author: TALBOT, J.

text:
    FARMERS’ ELEVATOR CO. et al. v. ADVANCE THRESHER CO.
    (No. 7546.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1916.
    Rehearing Denied Dec. 9, 1916.)
    1. Landlobd and Tenant &wkey;>252(l) — Cbop Raised on Rented Pbemises — Landlord’s Right op Action.
    Where a portion of a crop, raised on rented premises, belonging to the landlord,, or upon which he has a landlord’s lien, is purchased without consent or authority of the landlord within 30 days from its removal from the rented premises, there is a conversion, for which the purchaser is liable to the landlord for the value of the portion converted, the lien being given by statute; and right of recovery is to extent of value of crop converted, if rent due is equal to or exceeds such value, or, if less, for such sum as is necessary to satisfy the rent.
    [Ed. Note. — For other cases, see Landlord and Tenant,' Cent. Dig. §§ 1002, 1022; Dec. Dig. &wkey;252(l).]
    2. LANDLORD AND TENANT &wkey;>246(6), 252(1)— Lien oe Landlord — Foreclosure after Sale.
    A landlord’s lien on his tenant’s crop of wheat to secure the payment of rent did not extend to the proceeds of the sale of the wheat, and the landlord could have foreclosed his lien on the wheat in the hands of the purchaser from the tenant, if found.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 999, 1000, 1002, 1022; Dec. Dig. &wkey;246(6), 252(1).]
    3. Landlord and Tenant <&wkey;252(l) — Lien of Landlord — Election of Remedies.
    A landlord had the legal right to seek a foreclosure of his lien upon his tenant’s crop of wheat, if found, or, where the value of the wheat exceeded the amount of rent due, he could Sue and recover judgment against the purchaser of the crop from the tenant, and was not compelled to resort to foreclosure.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022; Dec. Dig. &wkey;252(l).]
    4. Landlord and Tenant <&wkey;252(5) — Determination op Landlord’s Lien.
    The fact that a landlord had no lien on the proceeds of the sale of the wheat raised hy his tenant in the hands of the buyer should not prevent determination, in garnishment proceedings against the buyer, of the question whether or not the landlord had a landlord’s lien upon the wheat itself, and was entitled to personal judgment against the buyer, so that an equitable adjustment could be made of the rights of all parties, and the buyer protected from having to pay twice for a part of the wheat.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1029; Dec. Dig. &wkey;252(5).]
    5. Garnishment <&wkey;85 — Proper Parties — Equitable Relief.
    In garnishment proceedings against the buyer from a tenant of a crop of wheat raised on the rented premises, the landlord and the party who threshed the wheat were proper parties to make possible an equitable adjustment of the rights of the respective parties, and, in the exercise of its equitable powers, the court could and should have granted such relief, and entered such judgment as became necessary in the premises.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 150-154; Dec. Dig. &wkey;85.]
    6. Agriculture <@=>11 — Lien of Thresher-men — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5644, prescribing- who are entitled to liens, a party who threshed wheat with his machine for an agreed consideration under contract had no lien on the grain threshed by him.
    [Ed. Note. — For other cases, see Agriculture, Cent. Dig. §§ 15-30; Dec. Dig. 4&wkey;ll.]
    7. Master and Servant <&wkey;82(l) — Wages— Lien — Compliance with Statute — Necessity.
    By direct provision of Vernon’s Sayles’ Ann, Civ. St. 1914, art. 5645, requiring that, on refusal of any person, employer, etc., to pay wages due, the employé, farm hand, or laborer, etc., shall make duplicate accounts, present one to the employer within 30 days after the indebtedness has accrued, and within such time file the other account with the county clerk for record, compliance with such requirements is necessary to fix and preserve a lien given under section 5644.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 128; Dec. Dig. <&wkey;82(l).]
    8.Liens <&wkey;8 — Statutory Lien.
    A statutory lien can exist only when it has been perfected in the manner prescribed by the statute authorizing it.
    [Ed. Note. — For other cases, see Liens, Cent. Dig. § 2; Dec. Dig. <&wkey;8.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Garnishment proceedings by the Advance Thresher Company against the Farmers’ Elevator Company, wherein the garnishee prayed that pthers be made parties, and all claimants be required to liquidate their claims. From judgment that plaintiff recover of the garnishee the full amount of its liability, and that two of the parties impleaded take nothing as against the garnishee or plaintiff. W. T. Waggoner and Ben Kruse, the impleaded parties, appeal.
    Judgment affirmed as to Kruse and the garnishee, and reversed as to Waggoner, and the cause remanded.
    Glover C. Johnson, of Ft. Worth, and Walter G. Miller, of Dallas, for appellants. Bryan & Bryan, of Houston, and Smoot & Smoot, of Wichita Falls, for appellee.
   TALBOT, J.

The Advance Thresher Company, appellee, which had previously obtained a personal judgment against John McDuff and others, caused a writ of< garnishment to issue out of the district court of Dallas county, Tex., and served upon the Farmers* Elevator Company at Electra, Tex. The Farmers’ Elevator Company, as garnishee, answered, in substance, that on or about June 15, 1914, McDuff sold and delivered to it certain wheat for which it had not yet paid, and that it believed its indebtedness to McDuff to be about $1,750; that after delivery to it of said wheat, and after service of the writ of garnishment, W. T. Waggoner served notice iipon it that said wheat had been raised on a farm belonging to him, that McDuff had not paid any part of the rent, and that he would expect garnishee to withhold the rents due him. The said garnishee also set up that one Ben Kruse had served notice upon it, after service of the writ, that he had threshed the wheat grown on W. T. Waggoner’s land, and claimed a lien on said wheat for threshing same at the rate of 12 cents per bushel; that it held said sum subject to the order of the court; prays that McDuff, Waggoner, and Kruse be made' parties to the suit; and prayed that all claimants be required to litigate their claims to said fund. McDuff did not answer. Waggoner answered, to the effect that he had rented a farm to McDuff for the season of 1914; that all of the wheat raised by McDuff during said season had been raised on said farm, and had aggregated approximately 3,500 bushels; that said farm had been rented to McDuff on an ex-| press contract that he (Waggoner) should receive one-third of the grain raised thereupon as rent; that if McDuff had sold any grain to the Farmers’ Elevator Company, same had been raised on Waggoner’s farm under the aforesaid rental contract; that he had not authorized McDuff to sell any part of his (Waggoner’s) undivided one-third of said grain; that said elevator company did not acquire any title to Waggoner’s part of said grain, and that if it had purchased same, it was liable to Waggoner for the value thereof, for which he prayed judgment in the sum of $1,200. Kruse answered that on or about July 8, 1914, he was employed by Mc-Duff to thresh his grain crop of oats, barley, and wheat; that he threshed for McDuff, 3,-039 bushels of wheat at the agreed price of 12 cents'per bushel, 835 bushels of barley at 8 cents, and 1,000 bushels of oats at 6 cents, totaling $491.38; that McDuff owed him for said threshing and had paid no portion thereof, but that Waggoner had paid him one-third of said amount, $163.79, same being for Waggoner’s third as landlord of the farm upon which said grain was raised. Kruse alleged that McDuff had delivered approximately 2,550 bushels of said wheat to the elevator company on July 13, 1914, and that on the next day he (Kruse) notified the elevator company that he claimed a lien on the grain delivered to it for said threshing. He prayed for judgment against the elevator company for the balance due on his account for threshing of $327.59. Plaintiff joined issue on the facts alleged by Waggoner and Kruse by its supplemental petition. On the issues thus joined the case was heard by the court without a jury, and judgment was rendered on February 4, 1915, that plaintiff recover of garnishee the sum of $1,811.81, the full amount of garnishee’s liability, and that the defendants Waggoner and Kruse taire nothing as against the defendant elevator company or plaintiff. In due time Waggoner, Kruse, and garnishee filed their respective motions for new trial, which were all overruled, and Waggoner and Kruse excepted and gave notice of appeal.

The appellant Waggoner assigns the action of the trial court in rendering judgment in favor of the appellee Advance Thresher Company for the full amount the garnishee, Farmers’ Elevator Company, had agreed to pay McDuff for the wheat purchased from him and grown on appellant’s farm, and in denying appellant any recovery against the said garnishee, was error. The proposition asserted under the assignment is as follows:

“Where a portion of a crop, raised on rented premises, belonging to the landlord, or upon ■which he has a landlord’s lien, is purchased without the consent or authority of the landlord within 30 days from its removal from the rented premises, same constitutes a conversion for which the purchaser is liable to the landlord for the value of the portion converted.”

This is a correct proposition of law. The lien is given by statute, and the right of the landlord to recover against a purchaser of the crop who, under the circumstances and within the time stated, receives and converts the same is well established by the decisions of our courts. The right of recovery in such a case is to the extent of the value of the crop converted if the amount of the rent due is equal to or exceeds such value, or, if less, then for such sum as may be necessary to satisfy the claim for rent. The rule is announced by the Supreme Court of Texas (Zapp v. Johnson, 87 Tex. 641, 30 S. W. 861) in the following language:

“One who purchases agricultural products produced upon rented premises, or other property liable to the landlord’s lien for rent, within tiie time that the lien continues thereon, and converts the same to his own use, may be sued, by the landlord for the value of the property, if it does not exceed the rent due, and, if it should exceed the rent, then for the amount of the rent” (citing Boydston v. Morris, 71 Tex. 697, 10 S. W. 331; Prettyman v. Unland, 77 Ill. 206; Thornton v. Strauss & Steinhardt, 79 Ala. 164; Holden v. Cox, 60 Iowa, 449, 15 N. W. 269).

It is further held in the case cited that the plaintiff is not bound to resort to the property by a distress warrant to enforce the lien thereon after the product has been converted, and that the landlord’s right of action is not affected by the failure to institute the suit within 30 days after the removal of the products from the rented premises.

The evidence in this ease shows that the appellant Waggoner rented land owned by him to John McDuff for the season of 1913-14, for the raising of a small grain crop; that McDuff was to pay said appellant one-, third of the wheat grown on said land as rent therefor; that the rent has not been paid, either in money or wheat; that Mc-Duff sold to the Farmers’ Elevator Company 2,47414 bushels of the wheat grown on appellant’s land at and for the sum of $1,811.-81, and that appellant did not authorize or consent to such sale. The testimony further shows without dispute that the wheat grown on appellant’s premises and sold to the Farmers’ Elevator Company by McDuff was so sold and converted by said company while appellant’s landlord’s lien existed upon it, It shows that the wheat was threshed on appellant’s farm in July, 1914, and that it was sold and delivered to the Farmers’ Elevator Company about the 9th, 10th, and 11th of July, 1914.

We think it clear that Waggoner showed himself to be either the owner of one-third of the wheat sold by McDuff to the elevator company, or that he had a lien upon all of it to secure the payment of his rent. We are inclined to the opinion that the testimony showed an ordinary renting, and that Waggoner held a lien upon the wheat to secure the payment of the rent. This lien did not extend to the proceeds of the sale of the wheat, and appellant could have'foreclosed his lien, upon the wheat in the hands of the purchaser if found, but it does not appear that the wheat was within his reach. He was, however, in no event compelled to resort to that remedy. He had the legal right to seek a foreclosure of his lien upon the wheat if found, or, as the value of the wheat exceeded the amount of the rent due, he could sue and recover judgment against the purchaser, the elevator company, for the amount of the rent. Estes v. McKinney, 43 S. W. 556. This, in effect, is what appellant Waggoner is seeking in this proceeding to do. His pleadings for this purpose are not as clear and specific as they should be but in the absence of a special demurrer, they are sufficient for the admission of the necessary proof to authorize and sustain such a judgment. The fact that appellant Waggoner had no lien upon the proceeds of the sale of the wheat in the hands of the elevator company should not, in onr opinion, prevent the litigation and determination in this suit of the question of whether or not he had a landlord’s lien upon the wheat itself and entitled to a personal judgment for the amount of his rent against said company, so that an equitable adjustment could be made of the rights of the respective parties and the elevator company protected by the judgment of the court from having to pay twice for a part of said wheat. This was its purpose in having the appellants Waggoner and Kruse made parties to the suit, and under our blended system they were proper parties for that purpose, and in the exercise of its equity powers the court could, and should, have granted such relief and entered such judgment as became necessary in the premises. It does not appear that the elevator company had notice of appellant’s claim and lien until after its purchase of the wheat.

The appellant Ben Kruse contends in effect, that “thresherman” has a lien on grain threshed by him to secure the payment of his claim for such work under article 5644 of Vernon’s Sayles’ Texas Civil Statutes, and this, too, whether he has complied with the requirements of article 5645 of said statutes or not. We do not agree with this contention. “In order to fix a lien under the provision's of this statute, it must be shown that the person claiming such lien is within the class named in the statute, and that the labor or services performed by such person was performed under the conditions named in the statute.” Bush Bros. Lumber & Milling Co. v. Eastwood et al., 62 Tex. Civ. App. 473, 132 S. W. 389. The appellant, Ben Kruse, in operating his machine in threshing W. T. Waggoner’s wheat, was not an employs or farm laborer within the meaning of the statute. He simply contracted with the said Waggoner for an agreed consideration to thresh his wheat, and therefore does not come within any of the classes of persons mentioned in, and protected with a lien by, the statute. The analogous eases of Sparks v. Crescent Lumber Co., 40 Tex. Civ. App. 222, 89 S. W. 424, Lindale Brick Co. v. Smith, 54 Tex. Civ. App. 297, 118 S. W. 568, and Jackson v. Downs, 149 S. W. 286, authorize and sustain the foregoing conclusion. In the first case cited, in which a writ of error was denied, it was held that the plaintiff, who had made a contract with the defendant lumber company to haul lumber bj^ its own labor and teams for ¡¡>3 per 1000 feet, had no lien under the statute in question for his labor and team; that said statute did not apply to a contract of that kind. The court said:

“The word ‘laborer’ means one who labors with his hands for wages, and does not include one who contracts for the hauling of lumber with his wagon and team at a fixed price per 1000 feet of lumber hauled.”
The court further said:
“It is also true that, unlike contracts for personal services, he could have substituted another for himself, or hired other hands and teams, without doing violence to his contract.”

The cases of Lindale Brick Co. v. Smith and Jackson v. Downs, supra, are to the same effect, and the language quoted above is applicable to -the ease at bar.

But, if we should be mistaken in the foregoing views, and appellant Kruse comes within the class of persons mentioned in article 5644 of the statute, still the record fails to show any compliance on his part with the provisions of article 5645, and the trial court properly held he had not acquired a lien on the wheat sold by McDuff to the Farmers’ Elevator Company, article 5645 of the statute just referred to provides, in substance, that on refusal of any person, employer, etc., to pay wages due, the employé, farm hand, or laborer, etc., shall make duplicate accounts, present one of them to the employer within 30 days after the indebtedness has accrued and within such time shall file the other account with the county clerk for record, and that compliance with such requirements shall be necessary to fix. and preserve the lien given under the law. In Peacock v. Morgan, 61 Tex. Civ. App. 193, 128 S. W. 1191, it is said that there is no ambiguity in this statute, and that, in the absence of a compliance with its provisions, no lien exists. This is but declaring what the article of the statute itself expressly declares. As stated above, it expressly declares that:

“A compliance with the foregoing requirements in this article shall be necessary to fix and preserve the lien given under this [law].”

The lien given by this statute is not such a lien as is given by article 16, § 37, of the Constitution, and it is well settled that:

“A statutory lien can exist only when it has been perfected in the manner prescribed by the statute.authorizing it.”

Having failed to comply with the statute in question, appellant Kruse in no event had the lien asserted by him.

The judgment of the court below will be affirmed as to the appellant Kruse, and, as to the Farmers’ Elevator Company and the appellant W. T. Waggoner, will be reversed, and cause remanded for proceedings not inconsistent with this opinion.
      ^npeFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other cases see same topic an<i KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    OCHOA et al. v. EDWARDS, Sheriff, et al.
    (No. 639.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1916.
    On Rehearing, Dec. 13, 1916.)
    1. Husband and Wife <&wkey;255 — Community Property — Purchase of Realty.
    Where property is purchased in part with the separate estate of a wife and partly with community funds, the wife has a separate interest in it proportionate to the amount her separate estate contributed towards its purchase, and the community interest is proportionate to the amount the community estate contributed, in the absence of anything upon the face of the deed to the wife to show that it is conveyed to her as her separate estate, and in the absence of agreement between the parties that the property shall be her separate estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 900-902; Dec. Dig. <&wkey;> 255.]
    2. Husband and Wife <&wkey;268(l) — Community Property — Husband’s Debts.
    The community estate of husband and wife is subject to the payment of the husband’s debts.
    (Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 953, 957-960, 964, 967; Dec. Dig. <&wkey;>268(l)J
    3. Husband and Wife <&wkey;271 — Community Property — Agreement Between Husband and Wife.
    Where husband and wife received lots, cash, and notes for a conveyance of property owned half by the wife as her separate estate and half by the community, the status of the lots, cash, and notes as half community property and half the wife’s separate estate might have been changed by an agreement between husband and wife that the wife should take the lots as her separate property, in satisfaction of her separate interest in all of the consideration, and that the husband would take the notes and cash, in satisfaction of the community interest, which agreement must'háve been made at the exchange or prior thereto.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dec. Dig. &wkey;> 271.]
    4. Husband and Wife &wkey;>271 — Community Property — Sale of Realty — Power of Husband to Partition Receipts.
    The husband, without the wife’s consent, could not partition the receipts by alloting to her the lots, in satisfaction of her half interest in the total consideration, and allot to the community the notes and cash, since neither husband nor wife can partition property in which the community estate owns an undivided half interest, and the wife, as her separate estate, owns an undivided half interest, without the consent and agreement of the other.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dec. Dig. <&wkey;> 271.]
    5. Husband and Wife &wkey;>265 — Community Property — Exercise of Control by Husband.
    The mere fact that a husband received and exercised control over the cash and notes owned half by the wife and half by the community did not deprive the wife of her half interest in the notes and cash.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 917-924; Dec. Dig. &wkey;>265.]
    6. Husband and Wife <&wkey;137(l) — Wife’s and Community Estate — Husband’s Right of Control.
    A husband is entitled to receive and control, not only the* community estate, but his wife’s separate estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 512; Dec. Dig. &wkey;>137(l).]
    7. Husband and Wife <&wkey;269 — Community Interest — Rights of Husband’s Creditors.
    A husband’s creditors cannot be deprived of their right to subject community property to payment of their claims by the mere fact that the wife claims it as her separate estate, and the husband claims no interest therein, after the transaction whereby it was received for a conveyance by the husband and wife of property owned half by the wife separately and half by the community.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 953-967; Dec. Dig. &wkey;> 269.]
    8. Fraudulent Conveyances &wkey;>54(2) — In-dorser— Statute — ‘ ‘Debtor. ’ ’
    An indorser of promissory notes is a “debt- or,” in the original and legal acceptation of the term, within Rev. St. 1911, art. 3967, declaring that every gift, conveyance, etc., made by a debtor, not upon valuable consideration, shall be void as to prior creditors, unless it appears that the debtor was possessed of property within the state subject to execution sufficient to pay existing debts.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 132-134; Dee. Dig. <&wkey;>54(2).
    For other definitions, see Words and Phrases, First and Second Series, Debtor.]
    9. Bills and Notes <&wkey;445 — Judgment Partially on Notes Not Due.
    Judgment against vendor and vendees on notes given the vendor for the land and indorsed over by him was not null and void because based in part upon notes not due when it was rendered.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1311-1329; Dec. Dig. &wkey;> 445.]
    10. Judgment <&wkey;>287 — Lien and Registration-Judgment on Notes Not Due.
    The fact that the judgment was rendered in part on the notes not due at the time did not affect the validity of the registration in the county clerk’s office of the abstract of judgment, and did not impair the validity of the lien fixed by the registration on the judgment debtor’s property.
    [Ed. Note. — For other cases, see' Judgment, Cent. Dig. §§ 567, 568; Dec. Dig. &wkey;287.]
    On Rehearing.
    11. Appeal and Error <&wkey;215(l) — Reservation of Grounds of Review — Objection to Instruction.
    Objection to a charge of the trial court raised for the first time on appeal comes too late.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Dec. Dig. <&wkey;> 215(1); Trial, Cent. Dig. § 683.]
    12. Trial <&wkey;273 — Objection to Charge-Statute.
    Objection to the charge of the trial court, made only in an inferential and general way by the objections presented in the trial court, is not a sufficient compliance with Acts 33d Leg. c. 59, requiring objections to the charge to be presented to the trial court before it is read to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 6807682; Dec. Dig. &wkey;273J
    13. Appeal and Error <&wkey;216(l) — Failure to Submit Issue — Statute.
    By direct provision of Rev. St. 1911, art. 1985, in the absence of a request in writing that an issue be submitted, to the jury, the trial court’s failure to submit is not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;216(l); Trial, Cent. Dig. § 627.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by Francisca R. Ochoa and husband against Peyton J. Edwards, Sheriff of El Paso County, and T. M. Bower and T. N. Bower, composing the firm of T. M. Bower & Co. From a judgment for defendants plaintiffs appeal.
    Reformed and affirmed.
    R. M. Reed and Walthall & Gamble, all of El Paso, for appellants. Jones, Jones & Hardie and Allen R. Grambling, all of El Paso, for appellees.
   HIGGINS, J.

This was a suit by Francisca R. Ochoa and husband, Juan D. Ochoa, against Peyton J. Edwards, sheriff of El Paso county, and T. M. Bower and T. N. Bower, composing firm of T. M. Bower & Co., to enjoin the sale of lots 9 and 10 in block 262 of Campbell’s addition to the city of El Paso, levied upon under an execution issued upon a judgment rendered in the district court of El Paso county in favor of T. M. Bower & Co. against Juan D. Ochoa, Mark Miller, and J. W. Magoffin, the last two named composing Arm of Miller & Ma-goffin, in cause No. 5321.

Findings of Fact.

By deed dated July 1, 1902, Juan D. Ochoa and wife conveyed an undivided one-half interest in certain real property to Miller & Magoffin, and in payment therefor the grantees executed and delivered promissory notes payable to the order of Juan D. Ochoa. Upon the same date Juan D. Ochoa indorsed and delivered the notes to T. M. Bower & Co. On February 9, 1905, in cause No. 5321, T. M. Bower & Co. recovered judgment upon said notes against Juan D. Ochoa and Miller & Magoffin. The judgment so rendered was for the aggregate amount of said notes, with interest and attorney’s fees, to wit, the sum of $12,434.64, and to secure the payment thereof the vendor’s lien reserved in the deed from Ochoa and wife to Miller and Magoffin was established and foreclosed, and the property conveyed by such deed was ordered sold. The judgment recites that certain of the notes upon which the judgment was based were not due at the date the judgment was gendered,. and in that connection it was ordered:

“That if the property hereinbefore ordered and adjudged to be sold does not at such sale sell for enough to pay off all the notes sued on, including the principal, interest, and attorney’s fees of the notes due, and the principal of the notes not due, then execution shall issue for any balance unpaid upon the notes due or past due at the time of said execution, and for any balance unpaid upon the notes not due execution shall be stayed until said notes, as herein adjudged, becomes due, that is to say, execution may issue from time to time to enforce the collection of the balance unpaid upon any of said undue notes when the same respectively mature. It is further the order and judgment of the court that the moneys derived from the sale of said property shall be applied pro rata to the payment of afl. of said notes, those due and those not due, and in the event the moneys derived from the sale of skid property shall not be sufficient to pay off said notes in full, then and in that event the proceeds of said sale shall be applied pro rata to each and all of said notes, those due and those not due.”

A full and complete description, with dates of maturity, is given of all the notes in the judgment.

On March 6, 1905, an order of sale was issued upon this judgment under which the undivided interest in the property sold by Ochoa and wife to Miller and Magoffin was sold for the sum of $6,341, which was applied upon the judgment.

On April 10, 1905, an execution was issued upon the judgment and returned nulla bona.

On July 1, 1.913, an alias execution was issued and levied upon certain property of Mark Miller, but nothing was realized upon this execution, as the property upon which it was levied was sold under an execution issued upon another judgment against Miller which had precedence and absorbed all of the proceeds of the sale.

On March 12, 1915, a pluries execution was issued and levied upon said lots 9 and 10 in block 262 as the property of Juan D. Ochoa, and it is to enjoin the sale thereof under this execution that this suit was brought.

On March 17,1905, an abstract of the judgment in cause 5321 was recorded and indexed in the county clerk’s office showing the amount due thereon to be $12,458.44 less a credit of $6,341 upon the principal, interest, and costs, of date April 4, 1905. This credit evidently was the proceeds of the sale of the property upon which judgment of the foreclosure was had and which was sold under the order of sale issued March 6, 1905.

On July 1, 1903, Juan and Francisca Ochoa owned a tract of land in city of El Paso; an undivided one-half thereof being owned by Mrs. Ochoa as her separate estate. The other half interest was owned by the community estate. Upon that date they conveyed the same to W. R. Ascarate for a consideration of $9,000 cash, notes of Ascarate aggregating $5,450, payable to Juan D. Ochoa, and the conveyance of said lots 9 and 10 in block 262 at an agreed valuation of $3,300. Said lots were conveyed to Francisca R. Ochoa by Ascarate by deed dated August 1, 1993. When this property was conveyed to Mrs. Ochoa there was a dwelling house upon it. A short time after she acquired the property she built another dwelling upon same which was paid for with community funds. There is evidence in the record which would support a finding that the lots and houses are now worth $11,009; that the' lots are worth $5,-000, and the houses $3,000 each.

On July 9, 1904, the Ochoas conveyed the property . in trust to Mariana Ochoa. The trustee was authorized to enter into possession, manage, control, rent, mortgage, or sell the same.

By deed dated June 8,1909, Mariana Ochoa conveyed the same to Juan D. and Francisca R. Ochoa. By deed dated June 8, 1909, in consideration of $1 cash “and other good and sufficient considerations by me received and thereunto moving,” Juan D. Ochoa conveyed the property to Francisca R. Ochoa as her separate property and estate.

The case was submitted to a jury upon special issues, and in response to such issues the following facts were established: That at or prior to the time of making of deed from Ascarate to Mrs. Ochoa there was no agreement or understanding between Juan D. Ochoa and Mrs. Ochoa that the property conveyed by Ascarate to Mrs. Ochoa should be the separate property of Mrs. Ochoa; that it was the intention of Juan D. Ochoa to make a gift to Mrs. Ochoa of the community funds which were used to erect the house upon said property after the property was acquired from Ascarate; that at the date of the gift of said community funds, Juan D. Ochoa did not have in the state property subject to execution sufficient to satisfy his then existing debts; .that at the time of the gift of said community funds Mrs. Ochoa knew or had knowledge of the financial condition of Juan D. Ochoa or had knowledge of such facts, a reasonable investigation of which would have given her knowledge of his financial condition; that at the time of or immediately prior to the conveyance of said lots 9 and 10 to Mrs. Ochoa by Ascarate it was not the intention of the Ochoas that such property be taken by her as her separate property in satisfaction of her undivided one-half interest in the property conveyed by the Ochoas to Ascarate; that at the time of the making of the deed from Ascarate to Mrs. Ochoa Juan D. Ochoa was not possessed of property within the state subject to execution sufficient to pay his existing debts; that at or prior to the time of making the deed from Ascarate to Mrs. Ochoa it was not mutually agreed by and between Juan D. Ochoa and Mrs. Ochoa that, in consideration of her taking said property as her sole and separate estate, Juan D.. Ochoa should take as his own separate property and estate, or as the community property of himself and wife, all of the other considerations received from the Ascarates. There is another issue which was submitted to the jury which, and, as it appears in the record, reads:

“Do you find from a preponderance of the evidence that at the time Juan D.' Ochoa and wife executed the deed of trust dated the 9th day of July, 1904, purporting to convey lots 9 and 10, block 262, Campbell’s addition, to Mariana Ochoa in trust, have property in this state subject to execution sufficient to pay his then existing debts?”

This was answered “No.” It will be noted it is not clear just what the issue submitted was. It was evidently intended to inquire whether Juan D. Ochoa had property in the state subject to execution sufficient to pay his then existing debts on July 9,1904.

Upon these findings the court entered a decree refusing to enjoin the sale of the lots, dissolved the temporary injunction enjoining such sale which had been granted at the inception of the suit, and directed the issuance of an order of sale under which an undivided seven-elevenths interest in the lots should be sold and the proceeds applied to payment of the balance due Bower & Co., upon the judgment in cause No. 5321.

Conclusions of Daw.

1. It seems to be well settled that, where property is purchased in part with the separate estate of the wife and partly with community funds, the wife has a separate interest in it proportionate to the amount her separate estate contributed towards its purchase, and that the community interest is proportionate to the amount the community estate contributed towards the purchase money. Texas, etc., v. Clark, 145 S. W. 206; Braden v. Gose, 57 Tex. 37; Cleveland v. Cole, 65 Tex. 402; Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381; Goddard v. Reagan, 8 Tex. Civ. App. 272, 28 S. W. 352. Parker v. Coop, 60 Tex. 111. This is the rule, where realty is .conveyed to the wife, and there is nothing upon the face of the deed to show that it is conveyed to her as her separate estate, and there is no agreement between the parties that such property should be her separate property. Dixon v. Sanderson, 72 Tex. 359, 10 S. W. 535, 13 Am. St. Rep. 801; Clardy v. Wilson, 24 Tex. Civ. App. 196, 58 S. W. 52.

Here lots 9 and 10 were paid for with property in which Mrs. Ochoa owned an undivided one-half interest as her separate estate and the community owned the remaining interest. There was nothing upon the face of the deed to indicate that the lots were conveyed by Ascarate to Mrs. Ochoa as her separate estate, and the findings of the jury establish the fact that there was no understanding, agreement, or intention upon the part of the Ochoas which would vest in Mrs. Ochoa the entire title to the lots as her separate estate to the exclusion of the community estate. It thus follows that, when the lots were conveyed to Mrs. Ochoa, the community estate owned an undivided one-half interest therein which was subject to the payment of Juan D. Ochoa’s debts. The $9,000 in cash and the notes aggregating $5,450 received in further payment for the property conveyed to Ascarate were owned by the respective estates in the same proportions. Of course, this status of the lots, notes, and cash might have been changed by an agreement between the Ochoas that Mrs. Ochoa would take the lots as her separate property in satisfaction of her separate interest in all of the consideration received from Ascarate", and that the husband would take the notes and cash in satisfaction of the community interest, which agreement must have been made at the time of the exchange or prior thereto. But, as is noted above, the findings of the jury establish that there was no such agreement between the parties. Appellants contend that the mere fact that the husband received and used the notes and cash, the wife receiving no part thereof, and the fact that the deed to the lots was taken in the name of the wife, were sufficient to establish the fact that the wife became the sole owner of the lots. But the husband could not so partition the property, without the consent' of the wife, by allotting to her the lots which were taken at an agreed valuation of $3,300 in satisfaction of her half interest in the total consideration of $17,750, and allot to the community $14,450 in notes and- cash. In other words, the husband, in a case like this, cannot take $14,450 in notes and cash and say that this should belong to the community and that the lots valued at $3,300 should belong to the separate estate of the wife.

The mere fact that the husband did receive and exercise control over the whole $9,000 cash and the $4,000 in notes did not deprive the wife of her one-half interest in said notes and cash, and, unless there was some agreement between the husband and wife, she at all times had an undivided one-half interest in the cash and the notes, although they were in his possession and under his control, and he continued to have an undivided interest in the real property, although the same appeared ip. her name. The fact that the husband received and controlled the $9,000 in cash and the $4,000 in notes is not at all inconsistent with the fact that the wife owned as her separate estate a one-half undivided interest in said cash and notes, because in any event the husband would be entitled to receive and control, not only the community estate, but his wife’s separate estate. It is evident that neither the husband nor wife can partition property in which the community estate owns an undivided one-half interest and the wife as her separate estate owns an undivided one-half interest, without the consent and agreement of the other. It is not to be understood by these statements that the husband could not make a gift to the wife of his interest in the property without her knowledge or consent, but if appellants would depend, upon the proposition of a gift or relinquishment of the husband to the wife of the community interest in the property, then they are confronted with the proposition that at the time of such gift J. D. Ochoa was indebted to appel-lees upon the obligation upon which they secured their judgment, and the jury has found that at the time Ascarate conveyed the lots to Mrs. Ochoa Juan D. Ochoa was not possessed of property within the state subject to execution sufficient to pay his existing* debts.

In view of what has been said, it follows that the various propositions urged in support of the first 11 assignments are not well taken.

2. The refusal of the court to submit special issue No. 1 requested by appellants presents no error, for the reason that the issue was properly and fully submitted to the jury in question No. 1 submitted by the court.

3. Complaint is made of the refusal to submit this issue:

“Do you find from a preponderance of the evidence that lots 9 and 10 in block 262, Campbell’s addition, herein sued for, are now claimed solely by plaintiff Ifrancisca R. Ochoa, together with all improvements therein, as her own separate estate, and that the plaintiff Juan D. Ochoa claims no interest therein?”

This issue was immaterial, and had no bearing upon the rights of the parties. Juan Ochoa’s creditors could not be deprived of their right to subject community property to the payment of their claims by the mere fact that Mrs. Ochoa is now claiming it as her separate estate and Juan Ochoa is claiming no interest therein.

4. It is insisted that Juan D. Ochoa was not a debtor within the meaning of article 3967, R. S.,' because he was merely an indorser upon the notes held by Bower & Co., and upon which the judgment in cause No. 5321 was rendered. In 13 Cyc. 425, it is said that a debtor is one who by reason of an existing obligation is or may become liable to pay money to another whether such liability is certain or contingent. Tested by this definition, an indorser upon a note should certainly be considered a debtor within the meaning of the statute noted.

In Dodson v. Taylor 53 N. J. Law, 200, 21 Atl. 293, the defendants demurred to a declaration against the heirs and! devisees of James Taylor, deceased, upon the ground that it sought to charge the defendants upon an indorsement by their ancestor of a promissory note which had not matured at the time of his death; the defendants insisting that such a contingent liability is not enforceable against heirs or devisees. The statute upon which the action was based was entitled “An act for the relief of creditors against heirs and devisees,” reading in part as follows:

“That all and every creditor or creditors, whether by simple contract or specialty, and whether the heirs 'are mentioned therein or not, shall and may, by virtue of this act, have and maintain his, her, and their action and actions against the heir and heirs at law of any debtor who had already died, or shall hereafter die, intestate, seised of any messuages, lands, tenements or hereditaments, against the heir and heirs at law and devisee and devisees of such debtor, in ease such debtor made any last will or testament.” P. L. N. J. 1797, p. 243.

In passing upon this ground of demurrer, the court said:

“With regard to the second ground of demurrer, that, if the indorser of a promissory note die before its maturity, his heirs and devisees are not chargeable under our statute, the de-murrants rely upon the case of Farley v. Briant, 3 Adol. & E. 839. There one Briant had become surety for the lessee in a lease which was to terminate on the death of the lessor, and_ the king’s bench decided that the heirs and devisees of the surety could not be held, under 3 and 4 W. & M. c. 14, for rent accruing after the surety’s death. The facts of that case are plainly distinguishable in principle from those now before us, for the debt there in suit did not exist when the surety died, and it was then uncertain whether it would ever come into existence, as the death of the lessor might end the term before the rent accrued. But in the present controversy the debt did exist when the in-dorser died, and was sure to become due by the mere lapse of time; no contingency attached to the debt itself. The money represented by the promissory note would be called a ‘debt’ with as much precision of statement before the maturity of the note as afterwards. But the difference between the facts of these cases is no more marked than the difference between the laws applicable to them. The divergence of our act from 3 & 4 W. & M. is pointed out by the Chief Justice in Insurance Co. v. Meeker, 37 N. J. Law, 282, and leads reasonably to the conclusion there expressed, that the adjudications upon the English statute can have little weight in any attempt to expound the act of the state, on account of their verbal differences. We are, then, to consider the scope of 'our statute as indicated by its own terms. It employs three words, which denote the sort of obligations enforceable under it: ‘Creditors,’ for whose relief it was enacted; ‘debtors,’ whose heirs and devisees are to be charged; and ‘debts,’ which are to be recovered by virtue of its provisions. It discloses no other limitations pertinent to the present inquiry. If there be a debt, and the debtor die leaving lands, his heirs or devisees can be sued for the debt by the creditor. This is, beyond dispute, the purport of the statute, and the question now is whether these facts appear in the present case. As already stated, the sum of money mentioned in a promissory note is a ‘debt,’ in the strictest sense of that term, as well before maturity as afterwards. With equal exactness the holder, of the note is called a ‘creditor.’ The only point for disputation is whether the indorser is a debtor, before his liability becomes absolute by dishonor and notice. But from the time of indorsement he is bound for the payment of the debt, and a person so circumstanced is in both common and legal parlance, a debtor. The contingency affecting his responsibility is one by which he may be released, not one by which he may become bound; it is of the nature of a condition subsequent, not a condition precedent. His obligation as a debtor continues until the payment of the debt or the laches- of the creditor discharges him. The statute under review is remedial, and therefore its language must receive a liberal interpretation. So interpreted, the term ‘debtor’ clearly, I think, embraces the indorser of a promissory note before maturity.”

The reasoning of the court in that ease is regarded as sound, and the same rule of construction should he applied in this case. An indorser of a promissory note is a debtor in -the ordinary; and legal acceptation of the term, and he should be regarded as such within the meaning of our statute which declares that every gift, conveyance, assignment, transfer, or charge made by a debtor which is not upon consideration deemed valuable in law shall be void as to prior creditors, unless it appears that such debtor was then possessed of property within this state subject to execution sufficient to pay his existing debts. Article 3967, R. S.

5. There is no merit in the contention that the judgment rendered in cause No. 5321 was null and void because it was based in part upon notes not due at the date it was rendered. Davis v. McGaughey, 32 S. W. 447; Townes on Pleading (2d Ed.) 273. Neither did the. immaturity of the debt affect -the validity of the registration in the county clerk’s office of the abstract of judgment and did not impair the validity of the lien fixed by such registration upon Juan Ochoa’s property.

6. Under the twentieth assignment it is contended that the evidence is insufficient to support the judgment by reason of certain facts recited in the assignment. Conceding the truth of the facts recited in the assignment, they do not render -the judgment without any support in the evidence.

7. Under the findings of the jury, the ap-pellees’ rights are not affected by the trust deed dated July 9, 1904, by the plaintiffs to Mariana Ochoa, the deed reconveying the property by Mariana Ochoa to plaintiffs dated June 8, 1909, and the deed from Juan D. Ochoa to Erancisca R. Ochoa, dated June 8, 1909.

8. The twenty-first, twenty-third, and twenty-fourth assignments complain of the form of the judgment entered herein. No complaint is made of the proportionate interest (seven-elevenths) in the lots which the court’s decree directs] should be sold; that is to say, it is not questioned that an undivided seven-elevenths interest is the] proper interest to adjudge to be subject to the payment of Juan Ochoa’s debts if any part be so subject. The plaintiff was certainly entitled to a decree enjoining the sale of an undivided four-elevenths interest in the lots, whereas the court refused her any relief. This court will reform the judgment and enter the decreq which should have been entered in the court below, viz.:

(1) That the temporary injunction entered April 6, 1915, be dissolved.

(2) That the defendants be perpetually enjoined from selling more than an undivided seven-elevenths interest in said lots 9 and 10 in block 262.

(3) That all other relief asked by plaintiffs be denied.

(4) Adjudging that an undivided seven-elevenths interest in the lots is subject to sale in satisfaction of the judgment in cause No. 5321, and that appropriate process may issue for the sale thereof.

(5) That defendants be refused any further relief.

(6) That plaintiffs recover their costs.

Under the refoiimed judgment the de-. fendants will be at liberty to procure a ven-ditioni exponas, or such otherj process as may be proper and appropriate, and proceed to sell an undivided seven-elevenths interest in the lots levied upon under the execution issued March 12, 1915. The costs of appeal will be taxed against T. M. and T. N. Bower.

We have not undertaken in this opinion to discuss in detail the various assignments of error and supporting propositions. [They are so numerous that to do so would protract the opinion to an unreasonable length. We believe that the foregoing conclusions of law sufficiently dispose of all the appellants’ assignments and establish that appellees are entitled to subject to the payment of their judgment the interest in the lots which was originally owned by the community estate of Mr. and Mrs. Ochoa.

Reformed and affirmed.

On Rehearing.

The court gave an instruction which reads:

“You are instructed that when property is acquired by the exchange of property in which the wife owns an undivided one-half interest as her sole and separate estate, and the community estate of the husband and wife owns an undivided one-half interest, then, in the absence of an express agreement between her husband and the wife to the contrary, made before or at the time of the acquisition of such property, the wife owns an undivided one-half interest in such property so acquired and the community estate of the husband and the wife owns an undivided one-half interest in such property.”

In the motion for rehearing it is objected that this charge was erroneous because the agreement between the husband and wife might have been either express or implied; that there is evidence tending to show an implied agreement between the Ochoas, for which reason it was error to require them to show an express agreement. This ground of the motion is not well taken. In the first place, this particular objection is now raised for the first time, and it comes too late. The sixth assignment complains of this charge, it is true, but the propositions in the brief supporting the same do not make the point that it was error to confine the jury to a consideration of the existence of an express contract. Furthermore, the objections to the charge presented in the court below fail to make this objection, except possibly in an inferential and very general way, and this is not a sufficient compliance with chapter 59, Acts 33d Leg. requiring objections to the charge to be presented to the trial court before such charge Is read to the jury.

In the original opinion it was stated that no complaint was made of the proportionate interest in the pro'perty which the court directed should be sold. In the motion for rehearing it is asserted that under the twenty-second and twenty-fourth assignments complaint was so made, and that it was there contended that only four-elevenths interest in the property should have been ordered sold instead of seven-elevenths. We have_ again carefully examined those assignments and supporting propositions as they appear in the brief, and think they are not susceptible of the interpretation placed upon them in the sixth paragraph of the motion for rehearing. Aside from this, the court found that the house built upon the premises after it was conveyed by Ascarate to Mrs. Ochoa was built with community funds. There is evidence to support this finding. In the absence of a request in writing that the issue be submitted to the jury, the courts failure to so submit the same does not present reversible error. Article 1985, R. S. The original opinion, we believe, properly disposes of all questions raised in appellant’s brief.

The motion for rehearing is therefore overruled.
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author: RICE, J.

text:
    T. W. MARSE & CO. v. WHITE et al.
    (No. 5641.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1916.
    Rehearing Denied Dec. 6, 1916.)
    1. Liens &wkey;s3 — Reservation in Note — Sufficiency.
    A note wherein the maker agreed to pay a sum certain on a date certain at a bank, and the drawer and indorser waived presentment, protest and notice thereof, reciting that there was deposited with them as collateral a note given for four mules with authority to sell them without notice, constitutes a lien on the mules, since it not only referred to notes which gave a lien, but itself contained all essential elements of a lien; the other notes being admissible to explain its terms.
    [Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 23, 24; Dec. Dig. 4&wkey;3.]
    2. Bills and Notes &wkey;>116 — Construction by Acts op Paeties.
    Where a note is of doubtful meaning, or the language used is ambiguous, the construction given by the parties themselves, as elucidated by their conduct or admissions, will be deemed the true one, unless the contrary be shown.
    [Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. &wkey;>116.]
    3. Evidence <&wkey;461(l) — Parol Evidence — Admissibility — Ambiguity.
    Where mortgages were of doubtful meaning, it was not error to admit parol testimony as to the mutual understanding at the time of their making in aid and explanation of them.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2129; Dec. Dig. <S&wkey;461(l).]
    4. Appeal and Erbob <&wkey;151(6) — Right to Appeal.
    Mortgagees who sued payees and indorsers of notes on which the mortgaged mules were pledged as collateral could not appeal from the judgment against certain indorsers and payees establishing the lien of another payee as sii-perior to theirs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. " §§.951, 952; Dec. Dig. <&wkey;> 151(6).]
    Appeal from District Court, Williamson County ; C. A. Wilcox, Judge.
    Suit by T. W. Marse & Co. against J. T. White, the City National Bank, and others. From a judgment for plaintiffs in part, but decreeing defendant Bank a prior lien, plaintiffs appeal.
    Affirmed.
    W. A. Barlow, of Taylor, for appellants. T. H. Cody and Nunn & Love, all of Georgetown, and E. H. Lawhon, of Taylor, for ap-pellees.
   RICE, J.

Appellants brought this suit against J. T. White, J. E. Lawhon, and the City National Bank of Taylor, claiming that White was indebted to them on two notes, and upon verified account, amounting in the aggregate to $1,450, seeking to foreclose two mortgage liens on four certain mules described therein, alleging that Lawhon and the bank were asserting some character of claim to said property, and asking that they be made parties, in order that their rights, if any, might be determined and adjusted. The bank answered, claiming an indebtedness against White, who, it alleges, gave it a superior mortgage upon the same mules, praying -that it have judgment for its debt against White and Lawhon, and for foreclosure of its mortgage lien.

Both White and Lawhon accepted service, but neither filed answers. There was a jury trial, resulting in a judgment both for plaintiffs and defendant bank for the amount of their respective claims, but adjudging that the bank’s mortgage was superior to plaintiffs’, and directing that the property be sold and the proceeds applied first to the payment of the bank’s claim, the remainder, if any, to be paid to plaintiffs, from which judgment this appeal is prosecuted.

The three principal questions involved in this appeal are: (1) Whether the facts show that the bank had a mortgage upon the mules in question; (2) if so^ whether the mortgage was properly set up in its pleadings; and (3) whether parol evidence was admissible to aid or explain the instruments relied upon by the bank.

The facts show that in 1912 and 1913 White was the tenant of Lawhon, who, for the purpose of enabling him to make a crop on the latter’s premises during 1912, advanced him a pair of mules and double harness, taking, his note therefor; and became his surety on another note given to Van Hooser ¿nd For-wood for another pair. The first note reads as follows:

“$415 and Int. Taylor, Tex. October 18, 1912.
“For value received, on or before the 1st day of November, 1913, I, we, or either of us promise to pay to the order of J. E. Lawhon at the City National Bank the sum of four hundred and fifteen and no/100 dollars, at Taylor, Williamson county, Texas, with interest thereon from November 1, 1912, at the rate of 10 per cent, per annum. I,' we, or either of us also promise to pay 10 per cent, of principal and interest of this note additional for attorney’s fees in case the same is placed in the hands of an attorney for collection after maturity, or if sued upon before or after maturity, or if collected through the probate court. The drawers and indorsers severally waive presentment for payment, protest and notice of protest, and nonpayment of this note, having deposited with them as collateral security note given for two mare mules and set of double harness, furnished by J. E. Lawhon to J. T, White to enable said White to make a crop in the year 1913 on leased premises of said Lawhon, with authority to sell the same at public or private sale, or to dispose of the same otherwise at their option on the nonperformance of this promise and without further notice.
“10-29. J. T. White.”
Written across the face: “Renewed
10/29/13.” Indorsed: “J. E. Lawhon.”
The second note reads as follows:
“$450. Taylor, Tex. September 21, 1912.
“On or before November 1, 1913, I, we, or either of us promise to pay to the order of J. S. Van Hooser and Jason Forwood the sum of four hundred and fifty ($450) dollars, with interest from date at the rate of 10 per cent, per annum, interest payable annually, for value received. This note is secured by a mortgage lien given by J. T. White on two brown mare mules about fifteen hands high and about four years old, also the first five bales of cotton raised by the said White during the year 1913, on the premises of J. E. Lawhon. In the event this note is not paid when due and the same is collected by legal proceedings or through the probate court, then we agree to pay an additional 10 per cent, on the principal and interest due as attorney’s fees.
“[Signed] J. T. White & J. E. Lawhon.”

Written across the face: “Renewed 10/29/13.” Indorsed without recourse: “J. S. Van Hooser. Jason Forwood.”

Prior to the maturity of these notes the City National Bank of Taylor, in due course of trade, became the owner of same, and an understanding was entered into between the bank, Lawhon, and White at said date that, if the amounts due on said notes were reduced to $450, and Lawhon should become surety therefor, that the bank would carry the indebtedness for another year; and, in pursuance of that agreement, the note declared upon by the bank was given, which is as follows, to wit:

“$450 and Int. Taylor, Tex. Nov. 1, 1913.
“For value received, on or before the 1st day of November, 1914, I, we, or either of us promise to pay to the order of J. E. Lawhon, at the City National Bank, the sum of four hundred and fifty and no/100 dollars at its office in Taylor, Williamson county, Texas, with interest thereon from date, at the rate of 10 per cent, per annum. I, we, or either of us also promise to pay 10 per cent, on principal and interest of this note additional for attorney’s fees in case the same is placed in the hands of an attorney for collection after maturity, or if sued upon before or after maturity, or if collected through the probate court. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note having deposited with them as collateral security against this or any other indebtedness note given for two mare mules and two mules bought of J. S. Van Hooser & Co., evidenced by note $415 favor J. E. Lawhon and note $450 favor J. S. Van Hooser and Jason Forwood, each due November I, 1913, for which this is for balance due on both notes, and this being advanced by J. E. Lawhon to make crop in 1914 on his place, with authority to sell the same at public or private sale, or to dispose of the same otherwise at their option on the nonperformance of this promise and without notice. [Signed] J. T. white, J. E. Lawhon. P. O. Taylor, E. 1, No. 1288, 10-21.”
Indorsed: “J. B. Lawhon. J. T. White to C-M. J. E. Lawhon.”

At the time this last note was executed and delivered to the bank by White and Law-hon it seems to have been understood and agreed between the bank and said parties that the balance due on said notes should be merged in the new note, and the liens securing same likewise extended, and the old notes were then marked “renewed” and handed to White, who testified that it was his intention and understanding with Law-hon and the bank that the note sued upon was secured by the two spans of mules bought of Lawhon and Van Hooser, as mentioned in the body of the note, and that he so informed appellants, that their note was a second lien on said mules, and that the City National Bank held the first mortgage thereon. Both the mortgages sued on Ijy appellants contained recitals to the effect that appellant’s lien was taken subject to the lien held by the bank and Lawhon.

We think the note sued on by the bank, under all the facts and circumstances in evidence, constituted and was a lien upon the mules in question. It embraced, we think, all the essential elements of a lien. Besides this, it contained a reference to the two first notes which explained the transaction, showing it to be a valid lien. This evidence was admissible under the authorities. See 17 Cyc. 648 to 671, inclusive; 9 Cyc. 582. In addition to this it may be said that all the parties to that instrument construed it to be a lien upon the mules referred to therein, and acted upon that construction. See 13 Cyc. 608, where it is said:

“Where a deed is of doubtful meaning, or the language used is ambiguous, the construction given by the parties themselves, as elucidated by their conduct or admissions, will be deemed the true one, unless the contrary be shown. So, where all the parties have acted upon a particular construction, such construction should be followed, unless it is forbidden by some positive rule of law.”

We think this view of the case is just and equitable, since it clearly appears that the appellants had notice of the bank’s claim at the time their mortgages were taken, which also contained recitals that the same were taken subject to the bank’s mortgage. In our opinion, the bank’s pleadings sufficiently set up the mortgage declared upon, for which reason we overrule the assignments attacking same.

It was not error to admit parol testimony in aid and explanation of the mortgages sued upon, for which reason we overrule the assignments presenting this matter.

Appellants are not in position to complain Jof the judgment rendered against White and Lawhon; they alone, we think, could exercise this right, and they are not complaining.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.
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author: HUFF, C. J.

text:
    FRIEDMAN-SHELBY SHOE CO. v. DAVIDSON.
    (No. 1015.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1916.
    Rehearing Denied Dec. 6, 1916.)
    1. Guaranty <&wkey;S6(l) — Liability:—Alteration.
    The liability of a guarantor cannot be extended by implication, or otherwise, beyond the actual terms of his contract, even though a proposed alteration would be for his benefit, and a case must be brought strictly within the terms of the guaranty, reasonably interpreted, to make the guarantor liable.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 38, 40; Dec. Dig. &wkey;36(l).]
    2. Guaranty <&=»30(5) — Construction — Alteration.
    Under a guaranty of credit for “E. E. Peoples Company, Memphis, Texas and Clovis, N. M.,” unconditionally guaranteeing whatever amount “said party” should owe, the guarantor was not liable after such party gave up business at those places and engaged in business elsewhere in Texas, as the contract could not be construed as securing the plaintiff wherever the company should transfer its business, as the term, “said party,” did not refer to Peoples personally, though he was individually doing business under the company name, and as the words “Memphis, Texas and Clovis, N. M.,” were not descriptio personse.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 41; Dee. Dig. <&wkey;36(5).]
    3. Guaranty <&wkey;2¡7 — Construction—Intention.
    The intention of the parties will be sought from the instrument, but to that end the circumstances at the time of its execution will be considered.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 28; Dec. Dig. <&wkey;>27.]
    4. Payment &wkey;>46(2) — Running Account — Application.
    Where there is a running open account between parties and no application is made by either, the law will apply the payment according to priority of time, which rule applies where one item is better secured than the other.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § .126; Dec. Dig. <&wkey;46(2)J
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by the Friedman-Shelby Shoe Company against Alex Davidson. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    W. E. Gee and Jas. N. Browning, both of Amarillo, for appellant. Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   HUFF, C. J.

This was an action, brought by the appellant, through its representative, against the appellee, Davidson, on the 'following guaranty contract:

“Friedman-Shelby Shoe Company, St. Louis, Mo. — Gentlemen: In compliance with your request for a guaranty of the tenor following to establish with you credit for E. E. Peoples Oo., Memphis, Texas and Clovis, N. M., and in consideration of one dollar to us in hand paid by you, the receipt of which is hereby acknowledged, I hereby unconditionally guarantee payment of whatever amount said party shall at any time be owing you, whether heretofore or hereafter contracted, including interest at the rate of-per cent, on any balance or balance of account or note; this guaranty is to take effect without notice of its acceptance (which is hereby waived); and it is to be an open guaranty and continue in full force and effect, notwithstanding any renewals or extensions granted by you without obtaining my previous consent thereto, and until expressly revoked by notice to that effect in writing from me to you, and said revocation is in no wise to affect my responsibility in the premises for any liability contracted. Notification of purchase and maturity of bills and of any default is hereby waived but my liability hereunder is not to exceed the sum of three thousand dollars at any one time.
“It is mutually understood that this guaranty is to bind the party (or parties) who sign it, whether the same be signed by any other party (or parties) or not.
“Dated this the 7th day of March, A. D., 1911, at St. Louis, state of Missouri.
“[Signed] Alex Davidson.
“Witness: A. Friedman.”

The appellant was a corporation, and under the laws of Missouri was dissolved, and its president, as trustee, brought the suit, alleging substantially the transfer of all the properties, assets, and obligations to the International Shoe Company. The allegations are to the effect that the E. E. Peoples Company was engaged in business, and gave the contract of guaranty to the amount of $3,000, and that upon the faith of this guaranty the appellant company sold to the Peoples Company goods to the amount of about $3,000, on the faith of the guaranty contract. The ap-pellee alleged substantially among other things, that at the tinrn the contract of guaranty was executed and guaranteed, E. E. Peoples was doing business as E. E. Peoples Company, at Memphis, Tex., and Clovis, N. M., that about a year thereafter Peoples opened stores at Electra and Amarillo, Tex., and that it was not intended by either appellant or appellees that such contract of guaranty would extend to the purchase made on behalf of any other stores than those then in operation at Memphis and Clovis, and that by the terms of the guaranty contract no obligations of the said Peoples were guaranteed other than such as were contracted in connection with the operation of the two stores at Memphis, Tex., and Clovis, N. M., then owned by him.

The facts in this case show that at the time the guaranty contract was executed by the appellee the E. E. Peoples Company was engaged in business and running stores in the towns of Memphis, Tex., and Clovis, N. M.; that about a year after that time E. E. Peoples Company opened up a store at Amarillo and Electra, Tex., and abandoned their business at the two former places; that all the goods or accounts for the Memphis store were paid in full, and there remained due by the Clovis store about $250, which amount was transferred to the Amarillo account, and carried on that account. The facts also show that there was a considerable sum paid on this account before Peoples went into bankruptcy. The facts also show that E. E. Peoples was operating under the trade-name of E. E. Peoples Company, and that he alone composed the company; that at the time of executing the contract of guaranty, only the two stores, at Memphis and Clovis, were in operation. On May 7, 1912, the appellant, through its president, wrote to Davidson that:

“Inasmuch as E. E. Peoples Company are now located in Amarillo and Electra, in addition to their old towns, I kindly ask that you sign the inclosed blank. The Peoples Company now owes us about $3,500.00 or more and I suggest that you make the amount to be guaranteed for $4,-000.00. Peoples has been a little slow but with weather conditions being settled I am confident his business will show such results as will enable him to catch up with his payments.”

The contract inclosed with the letter for Davidson to sign was in part: >

“Gentlemen: In compliance with your request for the guaranty of the tenor following to establish with you credit for E. E. Peoples Company of Amarillo, Memphis, Electra, all of Texas, Clovis, N. M. and any other store they may open and in consideration of the sum of one dollar to us in hand paid by you,” etc.

—following the terms of the former contract except that the amount is left blank. Mr. Davidson refused to sign this contract of indemnity and on June 6, 1912, they wrote again as follows:

“Some time ago Mr. Abe Friedman wrote you and sent another guaranty for you to sign for Peoples but he has not heard from you regarding same. Since he wrote you Mr. Peoples paid $400.00 on May 9th, and $350.00 on June 6th. Now, Alex, why don’t you sign that guaranty and return it to Abe,” etc.

Davidson did not respond to this letter, and still declined to sign the new contract. On the 15th of May, 1912, Davidson wrote:

“I have your letter of May 7th and note what you say referring to Mr. Peoples’ scattering show business, X have had a letter from F. M. Hoyt Shoe Company and inclose you their letter and my copy. Although I admit I have given a pretty strong letter on Mr. Peoples, but this is my opinion at this present writing. I will not guarantee any bills for him or any one else. The guaranty I gave Friedman-Shelby Shoe Company is on account of the good friendship I have for Mr. Longley and Mr. Friedman.”

He further says in his letter:

“I have to-day written Mr. Peoples and told him he ought and should not buy any shoes outside of the Friedman-Shelby Shoe Company and T believe he will follow my instructions.”

He also notified them that later he asked Peoples to advise him how he stood with Friedman-Shelby before signing another guaranty: ,

“I wish to have all data before me. Mr. Peoples will abandon the Clovis store and I am after him to confine all of it in one store, and the amount he owes you people is entirely too much. He must by all means arrange to reduce it and I have so advised him to-day. Just as soon as I have a letter from him I will let you hear from me again,” etc.

Appellant assigns error to the action of the court in refusing to sustain exception to that portion of the answer set out above, and also assigns error to the action of the court in giving a peremptory instruction for the appellee, Davidson. The liability of a guarantor—

“cannot be extended by implication, or otherwise, beyond the actual terms of his engagement. It does not matter that a proposed alteration would even be for his benefit; for he has a right to stand upon the very terms of his agreement. The case must be brought strictly within the terms of the guaranty, when reasonably interpreted, or the guarantor will not be liable,” Smith v. Montgomery, 3 Tex. 199.

It is said in that case there was no firm in existence of the description of that designated by the address to which the benefit of the guaranty could inure.

If the appellant wished to furnish goods to E. E. Peoples & Co. at Amarillo, and E. E. Peoples & Co. at Electra, it should first have applied to the appellee to renew his undertaking to guarantee the sales at those places. Appellant evidently so understood, for it did apply for a new guaranty covering those places, but the appellee, Davidson, refused to sign the guaranty for those places. The facts really will warrant the inference that the parties to the obligation interpreted the contract as only covering goods sold to the company at Memphis and Clovis. We may say in this case there was no E. E. Peoples Company at Amarillo or Electra when the guaranty 'contract was entered into. We do not believe the language of the contract susceptible of the interpretation that appellant was secured by the contract wherever and whenever the company should transfer its business. Memphis, Tex., and Clovis, N. M., are limitations upon the credit authorized to Peoples Company. As used in the contract, they are not words descriptive, but the words limit the liability to pay. It is the business enterprise at those two places whose credit is guaranteed, and not E. E. Peoples personally whose credit is guaranteed at any and all places. Certainly he did not reside at both places at the same time. In fact, the evidence shows that he was then a resident citizen of Amarillo. He carried on business at both Clovis and Memphis, and it was the indebtedness of the business-which was guaranteed; that is:

“To establish with you credit for E. E. Peoples Company, Memphis, Texas and Clovis, N. M. * * * I hereby unconditionally guarantee payment of whatever amount said party shall at any time be owing y6u.”

The term “said party” does not refer to Peoples personally, but to Peoples Company, ¡Memphis and Clovis. The testimony, as well as the allegations in the pleadings, shows that this was a trade-name, or the name of the business. The “unconditional guaranty” is to this party or business and not to any other party or business. It is limited as to time, but does not purport to entitle the business to credit at any other place. “Unconditional” will not authorize payment for any other party or business under which Peoples should operate, or the payment of indebtedness for any other place than those to which the contract limited the payment. The words are of contractual import, by which the extent of the appellee’s obligation to pay must be measured. A guarantor may define the circumstances or conditions under' which he will be liable, so that a creditor cannot hold him under other circumstances, and such creditor must show that he has complied therewith, or that the case falls within the circumstances defined by the obligation. This is illustrated by the ease of Manhattan Gas Light Co. v. Ely, 39 Barb. (N. Y.) 174, where the guaranty was that the obligor would pay for gas and meter furnished to another if the latter should fail to pay therefor. The guarantor was held relieved upon the principal debtor abandoning the premises, and that he was not liable to pay for gas furnished the new occupant, even though the company had no notice of the change. A guarantor cannot be held for goods furnished a partnership of which the principal debtor is a member with ofie whom he has taken into the partnership subsequent to making the guaranty. Coan v. Patridge, 98 N. Y. Supp. 570. Where the name of the principal debtor is changed or he enters into a • partnership, or a partnership debtor becomes a corporation and the debt becomes due by some new entity, the obligation of guaranty of the old party will not inure to the benefit of the new. Lamm v. Colcord, 22 Okl. 493, 98 Pac. 355, 19 L. R. A. (N. S.) 901; Marsh Company v. Beals, 201 Mass. 163, 87 N. E. 471; Crane v. Specht, 39 Neb. 123, 57 N. W. 1015, 42 Am. St. Rep. 562.

It is also held a guaranty to make good any loss sustained by a publisher, by intrusting books with the company as sales agent, does not cover default by the principal as to books and property intrusted by a corporation, to which the individual publisher has transferred his assets and contracts, though the contract provides the guaranty shall cover the whole period of such agency. Saunders Co. v. Ducker, 116 Md. 474, 82 Atl. 154, Ann. Cas. 1913C, 817. A guaranty that a certain firm would pay for all goods furnished them does not extend to purchases by one of the partners succeeding to the business. Bill v. Barker, 16 Gray (Mass.) 62; Parham Sewing Machine Co. v. Brock, 113 Mass. 194; White Sewing Machine Co. v. Hines, 61 Mich. 423, 28 N. W. 157. The rule appears to be generally regarded as settled that a change in a firm or corporation to which a continuing guaranty runs terminates the same. Lyon v. Plum, 75 N. J. Law, 883, 69 Atl. 209, 14 L. R. A. (N. S.) 1231, 127 Am. St. Rep. 858, 15 Ann. Cas. 1019; and notes thereunder. Where also the principal debtor is changed or his business, the indebtedness o£ which is guaranteed, is abandoned, and a new enterprise is projected under different conditions, environments, or place, we believe it to be the rule that the obligation would be thereby terminated. In this ease the uncontroverted facts show, at the time of entering into the contract, Peoples & Co. were engaged in the mercantile business at Memphis, Tex., and Clovis, N. M. The instrument was signed to establish with the appellant credit for Peoples Company, Memphis and Clovis. There is nothing to show that it was contemplated by the parties thereto that it was given to establish credit for the company at Amarillo and Eleetra; but, on the contrary, it is shown appellants requested a guaranty for those places, which was refused by appellee. The intention of the parties will be sought from the instrument, but to that end the circumstances surrounding the parties at the time of its execution will be taken into consideration. Authorities, supra. It is manifest, we think, from the instrument, as well as from the facts, Davidson did not intend to guarantee sales made to the company at Amarillo and Eleetra, or that appellant so regarded the instrument. The evident intent was to be confined to the sales to the business at the two places named.

The appellant cites cases to establish that the words, “Memphis, Texas and Clovis, N. Mex.,” are descriptio personse. We do not believe it to be necessary to review the Texas authorities cited, which are. Gayle v. Ennis, 1 Tex. 184; Lipscomb v. Ward, 2 Tex. 277; Sass v. Hirschfield, 23 Tex. Civ. App. 396, 56 S. W. 941. The first two cases clearly show the added words after the name were descriptive of the person, and could be treated as surplusage. It did not matter whether the persons were administrator or curatrix, they had the right to sue as individuals and also to indorse the notes involved in that case. The rights involved under the contracts there in question were not affected by the indorsement. In' the last case the judgment against the party, administrator, did not affect the right to have issued an execution thereon for costs against the party personally. The main reason assigned therein being that he was liable under the law for the costs personally. The case cited from South Carolina (Rouss v. King, 69 S. C. 168, 48 S. E. 220; Id., 74 S. C. 251, 54 S. E. 615), evidences the fact that in the contract of suretyship the principal obligor was described as “J. B. King, of Bishopville.” The place was there clearly descriptive of J. B. King. The eourt, on the second appeal, in the course of its opinion, said that after the business was removed to Columbia, the surety went to that place to look into the business, thereby recognizing his interests therein. The context in which the words used in the instant case negative a descriptive purpose, but directly point to the place where the credit is to be extended, and which would be guaranteed. There was evidently then a reason for naming these two places. The vicinity of the towns may have offered better business advantage than at some other point. The cases cited by the appellee in some measure support this view. Wheeler & Wilson v. Brown [65 Wis. 99] 25 N. W. 427, 26 N. W. 564; 14 Cyc. 1436.

The appellee also cites Bradshaw v. Barber [125 Minn. 479] 147 N. W. 650, which we believe to be in point. The contract in that case provided that in consideration of goods furnished Miss Lotti J. Barber, of Bridge-water, S. D., the guarantor should be liable therefor. Miss Barber disposed of her business at Bridgewater, and thereafter opened business in Two Harbors, where goods were sold to her by the creditor and the debt sued on accrued. The court in that case held the language of the contract, if taken literally, would render the guarantor liable. It is also said, for the purpose of ascertaining the meaning of the language, the same rules of construction are to be applied as in ordinary written instruments. The liability, however, is not to be extended by implication beyond the terms of his guaranty, as thus ascertained. It is also said in that case:

“He might well have been willing to guarantee her purchases while she was doing business at Bridgewater, and yet have refused to bind himself [at] another location had such been under consideration. In the nature of things such a change of location could not be made without materially affecting the risk, thus constituting a departure from the original engagement of the parties. If, therefore, the guarantor be held bound without subsequent consent, which does not here appear, it would have to be by virtue of a contract upon the terms of which the minds of the parties never met. Pri-ma facie, a guaranty of the kind under consideration is essentially local.”

The general principles announced in the above ease are recognized by our courts as applied to different facts as to time, amount and other limitations. Smith v. Montgomery, 3 Tex. 199; Clark v. Cummings, 84 Tex. 610, 19 S. W. 798; Bmar v. Gahagan, 152 S. W. 689; Schaub v. Dodge, 56 S. W. 126; Wassenick v. Ireland (Sup.) 9 S. W. 203; Amarillo Grain & Coal Co. v. Knight, 150 S. W. 318; Ryan v. Morton, 65 Tex. 258; Bullard v. Norton (Sup.) 182 S. W. 668; Waggoner Banking Co. v. Gray County State Bank, 165 S. W. 922.

By the fifth assignment it is urged that there was a balance due Peoples Company at Clovis, of $250, which was transferred to the Amarillo account. There were payments more than sufficient to satisfy this amount upon the joint or consolidated accounts by Peoples Company, and if it had so applied, this amount would have been extinguished. The sum of all the accounts, less the credits, was closed by three notes of $1,000 each, and two or three smaller notes, which latter were paid off. The rule seems to be when there is a running open account between parties and no application is made by either, the law will apply the payment according to priority of time, and this rule will apply where one item is better secured than the other. The Olovis account was oldest in point of time. The Memphis account was fully paid. We believe the trial court, in directing or applying the payments first to the Clovis items, which were the first, thereby extinguishing that account by payment, ruled correctly. Phipps v. Willis, 11 Tex. Civ. App. 186, 32 S. W. 801; Shuford v. Chinski, 26 S. W. 141.

We believe the ruling of the court, in instructing a verdict and in overruling the exceptions of the appellants in this case to the answer, was correct, and the judgment will therefore be affirmed.
      ÉzwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    ROWLAND v. KLEPPER et al.
    (No. 7552.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1916.
    Rehearing Denied Dec. 2, 1916.)
    1. Taxation <&wkey;806 — Tax Sale — Action to Set Aside — Parties.
    In a suit to vacate and set aside a judgment foreclosing a iien for taxes, and a tax sale, and to decree the land to plaintiff, owning it in his separate right, though his wife was not a necessary party to his recovery, her joinder did not injuriously affect the rights of the purchaser; but the purchaser at the execution sale under the judgment, while not a party to the tax Suit, was a necessary party to the suit to vacate, in order that his rights might be adjudicated.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1598; Dec. Dig. <§==>806.]
    2. Action <&wkey;45(l) — Joinder oe Causes.
    To avoid multiplicity of suits, different causes of action may, as a rule, be joined in one suit.
    LEd. Note. — For other cases, see Action, Cent. Dig. §§ 378-383, 385-402; Dec. Dig. &wkey;45(l).J
    3. Taxation &wkey;>648 — Tax Sale — Action to Vacate — Collateral Attack.
    A suit by the owner of land sold for taxes, making the purchaser defendant by motion to vacate and set aside judgments under which the land was sold, and for a decree for the land, was not a collateral attack on the judgments for taxes and for sale.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1316; Dec. Dig. <&wkey;>648.]
    4. Taxation &wkey;>806 — Tax Sale — Action to Vacate — Pabties—State.
    In such suit the state is not a necessary party, in view of the impracticability of making it a party.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1598; Dee. Dig. <&wkey;806.]
    5. States &wkey;>191(l) — Suit Against — Consent.
    The state, under the law, cannot be sued without permission of the Legislature.
    [Ed. Note. — For other cases, see States, Cent. Dig. §§ 179, 180, 182-184; Dec. Dig. &wkey; 191(1).]
    6. Taxation <&wkey;810(3) — Proceedings eob Sale — Service oe Citation — Sufficiency of Evidence.
    Evidence held to sustain a finding that the owner of land was not served with a citation in a suit to recover the state and county taxes and to foreclose a lien on the land.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1608; Dee. Dig. &wkey;>810(3).]
    7. Taxation <&wkey;642 — Tax Sale — Citation to Owner — Date.
    A citation, purporting to be served upon the owner in a suit to recover the state and county taxes on land, commanding him to appear on a day in September, 119010, an impossible date, was void, so that if it had been served, it would have been of no effect.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1305-1307; Dec. Dig. &wkey;642.]
    8. Taxation <&wkey;734(12) — Tax Sale — Bona Fide Purchaser — Inadequate. Price.
    Upon levy and execution for taxes, a purchaser for $40, when it was worth about $3,000, was not a purchaser in good faith, as he bought it for a grossly inadequate price.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1473; Dec. Dig. &wkey;734(12)J
    9. Taxation &wkey;>830 — Tax Sale — Action to Set Aside — Allowance to Purchaser.
    The purchaser at an execution sale of land for taxes who had settled the taxes, which had not been paid by the owner, was entitled to be reimbursed in the owner’s suit to vacate and set aside the sale.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1632, 1645; Dec. Dig. &wkey;830.]
    Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.
    Suit by D. L. and Fannie J. Klepper, making Charles P. Rowland defendant by motion to vacate and set aside a judgment in a suit to recover state and county taxes and to foreclose a lien on the land and to decree the land to plaintiffs, in which defendant in-terpleaded B. F. Brandenburg, and prayed that for any judgment suffered he have a judgment over against him. Judgment for plaintiffs, and defendant Rowland appeals.
    Reformed and affirmed.
    E. L. Harrison and J. L. Goggans, both of Dallas, for appellant. Gano & Gano, Muse & Muse, and W. T. Strange, all of Dallas, for appellees.
   RAINEY, C. J.

In 1908 D. L. Klepper owned in his separate right the land in controversy, which was assessed for taxes due the state of Texas, and the county of Dallas, and for the payment thereof he became delinquent. In the year 1909 D. L. Klepper deeded to his wife, Fannie J., one-half interest in and to said land. On January 21, 1910, suit was brought against D. L. Klepper to recover the state and county taxes for 1908, and to foreclose the lien on said land, and judgmént was rendered therefor by the district court of Dallas county. Execution was issued thereon and levied on,said land, and same advertised for sale. Sale was made, and Chas. P. Rowland became the purchaser for the sum of $40, and deed made by the sheriff to him. On May 16, 1914, D. L. and Fannie J. Klepper instituted this suit, making Okas. P. Rowland defendant by motion to vacate and set aside the judgment rendered by the district court and decree the land to them. It is alleged that the wife was a necessary party to the tas suit, as the land was their homestead and she owned one-half thereof in her own right; that D. L. Klepper did not know of said suit until a short time before the institution of this suit; that the tax judgment was for a greater amount than was due for taxes; that said suit citation was never served on him; that the citation commanded him to appear at an impossible date; that the land was not sufficiently described in the tax rolls, etc. An answer was duly filed, containing exceptions and general denial and plea of innocent purchaser at the sheriff’s sale and admitting title in one-half interest in the land in Fannie J. Klepper. B. F. Brandenburg was also interpleaded, alleging that he was sheriff at the time, and praying judgment against him for a false return of citation for any judgment that might be rendered against him, appellant. The case was submitted to a jury on special issues, and upon a return of their answers thereto judgment was rendered, setting said tax judgment aside, and decreeing the sale thereunder void, etc. Rowland appeals.

Throughout appellant’s brief many assignments of error are presented, based upon the theory that appellee’s cause of action is a collateral, and not a direct, attack upon the judgment for taxes and foreclosure of lien on land rendered by the district court. The appellees, by way of motion in the tax suit, disposed of by the district court, sought to have its judgment and the cloud cast upon the title to the land by the sale under execution sot aside. It is urged that Fannie J., the wife, nor appellant Rowland were not necessary parties in a direct attack. Under our system of practice the wife was not a necessary party for a recovery by D. L. Klepper. Still, she being a party, in no way was she such a party as injuriously affected the rights of appellant. While appellant was not made a party to the tax suit, he was a purchaser at execution sale under that judgment, and it was necessary to make him a party to this suit in order that his rights might be adjudicated.'

To avoid multiplicity of suits, as a rule, different causes of action may be joined in one suit, and this is no exception to the general rule. The appellees stated in their petition some good grounds for a direct attack on the tax judgment, and the contention that it was a collateral attack is not concurred in.

The objection that the state was not made a party is not well taken. In such a suit it is impracticable to make the state a party. The state, under the law, cannot be sued without permission of the Legislature, and it is not infrequent cases similar to this have been prosecuted and determined when the state was not made a party, so we take it that it is not necessary that the state should be made a party.

The judgment attacked recites that D. L. Klepper was duly served with citation, but failed to appear. There is in the record a citation directed to Klepper, and thereon is an officer’s return showing service. By parol evidence of Klepper it was shown that service was; never had upon him, and his wife says that the officer handed the citation to her. with the request that she deliver it to her husband, and that she did not deliver it, and said nothing about it to her husband until just before the institution of this suit. The jury found that D. L. Klepper was not served, which, we think, is supported by the testimony. It was also shown that the citation, purporting to be served, stated an impossible date for his appearance; that is, it commanded him to appear on a day in September, 119010. This rendered the citation void, and if it had been served on Klepper, it would have been of no effect. It follows that the court had no personal jurisdiction of Klepper, and upon a direct attack the court correctly set aside the judgment rendered therein.

Appellant contends that he is a purchaser of the land in good faith at execution sale, by virtue of the judgment against Klepper. We think this defense unavailable, for he bought for a grossly inadequate price. He bought in the land at the price of $40, when the property was worth about $3,000. The doctrine is laid down in Carpenter v. Anderson, 33 Tex. Civ. App. 491, 77 S. W. 291, and authorities cited therein. Mr. Justice Gill, rendering the opinion, said:

“Appellee contends that the judgment was rightly vacated because of the unconscionably small sum at which the land sold, and execution sale. Nothing is better settled than that mere inadequacy of price will not authorize the setting aside of a sheriff’s sale otherwise regular. Something more must be shown, of which the purchaser had, or ought to have had, notice. But a distinction exists between a mere inadequacy of price and a price so grossly out of proportion to the value of the property sold as to shock the conscience, and justify the court in holding that there was no consideration. While the regular record of the judgment imports absolute verity to a stranger, yet he who invokes the doctrine against a hidden vice therein must be a bona fide purchaser for value. If Hudson was not such a purchaser in this case, his vendee knew it, for he not only knew the price brought at execution sale, but knew the value of the property at that time. He know that property worth between $2,500 and $3,000 had been sacrificed for the nominal sum of $53.33, and that he purchased from Hudson at much less than its real value. The court will proceed upon the theory that the gross disproportion between price and value ought alone to have put the parties upon inquiry, and that to take advantage of it was constructive fraud. To be a bona fide purchaser for value, one must pay a fair price. We regard the disproportion so gross as to render the sum paid no consideration, and Hudson not a purchaser for value. Nichols-Steuart v. Crosby, 87 Tex. 443, 29 S. W. 380; McKamey v. Thorp, 61 Tex. 652; Bank v. Bank, 30 S. W. 366."

The amount paid by Rowland on the land having settled the taxes, which have not been paid by appellee, he is entitled to be reimbursed, and the judgment will be reformed so as to give him a lien on said land for the sum of $40, and the judgment, as reformed, will be affirmed.
      <g=»For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes