author: HIGHTOWER, 0. J.

text:
    HOUSTON OIL CO. OF TEXAS v. LOFTIN.
    (No. 174.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 5, 1917.
    Rehearing Denied May 9, 1917.)
    1. Adverse Possession <3=^68 — Requisites— Claim oe Right.
    A party may establish title by adverse possession under the 10-year statute by entering for that express purpose, although he then knew he had no title.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent'. Dig. §§ 387-393.]
    2. Adverse Possession <S=49 — Extent oe Possession — Tramroad.
    Plaintiff is not prevented from establishing title by adverse possession under the 10-year statute to a 160-acre tract because defendant’s .predecessor in title operated a tramroad over a portion of such tract some 12 or 15 years before suit was filed.
    [Ed. Note. — .For other cases, see Adverse Possession, Cent. Dig. § 250.]
    3. Adverse Possession ⅞=49 — Extent oe Possession — Public Road.
    In action to establish title by adverse possession under the 10-year statute, the fact that a public road through the tract was used during the 4 years preceding suit does not segregate the land on the opposite side from plaintiff’s improvements, so as to prevent his claiming title to the entire tract.
    [E’d. Note. — For other cases, see Adverse Possession, Cent. Dig. § 250.]
    4. Adverse Possession *3=>114(2) — Extent oe Possession — Various Surveys.
    Evidence that plaintiff’s improvements and a greater portion of his field and pasture were on a survey to which he claimed title to 160 acres under the 10-year statute, warrant a judgment in his favor for the entire 160 acres out of such survey, although small portions of his field and pasture were on another survey.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 685, 686.]
    5. Adverse Possession <S=»97 — Character oe Possession — Various Surveys.
    Where plaintiff enters intending to acquire 160 acres by adverse possession under the 10-year statute, gradually extends his possession, and makes all his improvements on such survey except small portions of his field and pasture, he acquires title to 160 acres of that survey, irrespective of his rights on adjoining surveys on which he encroached.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 537-541.]
    Error from District Court, Hardin County; J. Die welly n, Judge.
    Trespass to try title by W. D. Doftin against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      H. O. Head, oí Sherman, and Parker & Kennerly and Fred L. Williams, all of Houston, for plaintiff in error. D. F. Singleton, of Kountze, for defendant in error.
   HIGHTOWER, 0. J.

This was a suit of trespass to try title filed by the defendant in error, W. D. Loftin, against the plaintiff in error, Houston Oil Company of Texas, in the district court of Hardin county, in which suit the defendant in error, as plaintiff below, sought to recover 160 acres of land out of the Nathaniel Witcher survey in Hardin county, Tex. No specific 160 acres was prayed for, but the allegations of the plaintiff were, in substance, that he was entitled to recover 160 acres of land in said Witcher survey by reason of the fact that he had been in peaceable and adverse possession of same for more than 10 years prior to the filing of the suit, and therefore claimed title to 160 acres under and by virtue of the 10-year statute of limitation. The defendant below, which is plaintiff in error here, answered by plea of not guilty,, etc., and by way of cross-action, against certain of its warrantors, who were dismissed, however, from the cause before final judgment was entered. Defendant also set up by trial amendment title under the three, five, and ten year statutes of limitation, in addition to its other titles. The cause was tried before the court without a jury, and resulted in a judgment in favor of defendant in error for a specific 160 acres of land out of the said Nathaniel Witcher survey, including the improvements of defendant in error thereon.

The record shows that the parties agreed in the lower court that the specific 160 acres awarded defendant in error by the judgment was a just and equitable partition and allowance to him, if, in fact, he was entitled to recover 160 acres of the Witcher survey. While it was not admitted on the trial below that the record title to the Witcher survey was in the plaintiff in error, Houston Oil Company of Texas, still there was no contention that the record title was not in plaintiff in error, and we shall assume, for the purposes of the disposition of this appeal, that plaintiff in error showed itself to be the owner of the record title to said Witcher survey, and that it was entitled to recover the same on its cross-action against defendant in error, unless defendant in error showed title to 160 acres thereof under his plea of 10-year limitation.

Without undertaking to quote in detail the testimony of any of the witnesses, we shall state substantially what we believe the evidence shows, as reflected by the statement of facts and the record. The undisputed testimony shows that defendant in error, about December, 1893, entered upon the land in controversy, and that he has lived upon the same continuously ever since that date; that at the time he entered upon said land he knew he had no title to any portion thereof, nor did he claim any title or right thereto, but intended at the time he entered upon the same to acquire title to 160 acres thereof under the 10-year statute of limitation; that at the time he entered upon said land there was a small dwelling house upon the same, into which defendant in error moved, and continued to occupy, and also there was a barn or crib on the land, and also a small field of perhaps 2 or 3 acres in extent. This dwelling house and crib and whatever other buildings there were upon the land at the time defendant in error went there were built by a man named Flowers, but how long before the record does not show, and the field of 2 or 3 acres was cleared and was used by Flowers, but as to what claim, if any, Flowers made to the land, or any portion thereof, the record does not show. Some years prior to 1893, 100 acres of land in the northeast corner of said Witcher survey was run out and surveyed and designated by specific metes and bounds, and therefore segregated from the remainder of said survey. This 100 acres was commonly called and known as the “Riley tract,” and is so designated by the witnesses who testified in the case-The undisputed testimony shows that at the-time defendant in error entered upon the-land in question, as herebefore stated, he did not know where the lines of the Riley tract were, but that after he had been there about a week he ascertained the boundaries of the Riley tract. The testimony further shows that another survey of land called the Frederick Lewis adjoins the Witcher survey on the north; the north line of the Witcher being the south line of the Lewis. The undisputed testimony further shows that during all the time that defendant in error has lived on the Witcher survey he has cultivated, used, and enjoyed the same, and made a crop thereon every year, and that he has continued to enlarge his field from year to year, and that at the date of the trial had inclosed a field consisting of approximately 6 or 7 acres of land on the Witcher survey. The evidence further showed that the next year after defendant in error went into possession of the land in controversy he inclosed between 12 and 14 acres of land for the purposes of a pasture, all of which was on the Witcher survey, with the exception of a very small portion, which extended over on the Lewis. This pasture was inclosed by a substantial wire fence, which has been regularly kept up from the time it was built until the date of the trial, and was used by defendant in error for pasturing his cattle, numbering from 4 or 5 to 50 head of cattle at a time. The evidence shows also that a small portion of defendant in error’s field, perhaps 1 or 1 ½ acres, extended over the north line of the Witcher survey, and onto the Lewis tract, but as to just when this field was extended over onto the Lewis is not shown by the record, but that fact, perhaps, is immaterial anyway. The undisputed, testimony further shows that defendant in error has never paid any taxes on any portion of the Witcher survey, nor has he rendered the same for taxation. The record further shows that about 11 years after defendant in error entered upon the Witcher survey, he purchased from an uncle of his 20 acres of land out of the Riley tract above mentioned, but defendant in error has never lived upon any portion of this 20 acres, nor was the same covered by any of his improvements, in so far as the record discloses. No suit was ever brought against defendant in error to recover any portion of the land in controversy, and his possession, as here-inbefore mentioned, has been continuous and peaceable, and 160 acres of the same has been avowedly claimed by him.

Plaintiff in error’s first assignment of error,, is, in substance, that the trial court erred in rendering judgment for defendant in error, for the reason that the undisputed evidence adduced upon the trial showed that defendant in error entered upon the Witcher survey, not under any claim of right, but for the express purpose of obtaining title to 160 acres thereof under the statute of 10-year limitation, and that, therefore, his possession of said land was lacking in that claim of right required by statute before title under the statutq could be matured. This assignment is submitted as a proposition.

In support of this contention plaintiff in error cites the case of Stevens v. Pedregon, 106 Tex. 576, 173 S. W. 210. The point here raised has been twice before this court, and each time the assignment raising tfie point has been overruled. It was raised the first time before this court in the case of Houston Oil Co. of Texas v. Stepney, 187 S. W. 1082, and in that case this court discussed the proposition here advanced at some length, and many of the authorities relative to the contention are there cited and discussed. We shall therefore not enter into a discussion of the question here, but overrule the assignment, and call attention to the following authorities: Charle v. Saffold, 13 Tex. 112; Kinney v. Vinson, 32 Tex. 126; Craig v. Cartwright, 65 Tex. 422; Link v. Bland, 43 Tex. Civ. App. 519, 95 S. W. 1110; Houston Oil Co. of Texas v. Stepney, 187 S. W. 1082; Brown v. Fisher, 193 S. W. 357, decided at the present term, and not yet officially reported.

Plaintiff in error’s second assignment of error is as follows:

“Judgment should have been rendered for the defendant at least for all the land in controversy, except so much as might be included in the triangle made by the tramroad on the Witch-er survey where it crossed the west boundary line of the Riley 100-acre tract, and the north boundary of the Witcher survey, which is also the south boundary line of the Frederick Lewis, because for 3 years, during which time the owner had color of title and title such as is required by the 3-ycar statute, it was in possession by this tramroad of the Witcher survey, and said tramroad and possession was therefore effective to segregate the land on the west side thereof from the land on the east side thereof. And plaintiff was not entitled to recover any land west of the tramroad without showing that after the tramroad ceased to be used that he had 10 years’ adverse possession of the land west of the tramroad.”

This assignment is also submitted, as a proposition.

As we find, no map, plat, or anything else in the record designating or showing the relative locations of the Witcher survey, the Riley 100-aere tract, and the Frederick Lewis survey, we are unable to make as plain as we would like that portion of this opinion touching this assignment, but we think it will suffice to make the following statement from the evidence, as contained in the record relative to this assignment. From the best we are able to ascertain from the record, all of the improvements of the defendant in error on the Witcher survey are situated in somewhat of a triangle between the west line of the Riley tract, the north line of the Witcher survey, and what is now a public road, which road was at one time a tramroad, presumably built and constructed by Olive Sternenberg & Oo., who were predecessors in title of the plaintiff in error herein. It is a fact, as shown by the undisputed testimony, that a tramroad was built across the Witcher survey some 400 or 500 yards west of the improvements of defendant in error, and that such tramroad was put there some time prior —perhaps 3 or 4 years prior — to 1893, at which time defendant in error entered into possession. The record does not disclose, however, with any degree of certainty, that this tramroad was ever operated, but it might be inferred from the statement of facts that it was operated at least for a short period of time after defendant in error went into possession; hut the evidence is conclusive and undisputed to the effect that this tramroad was entirely abandoned and removed at least 14 or 15 years prior to the trial of this case in February, 1916, on© of the witnesses testifying that the tramroad was removed, to his certain knowledge, 22 years prior to the time of trial. Now plaintiff in error takes the position that the mere construction of this tramroad and its operation for a short period of time by Olive Sternenberg & Oo., predecessors in title of plaintiff in error, amounted to a segregation of all the land on the west side thereof from the land on the east side thereof, and that, therefore, defendant in error, by reason of his actual possession and improvements being on the east side thereof, could acquire no title by adverse possession to any portion of the land on the west side of said tramroad without defendant in error showing that after the ti'amroad ceased to be used he had 10 years’ adverse possession of the land west of this tramroad. Plaintiff in error’s argument on this point is that it is an elementary principle that where the true owner of land is in actual possession of a part of tlie land covered by Ms title thereto, such owner has constructive possession of all of the land included in such title, which is not in the actual possession of a trespasser, though the trespasser may be claiming 160 acres under the statute of limitation, and though in the absence of such actual possession by the owner he would have, by virtue of the statute, possession to the limits of his claim to 160 acres. We do not for a moment doubt the correctness of the rule contended for by plaintiff in error, which is that when the true owner of land enters into actual possession thereof, either by himself or through a tenant, such actual possession, even though of only a part of the tract, draws to it the constructive possession of all the tract not in the actual possession of one who is a trespasser; but we do not think that the principle contended for by plaintiff in error is conclusive or has application to the case before us. If we shall concede that the construction of a tramroad across the Witcher survey by Olive Sternen-berg & Oo. was such an actual possession by that company as drew to it the constructive possession of all the Witcher survey, not in the actual possession of defendant in error, still the record in this case shows, without dispute, that this tramroad was torn up and abandoned for at least a period of 14 or 15 years prior to the filing of this suit, and, as stated by one of the witnesses, for a period of at least 22 years prior to this suit, we do not think that the mere fact that such tramroad was at one time constructed over said survey, and for a short period of time operated by Olive Sternenberg & Co., even though the true owner of the land at that time would have the legal effect to forever segregate all land on the Witcher survey west of such tramroad from all land on the survey east of said tramroad, and it being undisputed by the record that defendant in error remained in possession for this period of time,’ ranging, as the witnesses say, from 15 to 22 years after said tramroad had been torn up and abandoned, and continuing all the time to claim 160 acres oh said Witcher survey, as he had theretofore done, he was not confined to a recovery of only such portion of the Witcher survey as lay in said triangle east of said tramroad, as contended by plaintiff in error, the quantity of land in which triangle, according to the witness Mc-Clelland, being about 50 acres. There is no contention that after this tramroad was taken up and abandoned, Olive Sternenberg & Co., or any one else claiming to be the true owner of the Witcher survey, was ever in actual possession of any portion thereof, either in person or by tenant, and we think that there is nothing in this assignment, and the same is overruled.

The third assignment is:

“The possession Qf the plaintiff was not for the required 10 years, the exclusive possession required by the statute, because the evidence shows that there was a public road which was a short distance west of the improvements of said claimant, placing said improvements in a little triangle where the public road crossed the northern boundary of the Witcher survey, and the western boundary of the Riley 100-acre tract. And the said claimant, having no actual possession west of the public road, could not mature title to any land west of the public road. And the judgment was erroneous, therefore, at least, in so far as it gives judgment for anything beyond the amount of land east of said road.”

The record does disclose, without dispute, that there was a road a short distance west of defendant in error’s improvements, and it is undisputed that this road has been used by the public as a passageway for a great many years, and about 4 years prior to the trial of this case below this road was graded, and we infer that it has become a public road in contemplation of law, but up to about 4 years prior to the trial of tMs case we have no history of this road, the extent of its use, whether or not it was claimed as a public road, or what rights, if any, were set up thereto by the public, or by any person whomsoever, and this being true, we do not believe that it is shown that the presence of such' road west of defendant in error’s improvements had the effect to segregate the land on the Witcher survey west of said road from the land on the survey east of said road, so as to prevent defendant in error’s claim to 160 acres of said survey from attaching to any land west of said road. See 14th Cyc. 1155, and authorities there cited.

The fourth assignment is:

“The court erred in rendering judgment for the plaintiff, because the evidence showed that the improvements which were made the basis of the limitation claim were situated partly on the Nathaniel Witcher survey and partly on the Frederick Lewis survey, which lies just north of the Nathaniel Witcher survey, and partly on a tract of 100 acres out of the AVitcher survey called the Riley tract, which was the only part of the Witcher now owned by the Houston Oil Company of Texas. And it was therefore erroneous for the court to permit the plaintiff to select the 160 acres entirely out of the Nathaniel Witcher survey, but it should have held that the plaintiff, if he was entitled to recover any land by his adverse possession, was entitled to recover only 160 acres to be partitioned off in an eqriitable manner among himself and the owners of the Lewis survey and of the Witcher survey and of the Riley, and there was not sufficient pleading or evidence to show who owned the Lewis survey; and the owner of said survey not being a party to this suit, the court could not adjudge to the plaintiff any 160 acres, since the plaintiff had not claimed by the 10-year statute any particular 160 acres. And the defendant, having record title, should therefore have been given judgment for all the land in controversy.”

TMs assignment is submitted as a proposition.

Plaintiff in error, in support of this proposition, cites the case of Louisiana & Texas Lbr. Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S. W. 202. TMs court has heretofore had occasion to familiarize itself with the holding of the case cited, but we have again examined tlie opinion carefully, and we are unable to see' that it has any application to the real contention of plaintiff in error, as made by this assignment. The proof in the case before us is undisputed and overwhelming to the effect that all of the improvements of defendant in error, such as his dwelling house, his cribs, his outhouses, and all of his field, with the exception of perhaps an acre or an acre and a half, and all of his pasture, with the exception of a very small portion, are located on the Witcher survej', and his claim óf 160 acres on the Witcher survey has been pronounced and continuous since 1S93, and there is not a thing in the record to show that he has ever claimed a foot of land on the Lewis, or any portion of the Riley tract, with the exception of the 20 acres which he purchased from his uncle about 11 years after his entry upon the Witcher. We think, in view of the fact that all of defendant in error’s primary improvements, that is, his dwelling house, cribs, outhouses, etc., and the greater portion of his field and pasture being on the Witcher survey, and his claim being pronounced and per» sistent to 160 acres of land on the Witcher survey, with the boundaries of which he has all the time been familiar, warranted the trial court in rendering judgment in his favor for 160 acres of land on the Witcher •survey, regardless of the fact that a small portion of his field and a small portion of his pasture were on the Lewis, as disclosed by the record.

The fifth assignment is:

“The evidence showed without dispute that when the land claimed by adverse possession was first entered upon, it was entered upon by mistake, as to the boundary between it and the Riley 100-acre tract, which had never been clearly defined by the owner of the land on the Riley 100-acre tract. The plaintiff in this case, receiving improvements from the person originally entering by mistake, was not entitled to hold 160 acres by limitation until he made such extension of his actual possession and additions to his improvements as to outwardly and unmistakably indicate that he was claiming 160 acres out of the Witcher survey. And the evidence in this case was insufficient in this particular to support a judgment in favor of plaintiff.”

This assignment is submitted as a proposition.

As a matter of fact, there is nothing in the record to show that the man Flowers, who first entered upon the Witcher survey, and put the improvements thereupon, which improvements were taken possession of by defendant in error, entered upon the Witch-•er survey by mistake, for, as hereinbefore stated, there is nothing in the record to show what claim, if any, Flowers set up to the Witcher, or any other survey, and there is nothing in the record showing any connection whatever between Flowers and defendant in error; but the record does show, without dispute, that defendant in error did not enter upon the Witcher survey by mistake, and shows affirmatively and conclusively that he entered thereupon for the purpose of acquiring 160 acres thereof, under the 10-year statute of. limitation, and that he has continued to extend his possession on the Witcher gradually since he has been there, and as said before all of his improvements are upon the Witcher, with the exception of the small pozdion of his field and pasture on the Lewis, as hereinbefore stated, and this being so, it is clear to our minds that if defendant in error had acquired a title to any portion of the Witch-er survey by reason of the statute of ten-year limitation, then he has acquired a title to 160 acres of land on that survey, whatever may be his rights, if any, on the Lewis or the Riley tract. Plaintiff in error cites in support of this contention the cases of Bracken v. Jones, 63 Tex. 184; Holland v. Nance, 102 Tex. 117, 114 S. W. 346; Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559; Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153; Titel v. Garland, 99 Tex. 201, 87 S. W. 1152; Plummer v. Canal Co., 177 S. W. 1037, etc. All these cases announce what is commonly known as the encroachment doctrine, with which the able attorneys for the plaintiff! in error in this case are quite familiar, and, as we believe, the larger per cent, of the bar of this state, and especially of this part of the state, are familiar, and it would serve no useful purpose to discuss the holding of these cases at length. . Suffice it to say that in the opinion of this court, neither of the cases cited could be correctly construed as holding contrary to the judgment of the trial court, which was in favor of the defendant in error in this case. Those cases have reference to limitation claims where the claimants’ principal and primary improvements are all on one tract of land, and some small or slight improvements of his, such as small inclosures, or other incidental improvements, that is incidental to his primary possession and improvements, are on another survey in close proximity to the main improvements, and the claimant by limitation seeks to hold a large quantity, perhaps 160 acres, or the statutory quantity, on the survey upon which are located only the incidental improvements or small inclosure of such claimant, while all his primary and substantial improvements and possessions are on another and adjoining survey, and ever since the opinion of the court in Bracken v. Jones, supra, was rendered, it has been followed and rean-nounced that a limitation claimant ought not to be permitted to recover a large portion of land under a claim of limitation alone, on a survey on which he did not have his primary improvements, and which he did not put to such use as to reasonably bring notice home to the true owner that adverse and hostile claim was being set up to such survey.

While we have not .discussed each of the foregoing assignments at’ great length, we are of the opinion that the trial court was correct in rendering judgment in favor of the defendant in error for 160 acres of land on the Witcher survey, as was done, and therefore the judgment is in all things affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, Jr., C. J.

license: Public Domain

text:
    ROGERS et al. v. WHITE et al.
    (No. 182.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 26, 1917.)
    1. Tenancy in Common <®=>3 — Obeation — POWEB OE ATTOKNEY.
    A power of attorney, authorizing the grantee to litigate or compromise the grantor’s title to certain land, and conveying an undivided one-half interest therein, creates a tenancy in common.
    [Ed. Note. — For other eases, see Tenancy in Common, Cent. Dig. §§ 5-17.]
    2. Tenancy in Common ⅞=»19(1) — Mutual Rights — Pubohase oe Outstanding Title.
    A tenant in common’s purchase of an outstanding hostile title inures to the benefit of his cotenants.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 55.]
    3. Vendos, and Pukchaseb <⅜=230(1) — Bona Fide Pubchaser — Recitals in Deed.
    A grantee is not an innocent purchaser for value, where previous deeds to him of other nearby land described the tract in question as belonging to another than his grantor; he being bound by the recitals in his deed.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 502-504, 507, 510, 512.]
    Appeal from District Court, Liberty County; J. Llewellyn, Ju'dge.
    Suit by H. T. Rogers against J. E. White and others, in which plaintiff impleaded A. P. Hutton. From a judgment that plaintiff recover nothing against defendants, but recover from Hutton, Rogers and Hutton both appeal.
    Affirmed.
    J. F. Dabney, of Liberty, and Geo. A. Byers, of Houston, for appellants. E. B. Pickett, of Liberty, -for appellees.
   HIGHTOWER, Jr., C. J.

This is a suit filed by H. T. Rogers against J. E. White and the heirs of White’s deceased wife, Z. M. White, setting up an undivided one-half interest in and asking for partition of a tract containing 4.0 acres of land out of the Mays survey in Liberty county, Tex. J. E. White answered, denying that Rogers owned any interest in said 40 acres, and, becoming an actor, pleaded title to the entire 40 acres against Rogers, setting up the three, five and ten years’ statutes of limitation, whereupon the plaintiff H. T. Rogers impleaded his war-rantor, A. P. Hutton, from whom he had purchased a one-half interest in the said 40 acres claimed by White. The case was tried without a jury, and the trial court rendered judgment that J. E. White and .the heirs of his deceased wife recover the 40 acres of land in question; that the plaintiff, H. T. Rogers, take nothing by his suit against. White for partition, and recover judgment against his warrantor, Hutton, for the amount paid Hutton for the land, to which plaintiff and defendant Hutton excepted and filed a motion for new trial, which motion being overruled by the court, plaintiff, H. T. Rogers, and defendant A. P. Hutton excepted and gave notice of appeal, and have brought, this case before us for review.

. The facts disclosed that in 1902, J. E. White and wife, Z. M. White, who for many years prior thereto had lived on and occupied a portion of the Mays 320 acres in Liberty county, Tex., executed and delivered to A. P. I-Iutton a power of attorney, authorizing the said Hutton to sue for, compromise, and otherwise settle their demand to the J. J. Mays survey of 320 acres of land, situated about 18 miles southeast of the town of Liberty in Liberty county, state of Texas, and conveying to Hutton an undivided one-half interest in said survey. On September 2, 1903, A. P. Hutton acquired by purchase from T. L. Dick and wife, Mary L. Dick, a one-eighth interest in the J. J. Mays 320-acre survey. Thereafter, in cause No. 3840,. in the district court of Liberty county, Tex., A. T. Eavenson et al. brought suit in trespass to try title to recover the Mays 320-acre survey against J. E. White and A. P. Hutton, and in which suit the defendant White answered and set up claim by limitation to 160 acres off of the south half of said 320-acre survey, and as an heir to an undivided one-eighth interest in the entire survey, and disclaimed as to the rest of the survey. The defendant Hutton, in the same suit, set up claim under his deed from Dick and wife to an undivided one-eighth interest in the entire 320-acre survey, and disclaimed all interest in the rest of the survey. In the judgment rendered in this suit, in August, 1906, the defendant White recovered 40 acres, which was set apart and surveyed by order of the court, and which 40 acres of land is described as follows:

“Beginning at a stake set 21.8 vrs. N. 89 W. of White’s N. E. corner of fence, which stake is S. 73 cleg. E. 859 vrs. from the most western corner of the J. J. Mays 320-acre survey, said latter corner is marked by stone from which a post oak 16 in. in dia. brs. N. 68 deg. 30' E. 119.6 vrs. Thence S. 89 deg. E. with J. E. White’s north fence 610.3 vrs. to a post in fence marked X. Thence S. 1 deg. W. 370 vrs. to stake 19.4 vrs. south of J. E1. White’s south fence. Thence N. 1 deg. E. 370 vrs. to the place of beginning.”

The defendant White recovered by said, judgment a one-eighth undivided interest in; the 320-acre survey, after deducting the 40‘ acres recovered by White, the defendant Hutton recovered a one-eighth interest in 280 acres, or 35 acres. This suit, while a suit in trespass to try title, was also a partition-suit in result, in so far as White, upon the-one hand, an'd the defendant Hutton and all: of the plaintiffs, upon the other hand, were' concerned. Oni January 11, 1911, A. P. Hutton sold and conveyed to H. T. Rogers an undivided one-eighth interest in the J. J. Mays 320-acre survey that was awarded to him by the judgment in cause No. 3840—

“save and except from the above-described survey, all of that certain tract or parcel of land, being 40 acres of land, decreed to J. E. White out of said survey, in cause No. 3840, styled A. T. Eavenson et al. v. A. P. Hutton et al. in the district court of Liberty county, Texas, recorded in volume E, pages 152 to 157 of the minutes of said court, said 40-acre tract Ksing described by metes and bounds as follows.”

On September 13, 1913, A. P. Hutton sold and conveyed to H. T. Rogers an undivided one-half of 40 acres out of the J. J. Mays 320-acre survey, which 40 acres was awarded to J. E. White by decree in cause No. 3840, and which interest conveyed is the one-half interest out of the 40-acre tract excepted by Hutton in his deed to Rogers, dated January 11, 1911. The above facts are undisputed.

The cause is apparent which led J. E. White and his wife to execute the power of attorney to A. P. Hutton, and was evidently a desire on the part of all of them to recover, if they could, the entire J. J. Mays 320-acre survey, as said power of attorney conveyed an undivided one-half interest in and to the entire 320-acre survey, and could not be anything short of a claimed interest against all other claimants, and, as stated, with this desire, which ripened into the execution of this power of attorney, and after the execution of same, and on September 2, 1903, as above set forth, the said Hutton purchased of T. J. Dick and wife, Mary Dick, a one-eighth undivided interest in and to the J. J. Mays 320-acre survey.

■Appellants contend that White and his wife could only convey to Hutton an interest in what they actually owned in the Mays survey; that White never claimed to own the one-eighth interest of his sister, Mrs. Sherman, which interest Hutton purchased from her daughter, ■ Mrs. Dick; that White disclaimed to own 160 acres of the survey in said suit No. 3S-10, and only established limitation title to 40 acres out of said survey, and Hutton disclaimed, as against the plaintiff in that suit, all but the undivided one-eighth interest he had bought from Mrs. Dick; that, such being the state of the ease, the trial court erred in this case by holding that White and Hutton were tenants in common as to the entire 320 acres, and that the one-eighth interest acquired by Hutton from Mrs. Dick inured to the benefit of White as a eotenant.

Opposed to this, appellees contend that by the power of attorney and conveyance from J. E. White and wife to Hutton, in 1902, Hutton and appellee became tenants in common to the entire 320 acres of the Mays survey, and whatever interest subsequently acquired therein by Hutton, in this ease being the undivided one-eighth interest purchased by Hutton from Mary L. Dick and husband, inured to the benefit of his cotenants, J. E. White and wife, and Mrs. White’s heirs; that the judgment in cause No. 3840 was an equitable partition of the 40 acres of land awarded to J. E. White, and the 35 acres of land awarded to A. P. Hutton.

That J. E. White and A. P. Hutton, at the time of the execution of the power of attorney from White and wife to Hutton were attempting to pave the way to recover the entire J. J. Mays 320-acre survey by limitation there can be no question; and both were, after the execution of this power of attorney, asserting claim to the entire survey.' A part of the terms stated in the power of attorney by White and wife, and accepted by Hutton, “to sue for or compromise and otherwise settle our title to the J. J. Mays survey of 320-aeres of land; * * * and whereas, the said A. P. Hutton will probably have to incur considerable expense,” etc., therefore said White and wife gave, granted, and conveyed “to said A. P. Hutton, an undivided one-half interest in all of the said land in said survey,” etc.; and, since Hutton accepted this power of attorney, and claimed what interest in the entire survey he could recover, he necessarily became a tenant in common with White and his wife, and by purchasing a one-eighth interest from Mary Dick and husband, it is apparent that he was attempting to quiet the title to that portion purchased by him, and, this being true, this purchase ought to and should inure to the benefit of his cotenants, White and wife. Roberts v. Thorn, 25 Tex. 734, 78 Am. Dec. 552.

Though the appellant Rogers claims to be an innocent purchaser for value from Hutton of the one-half undivided interest of Hutton in the 40 acres set apart to White in the decree in cause No. 3840, we are of the opinion that he was not an innocent purchaser, for the reason that the recitals in several deeds forming links in his chain Qf title, in which the grantors in these deeds make such recitals of ownership in White of this 40 acres as at least would put a reasonably prudent man upon inquiry. In the deed from Eavenson to Rogers, in which seven-eighths interest in the Mays survey is conveyed, we find this recital “less the J. E. White 40-acre tract,” and in which deed the grantor, Eavenson, in excepting the White 40-acre tract, described same by metes and bounds, and referred to it as “the hereinafter described tract belonging to J. E. AVhite.” A recital in a deed of a particular fact is at least evidence against the parties to the conveyance and their privies. Burk v. Turner, 79 Tex. 278, 15 S. W. 256. In regard to recitals in deeds, the general rule is that all parties to a deed are bound by the recitals therein. Kimbro v. Hamilton, 28 Tex. 567. The facts sustain the trial court in his holding that Hutton was awarded and adjudged his fair and full portion of the Mays survey when he was decreed an undivided interest of 35 acres therein by judgment rendered in cause No. 3840.

It is our opinion that the judgment of the trial court should be affirmed; and it is so ordered.

The foregoing opinion was prepared by Judge A. E. DAVIS, late Associate Justice of this court, just before his death, and the verbiage employed is entirely his own, but the opinion was not filed prior to his death. The present members of the court concur in the result reached by their lamented Brother, and the judgment of the trial court is in all things affirmed.
      fcs>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    CITY OF HENDERSON v. FIELDS.
    (No. 1740.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 9, 1917.
    Rehearing Denied April 12, 1917.)
    1. Trial <§=o3G1 — Special Findings — Setting Aside — Defects.
    Where, in an action for injuries, the jury’s special findings, properly signed by the foreman, as required by Vernon’s Say les’ Ann. Civ. St. 1914, art. 1977, found defendant guilty of negligence, which without fault on plaintiff’s part proximately caused her injury, to her damage in a sum therein specified, and therefore authorized a judgment for her, the failure of the foreman to sign other findings on issues submitted at defendant’s request, which were either immaterial, outside the testimony, or a mere repetition of those submitted by the court at its own instance, was not a ground for setting aside the authenticated findings.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 862-864.]
    2. Municipal Coepoeations <s=^819(l) — Defective Streets — Evidence — Lack of Funds.
    In an action for injuries caused by falling into a ditch across a sidewalk in a city incorporated in 1911, evidence that a bridge across the ditch would have cost only a few dollars, and that besides its-ordinary revenue from taxation the city in 1913, by a sale of bonds, acquired a fund of about $19,000 for use in maintaining its streets, which fund was not shown to be exhausted, would have warranted a finding that the city did not lack funds to place the crossing in a safe condition prior to the accident in 1914.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1739.]
    3. Municipal Coepoeations <®=^819(6) — Defective Streets — Evidence—Notice/.
    In an action for injuries caused by falling into a ditch across a sidewalk at the intersection of two streets, where it appeared that such streets were among those most traveled, and that their intersection was only about a block? from the public square, the testimony was sufficient to show that the city had notice of the defect in the street.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1741.]
    4. Municipal Coepoeations <@=>788(2) — Defective Streets — Liability—Notice.
    Where a city itself directed the digging of a ditch across a sidewalk, and at the time of an accident it was in practically the same condition as when it was opened, the city could not claim ignorance of the defect.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1642, 1652.].
    5. Municipal Corporations <g^821(22) — Defective Streets — Evidence—Conteibuio - ry Negligence.
    In an action for injuries caused by falling into a ditch crossing a sidewalk, testimony that after plaintiff fell a man with a lantern came where she was, and assisted in removing her from the ditch, did not conclusively show that she knew she could have - procured a light or assistance in crossing the ditch.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1754.]
    6. Municipal Corporations <S=5821(24) — Defective Streets — Questions for Jury — ' Contributory Negligence.
    It was not contributory negligence as a matter of law for plaintiff to attempt to cross a ditch which crossed the sidewalk, in the dark, though she knew of the existence of the ditch.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1755.]
    7. Trial <§= 133(6) — Argument of Counsel-Cure by Court’s Action.
    In an action for injuries to 'a woman, defendant’s counsel attempted to impeach her veracity, and one of plaintiff’s counsel, in the presence of the jury, stated that, if it was his wife they were endeavoring to so impeach, he would have taken one of defendant’s counsel by the throat and shaken Mm to death. The court promptly reprimanded counsel, instructed the jury to ignore the remark, and in his charge told them not to consider any remarks by the attorneys except such as were proper deductions fi’om the evidence and to disregard all other remarks. Held, that counsel’s remark, though censurable, did not require a reversal of the judgment.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316.]
    8. Exceptions, Bill of ®^31 — Necessity of Approval by Trial Judge.
    Under Vernon’s Sayles’ Ann. Civ. St.' 1914, art. 2063, requiring the party taking a bill of exceptions to reduce it to writing and present it to the judge for his allowance and signature, alleged misconduct of counsel could not be reviewed where the bill of exceptions presenting the matter was not approved.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 36.]
    9. Appeal and Error <⅞=>1165 — Reversal-Failure to Obtain Bill of Exceptions.
    A judgment would not be reversed on the ground that the death of the trial judge deprived appellant of a bill'of exceptions approved as required by statute, where it appeared that the trial judge was not disabled to approve the bill for five weeks after the denial of the motion for a new trial and the adjournment of the term, and no excuse for the failure to secure his approval within that time was shown.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4522.]
    Appeal from District Court, Ruslc County; W. O. Buford, Judge.
    Action by Miss Dotie Fields against the City of Henderson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    N. B. Morris, of Palestine, C. L. Brach-field, of Henderson, and T. J. Arnold, of Houston, for appellant. R. T. Jones and Jas. Y. Gray, both of Henderson, for appel-lee.
   WILLSON, O. J.

This was a suit by ap-pellee against appellant for damages for personal injury she suffered as a result of a fall she sustained in attempting to cross a ditch situated about a block from the public square within appellant’s corporate limits. The appeal is from a judgment in her favor.

The ditch referred to ran from north to south on the west side of High street, and crossed the sidewalk on the north side of East street. It waa 2 or 3 feet deep, about 1 foot wide at the bottom, and 3 or 4 feet wide at the top. About 2 o’clock of the morning of April 4, 1914, appellee, in going from the home of a sick neighbor on East street, west of High street, to her own home on East street, east of High street, fell into the ditch, and as a result of the fall was seriously and permanently injured. Appellee was accompanied by Mrs. Wood and Mrs. Crim. They were on the sidewalk on the north side of East street. They knew the location of the ditch, and that they would have to cross it to get to their homes, but on account of the darkness could not see it as they approached it. They were proceeding carefully, holding each other’s hands, appel-lee a short distance in advance of her companions, when they reached the ditch-. Testifying as a witness, appellee said:

“It was dark. You couldn’t see your haud before you, couldn’t see anything- in front of you, and the only way we could get along was by staying as close together as we could. We were feeling our way along the best we could to get to this place, and just before we got there I told Mrs. Wood to be careful, because it -would be terrible (she was a large woman) if .-she fell in that hole, or ditch rather; and as I -went to speak to her about it, I still had bold ■ of lief hand, I got to the edge of the ditch, just feeling along, and I went down. Just as my foot went down and in the ditch I went down; dliat seems to be as near as I can recollect — suspended in the air. I don’t think I ever bit the '.bottom until I hit it finally in falling.”

The ditch was dug by employSs of appellant about a year before the accident occurred. .I’lank thrown across it had served as a bridge for crossing over it, but some time before the night when appellee fell the plank had been removed, and the only way it could .be crossed at the time she was injured was ±o step or jump across or to go down one of its sides and up the other.

On special issues submitted to them the jury found: (1) That appellant was negligent in permitting the ditch to be in the condition it was in; (2) that its negligence was the proximate cause of the injury to appel-lee ; (3) that the injury she suffered — broken hip bone — was permanent; (4) that $4,000 would compensate her for the injury; (5) that appellee was not guilty of contributory negligence; (6) that appellant had notice of the condition of the ditch before the time appellee was injured; (7) that the condition of the ditch was not “caused by any other person or persons except officers of the city government.”

It seems that the jury also found on issues submitted .to them at appellant’s request: (X) That appellee knew of the condition of the crossing; (2) that there was no better and safer way than the one she chose to go to her home; (3) that the condition of the ditch was not caused by some other person, than those of the appellant’s officers without its knowledge and consent; (4) that before the accident occurred, “taking into consideration the length of time it had been incorporated, the number, length, and condition of the sidewalks to repair, and the amount of funds it had with which to make the repairs,” appellant had not used ordinary care to put the sidewalk appellee was walking upon in an “ordinarily safe condition” at the place where it crossed the ditch; (5) that the condition of the ditch was not due to unusually heavy rains; (6) that appellee at the time she fell was not suffering from any physical defect which was the proximate cause of her falling. We say it seems that the jury made the findings just cited. We find answers to the questions submitting the issues written on the papers containing the requests to submit them and following the questions, indicating such findings to have been made; but the answers do not appear to have been signed by the foreman of the jury, or otherwise identified as answers made by them to the questions, except that it was recited in the judgment that the answers were made by them. On the findings the court rendered judgment in appellee’s favor against appellant for $4,-000.

It is insisted that the findings should be “wholly set aside, disregarded, and held for naught,” because the answers written on the papers containing issues submitted at appellant’s request were not signed by the foreman of the jury. It has been held that the statute (article 1977, Vernon’s Statutes) which requires the verdict to be signed by the foreman is directory, and that an objection >to the verdict on that ground, made after it was received and the jury discharged, comes too late. Dunlap v. Milling Co., 43 Tex. Civ. App. 269, 95 S. W. 43; Crosby v. Stevens, 184 S. W. 705. Appellant’s objection that the findings in question were not so signed was made for the first time in its motion for a new trial in the court below. But if it appeared that appellant had promptly objected to the verdict on the ground stated, and that its objection had been overruled, it would not be a reason for setting aside the findings of the jury on other issues submitted to them. The findings of the jury on such other issues were signed by the foreman of the jury, and covering, as they did, all the material issues made by the testimony, were a sufficient basis for a judgment. The fact that it did not appear in the way the statute directed that the jury had made findings on immaterial issues, or on issues not made by testimony submitted to them at appellant’s request, or on issues which, were a mere repetition of those submitted to them by the court at his own instance, would not be a reason for setting aside findings made by them and authenticated as directed by the statute on the material issues of the case. As shown in the statement above, the findings made by the jury and properly authenticated were that in permitting the ditch to be in the condition it was in at the time ap-pellee fell into it appellant was guilty of negligence which, without fault on her part, proximately caused the injury she suffered, to her damage in the sum of $4,000. These findings authorized the judgment rendered by the court.

Appellant insists further, however, that the findings that it was guilty of negligence and that appellee was not guilty of contributory negligence proximately causing the injury were without the support of evidence.

Appellant does not deny that it owed to appellee the duty to use ordinary care to keep the sidewalk where it crossed the ditch in a reasonably safe condition for the use she was making of it at the time she was injured; but, in support of its contention that the evidence was not sufficient to show it had failed in the performance of that duty, insists that it was not incorporated until 1911, and argues that the time intervening between the date of its incorporation and 1914, when appellee was injured, was not sufficient in which to enable it to provide funds for the purpose and place the crossing in a safe condition. It has been held in this state that a lack of funds on the part of the municipality, in the absence of proof showing it had exhausted its means for providing same, as was the case here, is not a defense to a recovery against it in a suit like this. City of Dallas v. Strayer, 73 S. W. 980; City of McKinney v. Brown, 81 S. W. 88. But, if the law were otherwise, appellant failed by evidence to show such a lack of funds. On the contrary, a finding that it did not lack same would have been supported by evidence. It appeared that a bridge across the ditch could have been constructed by the expenditure of a few dollars, and it further appeared that besides its ordinary revenue from taxation appellant in 1913, by a sale of bonds, acquired a fund of about $19,000 for use in maintaining its streets, and it did not appear that this fund had been exhausted. Appellant argues, further, that it appeared that the crossing had been in the condition it was in at the time appellee fell “for months and months” before that time," during which no one was injured by falling into the ditch, and that therefore it had a right to assume it was reasonably safe. If the law was that a municipal corporation could not be held to be guilty of negligence because of defects in its sidewalks and streets until some one was thereby injured, the contention would be a tenable one. But such is not the law. Such a corporation owes to persons using its sidewalks for the purpose appellee was using the one in question the duty to exercise care to maintain same in such a condition as renders them reasonably safe for such use. Appellant further insists in support of its assignment that it did not appear that it had notice of the condition of the crossing over the ditch, We think the testimony was amply sufficient to show that it had such notice. It was shown that the crossing was only about a ’ block from its public square, and that High and East streets were among its streets most traveled. Moreover, it appeared that the ditch at the crossing was in practically the same condition it was in when it was opened, about a year before the accident happened. Having itself directed the digging of the ditch, and its condition remaining unchanged, appellant could not claim ignorance thereof, if, as found by the jury, it was not reasonably safe in that condition for persons using the sidewalks as appellee was using it.

In support of its contention that it appeared as a matter of law that appellee was guilty of contributory negligence, and therefore that the finding of the jury that she was not was wrong, appellant refers to testimony showing that she knew of the condition of the crossing and the risk she incurred in attempting to cross it in the dark, and asserts it further appeared that she knew she could easily have procured a light or assistance which would have enabled her safely to cross the ditch. Appellant does not refer to testimony showing appellee knew she could have procured such a light or assistance, and we have found none in the record. The testimony referred to by appellant to the effect that after appellee sustained the fall a man with a lantern came to where she fell, and assisted her companions in removing her from the ditch, certainly did not conclusively establish that she possessed such knowledge. The fact that appellee, with knowledge of its condition, attempted to cross the ditch as she did, was not sufficient to convict her of contributory negligence as a matter of law. “The mere fact,” said the author of the article on “Municipal Corporations” in 28 Cyc. 1432,

“that one, knowing of a defect or obstruction, travels on a street or public way after dark, although it is a circumstance tending to show negligence, does not per se constitute contributory negligence, particularly where the knowledge was acquired some time before, or the route selected by him was the one ordinarily traveled by the public. All the law requires is that he exercise ordinary care commensurate with the danger of which he has knowledge, taking into consideration the fact of darkness.”

It appears from a bill of exceptions that, while Mrs. Wood was testifying as a witness, R. T. Jones, one of appellee’s counsel, interpreting the action of appellant in having before that time placed her husband on the stand to prove the circumstances under which she, at the request of appellant’s counsel, made a certain statement to them about the accident as an effort to impeach her veracity, declared, in the presence of the jury, that if it was his wife appellant’s counsel were endeavoring to so impeach he would have taken one of them by the throat and “would have shaken him to death.” The conduct of counsel in making the statement was, of course, censurable; and the court, as he should have done, promptly reprimanded counsel and instructed the jury to ignore the remark.. And in a charge to the jury the court told them not to consider—

“any remarks made by the attorneys in this case except such as are proper deductions from the evidence as permitted to be introduced by written and verbal statements of witnesses, and all other remarks must be disregarded by you as having no place, force, or effect in your deliberations in determining what your answers to the several issues shall be.”

Under such circumstances, and in view of the fact that the trial court was in a better position than we are in to determine whether appellant’s rights were prejudiced by the conduct complained of or not, and by overruling the motion for a new trial determined they were not, we do not think this court should reverse the judgment because of the misconduct complained of.

In the same assignment in which complaint is made of the conduct of attorney Jones, just referred to, is a complaint based, on the argument to the jury of J. X. Gray, another one of appellee’s counsel. The bill of exceptions presenting this complaint does not appear to have been approved by the court below. On the contrary, it appears that the judge who tried the case died before the bill was prepared and presented to him, and that his successor refused to approve it because appellee’s counsel contended that Mr. Gray in his argument did not make the statements attributed to him by the bill. As an approval of the bill by the judge of the trial court was essential to its validity (article 2063, Vernon’s Statutes), the matters complained of cannot be reviewed here. Nor can we sustain the contention made that the judgment should be reversed because, as appellant insists, is true, it was deprived by the death of the judge who tried the case of a bill of exceptions approved as required by statute. It appears that the judgment was rendered July 27, 1916, that appellant’s motion for a new trial was overruled the same day, and that the court adjourned for the term July 29, 1916. It further appears that the judge who tried the case was well and transacting his official duties until September 5, 1916. It thus appears that appellant had about five weeks from the time the cause was tried until the judge who tried it became disabled in which to’secure his approval of a proper bill. That appellant did not within that time obtain from the judge the approval of such a bill as it may have been entitled to we think is not excused by anything appearing in the record before us.

Other objections interposed to the judgment have been considered, but are overruled because in our judgment none of them presents a reason why the judgment should be reversed.

The judgment is affirmed.
      iSfeaFor otter oases see same to.pie and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    SPRINGFIELD FIRE & MARINE INS. CO. v. BOON.
    (No. 1706.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 1, 1917.
    Rehearing Denied March 29, 1917.)
    1. Insurance <®=>665(3) — Action on Fire Policy — Forfeiture—Sufficiency of Evidence.
    In action on a fire insurance policy, evidence held toshow a violation of provisions forfeiting policy in case of change in insured’s interest or continued vacancy of buildings.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1711-1716.]
    2. Insurance <©=>328(1) — Fire—Necessity of Ownership.
    The existence of an interest in the insured in property covered by the fire insurance policy is indispensable to its validity, since the contract is one of indemnity, and when such interest ceases the policy becomes invalid.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 794.]
    3. Insurance <©=>328(14) — Fire—Validity of Policy — Change in Title.
    Where insured’s trustee sold property unde» trust deed, purchaser agreeing to deed prop erty back to trustee, the insured ceased to have any interest therein, and the policy became void, which invalidity could not be waived, but liability must be re-established by a new contract, and insured’s only remaining interest was right to demand unearned premium.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 815-817.]
    4. Insurance <©=>215 — Fire—Change in Title-Purchaser’s Rights.
    The purchaser of insured property is not entitled to indemnity provided by the policy unless it has been assigned to him with insurer's consent.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 485.]
    5. Insurance <©=>665(2) — Action on Fire Policy — Existence of Ne,w Contract After Forfeiture — Evidence.
    In action on fire insurance policy, evidence held insufficient to show execution of a new contract after insured had parted with title.
    [Ed. Note. — For other cases, see Insurance. Cent. Dig. § 1709.]
    Error from District Court, Smith County; R. M. Smith, Judge.
    Action on fire insurance policy by C. W. Boon, trustee, against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed, and judgment rendered for defendant.
    To secure their indebtedness to various persons W. O. Stamps <& Co., by a deed dated April 17, 1914, conveyed five wooden dwelling houses and the land on which they were situated, owned by them, to defendant in error as trustee. November 17, 1914, when the trust deed was in force, plaintiff in error issued to Stamps & Co. a policy insuring the buildings against fire in the sum of $1,500 until November 17, 1917. Attached to the policy was a “loss payable clause” providing that any loss or damage ascertained or proven to be due Stamps & Co. under the terms of the contract should be payable to Boon, trustee, as his interest appeared, “subject, however, to all the terms and conditions” of the policy. It was stipulated in the policy that it “covered not exceeding $300 on each dwelling insured.” The policy also contained stipulations as follows:
    “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if, ⅝ ⅛ ⅜ with the knowledge of the insured, foreclosure proceedings be commenced. or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured or otherwise, * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”
    February 19, 1915, four of the five houses covered by the policy were totally destroyed by fire.
    This was a suit by defendant in error, Boon, as trustee, to recover of plaintiff in error $1,200, which he claimed to be entitled to by the terms of the policy.
    As a defense to the suit plaintiff in error alleged a violation of the stipulations in the policy set out above, and as supporting its allegations proved: (1) That before the fire occurred, with knowledge of the insured, Boon, as trustee, in accordance with the deed to him and the law, had given notice of a sale Of the houses to be made by him by virtue of the trust deed; (2) that Boon, as trustee, on February 2, 1915, at a public sale made by him as trustee as advertised, sold the property to the Moore Grocery Company; and (3) that when the fire which destroyed the houses occurred three of the five covered by the policy were, and for more than ten days before the fire occurred had been, vacant.
    Defendant in error sought to avoid the forfeiture so alleged and proven by plaintiff in error, on the ground that the latter had waived its right to declare and enforce same, and proved, as found by the trial court, facts as follows: At the time Boon as trustee sold the property to the Moore Grocery Company it was understood and agreed betwe'en them that, when he conveyed the property to the grocery company as the purchaser at the sale thereof, the grocery company would reconvey same to him as trustee for the creditors named in the deed to him from Stamps & Co. In compliance with this agreement, after Boon, as trustee, on February 10, 1915, conveyed the property to the grocery company, it on the same day reconveyed same to Boon as trustee. At the time these conveyances were made Boon informed John A. Mathis, who, as plaintiff in error’s local agent, issued the policy, of the making of the conveyances. On receiving such information Mathis did not offer to return the unearned premium paid on the policy, but advised Boon “if any changes were to be made in the policy to inform him and he (Mathis) would attend to the matter.” Boon, however, at no time thereafter-wards requested any change to be made in the policy. On the day the fire occurred Boon, who lived in Tyler, having been advised thereof, wrote Mathis, who lived in Gilmer, requesting him to ascertain “just what houses” covered by the policy had been destroyed, and to make out and send to him for his execution the proof of loss necessary for him to make to collect the insurance on the buildings. Mathis, on receipt of Boon’s letter, went to Ore City, where the houses were situated, to make an investigation, and afterwards, on February 23, 1915, wrote Boon as follows:
    “I have notified the company of the loss of four small dwellings at Ore City. I also notice three of the four dwellings were vacant. The adjuster will want a statement of the cost to rebuild these houses so you will get some carpenter who is acquainted with the buildings to get this up for you.”
    • In reply Boon wrote Mathis as follows:
    “As you are familiar with the carpenters in Gilmer, and those that can be depended upon to do what is right, I want to ask you to please make the best trade you can with some good reliable carpenter to go over to Ore City and find out just what kind of dwellings these were and make up the proof of loss under your directions, so as to file it with you for the four dwellings burned. I am willing to leave this matter with you, and ask you to handle it just as you would if it were your own property. All you want is what is right and that is all I want for the creditors. I am inclosing you self-addressed stamped envelope, and will be glad to have you write me just as soon as you have made the trade with some carpenter, giving me his name and what he will charge for making up this proof of loss and estimate of what it will cost to rebuild these houses.”
    In reply Mathis, on March 1, 1915, wrote Boon as follows:
    “I can get you a good carpenter to go from here to Ore City and make estimate on the buildings for $10. It will take all day and $3.50 for a team. If this is satisfactory let me know at once, and I will have the estimate made.”
    “Upon the request and direction” of plaintiff in error after it had “learned all of the facts .with reference to the fire, and after having learned that three of the buildings were vacant for more than ten days prior to the fire,” quoting from the findings of the court, Boon “went to an expense of $13.50 in getting up and having prepared an estimate of the cost of rebuilding said dwellings.” Plaintiff in error never offered to return to •Boon any of the premiums paid by him at the time the policy was issued to him.
    The findings just recited of the trial court seem to have support in the testimony, except the one that at the time Boon conveyed to tlie grocery company and the grocery company back to Boon plaintiff in error’s local agent, Mathis, was informed by Boon of the making of said conveyances. We have not been able to find in the record any testimony showing that Boon ever said anything to Mathis about the execution of those instruments, and it appears from the testimony in the record that as a matter of fact they were not executed until six or eight days after the time when the property was sold as stated. On the day of the sale of the property by virtue of the trust deed to Boon he and Mathis had a conversation about the property. That conversation seems to have been the basis of the finding referred to, and, as we understand, it does not support it. With reference to what their passed between him and Mathis, Boon testified as follows:
    “I cannot remember now the exact conversation. Mr. Mathis, however, met me on the street and .spoke to me about insurance policies, and I stated to him that there was really no change in the property; that I would simply hold the property as trustee as I had before that time. I went into details with Mr. Mathis, the, substance of which was— I can’t remember whether I stated to him that Moore Grocery Company had bought the property and would re-deed it to me at once as trustee, or whether they were going to buy the property, and in that case would redeed it to me as trustee. I do not remember whether this conversation took place before or after the sale. If it did take place before the sale, then I stated to Mm that Moore Grocery Company would buy the property and redeed it to me; if it took place after the sale, I stated to him that they had bought the property and would redeed it to me. Mr. Mathis did not tell me in just those words that when the matter was fixed up it would be necessary for me to procure an indorsement on the policy. He however, did say that if there was any change to be made in the policies whatever changes . there were to be made to let him know and he would make them. He did not advise me that it would not be necessary to make any changes in the policy. I did not thereafter advise him of any change or request any change or indorsement on the policy. He did not advise me at the time I had this conversation with him that it would be necessary to make some change in the policy in question. I was just going down the street, not expecting to see Mr. Mathis at ajl, but he met me on the street, and he himself brought up the subject to this insurance. Mr. Mathis did not tell me that when the deal was completed it would be necessary if the insurance was kept in force to have it transferred to the purchaser, and I did not state to him that the necessary attention would be .given to it in due time. Mr. Mathis had full knowledge and was thoroughly conversant prior to the fire in question of this transaction whereby I conveyed as trustee the property in question to the Moore Grocery Company and whereby the Moore Grocery Company reconveyed same to me as trustee.”
    Mathis’ account of the conversation was as follows:
    “The conversation was short and casual. I just happened to meet Mr. Boon. I-Ie told, as I recall, that he had just sold W. O. Stamps & Co.’s property at auction, but that the deal was not completed, and I told him that when the deal was completed it would be necessary if the insurance was kept in force to have it transferred to the purchaser, and he said that the necessary attention would be given to it in due time.”
    On the facts found by Mm as recited above, the court concluded as a matter of law that plaintiff in error was in the attitude of having waived the forfeiture it asserted as a defense against the recovery wrought by defendant in error, and thereupon rendered judgment against plaintiff in error for $1,200.
    Locke & Locke, of Dallas, for plaintiff in error. Price & Beaird, of Tyler, for defendant in error.
   WILLSON, C. J.

(after stating the facts as above). That each of the stipulations avoiding the policy, set out in the statement above was violated was indisputably established by the testimony. That a violation during the life of the policy of either of the stipulations, on the election of plaintiff in error to so treat it, terminated the contract, was established by the authorities. 2 Cooley’s Briefs on Law of Insurance, 1489 et seq., and authorities there cited; 19 Cye. 712 et seq., and authorities there cited; Insurance Co. v. Griffin, 59 Tex. 509; Assur. Society v. Ellis, 137 S. W. 184; Id., 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625; Insurance Co. v. Clayton, 17 Tex. Civ. App. 644, 43 S. W. 910; Bank v. Insurance Co., 201 Mass. 350, S7 N. E. 594, 23 L. R. A. (N. S.) 1147; McKinney v. Assur. Co., 97 Ky. 474, 30 S. W. 1004; Insurance Co. v. Long, 51 Tex. 89; Insurance Co. v. Coghlan, 134 S. W. 266. It is plain, therefore, even if the contract was terminated by the devesting of the title in the insured (Stamps & Co.) to the property, so as to relieve plaintiff in error of liability to defendant in error, without reference to the proven violation of the stipulations referred to, that the judgment is wrong, unless for some reason the law recognizes as sufficient plaintiff in error was not entitled to assert the violation of those stipulations as a defense against the recovery sought against it.

Defendant in error contended, and the trial court agreed, that such a reason appeared in testimony relied upon to prove that plaintiff in error was in the attitude of having waived its right to treat the contract as terminated by the violation by the insured of the stipulations. Plaintiff in error controverts this, insisting that the testimony wholly failed to show such waiver by it.

In the view we take of the case such a question was not presented, unless it cannot be said that, independent of the stipulations, the contract was terminated by the devesting of the title in Stamps & Co. to the property covered by the policy; for if it was so terminated there was no contract existing between the parties, and no stipulations to waive.

It is well settled that a contract of insurance like the one in question is one of indemnity, and that the existence in the insured of an interest in the property covered by it is indispensable to its continued validity. When the insured ceases to own the ’ property and any interest in it, the policy ceases to be a valid obligation on the part of the insurer. 1 Cooley’s Briefs on Law of Insurance, 134 et seq.; 19 Cyc. 5S3 et seq.; 14 R. C. L. 905 et seq.

It conclusively appeared from the testimony that Boon, by virtue of the trust deed to him, on February 2, 1915, sold, and on February 10, 1915, by a warranty deed conveyed, the property covered by the policy to the Moore Grocery Company. The legal effect of this conveyance was to devest Stamps & Co., the insured, and Boon, as trustee, of all right, title, and interest theretofore held by them in and to the property. When that conveyance became effective on February 10, before the fire occurred on February 19, 1915, the insured, Stamps & Co., ceased to have an “insurable interest” in the property, and the contract of insurance evidenced by the policy terminated. The only right, if any, remaining in Stamps & Co. with reference to the policy, it never having been assigned or transferred by them to any one, was a right to demand and receive of plaintiff in error the unearned part of the premium paid by them for the policy. No right whatever under the contract remained in Boon, for he was a mere appointee to receive, in the event of a loss within the terms of the contract, the sum Stamps & Co. were found to be entitled to-, and hence his rights were wholly dependent upon the rights of Stamps & Co. 2 Cooley’s Briefs on Law of Insurance, 1520 et seq.

The rule and reasons for it were weil stated by the Supreme Court of Iowa, in Davis v. Insurance Co., 154 Iowa, 326, 134 N. W. 860, as follows:

“If any one pro-position can be regarded as having been definitely settled by early adjudications, and as having remained definitely settled, notwithstanding constant modifications of the law on the subject of fire insurance by changes of view on the part of courts and of policy on the part of Legislatures, it is the proposition, made up of three distinct elements working together to one result, that the purchaser of the absolute title and right to property covered by a fire insurance policy is not entitled to the indemnity provided for in the policy on account of a damage to or destruction of the property subsequent to the transfer, unless, by tbe consent of the insurer, the policy has been assigned to the purchaser by the former owner. The three elementary principles of fire insurance which, working together, bring about this inevitable' result, are: First, that a policy of fire insurance is a contract of indemnity, and if, at the time of loss, the holder of the policy has no right, title, or interest to or in the property insured, he cannot recover anything under his contract of insurance, for the damage to or destruction of the property results in no injury to him; second, that the purchaser of the property, taking it prior to the loss, is not a party to any contract of insurance between tbe former owner and tbe insurer, and therefore is not entitled to recover under such contract; and, third, that the contract of fire insurance, being personal in its nature, cannot be transferred by the insured to another, save in accordance with provisions of the contract itself, involving the express or implied assent of the insurer, or a valid contract of the insurer that it shall become liable to the new owner. These elementary propositions are not dependent on any stipulations, conditions, or limitations of the contract itself, but result from the very nature of the contract, though, of course, they may be superseded or waived by provisions in the contract, or by a new valid contract or agreement subsequently made.”

It is plain from what has been said, we think, that at the time the fire occurred the policy issued to Stamps & Go. was not a valid and subsisting contract on the part of plaintiff in error to indemnify defendant in error for the loss he thereby incurred, and that the court erred in rendering1 judgment in his favor, unless it can be said that it appeared from the testimony before him that plaintiff in'error by a new and independent contract, based on a sufficient consideration, had undertaken to do so.

If there was such testimony, it consisted of the proof made by defendant in error to show, not the formation of a new contract between him and plaintiff in error, but a waiver of the breach of the stipulations in the one between Stamps & Go. and plaintiff in error. Viewing that testimony in its aspect most favorable to defendant in error, it showed no more than that plaintiff in error’s agent before the title in Stamps & Go-, had been devested By the conveyance to the Moore Grocery Company, and before the fire occurred, agreed, without consideration therefor paid or to be paid by any one, to make such changes in the policy as might be necessary to continue it in force as indemnity to the Moore Grocery Company and Boon, as trustee, against loss or injury to the property by fire; after the fire occurred recognized the policy as a subsisting contract; at Boon’s request arranged with a carpenter to furnish him an estimate of the cost of rebuilding the destroyed houses, for use in making proof of loss to be furnished plaintiff in error; and that Boon paid carpenter $13.50 for such an estimate.

It is plain that what Boon and plaintiff in error’s agent, Mathis, had in mind when the conversation between them occurred was that Mathis, as such agent, would do for plaintiff in error what it was necessary for it to do to continue the policy issued to Stamps & Co. in force as indemnity to the purchaser at the sale made by Boon as trustee. The thing necessary for defendant in error to do to accomplish that was to consent to a transfer of the policy by Stamps & Go. to such purchaser. If it appeared from the record that Stamps & Go. at the time the sale was made by tbe trustee, or before tbe time when the trustee executed and delivered the deed conveying the property to the Moore Grocery Company, had transferred the policy to said grocery company, we are not prepared to say that the testimony in the record would not be sufficient to show that plaintiff in error consented to tire transfer and was estopped from asserting that the contract did not continue in force, and from setting up as a de-fence to defendant in error’s suit violations of tlie stipulations against foreclosure proceedings under the trust deed and a change in the title to the property.

It is also plain, we think, that in the correspondence between them both Boon and Mathis lost sight of the fact that (Stamps & Co. having failed to transfer it at a time when they had an insurable interest in the property) the policy ceased to be a subsisting obligation on the part of plaintiff in error on the execution and delivery of the deed to the Moore Grocery Company, and dealt with each other on £he supposition that it was still a valid and subsisting contract. That this is true appears from the fact that, it seems never to have occurred to either of them, that to bind plaintiff in error to indemnify defendant in error it was necessary that they should make an entirely new contract supported by a new consideration.

It appears, therefore, that to affirm the judgment this court must hold, and we think it should not, that the effect of what passed between Boon and Mathis was to create a new contract, as distinguished from a modification of the old one — a thing they plainly did not intend to do, and a thing they as plainly could not do so,as to bind plaintiff in error, in the absence, as was the case, of a consideration therefor. To so hold in effect would be to make for the parties a contract they never contemplated making, and to compel plaintiff in error, without any consideration whatever to it for doing so, to indemnify Boon against the loss he incurred as trustee.

We are of the opinion, therefore, that the trial court erred, as contended by plaintiff ini error, in not rendering judgment in its favor. Therefore the judgment will be reversed, and judgment will be here "rendered that defendant in error take nothing by his suit.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    SOUTHWESTERN GAS & ELECTRIC CO. v. DUKE.
    (No. 1744.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1917.
    On Rehearing, March 29, 1917. Further Rehearing Denied May 3, 1917.)
    1. Appeal and Error <S=>679(1) — Review — Plea in Abatement.
    A plea in abatement, denying plaintiff’s right to maintain the suit, is to be determined after hearing all the evidence in respect thereto; and to review the ruling of the court on the merits of the plea it is essential that all the evidence offered before the trial court, and upon which it acted in ruling on the plea, should appear in the record, either by proper bill of exception or in the statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2878, 2879.]
    2. Street Railroads 102(1) — Negligence —Failure to Give Warning — Proximate Oausb.
    In an action for damages for personal injuries sustained by plaintiff in a collision between the buggy in which he was riding and defendant’s street car, the liability of defendant ■ for negligent failure to give warning of the approach of the car depends upon whether or not such omission was the sole proximate cause of the injury, for the only object of a signal warning is to make the person intending to cross the street car track aware of the street car’s approach in time to avoid injury; and if, with knowledge of the car’s approach derived from other sources, the person crosses the track, his injuries may be due to his own negligence.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 186, 194, 200, 203.]
    On Rehearing.
    3. Street Railroads <®=>118(16) — Action eor Injuries' — Instructions — Proximate Cause.
    An instruction authorizing a verdict for plaintiff, if plaintiff and another, in attempting to cross a street, drove onto the street car track, and in so doing were not guilty of negligence, and the employé of defendant operating the street car failed to give warning of its approach, and such failure was negligence proximately causing injury to plaintiff, sufficiently authorized and required the jury to find that the failure to give warning of the street car’s approach was the .proximate cause of plaintiff’s injury.
    Appeal from District Court, Bowie County;. PI. F. O’Neal, Judge.
    Action by J. J. Duke against the Southwestern Gas & Electric Company. Judgment for plaintiff, and defendant appeals.
    Affirmed on rehearing.
    Glass, Etetes, King & Burford, of Texar-kana, for appellant. Mahaffey & Keeney, of Texarkana, for appellee.
   LEVY, J.

This is an action hy appellee against the appellant company for damages for alleged personal injuries sustained by him by reason of a collision between the buggy in which appellee was riding and a street car. The collision occurred on Broad street, at a point just east of Spruce street crossing, in the city of Texarkana, Tex,, on January 14, 1915. The negligence alleged in the petition is the failure of appellant’s employes in charge of the street car to keep a lookout and to give warning of the street car’s approach to persons who might be attempting to cross Broad street at its intersection with Spruce street, and the failure of the employés, after discovering the perilous situation of the plaintiff, to use the means they should have used to avoid injuring plaintiff. The defendant filed, as a part of the answer, a plea in abatement, denying the plaintiff’s right to maintain the suit. The plea alleged that on February 13, 1915, the plaintiff, on his voluntary petition, was adjudged a bankrupt in accordance with the acts of Congress relating to bankruptcy, and that in said bankruptcy proceedings the plaintiff has returned and filed an inventory of all his assets, which included and specially specified this cause of action against appellant company for personal injuries. The plea further alleged that H. M. Mclver was appointed and is tlie trustee in bankruptcy of the plaintiff, and the said bankruptcy proceedings are still pending and unsettled, and that the said adjudicated bankrupt has not been discharged. The court overruled the plea in abatement. The defendant further answered by general denial and by a plea of contributory negligence. The jury returned a verdict for the plaintiff. And there is evidence to support the finding of fact, as involved in the verdict of the jury, that the appellant was guilty of negligence, as pleaded, proximately causing the injury to plaintiff. The evidence warrants the judgment as to amount of damages.

Appellant predicates error upon the ruling of the court respecting the plea in abatement. A plea in abatement denying plaintiff’s right to maintain the suit is to be determined after hearing all the evidence offered in respect thereto. And in order for this court to review the ruling of the court on the merits of the plea it is essential that all the evidence offered before the trial'court and upon which he acted in overruling the plea should appear in the record either by proper bill of exception or in the statement of facts.

The fifth paragraph of the court’s charge to the jury authorized a verdict in favor of appellee if they found that plaintiff and J. T. Puckett, in attempting to cross from the north side to the south side of Broad street, drove onto the street car track, and in so doing were not guilty of negligence, and that the employé of appellant operating the street car failed to give warning of the approach of the street ear, and that such failure was negligence proximately causing injury to the plaintiff. This instruction was excepted to by appellant, and is made the basis of an assignment of error. The charge is erroneous, as contended, in being too general in its terms, and in authorizing a recovery upon the finding that the mere failure to give any warning was negligence proximately causing the injury. There is evidence in this case going to show that the appellee and J. T. Puckett were attempting to cross the street car track in a vehicle without being aware of the approach of the street car, and that the employé in charge of the street car failed to give signal warning of the approach of the street car. It is the duty of an employé in charge of a street car to give reasonable warning on approaching a street crossing, so that a person or vehicle may stop and wait for it to pass. The only object of a signal warning is to make the person intending to cross the street car track aware of the .street car’s approach in time to avoid injury. A person may see or hear the street car approaching, or otherwise have timely notice of it, and thereby be as thoroughly warned as he would be if the gong were sounded, in which case the omission to give the warning would not be the proximate cause of the injury, but it would be ascribed, as a matter of law, to the person’s own contributory negligence. So the liability of the street car company for injury at a street crossing when it failed to give signal warning depends on whether or not such omission was the sole proximate cause of the injury. Railway Co. v. Nixon, 52 Tex. 19; Railway Co. v. Nycum, 34 S. W. 460; Railway Go. v. Cardena, 22 Tex. Civ. App. 300, 54 S. W. 312; Railway Co. v. Williams, 41 S. W. 501; 2 Thompson on Neg. § 1558; 3 Elliott on Railroads, § 1168. From the charge as given .by the court the jury in the case may have concluded that the appellee was not guilty of negligence in driving “onto the street car track,” though he may have seen or heard the car approaching, yet the defendant company was, under the charge, liable for the consequences of the collision, irrespective of whether or not the appellee was aware of the approach of the car in time to have avoided the injury. The charge as framed does not require the jury to find, in order to liability of appellant, that the failure to give warning to the appellee of the street car’s approach was the proximate cause of the injury, if by reason of such failure to warn the appellee was not aware of the approach of the street car in time to avoid the injury. And the meaning of the words “proximate cause,” as explained in a previous part of the court’s main charge, did not submit to nor direct the jury in reference to the very element here now considered. We think, under the circumstances, it is but reasonable to infer that the jury may have been misled as to the law in the present case. 'It was an essential element of liability on the part of the appellant that the failure to warn was the cause of appellee’s not being made aware of the approach of the street car in time to avoid the injury, and consequently the charge would be affirmatively erroneous.

The error pointed out requires, we conclude, that the judgment of the district court be reversed, and the cause remanded for another trial; and it is accordingly so ordered..

On Rehearing.

It is concluded tliat the former ruling is not warranted that the charge of the court is erroneous in failing to sufficiently authorize and require the jury to find that the failure to give warning to the appellee of the street car’s approach was the proximate cause of the injury. The sixth paragraph would, it is believed, require the jury to find a verdict for the defendant if the failure to give warning of the street car’s approach was not the proximate cause of the injury. Hence it is concluded the motion for rehearing should be granted.

We have fully considered each assignment of error, and are of the opinion that reversible error may not be predicated upon them. They are therefore overruled.

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