source: Caselaw Access Project

author: DAVIDSON, J. PRENDERGAST, P. J.; and HARPER, J.

license: Public Domain

text:
    GUSMAN v. STATE.
    (No. 2872.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    Concurring Opinion March 4, 1914.)
    1. Cbiminal Law (§ 719) — Argument of Counsel — Applicability to Evidence.
    The action of the district attorney in stating to the jury that since the trial he had learned that the defendant was a bad hombre, that he had committed a crime in Mexico and had to leave the country, and that they wouffi like to get hold of him, was reversible error, where there was no evidence as to such matters in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.]
    2. Homicide (§ 23) — Murder in the Second Degree — Sudden Passion — Adequate Cause.
    One who in a sudden transport of passion, aroused without adequate cause, and not in self-defense against an unlawful attack, reasonably producing a rational fear of death or serious bodily injury, with intent to kill, 'beat and killed another, was guilty of murder in the second degree.

      [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 35, 39, 40; Dec. Dig. § 23.]
    3. Homicide (§ 23) — “Murder in the Second Degree” — “Implied Malice.”
    “Implied malice” is that which the law infers from or imputes to certain acts, however suddenly done, as when the fact of an unlawful killing is established and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate or justify the act, the law then implies malice and the killing is “murder in the second degree.”
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 35, 39, 40; Dec. Dig. § 23.

    For other definitions, see Words and Phrases, First and Second Series, Implied Malice.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Mauro Gusman was convicted of murder in the second degree, and he appeals.
    Reversed.
    W. K. Saunders, of Belton, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of murder in the second degree; his punishment being assessed at 18 years’ confinement in the penitentiary.

The evidence discloses that deceased and appellant had a fight on or beside the Santa Fé railroad track in the city of Temple at night somewhere in the neighborhood of 11 o’clock. There were two eyewitnesses, a Mexican woman and her daughter, named Aequilla. The girl states: That on the night in question she was standing on the gallery and her mother was standing in the door of their residence, which was about 60 feet distant from where the fight occurred. That it was a dark night, between 10 and 11 o’clock. She recognized the defendant as one who was talking to the other man. When they were about in front of the residence, they began fighting. She called her mother’s attention to the fact that the defendant was hitting the other man, but did not know what with, but they were fighting. That defendant threw the other man down and went to beating him. He fought him until' he got him down. Before the train got there, appellant wanted to put the deceased on the track, so she says, that the train might run over him, and deceased asked appellant not to put him on the track, but let him die easy. There was no light there, but the train light that was coming north was close enough to throw light on the men, according to her version. She heard deceased ask for his money, and say, “Give me my money.” Appellant went off and left him. She said:

“I heard some people coming down the track, this man (defendant) and the other man were talking along the track, and when they got in front of the house then they started to fighting, and he (defendant) knocked him (Zabola) down and left him lying there on the track. This follow (defendant) told him (Zabola) that he left him there forever and ever, and Zabola told him not to put him on the railroad track, but please leave him there, not to molest him; he was killed and nearly dead, and let him die easy, and not to put him on the track; and he told him to leave his money there, but he took his money and pulled right away. And when he saw this light coming in front of our house, this fellow ran off right away. This man (defendant) did not say anything to Zabola when he asked him not to take his money, but just left. He took right down the fence' going north, walking very fast. I saw them both fighting, but did not see whether Zabola hit this man or not. I did not see what the defendant hit the deceased with, but I saw the defendant have the deceased down on the railroad when he first throwed him down and got on him and beat him. In the beginning of the fight the defendant took hold of the deceased and threw him down. Had him by the shoulders pulling him down backward, and he was behind him when he got him by the shoulders, in the beginning of the fight. He pulled him down like that, and hit him against the rail, and just kept on beating him. I saw him beating him, but I do not know what with. No, sir; I did not see him stamping him with his feet. All I saw was him on top of the other man and beating him, but did not know what he was heating him with. That was a bright light in that vicinity, right in front of the train that was coming, but I don’t know whether it was an electric headlight or not; it was a bright light. Just my mother and I were there at the time. My mother was right at the door, and I was a little to the side of the gallery. I was closer to the defendant and -the deceased at the time the fight was going on than my mother was.”

The evidence further discloses that near the body of the deceased was found an open pocketbook, or what the witnesses call a folding pocketbook, but no money in it. There is evidence going to show that deceased had $9. This was not found on his person. There is also some evidence to the effect that deceased’s feet were against one of the rails of the track and his head was against another one, and it would seem from the description of this condition of things there was an interval there between two railroad tracks, and that deceased’s head was against one and his feet against the other. That is left, however, in considerable confusion ; but as best we can know from this record that was the attitude of the body of deceased when found. Deceased had a couple of bruises on his head, and a considerable wound, a contused wound, on the side, and two or three of his ribs were broken. He died the following night. In the evening before his death — about 5 or 6 o’clock in the evening — he made a statement to the effect that appellant was the man who inflicted the wounds upon him. In order that no misconception may be had with reference to the body of the assaulted man, this is copied from the testimony of the witness Tom Aequilla, father of the girl who had previously testified:

“I saw the deceased, but did not have a conversation with him. When I first saw him he was laying just like that chair was the double of the track and he had his foot against the rails, right jamb up to the rails but not over them, and his head this way, and his head from the other rail about that much, and his feet up jamb to this rail.”

He declined to tell this witness who bad inflicted the injuries upon him, but told him he would tell him to-morrow. He seems not to have ascertained anything further from the deceased. The doctor who examined the deceased testified:

“He had injuries to his scalp, face, and chest, and several broken ribs. There was a lacerated wound on the scalp about this position, and a small one over the left eye, and several ribs were broken; it was impossible to tell how many. His skull was not broken, but there were some small bruises on the left side of his head, and some small bruises on the back of his head.”

A witness named Pegora testified he had a conversation with the deceased about 7 o’clock in the morning in which he told witness that he was going to die; he did not tell him how the difficulty originated; he said that Mauro Gusman was the man who killed him. “He did not tell me how Gusman beat him up, or anything like that; he told me the two scars here was where he bit him with his teeth. I could no't hardly make out much he said. It was between 10 and 11 o’clock Saturday night that he died.” This is a sufficient statement of the case. Defendant fled and was arrested in New Mexico.

The indictment charged:

Appellant killed the deceased by “unlawfully striking, beating, wounding, and bruising the said H. Zabola with his hands and feet, and with some instrument the nature and description of which is to the grand jurors unknown, and with an instrument of hard substance, a better description of which is to the grand jurors unknown, and by stamping him, the said E. Zabo-la, with his feet and by shoving, throwing, casting, and bumping the body of said E. Zabola against the cross-ties and rails of a railway track and against the earth and ground, against the peace and dignity of the state.”

The court charged the jury in this connection:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant, with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, aroused without adequate cause, and not in defense of himself against an unlawful attack, reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did unlawfully beat, bruise, wound, and strike and thereby kill E. Zabola as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the state penitentiary for any period that the jury may determine and state in their verdict, provided it be for not less than five years.”

Several objections were urged to this charge; among others, that it authorized the jury to convict appellant if he killed deceased with a deadly weapon or instrument reasonably calculated or likely to produce death. Objection is also urged to that portion of the charge which authorized a conviction if the defendant killed the deceased in a sudden transport of passion aroused without adequate cause and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury. Upon another trial the court should submit the issues to the jury as set out in the indictment. There was no allegation in the indictment that deceased was killed with a deadly weapon. While this might not be a serious matter and for which the judgment ought to be reversed, about that we express no opinion, but upon another trial the court should submit the allegations contained in the indictment. A deadly weapon or instrument reasonably calculated, etc., is not set out in the indictment, unless it be inferred from the general allegations “some means unknown to the grand jurors,” or unless it be held that the allegation which says he beat him against .the railroad track and ties, to meet this phase of the charge. We do not believe so. However, under the other phase of the charge, under all of our decisions, this charge is fatally defective. It would not be murder in the second degree, as stated by the court, if appellant killed in a sudden transport of passion aroused without adequate cause and not in defense of himself. Murder in the second degree is a killing upon implied malice; it is a killing with express malice eliminated, and without manslaughter, self-defense, or other extenuating circumstances, on the other. The jury was not informed of what is meant by “sudden transport of passion aroused without adequate cause.” And manslaughter is nowhere in the charge given; no instruction upon the law of manslaughter was embodied in the charge, nor was any definition given of what it took to constitute adequate cause. See Pollard v. State, 45 Tex. Cr. R. 126, 73 S. W. 953; Whitaker v. State, 12 Tex. Cr. App. 436; Beckham v. State, 69 S. W. 536.

In this connection, that part of the charge is urged as error which says that:

“Implied malice is that which the law infers from or imputes to certain acts, however suddenly done. Thus, when the fact of an unlawful killing is established, and the facts do not establish . express malice beyond a reasonable doubt, nor tend to mitigate, excuse, or justify the act, then the law implies malice, and the murder is in the second degree.”

This charge, standing alone without some explanation as to what is meant -by mitigation, extenuation, or justification, is not sufficient. While the court’s charge may be sufficient upon the definition of self-defense, it nowhere undertakes to instruct the jury as to any other inferior degree of the difficulty, such as manslaughter or negligent homicide, or any of those matters that would mitigate. It seems, under practically all the authorities, this is error. One of the latest cases upon this is Roberts v. State, 156 S. W. 651. See Holden v. State, 1 Tex. App. 235; Priesmuth v. State, 1 Tex. App. 480; Davis v. State, 2 Tex. App. 588; Kouns v. State, 3 Tex. App. 13. This seems to be practically the unbroken line of authorities. The court should have gone further and explained these matters to the jury. Taking the two charges criticized, and.to which objection is urged, the law of the case was not submitted to the jury as required by the statute and the decisions as applicable to a state of facts where a conviction for murder in the second degree is sought.

In this connection, while it is not urged, in view of another trial we would suggest that manslaughter be submitted to the jury if the facts upon another trial are as contained in this record; and we are further of opinion that the issue of aggravated assault should have been given. No witness swears to any instrument used by the defendant, and the evidence fails utterly to •disclose the finding of any instrument, or any fact outside of the wounds, that an instrument was used. It is true that the wounds upon the body indicate that there were broken ribs, which would tend to show violence out of the ordinary was used, and under our statute, if there is an issue which shows an ordinary fight and without intent to kill, the party might be guilty of any degree of assault usually, where the assaulted party dies. It is left entirely to inference as to how the deceased was killed or with what, if any, instrument. Deceased was lying beside the railroad track, and almost immediately after the defendant left the deceased a heavy engine passed by where the body of the deceased was near the track. As to whether this engine struck the body of the deceased and broke the ribs is not shown, except it be from the dying statement of the deceased to the effect that defendant killed him. However, there is no evidence before the court as to what sort of instrument appellant used; no witness undertaking to swear there was any bludgeon or instrument of any sort used. So, taking it altogether, we are of opinion the charge on manslaughter and aggravated assault should have been given, and we mention this so, if the facts on another trial are as upon this trial, these issues should be submitted to the jury.

There is a bill of exceptions of some length reserved to the manner of examining the Mexican witnesses for the state. The questions are clearly and pointedly leading and suggestive. The court said he permitted this because they were Mexicans and did not seem to understand very well, speaking through an interpreter. Even from that view of it, we think the questions are entirely too leading and suggestive. As illustrative:

“Q. Ask her to state to the jury what, if anything, she heard the dead Mexican or Za-bola say to him (defendant) about not taking his money. A. She said she heard this dead man ask him for his money; said, ‘Give me my money.’- Said he went off and left him. Q. Ask her to state to the jury if she heard the defendant say anything about this would be his last day? A. Told him that was his last day.”

There are two or three pages of these questions and answers. We are of opinion that even if they were Mexicans and had to speak through an interpreter, these questions went a little too far. The witnesses seem to have been intelligent, and there is an affidavit connected with the motion for new trial which indicates one of them could speak the English language well; but, in any event, it could have been asked her to state what was said by the parties at the time of the difficulty, and, if she then could not recollect or seemed to want sufficient intelligence to understand, a more direct question could have been asked. We believe under this bill of exceptions the questions were just a little too suggestive and leading. Upon another trial these matters should fié avoided.

Three bills of exception are found in the record which recite that the district attorney in his closing argument said:

“Since the trial of this case, I have learned that this defendant is a bad hombre; that Mexico is about the last place he would want to go to, as he has committed a crime over there and had to leave that country on account of it, and they would like to get hold of him for it.”

Numerous objections were urged to this manner of argument. The court signs the hill by stating that:

“The evidence showed that some time after the homicide the defendant was arrested in New Mexico, and the district attorney in opening the state’s case had alluded to the fact that the defendant had fled soon after the crime was committed. The defendant’s attorney in answer thereto stated that it was probable that defendant was not fleeing from any crime, but was , going to his home in Old Mexico. To this the district attorney in concluding the case said that from the circumstances surrounding this killing we have a right to infer that the defendant had probably fled from crime committed by him in his own home, as he had fled from this crime, and that he was not going in the direction of his home.”

The court’s attention was called to the argument of the district attorney by defendant’s counsel, and the court inquired of the district attorney what the statement was. The district attorney repeated the statement, to which the defendant excepted, and the district attorney stated that the argument was proper, and again repeated the same words. Defendant’s attorney requested the court to stop' the district attorney from repeating the statement, but under the circumstances it appeared to the court to be a proper argument and deduction from the evidence and argument.

Another bill recites that for the second time the district attorney said:

“Well, gentlemen, I repeat that since the trial of this case I have learned that this defendant is a bad hombre; that Mexico is. about the last place he would want to go to, as he has committed a crime over there and had to leave that country on account of it, and they would like to get hold of him for it.”

The same objections and same procedure was gone through, and the court qualifies this bill by referring to his qualification of the previous bill.

Another bill recites that for the third time the district attorney said:

“Well, gentlemen, I again repeat that since the trial of this case I have learned that this defendant is a bad hombre’ that Mexico is about the last place he would want to go to, as he has committed a crime over there and had to leave that country on account of it, and they would like to get hold of him for it.”

The same objections were made and the same qualification as in the previous bills; at least, the court signs the last two hills as he did the first bill.

These speeches and remarks were not justified by anything in this record. There was no evidence to the. effect that the defendant fled from Mexico to this country for crime, or that he committed any crime in Mexico. There is no evidence in this record that he was a bad man in Mexico or a bad man anywhere, unless whatever deduction might be had from the facts of the case in connection with this trouble. As to what his previous record or standing was there is no testimony. He had not placed in evidence; his reputation or character from any standpoint. There were two matters emphasized three times by the district attorney that are not justified: First, that he was a bad man; and, second, that he had fled from Mexico on account of crime in that country and for which those people over there wanted him. We have had occasion several times recently to call attention to such speeches outside the record, and about which there was no testimony. This should be avoided. They call for reversals. The prosecution should keep within the record.

The judgment is reversed, and the cause is remanded.

PRENDERGAST, P. J.; and HARPER, J.

We agree to the reversal of this case on account of the matters presented in regard to the action of the district attorney in stating to the jury “that he had learned this defendant is a bad hombre, that he had committed a crime in Mexico,” etc.; there being no evidence as to these matters in the record.

We do not think the charge on murder in the second degree is subject to the criticism herein contained, and for our views we refer to Hicks v. State, 171 S. W. 755, this day decided. Nor is any other error presented by the record when it is read as a whole.


author: HARPER, C. J. WALTHALL, J.

text:
    WICKS et al. v. COMVES et al.
    (No. 356.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 3, 1914.
    Rehearing Denied Dec. 24, 1914.)
    1. Specific Performance (§ 10) — Partial Illegality of Contract.
    A contract, illegal in part, may be specifically enforced if the illegal part is severable, but not if the contract is entire.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dee. Dig. § 10.]
    2. Contracts (§ 122) — Validity of Lease-Contrary to City Ordinance.
    A lease of space, for a fruit stand on the outside of a store building, providing that if the occupation of the space be contrary to ordinance, then the lessee will be provided space inside the building, is not illegal, though an ordinance is passed forbidding the erection of such stand on the sidewalk.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 495; Dee. Dig. § 122.]
    3. Landlord and Tenant (§ 32) — Sub-lessee-Acceptance of Rents.
    Where an assignee of a stock of confection-ary and the lease of a store actually knew that there was a sublease to a fruit dealer, who had his stand on the outside of the store, the acceptance of the rents from the sublessee ratified the lease, though it contained a provision that if the city compelled the vacation of the fruit stand, the lessee would give the sublessee space inside.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 92; Dec. Dig. § 32.]
    4- Landlord and Tenant (§ 80) — Breach of Contract — Surrender of Premises — Order of Court — Future Profits.
    Where, in sequestration proceedings between an assignee of a lease and a sublessee of the original lessee, it was expressly ordered by the court that a surrender of the premises would not prejudice the right of either party, such surrender cannot be urged as defeating the sublessee’s right to recover future profits in an’ action on the contract of lease.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 254-257; Dec. Dig. § 80.]
    Walthall, J., dissenting.
    Appeal from District Court, Harris County; N. G. Kittrell, Judge.
    Action by Louis Comves and others against Moye Wicks, Jr., and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    F. F. & E. T. Chew, of Houston, for appellants. A. B. Wilson and Cole & Cole, all of Houston, for appellees.

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

   HARPER, C. J.

Appellee Louis Comves, brought this suit against appellants, Moye Wicks, Jr., Z. Morris, G. L. Black, and A. J. Zydias for specific performance of a lease contract between James Condos & Co., and Louis Comves, and in the alternative for damages, for failure upon their part, appellants, to render specific performance. A verdict was instructed by the trial court for ap-pellees, and a judgment was rendered, for $905, from which their appeal is perfected.

The assignments of error and the several propositions sufficiently reveal the points of law involved in this appeal, so that it is not deemed necessary or expedient to quote the pleadings of the parties.

The first to seventh assignments charge error upon the peremptory instruction of the trial court, and charge that the trial court erred in the instructed verdict, in refusing a special charge, because: (a) The lease contract was in violation of a city ordinance of the city of Houston against storing or vending fruits, etc., on'sidewalks; (b) a portion of the lease contract being void and unenforceable, for illegality, it destroys the whole of the contract; (c) was the contract ratified because appellants accepted rents? (d) because appellee voluntarily surrendered the premises, and he is therefore not entitled to recover damages; (e) appellee not having been dispossessed of the premises, is not entitled to recover, because not entitled to demand the five feet square unless dispossessed.

In this class of cases the exact contract sought to be enforced must be construed, and if illegal in whole, it eannot be enforced; if in part, and not severable, then the vice permeates the whole, and it cannot be enforced in part, but if severable, and the legal part in no way depends or rests upon the illegal part, the contract is severable and the legal portion will be enforced. Being of the opinion that a correct answer to the qusery, “Is any portion of the contract sued on illegal?” must be resolved in favor of its legality as a whole, it will be unnecessary to discuss the severability of the contract.

The parts of the contract sued on essential to the determination of the questions presented by the assignments are as follows:

“This agreement of lease * * * between Jos. Condos & Co. * * * and Louis Comves * * * witnesseth that the lessor does * * * lease and demise unto the lessee * * * the possession and occupancy and use of the following property: That certain fruit stand * * * being upon the outside of the one story building now occupied by Condos Bros., as a candy store * * * said fruit stand extending from the main street entrance of Condos Bros., to the corner of the building on Texas avenue, thence to the back entrance on Texas avenue of Condos Bros, place of business, together with all shelving, * * * etc., which are a part thereof * * * for a monthly rental of $200.00 in advance * * * said lease being from the first day of May, 1911, until April 1, 1914. * * * It is expressly understood and agreed that in the event the city of Houston complains of this aforesaid fruit stand being placed upon the outside of said building and projecting over and covering a portion of the sidewalk in front and on the side of said building, or in the event that any city ordinance which is now in force or which may hereafter be passed by the city of Houston shall make it impossible for said fruit stand to remain upon the outside of said building or to project over or occupy a portion of the sidewalk around said building, and if it shall be a violation of any such city ordinance to have such fruit stand project over or occupy a portion of said sidewalk, then it shall be the right and privilege of the lessee herein to remove said fruit stand, together with all shelving, stands and other fixtures and appurtenances thereto from said sidewalk, and said Condos Bros, shall give him a space inside of said building now occupied by Condos Bros., in which space he shall be permitted to erect said fruit stand, together with all shelving, stands and fixtures thereto belonging and shall be permitted to conduct said fruit stand within said building. In • the. event it becomes necessary to remove said fruit stand inside of the building now occupied by Condos Bros., the lessee herein shall be given a space in the corner of said building on Main street and Texas avenue, said space to be a square, each side of which is to be five (5) feet in which to erect said stand. In the event said stand is erected in said building, all the privileges and rights» of both parties to this lease shall be the same as if said stand had remained upon the outside of said building.”

From the whole of this contract, it is apparent (while not expressly stipulated therein) that the understanding between the parties was that the leased premises were to be occupied by the lessee solely as a fruit stand, if at all, but there is no provision in the writing that it shall be so occupied; in other words, it is no part of the contract that it shall be so occupied. There are many provisions in this writing which binds the lessor to furnish in lieu of the structure described the space five feet square inside of the building, the existence of any one of which is sufficient to require the lessor to comply therewith. One of these is that, if it shall be a violation of any city ordinance to have such fruit stand to project over or occupy any portion of said sidewalk, etc., there being such an ordinance at the date of the contract, eo instanti, upon the signing of this contract, or at any time thereafter within the life of his contract, the lessee was entitled to have and occupy the five-foot space within the building, and the mere knowledge that the structure leased was being used by the lessee in a business prohibited by the ordinance of the city could not vitiate the contract as written. McKinney v. Andrews, 41 Tex. 363; Bishop v. Honey, 34 Tex. 245; Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808.

The stipulations in the contract above quoted expressly negative the idea that it should be used in violation of any ordinance, and its clear meaning is that the fruit stand is leased, provided it can be lawfully occh-pied by the lessee, and if it cannot, then the five-foot space is leased in its stead, by the same writing.

The premises were taken over by appellants from Condos & Bros., and the uncontradicted evidence shows that appellants had constructive and actual notice of appellee’s lease when they accepted rents. Condos told them of the lease, and it was recorded on the same day that the appellants took their bill of sale. Thereafter, with such notice, appellants accepted rents, by which acts they ratified the contract, so the court did not err in refusing the special charge requested upon ratification.

Appellant in their sixth assignment complains that the appellee voluntarily surrendered the premises, and therefore was not entitled to recover for future profits under his contract of lease. The facts are that appellants sequestrated the premises, appellee replevied, and thereafter in open court, to avoid going to trial on the cross-action of appellants for rent and possession, he agreed to surrender the premises with the express understanding in open court, and the court’s order so states, that neither parties’ rights should be in any way prejudiced by the surrender of the property to appellants. It cannot be held that under such circumstances the appellee also abandoned his right to recover damages for the breach of the contract sued on.

For the reasons given, the assignments are overruled and cause affirmed.

WALTHALL, J.

(dissenting).

On the 1st day of May, 1911, James Condos & Co. held a lease on a building owned by H. C. House, on the corner of Texas avenue and Main street in the city of Houston, Tex., and were occupying said building and conducting therein a confectionary. On the said date, Louis Comves, appellee, was a fruit dealer, and under a parol arrangement with Condos & Co. was in possession of and using during the month of May a certain fruit stand partly on the outside of said building and on the sidewalk of the corner of Main street and Texas avenue, immediately in front of the Condos &) Co. building, including about 12 or 18 inches in depth in the wall of the building, with an understanding between them that Condos & Co. would give appellee a written lease for the space he occupied of said building, and with the .further understanding that if the city complained of the fruit stand being placed on the outside of the building, and he should not be permitted, under an ordinance of the city of Houston then in force, or any other ordinance of the city, to occupy the portion projecting over and covering the sidewalk, Condos & Co. in that event would give appellee a five-foot square space on the inside of me said building, and that for the use of said space, whether for that on the outside and the 12 or 18 inches of the wall, or the space to be occupied on the inside of the building, appellee was to pay as rent to Condos & Oo. the sum of $200 on the first of each and every month, which he complied with, paying to them the said rent for the months of May and June. On the 24th day of May, 1911, Condos & Co. sold their business, stock of goods, fixtures, the lease on the building, and their subleases to the appellants, who were to close up the deal and go into possession on the 1st .day of July following, which was consummated as agreed. On the 1st day of July, appellee and Condos & Co. entered into á written lease, reciting that it was made on the 1st day of May, 1911, by the terms of which Condos & Co. leased to appellee the following:

“That certain fruit stand located on the southeast corner of Main street and Texas avenue in the city of Houston, Harris county, Texas, said fruit stand being upon the outside of the one-story brick building now occupied by Condos Bros, as a candy store, soda fountain and ice cream parlor, said fruit stand extending from the Main street entrance of Condos Bros, to the corner of the building on Texas avenue and extending thereto down Texas avenue to the back entrance of Condos Bros, place of business, together with all shelving, stands, and other fixtures belonging thereto and which are a part thereof, said fruit stand to be rented by the lessee at a monthly rental of two hundred ($200.00) dollars in advance, beginning on the 1st day of May, 1911, and thereafter on the 1st day of each and every month until the expiration of said lease; said lease being from May 1, 1911, until April 1, 1914.”

The fourth paragraph of said lease recited that:

“It is expressly understood and agreed that in the event the city of Houston complains of this aforesaid fruit stand being placed upon the outside of said building and projecting over and covering a portion of the sidewalk in front and on the side of said building, or in the event that any city ordinance which is now in force or. which may hereafter be passed by the city of Houston shall make it impossible for said fruit stand to remain upon the outside of said building or to project over or occupy a portion of the sidewalk around said building, and if it shall be a violation of any such city ordinance to have such fruit stand project over or occupy a portion of said sidewalk, then it shall be the right and the_ privilege of the lessee herein to remove said fruit stand, together with all shelving, stands and other fixtures and appurtenances thereto from said sidewalk, and said Condos Bros., shall give him space.inside of said building now occupied by Condos' Bros., in which space he shall be permitted to erect said fruit stand, together with all shelving, stands and fixtures, thereto belonging and shall be permitted to conduct said fruit stand within said building.”

The same paragraph then describes the “space to be a square each side of which is to be five feet,” and that “all the privileges and rights of both parties to this lease shall be the same as if said stand had remained upon the outside of said building.” The lease was signed and acknowledged by both parties on the 1st day of July, 1911, and on same day filed for record.

It was agreed on the trial by plaintiff and defendants that on and prior to the 1st day of May, 1911, and during the entire period in which appellee occupied and claimed to be entitled to the possession of the premises in controversy, article 694 of the Revised Code of Ordinances of the City of Houston was in force and effect, and at the time of the trial was in force and effect. The ordinance referred to made it unlawful for any person or persons to store or expose for sale or sell on any sidewalk or street in the city of Houston, any fruits, nuts, candies, tobacco, soda water, or any other goods, wares, or merchandise, or to occupy the sidewalk with any booth or frame structure for carrying on any business or occupation.

The bill of sale and assignment delivered to appellants by Condos Bros, on July 1, 1911, among other things, provided:

“The said Condos Bros., for the consideration aforesaid, transfer, assign and deliver unto the said Moye Wicks, Jr., and associates, all written subleases executed by them in favor of other parties, sublessees, to any portion of the premises described in the leases from Henry C. House to said Condos, and especially the sublease to the cigar stand and the fruit stand and to the portion 9f said premises now being used, as a moving picture show and the said Moye Wicks, Jr., and his said associates, are to respect said subleases and to receive the benefits therefrom according to the terras and conditions expressed in said subleases.”

It was admitted that appellee paid the rent monthly for the use of the premises, to the appellants from and including the month of July, 1911, to and including the month of January, 1912. Early in January, 1912, the authorities of Houston required the appellee to remove his fruit stand from the sidewalks. Appellee called on appellants to give him the five-foot square on the inside of the building, and appellants refused to do so. Appellee paid no rent to appellants after January, on account of their refusal to let him have the five-foot square, but continued to occupy the small space in the wall of the building until May 25, 1912, when he surrendered it to appellants. Appellee set up the above facts substantially in his various pleadings, and alleged that appellants had actual and constructive notice of bis possession and lease, and that by the appellants receiving the rents with knowledge of all the facts ratified the terms of the lease contract appellee had with Condos & Co. Appellee prayed for injunction against appellants, restraining them from interfering with him in taking possession of and using for his fruit store the five-foot square on the inside of the building, then occupied by appellants, and for damages. The appellants demurred generally, and both by special exception and answer claimed that appellee’s lease contract with Condos & Co. was wholly illegal and void, because of the city ordinance above stated; denied knowledge of appellee’s lease contract; denied any acceptance or ratification of appellee's said lease contract. Defendants pleaded a cross-action for possession of the space occupied by appellee, and, the appellee having sequestrated the small space in the wall above mentioned, appellants asked judgment against appellee and his sureties on the replevin bond for their damages occasioned by the wrongful withholding of the said space. On the trial, the court heard the evidence and submitted the case to the jury for their finding on a general charge. After the jury had been out for some time, the court called the jury in, withdrew the general charge, and instructed the jury to return a verdict for appellee on the ground that appellants had ratified the lease contract by an acceptance of the rent, and submitted to the jury the rule for the measure of damages for them to adjust and find. The jury, under the instruction given, found a balance for appellee and fixed his net damages at $905. The court rendered judgment for appellee and against appellants for possession of the property called for in the lease contract from Condos & Co. to ap-pellee, giving him the further use of same until the 1st of April, 1914, and judgment for the sum of $905. Other features of the case will be stated- more fully where necessary under the assignments of error to which they apply.

Appellants’ first, second, and third assignments of error and the propositions thereunder, in different ways, challenge the validity of the lease contract upon which the suit is brought, claiming that it is illegal, wholly void, and unenforceable in any of its parts, because of the ordinance of the city of Houston, then and at all times thereafter in force, forbidding the use of any of its sidewalks for the' purposes mentioned in the lease. Was the lease contract void, because illegal, in whole or in any part of it?

It has been said that the right of private contract is no small part of the liberty of the citizen, and the most important functions of courts are to maintain and enforce it, rather than to enable parties to escape from their obligations on the pretext of public policy, unless the contract contravenes public right or public welfare or some law. If courts were unmindful of such important duties, it would be a denial to parties capable of contracting of the power to make their own contracts, and assuming the guardianship of capable people, and largely destructive of property. But while that is true, it is equally important that such fundamental rights conform to the necessities of the social state and the liberty of contract to be controlled by a reasonable exercise of the police powers. It has therefore been uniformly held that parties cannot be permitted to contract with reference to those matters which, for the good of all, should be suppressed or restrained. It would be an unprofitable and endless task to enumerate the conditions under which courts have held contracts void and refused to enforce them. At common law, a consideration was illegal when it violated rules of religion, morals, or public decency, or contravened public policy or law. It' is so with us. We have many statutes prohibiting certain acts, and any contract to do the forbidden act creates no legal obligation. In the case of Heirs of Hunt v. Heirs of Robinson, 1 Tex. 74S, where appellant sought to reverse the judgment of the trial court on the ground that the contract at the time it was made was contrary to the law forbidding the alienation of the land — the subject of the contract —Justice Lipscomb said:

“It is believed to be a rule of universal application that to undertake to do an act forbidden by the law of the place where it is to be done is an invalid agreement and imposes no legal obligation. There is a moral obligation in the absence of a penalty to'obey the law. Courts are organized under the law and are required to administer it, and, it would seem to be an anomaly were they so far to sanction its violation as to give effect to a contract forbidden by the law that they are bound to respect and enforce.”

In that case, the court say that a distinction was once made in the English courts when the law duly forbid the doing of an act, and where it imposed a penalty for doing it, but the current of authority is now destructive of any such distinction, holding all contracts against law alike invalid.

But it is claimed that the fourth paragraph of the lease contract removes any feature of illegality in the contract, and that it was not unlawful in the instant case for the parties to agree, as in the fourth paragraph, that in the event the city of Houston complains of the fruit stand being placed on the outside of the building, or the city ordinance then in force should make it impossible for the fruit stand to remain on the sidewalk or project over it, then it shall be the right and privilege of the lessee to remove the fruit stand, shelving, stands, fixtures, and appurtenances from the sidewalk, and the lessors should give him space on the inside of the building; that the said fourth .paragraph inserted made a contract in every way relieved of any feature of it being in violation of the city ordinance. If there had been no city ordinance prohibiting the permanent and exclusive use of the sidewalk for purposes of a fruit stand by a private person, such use, under the authorities I have examined, would be contrary to public policy, and a contract so providing would be void. The following cases so hold: Heineck v. Grosse, 99 Ill. App. 441; Ryan v. Allen, 138 Ill. App. 52; Pagames v. Chicago, 111 Ill. App. 590. Chief Justice Marshall in discussing Armstrong v. Toler, 11 Wheat. 261, 6 L. Ed. 468, said:

“I understand the rule, as now clearly settled, to be that where the contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not enforce it. And if the contract be in part only connected with the illegal transaction, and growing immediately, out of it, though it be in fact a mere contract, it is equally tainted by it.”

In tjie same case, the learned Chief Justice said:

“I should consider a bond or promise after-wards given * * * to constitute a part of the res gestse, or of the original transaction, though it purports to be a new contract, for it would clearly be a promise growing * * * out of and connected with the illegal transaction.”

Judge Stayton quoted and applied the above statement of the law in Seeligson v. Lewis & Williams, 65 Tex. 215, 57 Am. Rep. 593. I have examined many cases similar to the case at bar, and in every case the courts have held that an abutting owner of property has no right, nor can the city confer any right, upon him to appropriate to his sole, private use any portion of the sidewalk, and therefore an agreement, by which an abutting property owner attempted to lease or grant the right to erect a stand upon the sidewalk is against public policy, and where that policy has been expressed by a city ordinance,' the act is both against public policy and the law and is void.

I do not believe that the cases referred to by the court in the majority opinion sustain the conclusion reached. In the case of McKinney v. Andrews, 41 Tex. 363, appellant sought to recover the value of a wagon and five yoke of steers, which she alleged was hired by her from her intestate for the purpose of hauling cotton from the county of Grayson to San Antonio, and which, as she avers,' appellee promised to return to her intestate or account for its use and reasonable value. Appellee answered that the wagon and team were used with the knowledge and consent of appellants’ intestate for the purpose of transferring cotton for the Confederate States from the interior of the state to San Antonio, to be exchanged for powder, lead, and other munitions of war to be used in carrying on the war against the United States, and that, being against public policy or for an illegal purpose, was void. The court simply held that mere knowledge of the unlawful purpose (if it was unlawful — a question which Judge Gould did not decide) was too remotely connected with it to avoid the contract. The suit was for the recovery of the value of the wagon and oxen, which appellee admitted he had sold and appropriated the proceeds, and was not for their hire. The court held that it might be that a recovery could not be had on the contract for the use of the wagon and team, which was tainted with illegality.

In Bishop et al. v. Honey, 34 Tex. 245, the suit was by a mechanic on a building contract, in which the defendant answered that she had the house built for a house of prostitution, and that plaintiff knew that fact when he undertook to build the house, and that the contract, being contrary to good morals, was void. The court held that, there being no allegation that plaintiff was to be concerned or interested in the contemplated illegal use of the building, he could recover for the value of the labor and material used in erecting the building. But in that case, the court held that:

“If the plaintiff is in any way the gainer by, or the partner in, an illegal contract, one which is contra bonos mores, he cannot recover upon such contract; he cannot recover upon it if it be shown that he is particeps criminis.”

The court in that case said that the house was not to be paid for out of the proceeds of an illegal vocation, but was to be paid for as the work progressed.

The only other case referred to by the court in the opinion is Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808. In this case, Corbett made a written contract with Labbe by which Corbett agreed that Labbe should bear all expenses and have the use of 1,000 picked ewes for the period of three years, and same were delivered. The sheep were valued at $2,750, and for their use Labbe was to pay semiannually a sum equal to 12 per cent, of their value, and at the end of three years, Labbe was to redeliver to Corbett the same number of picked ewes, and on failure to do so should pay the agreed value. At the end of the time the sheep were not redelivered, and the action was to recover their value. One of the answers made by Labbe was that the sheep were infected with a contagious and Infectious disease, and that the false and fraudulent representations of Corbett that they were not so diseased caused him, Labbe, to drive the sheep under the contract beyond the limits of his own land and upon the public highway, a violation of the law, the plaintiff Corbett knowing the diseased condition of the sheep. The trial court sustained the plaintiff’s demurrer to the answer, setting up the above facts. Judge Stayton, in rendering the opinion of the court, said:

“The pleadings do not allege that appellee had knowledge of the fact that the appellant intended to drive the sheep along or upon public roads in taking them from one range to another, but do allege that the appellant was caused or induced so to drive them by the representations made by the appellee to the effect that the sheep were not affected with the * * * diseases named; that is, that he was thus induced to do an act which, as to him, in the absence of knowledge that the sheep were so diseased, •would not be penal in its character, which he would not have done had he known the sheep were diseased. * * * The uses to which the parties contemplated that the ewes should be put, the breeding of lambs and the growing of wool, were lawful in themselves. The contract gave the appellant the right to them for these or any other lawful uses for the named period; but. there is nothing in it tending to show that, for the accomplishment of these purposes, any act forbidden by law was necessary, contemplated, or required by the contract.”

In the instant case, both parties were to benefit by a violation of the city ordinance.

But the counter propositions of appellee to the assignments and propositions of • appellants are to the effect that the lease contract is based upon a valid consideration, is divisible, and is therefore not void, but is enforceable as to the legal part with reference-to the space five feet square on the inside of the building. As all of the issues under these assignments and propositions thereunder and appellee’s counter propositions might be considered in the discussion under the quaere presented by appellee in his argument under his first counter proposition to appellant’s first assignment of error, we quote it:

“Quaere: It being admitted that it was unlawful to lease part of the sidewalk, as being opposed to a city ordinance in force at the time, was the contract severable, so as to be upheld as to the legal part with reference to a space five feet square on the inside? This is the issue.”

Appellee’s counter proposition, or rather quaere, it will be seen, concedes to be illegal the feature or portion of the lease contract that violates the city ordinance, because to lease the fruit stand, situated as it was partly on the sidewalk, would not only be a lease of the portion of the sidewalk occupied by the fruit stand, 'but the use of the portion of the fruit stand on the sidewalk would be to store, and expose for sale and sell the commodities of the fruit stand, on the sidewalk, the very thing prohibited by the ordinance of the city. The next part of the quaere presents the question, Was the contract severable, so as to be upheld as to the legal part? The quaere, then, assumes that the legal part was the portion of the lease contract with reference to the five-foot square on the inside of the building. I agree with that portion of appellee’s statement that a part of the lease contract is in violation of the city ordinance, and that the portion of the lease contract that violates the ordinance cannot be enforced. As to whether the contract is severable, and, if severable, what part is in violation of the city ordinance are the determinative questions in the case. Appellee’s suit in the trial court assumed that the lease contract was sever-able, and that the legal part of it was with reference to the five-foot square space on the inside of the building. If the negative of either one of these propositions is the proper construction of the lease contract, appellee has no cause of action. Let us assume for the purpose of discussing the last of the two propositions, first, that the lease contract is severable. How shall we separate or sever the contract so as to consider the parts? We are not aided by appellee’s brief in making a severance of the contract. We must, however, follow the contract and separate it as the parties to the contract contemplated it should be, if it is severable. A part of the fruit stand was in the wall of the building and did not occupy or trespass on any part of the sidewalk, and a part of the stand did occupy a part of the sidewalk. The parties to the contract contemplated that the part of the fruit stand occupying the sidewalk would have to be removed on account of the ordinance, and undertook to provide for that portion of it by giving in lieu of it the five-foot square space on the inside of the building. We then necessarily divide the contract as the parties to it divided the fruit stand — a part of it on the sidewalk and a part of it not on the sidewalk. The part on the sidewalk was the part outlawed by the city ordinance. When the sidewalk part of the fruit stand was removed, the lessee demanded of the lessor its complement on the inside — the five-foot square space contracted for. The lessee was not interrupted in his use of the part not on the sidewalk, and he remained in possession of it for some time thereafter, and until he voluntarily surrendered it. The portion of the lessee’s rent money, for the part of the fruit stand on the sidewalk before the removal of the fruit stand from the sidewalk, he tendered to the lessor for the space inside as the consideration for the space on the inside. That was the part, however, that was in violation of the city ordinance, and I necessarily conclude it to be the illegal part. But that was the part appellee was trying to enforce by his suit, that is, his demand for the space on the inside. He had no demand to make for the part not on the sidewalk, and made none. It seems to me that it necessarily follows that the lease contract was illegal in part, and that the illegal part, as to the lessee, was as to the portion of the consideration agreed to be paid for the sidewalk part of the fruit stand and rendered to the lessors, when removed, for the space on the inside, and as to the lessor, the illegal part of the contract was a lease of the sidewalk part of the fruit stand and the agreement to give the space on the inside in lieu of it should the city ordinance be enforced and the lessee be required to remove the stand. If appellee’s suit was a demand for the enforcement of the illegal part of the lease— and I hold that it was — he could not maintain it. If the basis of his suit was the illegal part of the contract, the appellants could not ratify it and make it legal by an acceptance of the rents.

The construction of the lease contract was a matter of law for the court, and if its illegal feature did not appear on its face, it did appear when the undisputed fact of the city ordinance was shown. I think the court should have instructed the jury to find against the appellee.

I am of the opinion that the ease should be reversed and remanded. ,


author: LEVY, J.

text:
    R. B. GODLEY LUMBER CO. v. SLAUGHTER et al.
    (No. 1358.)

    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Vendor and Purchaser (§ 261) — Vendor’s Lien — Assignment — Transfer of Title to Land.
    The assignee of a vendor’s lien note without an assignment of the title to the land is not entitled to have the legal title to the land decreed to be in him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    2. VENDOR AND PURCHASER (§ 261) — DEBTS Secured by Vendor’s Lien — Transfer.—■ Effect.
    Transfer of a debt secured by a vendor’s' lien transfers the lien, but not the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    3. Vendor and Purchaser (§ 261) — Vendor’s Lien — Assignment — Transfer of Land.
    Where a vendor assigned a note for a part of the purchase price secured by a vendor’s lien, together with all his right, title, and interest in the land to an insurance company, but such company, in reassigning to plaintiff’s assignor, only assigned without recourse the note and lien on the land to secure payment of the same, neither plaintiff nor his assignor acquired any title to the land; and hence plaintiff could only recover his debt and have a decree foreclosing the lien, and no.t a decree vesting the title in him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.]
    Appeal from District Court, Smith County; R. WT Simpson, Judge.
    Action by C. C. Slaughter, Jr., and others against the R. B. Godley Lumber Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered in part and affirmed in part.
    T. N. Jones, of Tyler, and Charlton & Charlton, of Dallas, for appellant. K. R. Craig, of Dallas, for appellees.

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

       writ of error pending in Suprema Court.

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

   LEVY, J.

On April 12, 1913, the appellee Slaughter filed his original petition in the district court of Smith county to recover on a vendor’s lien note for $11,329.30, together with interest and attorney’s fees; and further to recover on another note for the same amount, together with interest and attorney’s fees, alleged to be secured By a lien evidenced by a deed of trust on the same land for which the first note mentioned was given as a part of the purchase money; and further to recover a judgment for certain advances made to the defendant lumber company amounting to $600.16. The plaintiff prayed for judgment with foreclosure of the vendor’s lien which secured the first note, and for judgment with foreclosure of the deed of trust lien securing the second note, and for judgment with decree of an equitable lien on the land for the payment of the open account, and for order' of sale and writ of possession. Appellant lumber company, the maker of the notes, filed a general denial and special answer on July 1, 1913. Curtis Hancock, as receiver, appointed by the district court of Dallas county, of all the property of the lumber company, filed a petition in the case alleging the facts with reference to his appointment as receiver, and asked that he be per-1 mitted to intervene in the cause. On September 1, 1913, W. M. C. Hill, who had been .appointed trustee in bankruptcy for the lumber company by the federal District Court at Dallas, intervened and became a party to the suit, though afterwards this intervention was dismissed. On February 3, 1914, the plaintiff amended his original petition and changed his cause of action from one to foreclose the vendor’s lien to a cause of action in trespass to try title to recover the land, and changed the cause of action, in so far as it sought to obtain a foreclosure of the mortgage lien, to one praying that the debt be established as one secured by a mortgage lien, and to have the taxes paid fixed as a lien.

The case was tried to the court without a jury, and a judgment rendered for the plaintiff for the land, and also decreeing that the mortgage debt was established and secured by a mortgage lien. As no point on appeal is made in respect to the mortgage debt and judgment thereof, it is unnecessary to make a statement of the evidence in respect thereto.

The plaintiff introduced in evidence a deed from W. L. Noble to the Godley Lumber Company to the land described in the petition, which he recited as a part of the consideration or purchase money, a note for $11,329.30, expressly reserving a vendor’s lien on property to secure the payment of the note. The note, being in evidence, recited on its face that it retained a vendor’s lien to secure the payment. The deed and the note were dated December 5, 1906, and the note was due five years after date. Plaintiff introduced a conveyance from W. L. Noble, the vendor, to the Kansas City Life Insurance Company, dated September 29, 1908, by which Noble conveyed to the lumber company the vendor’s lien note executed by the lumber company to him for a part of the purchase money for the land. The conveyance states, among other things:

“And whereas, Kansas City Life Insurance Company, a corporation of Kansas City, in the county of Jackson and state of Missouri, has this day paid to said W. L. Noble the principal amount of the said note with accrued interest thereon, the receipt whereof is hereby acknowledged, in consideration of the said payment, I, the said W. L. Noble, of Dallas county, Tex., do hereby sell, assign, and sot over the said note, indebtedness and vendor’s lien upon the said land unto said Kansas City Life Insurance Company; and I, the said W. L. Noble, do also bargain, sell, and convey unto the said Kansas City Life Insurance Company all of my right, title, and interest whatsoever in and to the above-described premises, to have and to hold the said indebtedness, note, and lien, and also all the right, title, and interest of the said Noble in and to the said land, unto said Kansas City Life Insurance Company, its assigns and successors forever.”

On December 21, 1911, the Kansas City Life Insurance Company executed a conveyance to C. C. Slaughter, which, after describing the note and the amount thereof, says:

“Now, therefore, for and in consideration of the sum of eleven thousand eight hundred and ninety-five and 76/100 dollars ($11,895.76), the said Kansas City Life Insurance Company hereby transfers and delivers to said C. C. Slaughter, of Dallas county, Tex., said note and the lien on said land to secure the payment of same, said note being indorsed ‘without recourse’ on the said Kansas City Life Insurance Company; the title to which lien said Kansas City Life Insurance Company hereby warrants and defends in, through, or by it—the warranty only affects the lien as to the ownership of this company, and no further.”

There is no other clause of conveyance except as it reads above.

On April 11, 1913, C. C. Slaughter executed a conveyance to C. C. Slaughter, Jr., which, among other things, says:

“And whereas, I, the said C. 0. Slaughter, for a valuable consideration to me paid, have sold, assigned, indorsed, and transferred said note to C. C. Slaughter, Jr., of Dallas county, Tex. Now, therefore, in consideration of the premises, I do hereby grant, bargain, sell, and convey unto the said C. C. Slaughter, Jr., the vendor’s lien as retained as aforesaid in said deed from W. L. Noble to R. B. Godley Lumber Company hereinbefore set out on the lands described in said deed, hereby warranting the title to said lien on said lands to the said C. C. Slaughter, Jr., his heirs and assigns.”

There is no other clause of conveyance, except as it reads above.

The note offered in evidence has the following indorsements:

“The within note is hereby assigned to the Kansas City Life Insurance Company, the consideration therefor being a full-paid life policy for $11,000 issued this day by the assignee to the assignor.
• “[Signed] W. L. Noble.
“September 30, 1908.
“Pay to the order of C. C. Slaughter without recourse.
“[Signed] Kansas City Life Insurance Co., “By F. W. Fleming, Vice Pres.
“Without recourse on me, either in law or in equity, for value received, I hereby transfer the within note, with all liens on property connected with securing the payment thereof, to C. C. Slaughter, Jr., or order. April 1st, 1913.
“[Signed] C. C. Slaughter.”

The above instruments are all the evidence introduced by appellee in the trial of the cause pertaining to the title to the land in suit.

Opinion.

The appellant makes the point, by proper assignments, that, the plaintiff Slaughter not having acquired the superior legal title to the land, he could not, upon default in the payment of the note held by him, rescind the contract of sale and recover the land. It is well settled by the decisions of this state that the assignee of a vendor’s lien note without transfer to him of the superior title to the land is not entitled to have the legal title to the land decreed to be in him. Farmers’ Loan & Trust Co. v. Beckley, 93 Tex. 267, 54 S. W. 1027; Hamblen v. Folts, 70 Tex. 133, 7 S. W. 834; Hatton v. Bodan Lbr. Co.', 57 Tex. Civ. App. 478, 123 S. W. 163; Stephens v. Mathews’ Heirs, 69 Tex. 341, 6 S. W. 567.

And it is further well understood that the effect of the transfer of the debt is to have the lien or security follow the debt as a part of the transfer of the debt. And it is still further held by the courts that, though the lien follows the transfer or assignment of the note or debt, the assignee acquires no interest thereby in the land, and cannot recover the land unless he has acquired the legal title. Stephens v. Mathews’ Heirs, supra.

In view of this settled rule of law, the question need only be considered of whether or not in this case, which is an action for the land, and not one for foreclosure of the lien, the evidence shows that the plaintiff acquired the superior title to the land. W. L. Noble conveyed the land to the Godley Lumber Company, and expressly retained a vendor’s lien to secure a note given in part payment of the purchase money. Noble, the vendor, for a valuable consideration assigned and delivered the note to the Kansas City Life Insurance Company, and such vendor, Noble, at the same time also executed a written conveyance to the said insurance company stating that for the consideration given—

“I, the said W. L. Noble, of Dallas county, Tex., do hereby sell, assign, and set over the said note, indebtedness, and vendor’s lien upon the said land unto the said Kansas City Life Insurance Company; and I, the said W. L. Noble, do also bargain, sell, and convey unto the said Kansas City Life Insurance Company all of my right, title, and interest whatsoever in and to the above-described premises, to .have and to hold the said indebtedness, note, and lien, and also all the right, title, *and interest of the said Noble in and to the said land, unto said Kansas City Life Insurance Company, its assigns and successors forever.”

It is not doubted that this conveyance by its terms passed to the life insurance company the superior title of the vendor. The Kansas City Life Insurance Company thereafter, for a valuable consideration, transferred “without recourse” and delivered the note to C. C. Slaughter, and at the same time the Kansas City Life Insurance Company executed a written instrument providing that for the consideration given—

“the said Kansas City Life Insurance Company hereby transfers and delivers to said C. C. Slaughter, of Dallas county, said note and the lien on said land to secure the payment of same, said note being indorsed ‘without recourse’ on the said Kansas City. Life Insurance Company; the title to which lien said Kansas City Life Insurance Company hereby warrants and defends in, through, or by it—the warranty only affects the lien as to the ownership of this Company.”

If this paragraph, being the only one therein pertaining to the subject-matter of sale, does not by its terms pass the superior title, then C. C. Slaughter did not acquire the same. The conveyance undertakes to pass the “said note and the lien on said land to secure the payment of .same.” It is believed that the life insurance company by terms of the conveyance has parted, and intended only so to do, witli its title to tile note and lien expressly reserved in the deed to secure same, and has not parted nor undertaken to part with the title to the land itself. The language of the instrument defines “the lien” passed as being the lien securing the note in “the payment of same.” An assignment of the debt, as the instrument does, legally entitled the assignee to the benefit of the security, and the parties were intending this effect evidently by the instrument. Defining, as the instrument does, the “lien” intended to be passed, as being that lien expressly given as a security for the debt, it would be inconsistent with this contractual stipulation of the parties to extend by construction the meaning of the word “lien” to confer and include any right of title to the land itself. A lien upon land does not import more than security, and is legally distinguishable from a sale of the land itself.

The instrument from O. 0. Slaughter to plaintiff in this suit provided that, for the consideration given, O. 0. Slaughter does “hereby grant, bargain, sell, and convey unto the said 0. O. Slaughter, Jr., the vendor’s lien as retained as aforesaid in the deed from W. L. Noble to R. B. Godley Lumber Company, hereinbefore set out, on the lands described in said deed, hereby warranting the title to said lien on said lands to the said C. C. Slaughter, Jr., his heirs and assigns.” This conveyance, as seen, passes, and intends to pass, by its language only the lien retained in the deed to secure payment of the note, and does not pass nor intend to pass any interest in ftie land itself. There is no evidence in the record showing that appellee acquired the superior title to the land, and, failing in such proof, could not, in this action to recover the land, have decreed in him title to the land.

The judgment in his favor for the land must be reversed and here rendered in favor of appellant. As that portion of the judgment establishing the mortgage debt and lien in favor of appellee is not questioned nor complained of by any assignment, it will remain undisturbed, and such portion of the judgment will be affirmed. The cost of appeal will be taxed against appellee Slaughter.

Reversed and rendered in part and affirmed in part.


author: WILLSON, C. J.

text:
    GLASSCOCK et al. v. WELLS et al.
    (No. 1347.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1.Hospitals (§ 4) — Boakd op Managers— Appointment.
    Section 12 of Act March 26, 1913 (Acts 33d Leg. c. 39; Vernon’s Say les’ Ann. Civ. St. 1914, art. 1498?), provides for appointment by the commissioners of a board of managers for county hospitals for the care of persons suffering from illness or injury exists. Held, that a hospital established and maintained by a county, not to meet a temporary emergency like that arising from an epidemic of smallpox, but a permanent hospital, was contemplated, and appointment of a board to take charge of a building constructed for, but never equipped or used for, a hospital, and abandoned as unfit for the purpose, is not required.
    [Ed. Note. — For other cases, see Hospitals, Cent. Dig. §§ 5-10; Dec. Dig. § 4.]
    2. Hospitals (§ 4) — Board op Managers— Appointment.
    Neither does the statute require appointment of a board to take charge of pesthouses used only occasionally solely to treat eases of smallpox.
    [Ed. Note. — For other eases, see Hospitals, Cent. Dig. §§ 5-10; Dec. Dig. § 4.]
    3. Hospitals (§ 4) — Board op Managers— Appointment.
    A hospital operated by a city and county on their joint account pursuant to section 14 of Act March 26, 1913 (Acts 33d Leg. c. 39; Vernon’s Say les’ Ann. Civ. St. 1914, art. 149Sn), providing for its joint control by the commissioners’ court and city authorities, is not a county hospital, within the provision of section 12 (article 1498Z), for the appointment of a board of managers, and, moreover, control thereof by such a board is not only unauthorized but directly contrary to the provision in section 14.
    [Ed. Note. — For other cases, see Hospitals, Cent. Dig. §§ 5-10; Dec. Dig. § 4.]
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Mandamus by R. D. Glasscock and the City of Paris against Rube S. Wells and others. From a judgment for defendants, the plaintiff City of Paris appeals.
    Affirmed.
    Wright & Patrick, of Paris, Tex., for appellant. Moore & Hardison, of Paris, Tex., for appellees.

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

   WILLSON, C. J.

This was a mandamus suit brought by R. D. Glasscock and the city of Paris to compel the commissioners’ court of Lamar county to appoint a board of managers for a hospital alleged to have been established by Lamar county within its limits. It was contended that the act March 26, 1913, entitled “An act authorizing the establishment of county hospitals,” etc. (General Laws 1913, p. 71), charged said commissioners’ court with the duty to appoint such a board. On the testimony before him the trial court thought the contention should be overruled, and rendered judgment refusing complainants the relief they sought. Glass-cock, it is assumed, was satisfied with the judgment, as the appeal is prosecuted by the city alone.

At the threshold of the inquiry we are confronted with a question as to whether the city of Paris can maintain the suit or not. The question has not been argued in the briefs, and as we are of opinion the judgment should be affirmed, even though the question should be answered in the affirmative, we have not considered and will not determine “it.

It appears from the record that Lamar county owned a “poor farm,” and in 1905 and 1906 constructed thereon a hospital building, but that it never equipped or used the building for hospital purposes. The reason why the building was not so equipped and used lies in the facts, perhaps, that it was without heating or lighting facilities and was found to be so badly constructed as to be unsafe. It further appears that the county had constructed two small buildings on said farm, and that same had been used by it, and also by the city of Paris, as a place to detain, care for, and treat persons suffering with smallpox. It further appears:

“That on December 23, 1892,” quoting from findings of fact made by the trial court, “certain property known as the Aiken Hospital, within the corporate limits of the city of Paris, was conveyed to the city by W. B. Aiken, upon certain terms and conditions, among them being that the city of Paris should manage and conduct the same as a hospital and annually make sufficient appropriations of money for the purpose of conducting it as a hospital commensurate with the needs of the sick of the city of Paris and Lamar county, and requiring the admission to said hospital of all white persons who were sick as should make a written statement of their inability to pay for their care and treatment free of charge, and providing for the admission to the hospital of the indigent white sick residing in Lamar county outside of the city of Paris upon such reasonable rate of charge as shall from time to time be agreed upon by the city of Paris and the county of Lamar. That since said date the city of Paris and Lamar county have expended large sums of money in improving and adding to said hospital, sharing such expenses equally, and for several years prior to this time have made annual appropriations in equal amounts, and have jointly managed, controlled, and conducted a hospital in which both pay and charity patients are accepted; charity patients from the city of Paris and Lamar county being given preference. That by the terms of the deed of gift no person suffering from any contagious or communicable disease can be admitted into said Aiken hospital; that said Aiken Hospital affords adequate facilities for the care and treatment of all white sick of Paris and Lamar county, except persons suffering with contagious or communicable diseases.”

The act referred to above provides that:

“The commissioners’ court of any county shall have power to establish a county hospital and to enlarge any existing hospitals for the care and treatment of persons suffering from any illness, disease or injury, subject to the provisions of this act.”

It further provides that:

“When the commissioners’ court shall have acquired a site for such hospital and shall have awarded contracts for the necessary buildings and improvements thereon, it shall appoint five citizens of the county, of whom at least two shall be practicing physicians, and at least one a woman, who shall constitute a board of managers of said hospital.”

Section 12 and parts of section 14 and section 15 of the act are as follows:

“Sec. 12. Wherever a county hospital for the care and treatment of persons suffering from any illness, disease or injury exists in connection with, or on grounds of a county poorhouse or elsewhere, the commissioners’ court shall appoint a board of managers for such hospital, and such hospital, and its board of managers, shall thereafter be subject to all provisions of this act, in like manner as if it had been originally- established hereunder. Any hospital which may hereafter be established by any commissioners’ court shall in like manner be subject to all the provisions of this act.”
“Sec. 14. * * * It shall be lawful for the commissioners’ court of any county to co-operate with and to join the proper authorities of any city or town having a population of ten thousand persons or more in the establishment, building, equipment and maintenance of a hospital in said city or town, and to appropriate such funds as may be determined by said commissioners’ court, after joint conference with the authorities of such city or town as may be necessary, and the management of such, hospital shall be under the joint control of such commissioners’ court, and city authorities.
“Sec. 15. Where no provision is made as provided in section 14, and no county hospital is now provided for the purpose aforesaid, or where such provision is inadequate, it shall be the duty of the commissioners’ court of each county which now has a city with a population of more than ten thousand persons, on or before December 1, 1913, and of any county which may later have a city with a population of more than ten thousand persons, within six months from the time when such city shall have attained such population, * * * to provide for the erection of such county hospital or hospitals, as may be necessary, for that purpose, and to provide therein a room or rooms, or ward or wards, for the care of confinement cases, and a room or rooms, or ward or wards, for the temporary care of persons suffering from mental or nervous disease, and also to make provision in separate buildings for patients suffering from tuberculosis and other communicable diseases, and from time to time to add thereto accommodations sufficient to take care of the patients of the county. This time may be extended by the state board of health for good cause shown. Unless adequate funds for the building of said hospital be derived from current funds of the county, available for such purpose, issuance of county warrants and scrip, it shall be the duty of the commissioners’ court to submit, either at a special election called for the purpose, or at a regular election, the proposition of the issuance of county bonds for the purpose of building such hospital.”

The suit, it will be remembered, is not to compel the commissioners’ court to provide for the erection of a county hospital, but is to compel that court to appoint a board of managers for a county hospital alleged to have been established and to be in operation in the county.

In support of its claim to the relief sought, the city contends: First, that the buildings constructed by the county on its poor. farm, as stated, constituted a county hospital, within the meaning of the act; and, second, that the Aiken Hospital, operated as it was by the county jointly with the city, also was a county hospital, within the meaning of the act. Both contentions, we think, should be overruled.

In providing for the appointment of a board of managers for a county hospital, it is obvious, we think, that the Legislature had in mind a hospital established and maintained by a county, not to meet a temporary emergency like that arising from an epidemic of smallpox, but permanently and continuously, for the treatment of illness, disease, and injuries generally. It is manifest from the provisions of the act that the Legislature did not mean to require the appointment of such a board to take charge of the building constructed by Lamar county for use as a hospital, but which it never equipped nor used for that purpose, and which, because it was unfit for the purpose, it had abandoned all intention of ever equipping and using. It is equally manifest from those provisions that the Legislature did not mean to require the appointment of such a board to take charge of the pesthouses used only occasionally and for no other purpose than to detain, care for, and treat persons suffering with smallpox. That the Legislature had in mind an institution of a permanent character, to be continuously maintained, equipped for the care and treatment of sick and injured people generally, is indicated by such provisions in the act as those fixing the term of office of members of the board of managers at two years, requiring the board to meet at the hospital at least once in every month, to appoint a superintendent and other officers for the hospital and fix their salaries, to appoint a staff of visiting physicians, etc., and by such provisions as the one conferring upon any ill, deseased, or injured resident of the county a right, on application made to the superintendent and a compliance with regulations prescribed, to be admitted as a patient.

It is as plain, we think, that the Aiken Hospital in' the city of Paris, operated by Lamar county and said city on their joint account, was not a county hospital, within the' meaning of the provision in the act requiring the commissioners’ court to appoint a board of managers. Aside from the fact that by the terms of the gift of that property to said city it was to be managed and controlled by the city alone, it seems clear, from a provision in section 14 of the act, that the Legislature did not contemplate that a board of managers should be appointed for a hospital so operated. The provision referred to is the one declaring that the management of a hospital operated by a county and a city therein having a population of 10,000 persons, as the city of Paris had, should be “under the joint control of such commissioners’ court and city authorities.” An attempt to place this hospital under the control 'of a board of managers appointed for the purpose would not only be unauthorized by the act but would be, in face of the provision thereof, specified directly to the contrary.

The judgment is affirmed.


author: HODGES, J.

text:
    ,MILNER v. SIMS et al.
    (No. 1364.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 3, 1914.)
    1.Evidence (§ 472) — Opinion Evidence-Mental Capacity.
    The opinion of a family physician as to mental capacity to make a will or deed is inadmissible, as an invasion of the province of the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.]
    2. Deeds (§ 211) — Incompetenoy oe Gban-toe — Evidence—Sufficiency.
    Evidente held insufficient to support a finding that a grantor was mentally incompetent when executing a deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.]
    3. Deeds (§ 196) — Incompetenoy oe Gran-tob — Presumption—Burden oe Peooe.
    A grantor is presumed, at the time of the execution of a deed, to have had sufficient mental capacity to dispose of her property as she saw fit, and the burden rests on parties seeking to set the deed aside for incapacity to show otherwise.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 587-593, 649; Dec. Dig. § 196.]
    4. Appeal and Error (§ 719) — Review— Jueisdiction Below.
    Lack of jurisdiction of the trial court is fundamental, and it must be considered on appeal, even without assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    5. Quieting Title (§ 7) — Wills (§ 205)— Will as Cloud — Peobate.
    A will not probated does not constitute a cloud on title, and, until it has been, is no evidence of title.
    [Ed. Note. — For other eases, see Quieting Title, Cent. Dig. 8§ 14r-33: Dec. Dig. § 7 : Wills, Cent. Dig. §§ 507, 509-512, 561, 928; Dec. Dig. § 205.]
    6. WIles (§ 257) — Peobate and Peooe oe Execution — Jueisdiction oe Distbict Coubt.
    The power of probating wills or proving their execution for record as muniments of title is lodged by law in the county court, and the district court can only pass on such question in cases appealed ; and hence in an original proceeding, as by suit to set a will aside, it cannot forestall the action of the county court and deprive it of its original jurisdiction to determine issues as1 to validity of the will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 592, 593; Dec. Dig. § 257.]
    Apipeal from District Court, Hopkins County ; Wm. Preisor, Judge.
    Suit by Ready Sims and others against M. F. Milner. From a judgment for plaintiffs, defendant appeals.
    Reversed.
    J. H. Beavers and W. G. Russell, both of Winnsboro, for appellant. C. O. James and C. E. Sheppard, both of Sulphur Springs, and W. D. Suiter, of Winnsboro, for appellees.

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

   HODGES, J.

This is a suit filed by the appellees tp cancel a deed and a will in which certain property was conveyed to the appellant. The facts show that Mrs. M. A. Speer was the widow of J. M. Speer, who died in 1890. At the time of his death Speer and his' wife owned a tract of land situated in Hopkins county, on which the widow continued to reside until October, 1912. Some time during that month she left her former home, and thereafter resided with her daughter Mr.s. Milner, the appellant herein, who lived in Wood county. Mrs. Speer died some time during the month of May, 1913. About ten days or two weeks before her death she made a deed, in which she conveyed her interest in her real estate to her daughter Mrs. Milner. The consideration expressed in the deed was love and affection and care and attention for the grantor during the remainder of her life by Mrs. Milner.' About the same time she made a will, in which all of her property was bequeathed to Mrs. Milner. This suit was instituted by Mrs. Meed (one of the surviving daughters of Mrs. Speer) and the children of a deceased daughter, and in it they seek to have both the deed and the will canceled, as clouds upon their title to the property they would otherwise acquire by inheritance from Mrs. Speer. It is alleged that at the time of the making of the deed and will Mrs. Speer was aged and infirm ; that her mind had become impaired to such an extent that she was incapable of making either a valid deed or a valid will. It is further charged that undue influence was used by Mrs. Milner to induce her to execute both of these instruments. There being no evidence of any undue influence, that ground of complaint seems to have been abandoned, and that issue was not submitted to the jury. The court submitted the case upon special issues relating only to the mental capacity of Mrs. Speer to execute the deed and will. Upon answers finding that she was not mentally capable, a judgment was entered in favor of the appellees canceling both the deed and the will.

The first assignment which we shall notice complains of the admission of the following testimony from Dr. Attaway, a physician who had attended Mrs. Speer some months prior to her death:

“Mrs. Speer was not competent to execute a deed of conveyance or will disposing of her property and estate, and was not mentally capaci-tated to know the extent and result of the instruments.”

The court appended an explanation to the bill of exceptions, in which it is stated that before the witness was permitted to give that testimony he testified that he was a practicing physician, had known Mrs. Speer for quite a number of years, had been her family physician, and was familiar with her condition; that she was at the time suffering from senile dementia, which he explained to be disintegration of the tissues, atrophy, or a drying up of the brain cells') that such condition was progressive, and would grow worse as she grew older The inadmissibility of this character of testimony is so well settled by the decisions of our Supreme Court that it is unnecessary to do more than to refer to a leading authority upon that question, Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64. Others equally as specific might be cited, but the very proposition here involved is there so fully discussed, and the ruling so clearly announced, that further citations are unnecessary. The fact that the witness may be an expert in diagnosing mental and physical diseases does not authorize him to determine questions of law. The appellees contend, however, that, conceding that this question was objectionable upon the issue of Mrs. Speer’s capacity to execute a will, it was admissible upon the issue of her capacity to execute the deed. They insist that the courts make a distinction between controversies involving the validity of a will and those involving the validity of a deed. We are unable to appreciate the force of that suggestion. The principle upon which the testimony is rejected is applicable equally to both. If it is an invasion of the province of the jury in the one instance, it is none the less so in the other. We think the court erred in admitting the testimony quoted.

Appellant also contends that the evidence was insufficient to support the finding that Mrs. Speer was mentally incompetent when she executed the deed. The briefs of both parties quote elaborate extracts from the testimony of the witnesses as to Mrs. Speer’s mental condition during several months prior to her death. That offered by the appellees tended to show that at the time of the execution of the deed Mrs. Speer was about 87 years of age and in feeble health; that in her early life she had possessed an unusually bright mind, but for some years her mental powers had been on the decline, and that she was suffering from senile dementia; that her memory had become defective. She had also become addicted to the habit of using morphine to some extent, her mind was unsound, and she was incapable of attending to her business affairs. The testimony offered by the appellant tended to show that, although she was a woman of advanced age and was in a physicially weakened condition, her mind was still sufficiently strong to understand all of her business affairs, to know and comprehend what she was doing at the time she executed the deed and will; that she knew the full import of those documents, and comprehended the names and relation of the beneficiaries; that her mind was not unsound, but was good for one of her age.' It appears that the desire to convey the property by deed and will to her daughter, Mrs. Milner, originated with Mrs. Speer herself. There is no suggestion or intimation that the least persuasion or compulsion was used by any one to induce her to execute either of those documents. It also appears that the deed was prepared by Judge Speer, of Ft. Worth, at the special instance and request of Mrs. Speer. According to his testimony, the notary who took her acknowledgment had previously known Mrs. Speer, and she recognized him when he entered the room, although he had not seen her for a number of years. They discussed the deed and its contents, and she perfectly understood the legal import of the Instruments—fully comprehended what she was doing. He further testified that she called his attention to the fact that the field notes in the deed included a tract of land which she and her husband had previously sold to other parties, and expressed some uneasiness lest that error might invalidate the instrument. She signed the deed and acknowledged it after he had assured her that it would not have such an effect. One of the subscribing witnesses to the will, which appears to have been made about the same time, testified that 'he also had known Mrs. Speer many years prior to that time, but several years had intervened since he had seen her last; that she recognized him when he entered the room, and together they recalled occurrences that had transpired 20 years prior to that time. He also testified that she was rational ; that she understood all that she was doing; and that her mind, though impaired to some extent by age, was good—as much so as could be expected of a person of her age. This testimony is uncontradicted, except inferentially by that of the witnesses for ap-pellees, in saying that her mind was unsound, and that the impairment of her faculties, due to old age, would be continuous and grow worse as she grew older. There were several witnesses who testified that Mrs. Speer’s mind, though to some extent weakened by age, was sound, and that she fully comprehended what she was doing.

Presumptively, Mrs. Speer at the time of the execution of the deed possessed sufficient mental capacity to dispose of her property as she saw fit, and the burden rested upon the appellees' to show that she did not. We think it would be doing violence to the overwhelming testimony adduced upon the trial of this case to say that at the time of the execution of the deed Mrs. Speer did not understand the transaction in which she was about to engage; that she did not comprehend its legal import and the actual consequences, and know the objects of her bounty; in other words, that she did not fully comprehend all that was necessary to be understood and comprehended by one engaging in such an undertaking in order to make her deed valid as a conveyance. The mere fact that she was old and feeble, that her memory had become faulty and her mental faculties somewhat impaired, was not sufficient to warrant a court in setting aside her deed or will. The right of a grantor to dispose of her property according to her own wishes is just as sacred, and should be guarded with as much care, as any rights due to the living. 1 Dev-lin on Deeds, §§ 68, 69, and cases cited in notes. We suggest’ that upon another trial, unless the evidence upon this issue is materially strengthened the court should instruct a verdict for the defendant in this suit.

The court also, in entering judgment, ordered a cancellation of the will as a cloud upon the title of the appellees. It appears that no question of the jurisdiction of the court to determine that issue was raised. The lack of jurisdiction in the trial court is fundamental, and must be considered on appeal, even without assignments.

It is not stated whether or not this will had been probated. If it had not been, it did not constitute a cloud upon the title. A will is no evidence of title until it has been probated.

The power of probating wills, or of proving their execution for record in order that they may constitute muniments of title, is by our laws lodged in the county court, and the district court can only pass upon such questions in cases appealed. The district court cannot, therefore, in an original proceeding like this, forestall the action of the county court and deprive it of its original jurisdiction to determine such issues. If the will had been probated, the district court would also be without jurisdiction because of the statute which requires controversies of this character to be originally commenced in the county court.

The judgment of the district court is reversed, and the cause remanded.