and prove an exclusive, adverse, open, and notorious use of, and claim to, a certain definite quantity of water during the prescriptive period, and that during that time appellees nor any of their grantors were under legal disability, etc.

The Las Moras creek is a water course or stream having its source or hand spring on the government reservation in Kinney county, Tex., known as Ft. Clark, which occupies what is known upon the map of said county as survey No. 254, made in the name of Samuel Maverick, and running thence in a southwesterly direction through a portion of Kinney county and Maverick county to a point in the latter county where it empties into the Rio Grande.

“The defendants in this suit are all owners of land along the course of this stream, and the plaintiffs are the owners of the several surveys described in their pleadings, and said stream runs through each of said surveys, or such as it does not run through abut thereon. The plaintiffs’ (appellees’) lands are those nearest the mouth of said stream, extending from the confluence thereof with the Rio Grande up the creek to the upper line of survey No. 210, and the lands of defendants all lie above those of plaintiffs on said stream, and all the irrigated lands of each defendant are riparian to said stream, with the exception of appellant Thos. J. Martin’s two Bruno surveys (No. 1 in name of Zick Bruno, and No. 2 in name of Joseph Bruno), of 100 acres each, which are not riparian, because they do not touch the creek nor call for it, but are detached therefrom by. intervening lands. Defendant Galveston, Harrisburg & San'Antonio Railway Company owns a right of way through the ‘Dolores Town Tract’ and across the Las Moras creek, and maintains a pumping plant on its said right of way, which supplies water to two storage tanks, one at the station of Spoffiord, and the other at the station of Kinney Siding. These tanks furnish water to the engines used by said railway company in the transportation of its trains.”

The defense relied upon by appellants was a title by prescription to the use of the water of Las Moras creek. It is said in Kinney on Irrigation and Water Rights (2d Ed.) vol. 2, p. 1876, § 1048:

“There are five principal elements necessary for the acquisition of a permanent title by prescription, namely: First, the possession must be actual occupation or use, open and notorious, and exclusive; second, it must be hostile against the rights of the party against whom the right is claimed; third, it must be held under a certain right as the property of the claimant; fourth, it must be continuous and uninterrupted for the full period prescribed by the statute of limitations; fifth, during all of this period taxes, if any, are assessed against the property claimed, and must be paid by the claimant.”

And, continuing:

“If it is a water right so claimed, he must have had the actual use of the water under the right, and have applied the water to some beneficial use or purpose during the full period prescribed by the statute of limitations j otherwise there is no right to the water which can become the basis of an adverse claim. * * * The mere use of water, a right of way, or a ditch, or canal in any particular manner, for however long a period of time, will not ripen prescriptively into a permanent right. There must be something more. The use during the full period of time necessary to acquire the right must have been hostile to the owner. Without a hostile holding against the owner, both in the inception and the continuance of a claimed right, no prescriptive right can be acquired.”

There is a distinction between title by limitation and a prescriptive title, in that the latter ■ is based upon a presumed grant to the. property or the use, while the former is not. Under the common law, the mode of acquiring title by what is called “prescription” is founded on uninterrupted use and enjoyment “time out of mind, or for such a length of time that the memory of man runneth not to the contrary.” The entry and holding in order to build up a title by prescription must be hostile to the rights of the true owner. The true owner’s rights must be invaded by such hostile acts as would constitute grounds for action against the adverse claimant or intruder, and so as to make the possession appear to be for the benefit of the claimant. Swan v. Munch, 65 Minn 500, 67 N. W. 1022, 35 L. R. A. 743, 60 Am. St. Rep. 491. And there are a number of authorities . which hold that a right of action must exist on account of the invasion of the owner’s rights and injury to him during the entire prescriptive period, in order to mature a prescriptive title. Logan v. Williams, 159 Ky. 412, 167 S. W. 124; White v. McNabb, 140 Ky. 828, 131 S. W. 1021; Stratton v. Boys’ School, 216 Mass. 83, 103 N. E. 87, 49 L. R. A. (N. S.) 57; Featherman v. Hennessy, 42 Mont. 535, 113 Pac. 751.

For all riparian owners have the right to use their just proportion of the water flowing past their lands. And the natural use of such waters takes precedence over such unusual use as irrigation, mills, mining, etc. Every riparian owner has the right to take all the water his needs require as long as such use does not injure his ripariau neighbors, in which 'latter case he may use only his just proportion. . No Cause of action accrues until the one, by using more than his rightful share of the water, causes or threatens injury to complaining party. Thus, it will be seen, the right to use water is a variable one; for, while one man may use the water both for his stock and domestic purposes, as well as for the irrigation of his farm, his neighbor may require it only for stock and domestic uses; or, possibly, he may not need the water at all. He may intend to use his land at some future day for the purpose of establishing an irrigated farm, and yet at present be not using it for any purpose. If he is not using the land, he has no use for the water flowing past, and would not be injured even by his neighbors above him using all of the water; and certainly there would be, in that instance, no injury to him, and it follows that no cause of action exists. As long as appellees had sufficient flowing water for their stock and domestic purposes, they had no cause of action against appellants, because they had not been injured. They were not deprived of any right, and must they be held to presume that they will be denied that which the law says is theirs when they do have occasion to use it? Must they go into court and say virtually that they have all the water they need now; that they have suffered no injury, but may do so in the future, and, on account of that fear, crave relief at the hands of the court? It is the policy of the law to encourage rightful use of the public resources, but at the same time it looks with disfavor on monopolies. As westward the star of empire takes its way and population becomes more dense, the untrammeled rights of the frontier must to some extent give way to the growing needs of a more complex social system. When appellants first began watering their herds and farms from the Las Moras there was an abundance for the scattering residents of that western country, and no discordant note was heard save the distant plaintive wail of a disgruntled coyote.

In support of the reasoning above, we cite from Featherman v. Hennessy, supra, where Ghief Justice Brantly of the Supreme Court of Montana says:

“But use of water does not begin to be adverse as against a prior appropriator unless it results in a deprivation to such appropriator, or amounts to such an invasion of his rights as will enable him at any time during the statutory period to maintain an action against the adverse user. In Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334, it was said: ‘The use of the waters in the streams in this state is declared by the Constitution to be a public use. Const, art. 3, § 15. Such being the case, every citizen has a right to divert and use them, so long as he does not infringe upon the rights of some other citizen who has acquired a prior right by appropriation. Each citizen may divert and use them without let or hindrance when no prior right prevents. When his necessary use ceases, he must restore them to the channel of the stream; whereupon they may be used by any other person who needs them. In no case does such use become adverse until some superior right is infringed and the owner of it suffers deprivation. It if becomes and continues adverse and exclusive for the full period prescribed by the statute, and the owner suffers the consequent deprivation, such use ripens into a right by prescription.’ In Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111, we find this language: ‘The.plaintiffs had use for the water only for agricultural and mining purposes, and, when not so using_ it, the law required them to turn it back into the stream for the use of this defendant,_ or any other person or corporation which might have a right to use, it. No use of water by a subsequent appropriator can be said to be adverse to the right of a prior appropriator, unless such use deprives the prior appropriator of it when he has actual need of it. To take the water when the prior appropriator has no use_ for it invades no right of his, and cannot even initiate a claim adverse to him.’ ”

The following authorities also support the views above expressed: Lakeside Irrigation Co. v. Kirby, 166 S. W. 715; Live Stock Co. v. Booth, 102 Cal. 151, 36 Pac. 431; Stratton v. Hermvan Boys’ School, 216 Mass. 83, 103 N. E. 87, 49 L. R. A. (N. S.) 57; Elliot v. Fitchburg, 10 Cush. (Mass.) 191, 57 Am. Dec. 85; Kinney on Irrigation and Water Rights (2d Ed.) § 1606, 1612; San Joaquin, etc., Co. v. Fresno, etc., Co., 158 Cal. 626, 112 Pac. 182, 35 L. R. A. (N. S.) 832; St. Martin v. Skamania Boom Co., 79 Wash. 393, 140 Pac. 355; Weil on Water Rights in Western States, § 588; San Juan Ditch Co. v. Cassin, 141 S. W. 815; Featherman v. Hennessy, 42 Mont. 535, 113 Pac. 751; Kinney on Irrigation and Water Rights, § 1050; Fifield v. Spring Valley Water Works, 130 Cal. 552, 62 Pac. 1054; Anaheim Water Co. v. Semi-Tropic Water Co., 64 Cal. 185, 30 Pac. 623; Last Chance Water Ditch Co. v. Heilbron, 86 Cal. 1, 26 Pac. 523; Carson v. Hayes, 39 Or. 97, 65 Pac. 814; Brossard v. Morgan, 7 Idaho, 215, 61 Pac. 1031; Bree v. Wheeler, 129 Cal. 145, 61 Pac. 782; Clark v. Ashley, 34 Colo. 285, 82 Pac. 588; Oneto v. Restano, 78 Cal. 374, 20 Pac. 743. In addition to the above, we have a statutory provision which provides that, when water is diverted to nonriparian' land, the same shall not be done to the prejudice of a lower owner without his consent, except after condemnation of such water as provided by law.

The appellants, in their cross-action to establish prescriptive title to the water they were using, did not allege, neither did they prove, that none of appellees nor their grantors during the period it is claimed the prescriptive title was matured labored under disability of any kind. It seems to be well settled in Texas that, where it is sought to maintain a prescriptive right to a highway, it is necessary to allege and prove that none of the owners of. the servient estates, nor their grantors,- labored under disability during the prescriptive period. City of Austin v. Hall, 93 Tex. 595, 57 S. W. 563; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874; Saunders v. Simpson, 97 Tenn. 382, 37 S. W. 195; Wright v. Fanning, 86 S. W. 786; Dees v. Harrison, 95 S. W. 1093; Travis v. Hall, 27 Tex. Civ. App. 95, 65 S. W. 1077; West v. City of Houston, 163 S. W. 679; Railway Co. v. Gaines, 27 S. W. 266; Williams v. Kuykendall, 151 S. W. 629.

Kinney, in his work on Irrigation and Water Rights (volume' 3, p. 2797, 2d Ed.), says, in reference to the pleadings necessary by the respective parties:

“Where, however, the plaintiff chooses to set up his claim as having been acquired by adverse user sufficient to amount to a prescriptive right, it is necessary that he plead all of the essentials necessary for the acquisition of the right by that manner, or as prescribed by the statutes for pleadings in such cases. Where, however, in answer to the claims set forth by the plaintiff, the defendant relies upon adverse user amounting to prescription, he is held to a much stricter rule in his pleading than is the plaintiff. The weight of authority holds that it is not sufficient to simply set up a general allegation of ownership of the right, but that he must plead his adverse user with all the particularity required for such pleadings in the jurisdiction where the action is pending. The defendant may plead the statute, by reference to the appropriate section thereof; or, if he chooses, he may plead the facts constituting the limitation or prescriptive right. In doing the latter, however, it is incumbent upon him to plead all the elements entering into a prescriptive right.” ’

This is given to show the strictness required in pleading a prescriptive title. It will not be denied that, if any riparian owner should be under legal disability during the prescriptive period, title would not mature against him. There is no essential difference between a prescriptive right to a road and a title to use the water of a stream. In the one case the right by prescription to the road rests upon a presumption that the owners of the servient lands granted the easement and the grant has been lost; while in the other case the same presumption is the basis of the prescriptive right or title to the water. Judge Brown, in City of Austin v. Hall, supra, says:

“To sustain this claim, it must appear that the use upon-which the right is predicated has continued for the requisite time, during which the owner was not under disability to resist the claim. 2 Washburn on Real Property, 327, § 20; Watkins v. Peck, 13 N. H. 376 [40 Am. Dec. 156]; Melvin v. Whiting, 13 Pick. [Mass.] 188; Ferrell v. Ferrell, 1 Baxt. [Tenn.] 332; Saunders v. Simpson [97 Tenn. 382] 37 S. W. 195. Mr. Washburn states the rule in this language: ‘To give a user this effect, it must be uninterrupted in the land of another by the acquiescence of the owner, for' a period of at least 20 years (or the period of limitation of the state where the land lies), under an adverse claim of right; while all persons concerned in the estate in or out of which it is derived are free from disability to resist it, and are seized of the same in fee and in possession during the requisite period.’ ”

There is no sufficient reason why there should be any stricter requirements in the highway case than in case of water rights. It has been argued that one is an easement and the other is property; but the method of acquiring them are identical, and we think the requirements of the pleading should be the same.

Appellants did not plead that none of ap-pellees nor their grantors, during the prescriptive period, were not under disability; and any evidence thereon would not be responsive to the pleadings.

For that matter, taking all the testimony from appellants’ standpoint on the matter- of legal disability, it only inferentially goes to show that none of the parties were under legal disability, while the direct and positive evidence of appellees showed that the Thompsons, who were appellees’ predecessors in title during the prescriptive period, left a minor son whose minority extended over a good portion of time prescriptive title is claimed to have been matured. The lands owned by appellees and involved in this suit were purchased by P. W. Thompson June 1, 1889. Thompson was married to Jeanette Aitchson, June 16, 1885, and she died in October 1892, leaving three children, the oldest of whom could not have become 20 years old before about March 16, 1907. P. W. Thompson died in 1910. This suit was filed February 12, 1912, and appellees had not owned the land 10 years at the time the suit was filed. The presumption of law would be that the land acquired by Thompson during coverture was the community property of himself and his wife, and, when she died, that the surviving child would take an interest in the property.

There is no evidence to show that appellee or their predecessors in title were injured by the cessation of the flow of Las Moras creek on or prior to February 12, 1902, and this suit was filed February 12, 1912; and we have held that no cause of action existed until an injury was shown. Biggs v. Liffingwell, 132 S. W. 902; Cluck v. Railway Co., 34 Tex. Civ. App. 452, 79 S. W. 80; Santa Rosa Co. v. Pecos Co., 92 S. W. 1014; 40-Cyc. 608, 696-698. Some of the witnesses say that at different times they had seen the creek when it was not running, but whether from drouth or from diversion of the water for irrigation does not appear. We do not recall any evidence showing a cessation of flow or a diminution thereof by reason of appellants’ use prior to February-12, 1902, which must have been shown to fill out the prescriptive title.

The evidence does not show with any degree of certainty how much water appellants took regularly during the prescriptive period, but it is urged that they take prima facie to the full capacity of their ditches. This, however, is not shown, and common knowledge tells us that the flow in any stream or ditch will depend on other conditions, such, for instance, as the water fall or decline, whether it he a swift flowing stream or slow and sluggish. A small ditch, in one instance, might carry more water than one twice as large which came from a slow-flowing stream and had little decline. In so far as the amount of water regularly appropriated, or what was reasonably necessary, to irrigate the lands is not shown, with any degree of certainty, and since title is claimed by reason of appropriation and use, appellants had the burden of showing with reasonable certainty what part of the flow of the stream they were laying claim to during the time they are maturing their prescriptive title. Biggs v. Miller, 147 S. W. 632; Biggs v. Lee, 147 S. W. 709; Salem Co. v. Lord, 42 Or. 82, 69 Pac. 1033, 70 Pac. 832; Irving v. Media, 194 Pa. 648, 45 Atl. 482; Farmers’ Co. v. Irrigation Dist., 16 Idaho, 525, 102 Pac. 481; Salt Lake City v. Water Co., 24 Utah, 249, 67 Pac. 672, 61 L. R. A. 648; Cyc. vol. 40, pp. 734, 736; and Hall v. Carter, 33 Tex. Civ. App. 230, 77 S. W. 19. They have not alleged, neither have the appellants proven, that every year during the prescriptive period their diversion and appropriation of water caused the stream to cease to flow by appellees’ land. Hall v. Carter, 33 Tex. Civ. App. 230, 77 S. W. 19; Ison v. Sturgill, 57 Or. 109, 109 Pac. 579, 110 Pac. 535; Smith v. Duff, 39 Mont. 374, 102 Pac. 981, 133 Am. St. Rep. 582; Meng v. Coffee, 67 Neb. 500, 93 N. W. 713, 60 L. R. A. 910, 108 Am. St. Rep. 697. Neither was it pleaded or proven how much water was reasonably necessary for the irrigation of appellants’ land when properly prepared for cultivation and in reasonably good condition for irrigation. Farmers’ Co. v. Irrigation Dist., 16 Idaho, 525, 102 Pac. 481. Likewise the quantity of water used by the Galveston Harrisburg & San Antonio Railway Company is shown to have varied, and for the last few years it was shown that it had varied from 50,000 gallons to 75,000 gallons per day.

But even if this were not true, the railway company made a common cause with the other defendants and filed a joint motion for a new trial, in which it was claimed that the verdict was against the weight of the evidence. And it has been held that, where this is done, the same should be overruled, if the evidence supports the verdict as to any of the defendants. M., K. & T. Ry. Co. v. Brown, 155 S. W. 979.

The judgment entered is in the very nature of the litigation, somewhat uncertain, but in matters of this kind we think it is about as certain as it can be made. There is not such uncertainty but that appellants may understand its terms.

We have carefully examined all assignments, and, finding no reversible error, they are overruled, and the judgment is in all things affirmed. •


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    SCARBOROUGH v. DARNELL & STAGNER.
    (No. 8025.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 31, 1914.)
    1. Bbokebs (§ 65) — Liability—Action eob Negligence — Estoppel.
    Where a broker represented to a purchaser that the owner’s lot was larger by about one-seventh than it really was, so that the purchaser refused to perform except at a reduced price and the owner’s son represented her in signing the contract with the purchaser, the owner could not complain that she had been prejudiced by the misrepresentations of the broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.]
    2. Bbokebs (§ 38) — Liability—Action eob Negligence.
    An. owner, the dimensions of whose lot had been misrepresented by his broker, so that the purchaser, on discovering that the actual dimensions were less, required the owner to remit part of the purchase price, could not recover that amount from the broker, since such misrepresentation did not damage him in any sense.
    [Ed. Note. — For other c'ases, see Brokers, Cent. Dig. §§ 31-36; Dec. Dig. § 38.]
    3. Bbokebs (§ 65) — 'Compensation—Acting eob Both PARTIES.
    A broker, who represented an owner and effected an exchange of his property upon terms finally satisfactory to him, and who in no way represented the purchaser, was entitled to his commission; the fact that a third person represented both the broker and the purchaser being a matter of which the owner could not complain.
    [Ed. Note.- — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dee. Dig. § 65.]
    Appeal from Eastland County Court; E. A. Hill, Judge.
    Action by Darnell & Stagner against Mrs. Willie L. Scarborough. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    J. J. Butts, of Cisco, for appellant. Ma-haffey & Fulwiler, of Abilene, for appellees.

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

   SPEER, J.

Darnell & Stagner sued Willie L. Scarborough to recover commissions as-real estate brokers for having effected an exchange of her real property with one W. P. Pulley. The defendant answered admitting the plaintiffs’ cause of action, except in so far as the same might be defeated by her affirmative plea that she had been damaged in an amount in excess of the commissions sued for by reason of the fact that plaintiffs as her agents had wrongfully and negligently misrepresented her property to Pulley, upon discovering which Pulley had declined to go on with the trade unless she would release him from the payment of some $995, which she had been forced to do, to her damage in this amount. The case was tried before the court without a jury, and judgment rendered for the plaintiff, and the defendant has appealed.

There are only two assignments of error. The first is to the effect that the judgment is contrary to, and not supported by, the law and evidence, in this, that the evidence shows appellees as appellant’s agents represented to the purchaser, Pulley, that her lot was SO by 140 feet in size, whereas, the same was only 75 by 130 feet, thereby inducing him to agree to pay therefor $995 more than -he was willing to pay after having learned the real size of her lot. The facts further show, if it be conceded, as it must, that appellees did misrepresent the size of appellant’s lot to Pulley, that appellant’s son, a man of mature years, was authorized to represent appellant, and diil represent her, in the matter of signing up the contract with Pulley, whereby the exchange of the property was agreed on, and for this reason, if no other, appellant cannot complain that she has been prejudiced by the representations of the brokers, Darnell & Stagner. But aside from this, we cannot conceive of any principle of law, to say nothing of ethics, that would authorize appellant to recover damages of her agents for having misrepresented her property whereby an intending purchaser was induced to agree to pay more therefor than he otherwise would. It is undisputed appellees (unintentionally no doubt) did misrepresent the size of appellant’s lot, and that, upon Pulley’s discovering this fact, appellant remitted $995 of the agreed purchase price. To permit her to recover this sum from her agents upon their false representations to Pulley would be to permit her to recover something she has never lost. The misrepresentations of appellees, though they failed, through the timely discovery of Pulley, to benefit her, certainly have not damaged her in any sense.

The remaining assignment embodies the proposition that appellees should not recover the commission because one Mayfield, a sort of go-between, demanded and received a commission for bringing about the exchange, both from appellees and from the purchaser, Pulley. The principle invoked by appellant, to wit, that an agent cannot recover, his commissions from his principal where he, without the knowledge of his principal, also represents the other party to the contract, has no application to the facts of this case. Appellees at no time and in no sense represented Pulley. They did represent appellant, and under the undisputed facts effected an exchange of her property upon terms finally satisfactory to her, or at least which she accepted, and are therefore entitled to the commissions. If there was any duplicity upon the part of any one, it was upon the part of Mayfield, who represented both appellees and Pulley; but this was a matter of which they alone can complain.

The judgment is affirmed.


text:
    TANNEHILL et al. v. TANNEHILL et al.
    (No. 8021.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 24, 1914.)
    1. Husband and Wife (§ 221) — Witnesses (§ 139*) — Competency—Transactions with Decedent.
    Acts 33d Leg. c. 32 (Vernon’s Sayles’ Aim. Civ. St. 1914, arts. 4621 4622, 4624), enlarging the property rights of married women, and giving them control over their separate estates, does not expressly or by necessary implication repeal Rev. St. 1911, art. 1841, providing that the husband- and wife shall be jointly sued for all separate debts and demands against the wife, and hence, in a suit to partition land which a married woman claimed by gift from her deceased brother, the husband was a necessary party and could not, by filing a disclaimer, become a competent witness concerning the gift.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 707, 802-S06, 968, 973, 976%; Dec. Dig. § 221; Witnesses, Cent. Dig. §§ 582-597; Dec. Dig. § 139.]
    2.Witnesses (§ 140) — Competency—Transactions with Decedent.
    Acts 33d Leg. c. 32, giving a married woman control over her separate property and over the rents from her separate real estate, does not deprive such rents of their character as community estate, and hence, in an action to partition land which a married woman claimed by gift from a decedent, her husband, even though not a formal party, had such an interest as rendered him an incompetent witness within the statute relative to testimony concerning transactions with a decedent in suits by or against his heirs.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 598-018; Dee. Dig. § 140.]
    3.Witnesses (§ 139) — Competency—Transactions with Decedent.
    In a suit to partition the land of a decedent, the testimony of a defendant that she claimed the land in controversy by gift from the decedent was properly excluded, as it violated the statute relative to testimony concerning transactions with a decedent in suits by or against his heirs.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 582-597; Dec. Dig. § 139.]
    4. Appeal and -Error (§ 499*) — Record — Matters Presented eor Review.
    The refusal of special charges will not be reviewed, where the bill of exceptions fails to show that they were requested before the main charge was read to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    5. Appeal and Error (§ 742) — Assignments of Error — Sufficiency of Statement Accompanying Assignment.
    An assignment of error complaining of the refusal of special instructions will not be considered, where it is not followed by a statement from the record showing that such charges were called for by the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec? Dig. § 742.]

      6. Appeal and Error (§ 742) — Assignments of Error — Sufficiency of Statement Accompanying Assignment.
    In a suit to partition land of a decedent which defendant claimed by gift from the decedent, a statement under an assignment of error complaining of a peremptory instruction for plaintiff, stating that defendant introduced a letter, “testimony as admitted reasons for gift and capacity of donor, * * * evidence of completed gift, * * * testimony of permanent and valuable improvements with separate means of defendant, * * * _ and knowledge and acquiescence of donor until his death two years after delivery of the property and execution of gift,” with references to the names of the witnesses and pages of the statement of facts, was insufficient, under rule 34 for Courts of Civil Appeals, providing that, in' propositions relating to fundamental errors apparent upon the record, enough must be stated to make the error which pervades the ease obviously apparent without requiring the court to search through the record to find errors which it. will not do unless properly pointed out, if the judgment is one which the trial court is competent to render.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District . Court, Comanche County; J. H. Arnold, Judge.
    Action by Harriet Tannehill and others against Della Tannehill and others. From a judgment in favor of plaintiffs, the defendant named appeals.
    Affirmed.
    J. P. Graham, of Comanche, for appellant. Goodson & Goodson, of Comanche, for appel-lees.

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

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

   SPEER, J.

This was an action for partition brought by appellees against appellants, seeking to partition a number of blocks of land in the city of Comanche, wherein appellant Della Tannehill claimed, in addition to her one-third interest as heir, a fee-simple title to the E. % of the S. E. % of block No. 39 by virtue of a parol gift from her deceased brother, Milo Wright, the common source of title. After the evidence was in, the trial court instructed a verdict for the plaintiffs, and the defendant Della Tannehill has appealed.

The first ground of error alleged is that the court erred in overruling the disclaimer of J. A. Tannehill, appellant’s husband, and in sustaining objections to his testifying as to statements by and transactions with the deceased, Milo Wright, tending to show a completed gift of the property in controversy to appellant. The argument is advanced that the recent act of the Thirty-Third Legislature (Acts 33d Leg. p. 61), enlarging the property rights of married women, and especially giving them control over their separate estates, makes it unnecessary for the husband to be sued with the wife in actions such as this, and makes admissible the testimony offered in the present case. While it is true the act in question does very materially enlarge the right of control of married women over their separate estates, it is also true the act does not expressly nor, as we think, by necessary implication repeal article 1841 of the Revised Statutes, declaring that:

“The husband and wife shall also be jointly sued for all separate debts and demands against the wife, but, in such case, no personal judgment shall be rendered against the husband.”

In all suits against the wife,- it is necessary that the husband be sued with her, and it would be error to dismiss as to him and proceed against the wife alone. Speer’s Law of Married Women, § 296; Taylor v. Bonnett, 38 Tex. 521. Besides, if the husband were not a formal party to the action, he would yet have such interest in the subject-matter of the litigation as to preclude his testifying to a transaction with the deceased by which his wife became owner of the property. While the recent amendment already referred to gives the wife control over her separate property and over the rents from her separate real estate, it nevertheless does not change the character of such rents so as to make them the wife’s separate property. They continue to belong to the community estate, and the husband, therefore, is the owner of a one-half interest therein. It'follows he has a very substantial interest in the wife’s separate lands, and such an interest as to make him a party, within the meaning of the statute forbidding one to testify to transactions with the. deceased in suits by or against the heirs.

There was no error in refusing to permit appellant herein to testify that she claimed the land in controversy by gift from her deceased brother, Milo Wright,' since such testimony very clearly was a violation of the statutes last above referred to.

The fourth assignment of error is not considered, for the reason it complains of the court’s refusal to give special instructions Nos. 1, 2, 3, 4, 5, 6, and 7, because of an improper grouping, and because the bills of exception fail to show that the special charges were requested before the court had read his main charge to the jury, and because, further, the assignment is not followed by a statement from the record sufficient to show that such charges were called for by the evidence.

The fifth assignment of error complaining of the peremptory instruction to find for the appellees is overruled, because the statement submitted thereunder is insufficient under the rules, and we are not required to search the record for the facts, even in a case of fundamental error, where the judgment is one which the trial court is competent to render in the case. See rule 34 (142 S. W..xiii). The statement under this assignment, which we hold to be insufficient, after a recitation of the pleadings of the appellant, is as follows:

“Della Tannehill was introduced in evidence; letter from Milo Wright to Della Tannehill. Facts, p. 11. Witness Jacobs Facts p. 13; appellant Della Tannehill’s testimony as admitted reasons for gift and capacity of donor, facts page '12; J. A. Tannehill’s testimony, facts page 9; Evidence of completed gift witness Jack Tannehill’s testimony facts pages 16 and 17; Testimony of permanent and valuable improvements with separate means of defendant, J. A. Tannehill’s testimony, facts pp. 9 and 10. Della TannehiU’s page 12 ; _ and knowledge and acquiescence of donor until his death two years after delivery of the property and execution of gift already cited. Jack Tannehill and Jacob’s testimony before cited.”

This very clearly is a violation of the rules according to the decisions of this court. Gibson v. Oberfelder, 148 S. W. 829.

The seventh, eighth, and ninth assignments are overruled, for the reason immediately above given; the only statement under these assignments being a mere reference to ilie preceding statement, which we have held to be insufficient.

We find no error in the judgment, and it is affirmed.


author: CONNER, C. J.

text:
    ELSER v. PUTNAM LAND & DEVELOPMENT CO.
    (No. 8032.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 7, 1914.)
    1. Appeal and Error (§ 263) — Presentation Below — Issue—Evidence.
    Under Acts 33d Leg. c. 59, providing that rulings on instructions shall be regarded as approved unless excepted to, an objection that the undisputed evidence rendered erroneous the submission of a special defense that the plaintiff broker had failed to comply with his contract could not be considered by the appellate court, where defendant did not except below to the submission of such defense, or request an instructed verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.]
    2. Appeal and Error (§ 263) — “Invited Error” — Instructions Not Excepted to.
    Since under the express provisions of Acts 33d Leg. c. 59, an instruction not excepted to is deemed approved, error in giving same when not authorized by the evidence is an “invited error” of which no advantage can be taken on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.

    For other definitions, see Words and Phrases, First and Second Series, Invited Error.]
    3. Brokers (§ 88) — Action for Commission —Submission of Issues — Sufficiency of Evidence.
    In a broker’s action for a commission, a witness’ testimony that he was pretty certain that plaintiff never sold, or caused to be sold, one lot, and that he did not work at his contract any, but took up a line of development work for another company, authorized submitting to the jury whether plaintiff had abandoned his contract before any sales had been made.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.]
    Error from District Court, Callahan County; Thomas L. Blanton, Judge. ■
    Action by Max Elser against the Putnam Land & Development Company. Judgment
    for defendant, and plaintiff brings error.
    Affirmed.
    J. J. Butts, of Cisco, and J. Rupert Jackson, of Baird, for plaintiff in error. F. S. Bell, of Baird, for defendant in error.

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

         For opinion on motion for rehearing, see 171 S. W. 1200.

   CONNER, C. J.

Max Elser prosecutes this writ of error complaining of a judgment against him in a suit that he instituted against defendant in error to recover real estate commissions alleged to be due upon the written contract declared upon. By the terms of the contract the development company employed Elser as its' exclusive agent to sell certain lots of land in the town of Putnam, agreeing to pay him 20 per cent, of the proceeds realized upon all sales by whomsoever made during the life of the contract. The contract contained a stipulation that:

If Elser should fail “to diligently, industriously and continuously push and prosecute the sale of said lot as herein provided, then this contract shall be void at the option of said company.” ,

The clause of the contract above quoted was made the ground of one of the special defenses, which was submitted as an issue to the jury, both in the general charge and by a special instruction, to neither of which has error been assigned.

Substantially but one question is presented for our .determination, and that is whether the evidence supports the verdict and judgment against the plaintiff in error. The contentions are that the “uncontroverted evidence shows that from January 10, 1910 (the date of the contract), to June 30, 1910 (the date of the last sale), property covered by said contract of agency was sold to the value of $6,969,” upon which the plaintiff was entitled to commissions as specified in the contract; and further that:

“The uncontradicted evidence shows that if plaintiff did abandon the contract of agency, or cease to make any effort to perform his duties under it, he did so after the last sale of property on which he claims a commission.”

The act approved March 29, 1913 (Gen. Laws 1913, p. 114), which we have several times had occasion to consider, provides, among other things, that:

“The ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

In the case before us, the issues raised by the pleadings and evidence were generally submitted to the jury by the court’s charge, including the special defense that the plaintiff had failed to comply with his contract “by diligently, industriously, and continuously pushing and pursuing a sale of the lots” involved in the controversy. No objections to the court’s general charge, nor to the special charge submitting the defense noted, were made in accordance with the terms of the act of the Legislature referred to. So that, if we are to give the effect that the law says shall he given, when the issues are submitted without objection, the plaintiff in error is in the attitude of a litigant who, after the introduction of the evidence, has submitted to him the charge of the court and special charges given, and who has “approved” such charges, thus legally assuming the position that the evidence before the court requires the submission of the issue to the jury for determination. If the facts were clearly uncontro-verted which entitled the plaintiff in error to a judgment, he should have requested an instructed verdict. This he did not do, but assumed, as we have seen, the inconsistent position of saying to the court, in effect, this case cannot he taken from the jury on the ground that there is no evidence to support the cause of action or defense.

In the case of Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991, this court, among other things, said:

“If, as provided by the amended statutes (act of 1913 above mentioned), a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them.”

If the proposition embodied in the quotation is correct — and we think it is — it can hardly be contended that plaintiff in error, under the circumstances stated, will now be heard to say that the evidence in his favor is “uncontroverted,” for by a long line of decisions in this state it has been held that an appellant cannot complain of a charge given at his request. It is held to be an vited error of which he can take no advantage on appeal. We conclude that plaintiff in error cannot now be heard upon the only propositions he urges before us. •

Moreover, if for any reason what we have said is not a sufficient answer to plaintiff in error’s assignments, the court, among other things, charged the jury, in substance, that if “plaintiff abandoned said contract, * * * you could not find for the plaintiff for any sales made by said company after said abandonment,” etc. -As already stated, no proper objection was made to this charge, and, among other things, Mr. Carter for the defendant in error testified that:

“I am pretty certain that plaintiff never sold nor caused to be sold one lot. He did not work at his contract any, but took up a line of development work for another company.”

This testimony is broad enough to include the conclusion that plaintiff in 'error abandoned the contract before any sales were made upon which he was entitled to commissions, and indulging every reasonable inference. arising from the testimony so quoted in aid of the verdict and judgment, as it is our duty to do, we would feel unable to support plaintiff’s contention that the uncontro-verted evidence entitled him to the verdict. We are of the opinion that the judgment must be affirmed, and it is so ordered.

Affirmed.


author: DUNKDIN, J. E. D.

text:
    HANCOCK v. HAILE.
    (No. 8018.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 14, 1914.
    Rehearing Denied Nov. 21, 1914.)
    1. Insane Persons (§ 79s’)— Contracts — Recovery of Property — Conversion.
    Where plaintiff, while insane, conveyed personal property to defendant in consideration of care, etc., and, after having been restored to capacity, alleged that defendant, as soon as the contract was delivered, appropriated the property, and that the necessaries furnished by defendant were much less in value than the property, plaintiff was entitled to recover the difference, though defendant’s appropriation did not amount to a technical conversion.
    [Ed. Note. — Eor other cases,- see Insane Persons, Cent. Dig. §§ 138, 141; Dec. Dig. § 79.]
    2. Insane Persons (§ 73) — Contracts — Voidable ness.
    A contract by an insane person transferring all his personal property to defendant in consideration of care, etc., was voidable only.
    [Ed. Note. — For other, cases, see Insane Persons, Cent. Dig. §§ 125, 132-138, 153; Dec. Dig. § 73.]
    3. Insane Persons (§ 75) — Contracts—Necessaries — Extent oi' Liability.
    The extent of an insane person’s liability for necessaries is their reasonable value, regardless of the price he agreed to pay.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 89, 128, 129; Dec. Dig. § 75.]
    4. Insane Persons (§ 79) — Liability eor Necessaries — Reasonable Value.
    Where plaintiff, while insane, transferred his personal property to defendant in consideration of the latter’s agreement to care for him, and the property transferred was worth much more than the necessaries furnished, plaintiff was not required to prove an actual tender of the value of the necessaries in order to recover the difference between their value and that of the property.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 138, 141; Dec. Dig. § 79.]
    5. Judgment (§ 256) — Form—Verdict.
    A judgment must follow the verdict, though there be good grounds to set the verdict aside on a motion for new trial.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    6. Trover and Conversion (§ 53) — Damages — Interest.
    Where plaintiff was entitled to recover the value of certain animals as damages for defendant’s wrongful appropriation thereof, he was entitled also to interest, as a part of such damages, from the date of the conversion.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 254; Dec. Dig. § 53.]
    7. Interest (§ 66) — Pleading.
    Plaintiff, in a suit for conversion, in his original petition prayed for general relief, but limited his claim for interest to the time beginning January 8, 1900, and ending December 1, 1913. Defendant’s answer, however, alleged that the property was delivered to him under contract March 21, 1898, and asserted title thereto by virtue of the contract, whereupon, plaintiff replied by supplemental petition, alleging that, after the execution of the contract, defendant took possession of the property and converted it to his own use. Held, that the pleadings justified an award of interest from March 21, 1898, and that plaintiff was not limited to interest from January 8, 1900.
    [Ed. Note. — For other cases, see Interest, Cent. Dig. § 147; Dec. Dig. § 66.]
    8. Trover and Conversion (§ 46) —Value of Property.
    Where, in trover for certain horses, the jury found that the conversion took place March 21, 1898, at which time the horses were worth $10 a head, plaintiff was not entitled to recover at the rate of $15 a head, because of proof that they were worth that amount in January, 1900.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 263; Dec. Dig. § 46.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by E. L. Haile against J. B. Hancock. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Marshall Ferguson and Keith & Johnson, all of Stephenville, for appellant. Chandler & Pannill, of Stephenville, for appellee.

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

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

   DUNKDIN, J. E. D.

Haile was plaintiff in the trial court, and, from a- judgment in his favor against J. B. Hancock, the defendant Hancock has appealed.

In his petition plaintiff alleged that in January, 1900, he was convicted of lunacy, and thereafter confined in the insane asylum at Terrell until March, 1910, when his reason was restored and he was duly discharged from said asylum; that, immediately after Ms conviction for lunacy, the defendant unlawfully took possession of all of plaintiff’s property, consisting of a stock of horses and mules, farming implements, etc., of the value of $6,572, and converted the same to his own use. He prayed for judgment for the value of said property so converted, together with 6 per cent, interest thereon from the alleged date of conversion. He also prayed for general relief.

In reply to that petition the defendant denied the alleged wrongful conversion of the property, and further alleged that he purchased the property from the plaintiff on March 21, 1898, under a written contract signed by both parties, by the terms of which all of the property mentioned in plaintiff’s petition was transferred to the defendant in consideration of the defendant’s obligation to “care for and provide good food and clothing and a home and take care of said E. L. Haile as long as the said Haile shall live, unless the said Haile shall become dangerous and confinement shall become necessary,” and further to pay to said Haile the sum of $300 additional if said Haile should be restored to sanity at the end of three years from the date of the contract. The defendant alleged that plaintiff was of sound mind at the time said contract was executed; that the same was executed at plaintiff’s suggestion; that plaintiff was moved to enter into said contract by reason of the fact that he had theretofore suffered from several attacks of epileptic fits and had been advised by competent physicians that epilepsy was incurable, that he would gradually grow worse, and that he would likely eventually go mad, and that it was advisable and important for him to adjust his business and to make adequate preparation for such consequences. The defendant further alleged that the plaintiff did not recover from said disease within three years, and that the defendant fully performed the obligations under said contract by furnishing board and lodging, clothing, medicine, physicians’ bills, etc., from the date of the execution of the contract up to January, 1900, an itemized account of which was specifically pleaded by the defendant, and all of which expenditures the defendant alleged were necessary for the maintenance, care, and support of the plaintiff. Defendant further alleged that all the property conveyed to him did not exceed in value the sum of $750, while the amount claimed for necessaries furnished to the plaintiff was alleged to be a sum far in excess of the value of the property received by him.

By supplemental petition plaintiff alleged that, at the time the contract was executed, he was of unsound mind, suffering from epilepsy, and unable to know and comprehend the legal effect of said contract, which was therefore void, and that such unsoundness of mind continued from March 21, 1898, the date of the contract, to January 5, 1900, at which time he was committed to the insane asylum and there confined until March, 1910; that after the execution of the contract defendant took possession of plaintiff’s property and converted the same to his own use and benefit. Plaintiff further alleged, in effect, that he was willing for the reasonable value of all such necessaries as were furnished to him by the defendant to be deducted from the amount which the defendant justly owed him for the property converted, but further alleged that the amounts claimed by the defendant for the same were unreasonable and far less than the value of the property converted.

The trial of the case was before a jury, who returned findings upon special issues submitted by the court. As shown by the verdict, the jury found that on March 21, 1898, the date of the execution of the contract, plaintiff was of unsound mind, and that he did not at that time have the capacity to know and understand the legal effect of the contract; that such unsoundness of mind extended up to January 5, 1900; that on January 5, 1900, it became necessary, on account of plaintiff’s insanity, to place him in confinement, and that he did not recover his sanity until March, 1910, about 16 or 17 months prior to the institution of this suit; that from March 21, 1898, to January 5, 1900, a period of 21 months and 15 days, the defendant provided food and clothing and a home for plaintiff, all of which was necessary for plaintiff's welfare; and that his services for so doing were reasonably worth $32 per month (aggregating $688); and that defendant also expended the additional sum of $256 for the purchase of clothing, medicine, for doctors’ bills, railroad fare, and other items claimed in the defendant’s answer, all of which additional expenditures were likewise necessary. The jury further found that the defendant Hancock did not exercise any undue influence over plaintiff to induce him to execute the contract pleaded by the defendant,.and which was introduced in evidence. The jury further found that the defendant received from the plaintiff under said contract 125 head of horses on March 21,189S, which were then worth $10 per head (aggregating $1,250), and that said horses were worth $15 per head in January, 1900’ (aggregating $1,875); that defendant also received from, plaintiff under the contract certain farming implements and other items of personal property of the value of $7.50. The jury further found that the horses received by the defendant from plaintiff under the contract were, converted to defendant’s own use and benefit in March, 1898.

By different assignments of error appellant insists, substantially, that as the contract in question was executed by the plaintiff without any undue influence exercised upon him by the defendant, and without any knowledge on the part of the defendant of the insanity of plaintiff at the time, and that as the consideration passing from the defendant to the plaintiff for said contract was for necessaries, the same was binding upon the plaintiff until he elected to rescind it and tender back the consideration received by him; that the contract was not void, but voidable only; that plaintiff’s suit was for damages for a wrongful conversion of the property based upon the claim that the contract was absolutely void;- that the contract being voidable only, and not void, and as plaintiff did not elect to rescind the same and restore to the defendant the consideration received by him and did not elect to affirm the contract and sue for damages for its breach, the facts found by the jury would not support a recovery for any amount.

We do not think that the designation by plaintiff of thé wrongful acts of the de-' fendant as amounting technically to a conversion of the property would, in any event, be of controlling effect. Besides, according to the allegations of plaintiff’s pleadings and and also those contained in the defendant’s answer, the defendant did appropriate plaintiff’s property to his own use and benefit, under a claim of title thereto, as soon as the contract in controversy was executed and delivered. If, as alleged by the plaintiff, he was of unsound mind at the time the contract was executed, and if the value of the property conveyed to the defendant exceeded the reasonable value of necessaries furnished to him by the defendant, then a cause of action to recover was alleged, independent of the question whether or not the appropriation of the property by the defendant could be technically termed a conversion thereof. Furthermore, in his pleadings plaintiff prayed for general relief upon all the facts alleged. Lewis v. Blount, 139 S. W. 7.

It is well settled by the authorities that the contract was not void, but was voidable only. Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115; Mitchell v. Inman, 156 S. W. 290.

It is also well settled that, while an insane person or a minor is bound by his contract for necessaries furnished him, the extent of his obligation thereunder is to pay the reasonable value of such necessaries, irrespective of the price which he has agreed to pay. Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. 176; Smith v. Crohn, 37 S. W. 469; 1 Elliott on Contracts, § 295.

Plaintiff having offered in his pleadings to allow as a credit upon his demand the reasonable value of the necessaries furnished him by the defendant, which plaintiff alleged was far less than the value of the property belonging to him and converted by the defendant, it was unnecessary to allege or prove an actual tender of money in a sum equal to the value of such necessaries. G., H. & S. A. Ry. Co. v. Cade, 93 S. W. 124; I. & G. N. Ry. Co. v. Shuford, 36 Tex. Civ. App. 251, 81 S. W. 1189; Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S. W. 117.

By another assignment appellant insists that the court erred in rendering judgment for plaintiff because the finding of the jury that defendant converted the property to his own use is unsupported by any evidence to show such a conversion.

It would be a sufficient answer to this assignment to say that the judgment must always follow the verdict, ev“en though there be good grounds to set aside the verdict upon a motion for a new trial. Fant v. Sullivan, 152 S. W. 515, and cases therein cited. However, aside from that rule, we are of the opinion that the verdict imports a finding in accordance with the undisputed evidence and the pleadings by the defendant himself that he did appropriate plaintiff’s horses to his own use on March 21, 1898. If the purpose of this suit had been to recover title and possession of the horses, and if such relief was granted, then perhaps there could be no recovery of interest eo nomine, upon the value of the horses during the time plaintiff was deprived of their possession.

But if, under the pleadings, evidence, and the verdict of the jury, plaintiff was entitled to recover the value of the animals as damages for the wrongful appropriation of them by the defendant, then we can perceive no valid reason why interest should not be allowed as a part of such damages from the date of such wrongful appropriation. Barron v. San Angelo Nat. Bank, 138 S. W. 142. We do not construe Lewis v. Blount, 139 S. W. 10, cited by appellant, to support his contention that no interest could have been allowed until demand of the defendant for restoration of the property or to pay the value thereof, as contrary to our conclusion last stated.

Appellant insists further that it was error to allow plaintiff interest for a period of 15 years, as he insists was done by the court in rendering judgment upon the verdict. One of the reasons assigned for this contention is that plaintiff limited his claim for interest to the period of time beginning January 8, 1900, and ending on the date of the judgment, December 1, 1913. While it was alleged in the original petition that the defendant converted the property on January 8, 1900, yet the defendant in his answer alleged that the property was delivered to him under the contract on March 21, 1898, and that he asserted title thereto under and by virtue of that contract. In reply to this answer, plaintiff filed a supplemental petition alleging that, after the execution of the contract, defendant took possession of the property and converted the same to his own use and. benefit. Further in this petition, as in his original petition, plaintiff prayed for general relief. Such being the pleadings, plaintiff was entitled to recover interest from March 21, 1898, instead of from January 8, 1900.

By cross-assignments appellee insists that judgment should have been rendered in his favor for a sum in excess of the amount of his recovery. By his first assignment the contention is made that the judgment should have been for the sum of $2,207. This contention is based upon the finding of the jury that the horses were worth $15 per head in January, 1900, and that interest should be allowed on that sum, and the further contention that in defendant’s answer he limited his claim for board and care of appellee to-15 months instead of 21 months and 15 days,, as found by the jury. This assignment is overruled, first, because of the finding by the jury that the conversion took place March 21, 1S9S, at which time the value of the horses was $10 per head. Furthermore, in defendant’s account for necessaries furnished, filed as a part of his answer, we find two. items, one for personal care and board of the plaintiff for 15 months, and one for money advanced- to plaintiff’s brother, O. G. Haile, for board and clothing of the plaintiff, which the evidence sustains. Evidently the finding of the jury that the defendant -provided food, clothing, and a home for the plaintiff from March 21, 1898, to January 5, 1900, a period of 21 months and 15 days, and that the same was reasonably worth $32 per month, was intended to cover the amount advanced by the defendant to plaintiff’s brother for such necessaries, as well as the services of the defendant himself in furnishing such necessaries. From this latter conclusion, it follows further that there is no merit in appel-lee’s second cross-assignment, in which the contention was made that the judgment should have been for $1,011.31, as that contention is based upon the proposition that defendant should not be allowed for board and care of the plaintiff for a longer period of time than 15 months.

All assignments of error are overruled, and the judgment is affirmed.


text:
    LEE v. WHITE.
    (No. 8019.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 17, 1914.
    Rehearing Denied Nov. 14, 1914.)
    1. Usury (§ 22) — -Payment of Usury — Evidence.
    Whore a note dated February 22, 1913, for $594, represented an indebtedness of $248.19 and a further sum of $200 with interest at 10 per cent, to be furnished during the year, and the maker paid during the year on the indebtedness sums aggregating $761.82, he paid usurious interest at least amounting to $125, for which judgment in double that amount could be rendered as authorized by Vernon's Sayles’ Ann. Civ. St. 1914, art. 4982.
    TEd. Note. — For other cases, see Usury, Cent. Dig. §§ 41, 58-61, 63-65; Dec. Dig. § 22.]
    2. Appeal and Error (§ 747)— Cross-Assignment — Review.
    A cross-assignment, wherein appellee insists that the judgment awarded him should have been for a greater amount, will not be considered where no statement was submitted under the assignment.
    [Tfid Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dee. Dig. § 747.]
    Appeal from District Court, Bosque County; O. L. Lockett, Judge.
    Action by Henry White against W. A. Lee. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. J. Cureton, of Austin, for appellant. J. P. Word, of Meridian, for appellee.

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

   CONNER, C. J.

Appellee instituted this suit against appellant to recover double the amount of usurious interest, alleged to have been paid to appellant, as provided in article 4982, Vernon’s Sayles’ Tex. Civ. Statutes, upon contracts for the payment of money specified in the petition. The trial was before a jury, and the case submitted upon special issues, upon the answers to which the court entered judgment in appellee’s favor in the sum of $250 with a cancellation of the obligations upon which the usurious interest had been paid, from which judgment this appeal has been perfected.

It was admitted that appellee on the 22d day of February, 1912, executed to appellant a promissory note for tbe sum of $485, which was renewed on February 22, 1913, for the sum of $594. The jury found in answer to an issue submitted that the note for $485 was made up of a debt of $330, principal and interest, and an account for $51.30 which appellant had assumed and paid for appellee, and appellant attacks the finding on the ground that it is unsupported by the evidence. Appellee testified that he was indebted to one Carter upon a note for $300, which with its interest appellant had paid for him, and that the new note for $485 should have been for this amount only. Appellant, on the other hand, testified that, in addition to the Carter note, it was agreed that an additional sum of $100 should be included for future advances and a further small sum which he had paid for appellee, and all of which equaled the sum for which the note had been given. The jury’s finding, being in the nature of a mere step, so to speak, in the ascertainment of the final result, does not seem to be directly material; for it is undisputed that, after the partial payments made by appellee upon the $485 note in 1912, there was a considerable balance which was included in the renewal note of the following year, after which appellee made his further payments, and the material question presented is whether upon appellee’s debt as a whole he paid to appellant interest beyond that permittee! by law as alleged. The finding under consideration therefore merely goes to show that the note for $485 was made for an excessive amount, and inasmuch as it is undisputed that but $188.87 was paid upon the note for $485, it is manifest that no actual usury was paid on this particular note. Moreover, if it could be said that the finding is material, the finding of the jury that in addition to the Carter debt the account for $51.30 entered into the $485 note was in appellant’s favor, for to the extent of such account the note was questioned in the testimony of appellee. A reading of the testimony suggests that this finding of the jury was probably based upon the theory that appellant, as he testified, included in the $485 note $100 for advances during the year 1912, but that only the sum of $51.30 had in fact been advanced, thus determining that appellee’s first note ought, including all interest, to have been made in the sum of $414.30, instead of for the sum of $485.

Another finding of the jury is to the effect that the amount that should have been included in the note for $594 executed on the 22d day of February, 1913, was a balance, including interest, of $248.19 due on the $485 note, and a further sum of $200 with interest thereon at the rate of 10 per cent, for one year to be furnished appellee during 1913, thus fixing the amount for which the $594 note should have been made at $468.19. This finding appellant also attacks, but we are unable to say that it is unsupported by the evidence. It is true appellant testified to advancements during the year 1913, amounting to $702.85; but a number of these advancements were specifically denied by appellee, and all of them in excess of $200 were denied in a general way. In the light of the evidence, we interpret the verdict of the jury to mean that the $594 note justly represented the indebtedness of the balance as found by them due on the $485 note, plus advances made by appellant during the year 1913 to the-extent only of $200; the remaining items of such advancements as testified to by appellant being rejected.

Appellant further urges that it has not been made to appear that appellee actually paid usurious interest, but the findings further show, and there seems to be little, if any, controversy in the evidence as to the fact that during the year 1913 appellee paid to appellant upon his indebtedness sums aggregating $761.82, from which it must appear, when considered in connection with the findings already adverted to, that appellee certainly paid usurious interest to the extent of $125 which is the basis of the court’s judgment. Indeed, appellee by cross-assignment insists that the judgment should have been for a greater amount than was entered, but no statement whatever was submitted under such cross-assignment, and .we therefore have not considered it.

On the whole, we conclude that all assignments of error should be overruled, and the judgment affirmed.


author: DUNKLIN, J.

text:
    FIRST STATE BANK OF AMARILLO v. JONES.
    (No. 7989.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 21, 1914.
    On Rehearing, Dec. 12, 1914.)
    1. Appeal and Errob (§ 934) — Presumptions — Judgment.
    Where the trial court filed no findings of fact or conclusions of law, the court on appeal must indulge every reasonable presumption in support of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.]
    2. Mortgages (§ 319) — Payment—Findings —Evidence.
    A recital in a release executed by the president of a mortgagee bank that the note secured by the mortgage had been paid in full, and that at the time of payment the bank was the owner thereof, is alone sufficient independent of other circumstances to support a finding of payment of the note in full.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 855-863, 875, 913, 1356, 1366; Dec. Dig. § 319.]
    On Rehearing.
    3. Mortgages (§ 298) — Payment op Debts Secured — Effect.
    Where the original debt secured by mortgage was paid in full, the original lien was discharged, and it could not be continued as against a subsequent judgment creditor of the mortgagor by the execution of a new mortgage after the judgment, purporting to correct the recital in a release that the mortgage had been paid.
    [Ed. Note. — Eor other cases, see Mortgages, Cent. Dig. §§ 836-854, 864, 871; Dec. Dig. § 298.]
    4. Judgment (§ 772) — Lien—Ebbok in Judgment — Effect.
    A mistake in the amount of a judgment does not render the judgment lien ineffective, but until corrected in some proper manner the judgment is valid for the full amount, and the correction does not destroy the lien as of the date of the original entry of the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1329-1332, 1335, 1337; Dec. Dig. § 772.]
    Appeal from District Court, Clay County; P. A. Martin, Judge. '
    Action by T. K. Jones against W. S. Roberts and the First State Bank of Amarillo. From a judgment for plaintiff, the First State Bank of Amarillo appeals.
    Affirmed.
    Turner & Wharton, of Amarillo, and W. T. Allen, of Petrolia, for appellant. R. E. Taylor,- Wantland & Parrish, and Leslie Humphrey, all of Plenrietta, for appellee.

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

       Writ of error pending in Supreme Court.

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

   DUNKLIN, J.

T. K. Jones instituted this suit against W. S. Roberts and the First State Bank of Amarillo to foreclose an alleged judgment lien upon land situated in Clay county consisting of two lots in the town of Henrietta and a tract of 103.2 acres. Plaintiff alleged in his petition that the bank was asserting some claim to the property and prayed that the judgment lien sought to be foreclosed be established as superior to any claim asserted by the bank. From a judgment in favor of the plaintiff granting the relief prayed for, the defendant bank alone has appealed.

On the original hearing the judgment was reversed and judgment was here rendered in favor of the bank, but upon a motion for rehearing by appellee Jones the judgment was .affirmed. Appellant has now moved for a rehearing, and, in order to set out more fully and more accurately the facts shown in the record, both original opinions are withdrawn, and this is filed as a substitute therefor. The judgment upon which the alleged lien was predicated was rendered in favor of Jones against Roberts on October 8, 1912, and an abstract of same was filed in Clay county on October 9, 1912. The evidence shows that plaintiff’s judgment against Roberts was rendered for $12,986.74, and as so rendered it was abstracted. Three days after the rendition of the judgment a remittitur of $860.48 was filed by the plaintiff in the judgment reciting that to that extent the judgment was excessive, and that the error was due to a mistake in calculation of the amount due upon the promissory notes which formed the basis of that suit.

The controversy between Jones and the bank in this suit is a question of priority of liens, the bank claiming a lien upon the land in controversy superior to that of the judgment lien. The following1 evidence appears in the statement of facts: On December 21, 1911, Roberts executed a deed of trust upon the property in controversy and another tract of land consisting of 50 acres also «situated in Clay county to secure the bank in the payment of a promissory note for the principal sum of $5,500, dated December 1, 1911, and due 20 days after date with 10 per cent, interest and 10 per cent, attorney’s fees. This deed of trust was duly filed for record in Clay county on December 22, 1911. On April 18, 1912, the bank, acting through its president, Mike C. Le Master, executed a release in words and figures as follows:

“State of Texas, County of Potter.
“Know all men by these presents: Whereas, on the 1st day of December, 1911, W. S. Roberts of Potter County, Texas, did execute, acknowledge and deliver to Mike C. Le Master, trustee, for benefit of First State Bank, Amarillo, of Potter County, Texas, a certain deed of trust on the following described real estate, situated lying and being in the county of Clay in said state of Texas, which deed of trust is recorded in Book 17, page 253, Mortgage Records of Clay County, Texas, to wit: A certain fifty acres of land, which is described by metes and bounds in the above-mentioned deed of trust, and being part of a certain deed recorded in Book 49, page 18, Deed Records of Clay County, Texas, and specifically described in a deed, dated Amarillo, Texas, dated April 17, 1912, executed by W. S. Roberts to E. C. Carter, to secure the prompt payment of one certain promissory note executed by the said W. S. Roberts and payable to the order of First State Bank, Amarillo, Texas, as, follows: One note of fifty-five hundred dollars, due March 1, 1912, and bearing interest from maturity at the rate of ten per cent, per annum; . and whereas, said note with accrued interest has been fully paid, and at the time of such payment said note was the property of First State Bank, Amarillo, Texas: Now, therefore, know all men by these presents, that I, Mike C. Le Master, president of First State Bank, Amarillo, of Potter County, Texas, in consideration of the premises and of the full and final payment of said note, the receipt of which is hereby acknowledged, have this day and do by these presents, remise, release and quitclaim unto the said W. S. Roberts, his heirs and assigns, the lien heretofore existing on said premises by virtue of said deed of trust, and do hereby declare the same fully released and satisfied.”

That release was properly filed for record in. Clay county on May 27, 1912. On October 15, 1912, W. S. Roberts executed another deed of trust to Mike C. Le Master, trustee for the First State Bank of Amarillo, which was filed for record in Clay county October 17, 1912, and duly recorded in Deeds of Trust Records of that county, upon all the land described in the original deed of trust, except that described in the release, which recited the execution and record of the deed of trust dated December 21, 1911, also the execution and record of that release of date April 18, 1912, from the First State Bank of Amarillo to W. S. Roberts, stating, in substance, that said release was intended only to release the two tracts of land therein described and referred to containing one 5-acre tract and one 50-acre tract, two of the tracts described in the deed of trust of date 'December 21, 1911; that the execution of said release was in consideration only of the payment of the sum of $900 and not the whole indebtedness secured by the deed of trust; that it was the intention of all the parties to the instrument that the release should be made to said 55 acres only and no more, and that the recital in the release of the full payment of the §5,500 note was a mistake made through inadvertence on the part of the person who prepared the release and on the part of Mike C. Le Master, president of the bank. This instrument further stipulated that it was given to secure the payment of the balance due the bank evidenced by a note for $4,79&85, dated September 9, 1912, due November 1, 1912, with 10 per cent, interest from maturity and 10 per cent.attorneys’ fees; that said note was in renewal of said original indebtedness of §5,500 secured by the first deed of trust; and that the deed of trust then being executed was given to continue in full force and effect the original deed of trust executed by Roberts and mentioned above.

The defendant also introduced in evidence the following promissory notes all executed by W. S. Roberts, payable to the order of the First State Bank of Amarillo: The first for the principal sum of $5,500 dated December 1, 1911, due 90 days after date; the second for the principal sum of $4,798.85, dated September' 6, 1912, due November 1, 1912; the third for the principal sum of $5,253.59, dated August 8, 1913, due October 1, 1913. It does not appear from the statement of facts that either the second or third note purports upon its face to be a renewal of any other note. Mike C. Le Master testified upon the trial as follows:

“I was president of the First State Bank of Amarillo during the latter part of 1911, the year of 1912, and the first half of 1913, and was president of said bank on the 18th day of April, 19J.2. I am now familiar with the release executed by me as president of said bank to W.'S. Roberts, dated April 18, 1912, recorded in Volume 67, page 512, Deed of Trust Records of Olay County, Tex., but was not familiar with the contents thereof at the time of its execution. The statement in said release to the effect that the note for1 $5,500, secured in the deed of trust of December 21, 1911, recorded in Volume 17, page 253, Deed of Trust Records of Olay County, Tex., made by W. S. Roberts to me as trustee for First State Bank of Amarillo, is not true. The note mentioned has never been paid, except in part. There was paid on it $900 about the time of the execution of said release. An error of the stenographer in failing to cancel a portion of the printed form of said release, which was overlooked by myself when signing such release, accounts for the mistake in said release. My intention was to release certain lands, about 55 acres, described in a certain deed from W. S. Roberts to E. O. Carter, dáted the 17th day of April, 1912, and now of record in the Deed Records of Clay County, Tex., in Volume 66, page 110, and it was not my intention to release all the property covered by said deed of trust, dated December 21, 1911, of record in the Deed of Trust Records of Clay County, Tex., in Volume 17, page 253. $900 was paid about the time of the execution of said release. There remains now $5,253.59 principal and interest due First State Bank of Amarillo on said note. I am not now employed in any capacity by the First State Bank of Amarillo. Tlie first time I learned that the release did not set forth the facts was about the 15th day of October, 1912... It was discovered when Mr. Roberts offered to deed us the property in settlement of his debt to us, at which time we sent our attorney, Mr. Thos. E. Turner, to Henrietta to look into the title of this property, and he discovered the error at that time, and instructed us to have a corrected deed of trust executed, which we did, and the same is filed in the Deed of Trust Records of Clay County, Tex., and recorded in Volume 17, pages 429, 430.”

Defendant W. S. Roberts testified as follows:

“I signed the deed of trust dated December 21, 1911, to secure the payment of a note for $5,500 described in said deed, of trust. There has never been paid on said note except about $900, at the time I sold the land to E. C. Carter described in my deed to him, dated April 17, 1912, which has already been introduced in evidence, and I have paid in addition thereto some small payments of interest, so that there is now due on said original indebtedness the principal sum of §5,253.59, evidenced by the note made by me to said bank and already introduced in evidence. That note was but a continuation of the old indebtedness secured by said original deed of trust, and I executed and delivered to said bank from time to time renewal notes, so that this last note for $5,253.59 is a continuation of an unbroken chain of notes given by me for said indebtedness. When I sold the land to E. C. Carter, it was necessary for me to get a release of the 55 acres I was selling to him in order to make him a good title, and I agreed with the bank that I would pay $900 out of the money received from him and the sale of the note I got from him if the bank would release these two tracts of land. I got a cash payment of $500 from Mr. Carter and sold the notes he gave me and paid the bank $990 as soon as I sold the notes. The bank executed a release, but I never did see this release. I think it was sent to a bank at Henrietta along with my deed to Mr. Carter to be delivered to Mr. Carter. I did not intend for the bank to release anything but the 55 acres, nor did I ever know that the release recited that the whole $5,500 note had been paid until about the time I executed the second deed of trust on October 15, 1912. Mr. Le Master told me that there was some mistake in the release which he desired to have correct, and I then executed the second deed of trust dated October 15, 1912, in order to correct the mistake in the release wherein it was recited that the whole of the note had been paid. At the time the plaintiff’s abstract of judgment was filed in Clay county, I owed the First State Bank of Amarillo a note for $4,798.85, dated September 6, 1912, due November 1, 1912, and it was secured by said original deed of trust of December 21, 1911, and was a continuation of the original indebtedness secured by said original deed of trust, after deducting the $900 which I had paid; this last note being the amount due with whatever interest I owed the bank. It was understood between me and the bank all the time, of course, that these renewal notes were secured by said original deed of trust.”

There was no evidence showing the particular items and dates of the several interest payments testified to by Roberts. Plaintiff introduced no witness to contradict tbe testimony of Mike O. Le Master and Roberts. Tbe two deeds of trust, tbe three promissory notes, and the release set out above were all specially pleaded by tbe two defendants, wbo further pleaded that only $900 was paid to tbe bank by Roberts at the time tbe release was executed and that tbe recitals contained in the release of full payment of tbe original debt were inserted by mutual mistake of tbe parties to that instrument.

Erom tbe facts recited above, it will be noted that tbe renewal deed of trust was filed for record six days subsequent to tbe rec^ turd of tbe abstract of judgment under which pláintiff claimed a lien.

Appellant insisted that no lien was created by tbe filing of tbe abstract of judgment, since it did not show tbe correct amount due upon the judgment; in other words, that tbe remittitur entered should be construed as having tbe same legal effect as if a payment bad been made upon tbe judgment on' tbe date of its rendition. Appellant insists further that tbe ^incontroverted evidence showed that tbe recitals contained in the release of full payment of tbe original debt was a mutual mistake; that the equitable right to correct tbe mistake as was done by tbe second deed of trust dated October 15, 1912, and recorded October 17, 1912, was not affected by our registration statutes, and hence the lien shown by the original deed of trust continued in force to tbe exclusion of any judgment lien acquired by tbe plaintiff under such decisions as Grace v. Wade, 45 Tex 522, Blankenship v. Douglass, 26 Tex. 226, 82 Am. Dec. 608, Cetti v. Wilson, 168 S. W. 996, and other decisions there cited. Tbe evidence relied on to conclusively establish such mutual mistake consists chiefly of the testimony of Le Master and Roberts set out above, tbe execution by Roberts of tbe second deed of trust, and tbe second and third promissory notes subsequent to tbe date of the release, and tbe fact that tbe release refers specifically to the original deed of trust and does not purport to release any property except the 50 acres.

The trial was by tbe court without tbe aid of a jury, and no findings of fact or conclusions of law are filed by the trial judge. We must indulge every reasonable presumption to be drawn from the record which would support the judgment rendered. We are of the opinion that tbe specific recitals in tbe release executed by tbe president of tbe bank that tbe original $5,500 note bad been paid off in full, and that at tbe time of such payment the bank was tbe owner thereof, such recitals being against the interest of the bank, were sufficient of themselves, independent of other circumstances noted above, to support a finding by the trial judge that the recitals were true. See 3 Jones, Blue Book of Evidence, § 437; Parker v. Beavers, 19 Tex. 406; E. L. & R. R. Ry. v. Garrett, 52 Tex. 133. If tbe note was thus paid, then tbe lien upon tbe property in controversy, as well as the 55 acres specifically mentioned in the release, was discharged as a matter of course, and tbe judgment of tbe trial court in favor of plaintiff against the bank must be affirmed, irrespective of any question as to what would have been the relative rights of plaintiff and the bank in tbe absence of such payment. In its answer tbe bank sought to establish tbe lien asserted against tbe property in controversy as against Roberts, who in bis answer, in effect, admitted that claim, and judgment was rendered in favor of tbe bank against Roberts for that relief but subject to the superior lien of plaintiff.

And as Roberts has not appealed, that part of tbe judgment establishing tbe lien against him is not disturbed, but in all other respects the judgment is affirmed, and appellant’s motion for rehearing is overruled.

On Rehearing.

As shown by its own recitals, the second deed of trust executed by Roberts was not executed upon any new consideration passing from tbe bank to Roberts, but was executed for no other purpose than to correct tbe alleged mistake in tbe recitals in the release that the original indebtedness bad been fully paid and to continue in force tbe original deed of trust given to secure its payment. If tbe original debt bad been paid in full, as found by the court, then the original lien was discharged, and, if it was dead at tbe time tbe second deed .of trust was executed, that instrument could not continue it in force as against Jones, and for that reason tbe second deed of trust could be given no effect.

Tbe mistake made in tbe amount of tbe judgment in favor of Jones did not render tbe judgment lien ineffective as contended by appellant. Until corrected in some proper manner, it was valid for the full amount, and tbe correction entered did not operate to destroy it any more than would the entry of a credit upon a judgment after it bad been properly abstracted.

Except as shown above, appellant’s motion for further findings is overruled.

Appellant’s motion for rehearing,. also, is overruled.