author: BROOKE, J.

text:
    FREEMAN v. PORT ARTHUR RICE & IRRIGATION CO.
    (No. 124.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 27, 1916.)
    1. Garnishment <&wkey;88 — Proceedings to Procure — Affidavit—Residen ce of Garnishee.
    An allegation that a corporation does business in a county, and that a named person is its president, is not equivalent to an allegation of residence in the county within Vernon’s Say-les’ Ann. Civ. St. 1914, art. 273, requiring such allegation in an affidavit for garnishment.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 160-166; Dec. Dig. <&wkey;>88.]
    2. Affidavits <&wkey;>5 — Proceedings to Procure — Authority of Officer.
    An affidavit for garnishment is not insufficient because the notary, before whom it was executed, was under 21 years of age.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. &wkey;5.]

      Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Action by C. L. Freeman against the Port Arthur Rice & Irrigation Company, garnishee. From a judgment for the garnishee, plaintiff appeals.
    Affirmed.
    Howth & Adams and F. G. Vaughn, all of Beaumont, for appellant. Smith, Crawford & Sonfield and B. F. Pye, all of Beaumont, for appellee.
   BROOKE, J.

This is a suit in garnishment. The original cause out of which arose this suit and garnishment was filed in the county court at law of Jefferson county, on or about the 28th of December, 1914, by C. L. Freeman, as plaintiff, against Paul A. Luhn, as defendant, to recover certain indebtedness alleged to be due and owing plaintiff by defendant. Plaintiff, in said original suit, filed his affidavit, purporting to be in accordance with statutory requirements, against Port Arthur Rice & Irrigation Company, as garnishee, defendant. Thereafter Port Arthur Rice & Irrigation Company, as garnishee, filed its motion to quash said garnishment. The grounds of said motion to quash were: (1) That the application for garnishment filed failed to state the residence of garnishee, or that the garnishee had an office or place of business in Jefferson county, Tex., or anywhere else, or an agent in Jefferson county; (2) that the notary public, before whom said affidavit was made, was without authority to take affidavits, and make certificates thereto, and that therefore said application was void; (3) that the application for writ of garnishment was not sworn to, as required by law, because the person taking the affidavit was not a person authorized by law to take affidavits, and that said affidavit was not verified under oath as required by law. On the 8th day of November, 1915, the court sustained the motion and quashed said garnishment, and ordered that the garnishee recover . costs and attorney’s fees in the sum of $15 for answering in said garnishment. Appellant, C. L. Freeman, filed his motion to set aside the judgment sustaining the motion of said garnishee to quash' the affidavit and application, and all garnishment proceedings thereunder, and to grant him a new trial, claiming that the writ and affidavit and application for writ of garnishment was in all respects in compliance with the provisions of the statute. The court overruled appellant’s motion, and the case is properly before this court for adjudication.

Appellant, by his first assignment of error, challenges the action of the lower court in refusing to set aside the judgment entered in said cause, sustaining the garnishee’s exception to said writ of garnishment, and quashing said affidavit, for the alleged reason that said action and ruling of the court is contrary to the law, and because said writ in all respects complies with the provisions of the statute, and is not subject to any of the objections urged against it.

The allegations in the affidavit for the writ of garnishment, with respect to residence, are as follows:

“Plaintiff says that he has reason to believe and does believe, that the garnishee, Port Arthur Rice & Irrigation Company, a private corporation doing business in Jefferson county, Tex., of which W. S. MeReynolds is president, has in its possession effects belonging to- the defendant.”

Article 273, Vernon’s Sayles’ Texas Civil Statutes, provides:

“Before the issuance of a writ of garnishment, the plaintiff shall make application therefor in writing, under oath, signed by him, stating the facts authorizing the issuance of the writ, and that the plaintiff has reason to believe, and does believe, that the garnishee, stating his name and residence, is indebted to the defendant, or that he has in his hands effects belonging to the defendant, or that the garnishee is an incorporated or joint-stock company, and that the defendant is the owner of shares in such company or has an interest therein.”

As early as the 43 Tex. 553, Chief Justice Roberts, in the case of Johnson v. McCutch-ings & Co., used the following language:

“The affidavit made to procure the garnishment does not state that a judgment had been rendered nor that Johnson resided in Rush county, nor do either of those facts appear in any part of the transcript upon which the judgment by default was rendered.”

In the case of Harrington v. Edrington, 38 S. W. 246, the court held:

“A writ of garnishment, issuing out in one of the district courts of Tarrant comity, was served on appellee, as garnishee, in that county. The affidavit for garnishment failed to state the residence of the garnishee. Nor was any written application for the issuance of the writ made, stating such residence. The special exception of the garnishee to the writ for want of such allegation was sustained, and the garnishment quashed. If this ruling was correct, the judgment should be affirmed. The statute does not authorize the issuance of the writ until after the plaintiff makes a wi'itten application, under oath, stating, among other things, the residence of the garnishee. * * * So important is this allegation that the prescribed form of the writ recites it as a prerequisite. * * * It is therefore not within the power of the courts to dispense with it, and it seems to have been so ruled in Johnson v. McCutchings, 43 Tex. 553. It is immaterial that his residence was in Tarrant county, as was shown after the ruling on the exception.”

In the case of Smith et al. v. Wallis et al., 45 S. W. 820, it is held:

“The appeal in this case was from a judgment of the court below, quashing a writ of garnishment sued out by the appellants, Smith Bros., against Wallis, Landes & Co., upon a judgment in favor of appellants against Carey Hawkins and Creaey Hawkins. The application for the writ alleged: ‘That plaintiffs and deponent have reason to believe, and do believe, that Wallis, Landes & Co., a mercantile firm, residing and doing business in the city of Galveston, state of Texas, are indebted to the defendants, and that they have in their hands effects belonging to the defendants; wherefore defendants prayed for writs of garnishment to issue against said Wallis, Landes & Co., and for further proceedings thereon, as in like cases provided by law.’ A writ of garnishment was issued, which recited that the plaintiffs ‘have applied for writs of garnishment against Wallis, Landes & Co., a mercantile firm, residents of the city of Galveston, in the county of Galveston, in the state of Texas,’ and commanded that Wallis, Landes & Co. be summoned to appeal-, etc. Copies of the writ were served on J. E. Wallis and H. A. Landes, Joseph E. Wallis, Henry A. Landes, and Chas. L. Wallis answered the writ, as partners in trade, under the firm name of Wallis, Landes & Co., and pleaded that neither of the writs showed either any application by the plaintiff for a writ of garnishment against the individuals composing the firm of Wallis, Landes & Co., or any command to summon the individuals composing said firm, and further alleged that they were advised and informed that the garnishment suit was not properly brought against the firm of Wallis, Landes & Co., and of this they prayed judgment of the court. They then answered as to the indebtedness, etc., and concluded with the prayer that the firm of Wallis, Landes & Co. and the individual members thereof might be discharged, with their costs. * * _ * With leave of the court, the plaintiffs filed trial amendment to the original affidavit for garnishment, in which they alleged that the firm of Wallis, Landes & Co. was a mercantile firm, composed of Joseph E. Wallis, Henry A. Lan-des, and Chas. L. Wallis, etc. Tlie court below sustained the motion to quash, and discharged the garnishees.
“The statute requires the application for garnishment to set out the name and residence of the garnishee. * * * This the application failed to do, and was properly quashed. [We think using] the name of the mercantile firm, without giving the names of the persons who composed the firm, is not a compliance with the statute that requires the name of the garnishee to be stated. The affidavit could not be amended.”

Is the allegation of the affidavit in the instant case that the garnishee was doing business in Jefferson county, Tex., substantially the same as alleging that the garnishee was a resident of Jefferson county, Tex.? It is earnestly insisted that a substantial compliance with the statute is all that is necessary, and that the sole purpose of this particular requirement of the statute as to alleging the residence of the garnishee was merely to direct the clerk of the court where to send the writ, and get service on the garnishee, and attention is called to the case of Lash v. Morris County Bank, 54 S. W. 806. In that case the motion to quash the affidavit was because the affidavit for garnishment fails to allege the residence of the garnishee, the Pacific Express Company, and does not allege that it had, or maintained, an office, or transacted any business, or had an agent representing it, in Morris county. The aver-ments with reference to the matter were as follows:

“That he has reason to believe, and does believe, that the Pacific Express Company, a corporation which has a local agent who resides in Morris county, in the state of Texas, is indebted to the said defendant, and that it has in its hands effects belonging to said defendant,” etc.

The court, in passing upon that case, said:

“A local ‘agent,’ whose residence in Morris county is alleged, must certainly be held to be a ‘representative,’ within the meaning of the law; and if this allegation was true the citation to Morris county was authorized, and upon proper service the court acquired jurisdiction to compel answer and proceed to judgment.”

Continuing, the court says:

“The residence of the agent, for the purposes of this suit may be accepted as the residence of his principal, the Pacific Express Company”

—and cites the case of Hunt v. Railway Co., 28 S. W. 460, where it was held that the allegation and proof of the residence of an agent in El Paso county would he deemed the residence of the railway company, within the meaning of articles 1393, 1394, Rev. Stat. (articles 2090, 2091, Vernon’s Sayles’ Civil Statutes), relating to citations in error.

Attention is called also to the case of Dickerson v. Central Texas Grocery Co., 147 S. W. 695. The court, in passing on that case, used the following language:

“The second assignment of error complains that the court erred in refusing to sustain J. L. Dickerson’s motion to quash the writ of garnishment herein, because the affidavit and application therefor failed to state the residence of the alleged agents of the garnishee. We do not think this assignment should be sustained. The application for the writ of garnishment, among other things, alleged: ‘That affiant has reason to believe, and does believe, that the Niagara Eire & Ins. Company of New York, a corporation duly and legally incorporated, and who has as its local agents at Athens, * * * Tex., Carroll & Ferrell, a firm composed of W. T. Carroll and A. S'. Ferrell, is indebted to defendant.’ It is not alleged in terms in the application that the agent of the garnishee named therein resides in Henderson county, but wo think the language used is equivalent to such an allegation and substantially meets the requirements of the statute.”

We believe that the holding of the court in each of the two last-named cases is correct, but no such allegation is found in the instant case. The only allegation is that garnishee, naming it, is a private corporation doing business in Jefferson county, of which a known person is president. This is a mere statement that the garnishee is doing business in Jefferson county, Tex.

In the case of Mangum v. Lane City Rice Milling Co., 95 S. W. 605, the petition alleged the residence of the plaintiff to be in Matagorda county, and that defendant had a domicile in Harris county, but was doing business in Matagorda county, and that G. Mermilliod was its agent in said county. The defendant filed its plea of privilege to be sued in the county of its domicile. The evidence introduced on the question of venue was as follows:

“The only evidence introduced upon the issues raised by the plea was the testimony of defendant’s manager. This testimony was addressed exclusively to the issue of whether the defendant had an agent in Matagorda county at the time the suit was brought. The witness swore positively that the allegations of plaintiff’s petition that Mermilliod was defendant’s agent in Matagorda county, and that he had an office and place of business in said county, was untrue. Upon cross-examination he testified as follows: ‘I know Mr. Mermilliod. He has been in the employ of the company about a year, not quite a year. His duties were to buy and solicit shipments of rice for the company. He bought and solicited rice shipments, during the season of 1904, in Matagorda county, Tex., and in every county where we knew that any rice was raised. This was one of the points where he represented us in the purchase and shipment of rice to the mill. He represented us all over the rice district. He was not located here at all during the season. I could not say what part of his time he was here when representing the company in the purchase and shipment of rice during the season. He would drop in here for a day maybe and then go on to El Oampo, Victoria, Ouero, and different places. He might be here sometimes two or three days, and then would not be here for two or three weeks, and that continued during the entire rice season of last year. He represented this company when it procured the. shipment of the plaintiff’s rice to our mill. We accepted that rice under his shipment to us, and we made the advances to the plaintiff that he had promised.’
“The trial court erred in not sustaining plaintiff’s exception to the plea of privilege. Under section 23, art. 1194, suits against private corporations may be brought in any county in which the cause of action, or a part thereof, arose, and it is well settled that a cause of action growing out of a breach of contract arises in part in the county in which the contract was made, although the breach may wholly occur in a different county. A cause of action consists of the right of the plaintiff, as well as of the injury to that right, and when the right arises from or is based upon a contract, such right comes into existence at the time and place of the making of the contract, and it necessarily follows that a cause of action growing out of a breach of contract arises, or comes into existence, in part, at the place at which the contract was made. * * * We think the evidence conclusively shows that defendant did not have an agency or representative in Matagorda county within the purview of section 23, art. 1194, of the statute, and plaintiff’s right to sue in that county cannot be maintained on the ground of such agency. The agent Mermilliod was a traveling purchasing agent or solicitor, of defendant, and the fact that he may have frequently gone to Matagorda county and have remained there for a week or two at a time would not constitute him the local representative of the defendant in said county, nor establish the fact that defendant had an ‘agency’ in said county as that term is used in the statute.”

The allegation in the instant ease that the garnishee was doing business in Jefferson county does not imply, in the case of a corporation, that it has its domicile in the county, or that it has a local agent residing in the county. It would serve no useful purpose for ns to lengthen this opinion, as, from the view we take of it, there was no error committed by the lower court in quashing said garnishment proceedings.

The second proposition under appellant’s first assignment is that the officer, A. L. Stevens, before whom the affidavit was made, was duly qualified as a notary public, having full authority to make the certificate and take the affidavit, and that said application and affidavit was duly verified before said notary public, as required by law. It seems that the court below tried the issue as to whether or not the notary public in question was qualified to take affidavits on the following agreed statement of facts: That the notary, A. L. Stevens, was a duly appointed notary, and qualified by executing a bond before the county clerk of Jefferson county, as required by law, and also taking the oath of office prescribed by the Constitution, and was at the said time, and had been for more than a year, acting as a notary public, and constantly and habitually performed the functions and duties of a notary public in Beaumont, Jefferson county, Tex., but that said A. L. Stevens was then not of age, but was still a minor under 21 years of age. It has been held that there is nothing in the Constitution or statutes in the state of Indiana making minors ineligible to the office of notary, and such office is not a county ■ office, within the meaning of the limitation wherein it provides that none but electors shall hold office. United States v. Bixby (D. C.) 9 Fed. 78. It has also been held that one who has been commissioned as a notary and has taken the oath of office, and has been acting as a notary for many years, and has the reputation of being such in the community in which he lives, but has failed to file his oath of office in the office of the secretary of state and of the clerk of the county court, and has also failed to renew his bond after 5 years, as required by law, is a notary de facto, and acts passed before him have the same validity as acts passed before a notary de juris. As before stated, the affidavit was defective because not alleging the residence of the garnishee, but is not defective on account of the fact that the notary before whom the affidavit was made was under 21 years of age.

After a careful examination of the record, we can find no error in the action of the lower court in quashing the writ of garnishment. The case is therefore in all things affirmed. It is so ordered.
      <S&wkey;Eor other cases see same topic and'KEV-NUMBER, in all Key-Numbered Digests ana Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    GRAND LODGE OF BROTHERHOOD OF RAILROAD TRAINMEN v. KENNEDY et al.
    (No. 1007.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Insurance <&wkey;S25(l) — Mutual Benefit Insurance — Reinstatemen'N-Question for Jury.
    Evidence held to warrant submission to jury of issue whether member of fraternal benefit association signed regular form for reinstatement and delivered it to the local lodge so as to make binding his reinstatement and render the association liable upon his death. ■
    [Ed. Note. — Por other cases, see Insurance,. Cent. Dig. § 2009; Dec. Dig. &wkey;825(l).]
    2. Insurance <@=5759 — Mutual Benefit Insurance-Right of Members.
    The right of reinstatement after expulsion is just as much a right, in a contractual sense, as the right to pay dues to the officers of a local lodge, with the expectation of a remittance to a grand lodge to keep alive existing privileges, and an expelled member, who abides with the Jaw of the order and signs a proper application for’readmission, is entitled to reinstatement.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1920, 1921; Dec. Dig. &wkey;759.]
    Appeal from District Court, Grayson County ; W. M. Peek, Judge.
    Action by Mrs. Nanty Kennedy and others against the Grand Dodge of Brotherhood of Railroad Trainmen. Judgment for plaintiffs,, and defendant appeals.
    Affirmed.
    Wood, Jones & Hassell, of Sherman, for appellant. Sturgeon, Blackburn & Sturgeon, of Paris, for appellees.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

John B. Kennedy was a member of the Brotherhood of Railroad Trainmen, and met his death as a railway brakeman, on February 2, 1914. Previous to his death he held a beneficiary certificate, issued by the appellant, payable to the ap-pellee Mrs. Nanty Kennedy, his mother, in the event of his death.

The Brotherhood of Railroad Trainmen is a labor organization and also a fraternal beneficiary association, the Grand Dodge of which consists of a delegate from each subordinate lodge, as well as the Grand Dodge officers. The subordinate lodge, of which Kennedy, deceased, was a member, is an association of individuals subordinate, of course to the Grand Dodge, and operates under a charter emanating from the supreme body. The Grand Dodge is the governing body,' making the laws and enforcing them, and is maintained and kept up through a per capita tax, levied upon all the members of the subordinate lodges. The Grand Dodge is controlled by a constitution, and each of the subordinate lodges has a local constitution, with the same provisions, making the jurisdiction of the Grand Dodge over the subordinate lodges one of uniformity. One of the ordinances of the order is, in substance, that any member of the lodge failing or refusing to pay his dues or assessments becomes expelled, without any notice or further action whatsoever, and thereby any beneficiary certificate held by a member is void. The dues of the members of the lodge are payable monthly in advance before the first day of each month, to the treasurer of the local lodge, and, if not so paid, the automatic expulsion exists, as stated. A member expelled for nonpayment of dues may be readmitted upon application on a form provided by the General Secretary and Treasurer of the Grand Dodge for that purpose, and by payment of all arrearages up to the date of expulsion, also the current month dues and assessments, and an additional fee of $1, designated as a “proposition fee.” Beneficiary members having been expelled for nonpayment of dues, but readmitted after qualifying, are, of course, restored to all previous rights. When a member has been automatically expelled under the rules of the order for nonpayment of dues, either one of two forms, No. 188 or 131, as an application for readmission, prescribed by the Grand Dodge, must be used. If the readmission is within two months after expulsion, form 138 is used, but if an applicant is readmitted after two calendar months from the date of expulsion, a medical examination "is necessary, and form 131 is required. Bach of these forms, designated as an “Application for Readmission,” must be signed by the expelled member and received at a regular meeting of the subordinate lodge.

Form 138, which is an element of this particular litigation, required to be signed by an applicant for readmission within 60 days after expulsion, contains a statement and declaration as to good health, and that applicant’s sight and hearing have not been impaired, and that he has neither sustained an injury nor undergone a surgical operation, except as stated in the application. This application for readmission and reinstatement does not require the medical examiner’s certificate as prescribed by form 131 to be used when readmission is attempted after 60 days from the ,date of expulsion.

John H. Kennedy; the deceased member, was expelled for nonpayment of dues on December 1, 1913, and on January 23, 1914, the Grand Dodge at Cleveland, Ohio, received from Kennedy’s lodge at Sherman, Tex.,' his arrearages transmitted by the treasurer of the local lodge. On January 28, 1914, A. E. King, the General Treasurer and Secretary of the Grand Dodge, at Cleveland, Ohio, wrote and mailed a letter to W. H. Johnson, the treasurer of the local lodge, as follows:

“Dear Sir and Brother: I am in receipt of your form 110, on which you report the readmission on January 2d, of J. H. Kennedy, expelled on December 1st, 1913, for nonpayment of dues. The readmission appears to have been illegal, no application for readmission on form 138 having been submitted and such application is required where a member has been expelled for nonpayment of dues and readmission takes place within two calendar months from the date of expulsion. Unless such application is submitted showing the readmission to have been regular the money remitted for him must be returned when it is reached in its regular order. If the application referred to was not used then, of course, he cannot renew his membership after the close of this month until a new application for beneficiary certificate has been forwarded to the Grand Dodge and approved.
“Fraternally yours,
“[Signed] A. E. King.”

Kennedy’s dues for February were also paid to and collected by the local lodge at Sherman within the time prescribed by the rules of the order, before his death February 2d. The application for readmission on form 138, over the signature of Kennedy, was a necessary prerequisite to his readmission into the order, and to the reinstatement of his beneficiary certificate.

Upon the submission of special issues the jury found that Kennedy signed a written application for readmission as a member of the Brotherhood, on the form prescribed by the Grand Lodge, and also found that such application was forwarded to and received by the Grand Secretary of the Grand Lodge. The Grand Lodge, the appellant herein, assigns error that a peremptory instruction should have been given in its behalf by the trial court to the jury. After giving the brief of appellant, relative to the particular question, careful consideration, we conceive the contention to be that the evidence is insufficient to show that such form was ever signed, and likewise insufficient to show that it was sent to the Grand Treasurer at Cleveland, Ohio.

W. H. Johnson, the local treasurer, testified that after the suspension of Kennedy, he made two remittances to the Grand Lodge of his arrearages. Kennedy was expelled the last day of November and was readmitted, in so far as the action of the local lodge is concerned, about the 3d of January, though the arrearages were not forwarded to the Grand Lodge until about the 26th. The letter and testimony of Mr. King, the General Secretary and Treasurer, is affirmative to the effect that form 13S (the necessary application for readmission) did not accompany the dues. The effect of Johnson’s testimony is that while he did not see Kennedy sign the application for readmission, to the best of his recollection he signed the proper readmission blank, and that the same was forwarded to the Grand Lodge. We infer from the testimony that any members having the readmission blanks could take the signature on the blank of one of the expelled members for readmission. Johnson said the arrearages were collected with the additional ¡pl readmission fee, and further said, “To the best of my knowledge the blank was turned into the lodge, properly signed,” but he did not know who turned it in, and testified to an opinion, which does not seem to have been objected to, that to the best of his knowledge and recollection, as to the readmission of the deceased, he did his duty under the laws and regulations of the Grand Lodge.

John McDuffie, who was the president of the lodge, but who had never in reality served in that position, testified there was a meeting of the local lodge in January, 1914, at which he was present and at which time W. II. Johnson, the treasurer, acted as the president of the meeting. 1-Ie said, “Kennedy was there in the lodgeroom, as any other man would have been that had been readmitted.” He further said:

“When a man is readmitted he does not go through the form of initiation; I mean he went in just the way that a man was usually readmitted. I mean that the man was readmitted on a fair, square basis to the best of my knowledge and belief, at the time he entered the lodge, * * * according to the constitution of fire lodge.”

This testimony does not seem to have been objected to. If we were to admit that the local officers of the subordinate lodge did not forward the application for readmission to the Grand Lodge, and it would seem that the strong preponderance of the testimony would indicate that fact, however, under the law, we think that appellee could recover on the beneficiary certificate, on the theory that the testimony was sufficient to submit to the jury that such a readmission blank was actually signed by Kennedy and received by the local lodge.

Porm 110 referred to in a letter of the General Secretary and Treasurer, which, of course, is distinct from forms 138 and 131, is not described in this record as to the particular function it performs. We assume that it is a form signed by the local treasurer or officer of the subordinate lodge, affording some character of notification to the Grand Lodge of the action of the inferior body as to the particular member. This record suggests only two forms, Nos. 131 and 138, necessary to be signed by an expelled member, according to conditions. We infer also from the record that the local officers of the subordinate lodge necessarily knew that a réad-mission blank, either one or the other, according to the expiration of time after the expulsion, was necessary to be signed for reinstatement and reaamission. Hence, when the local officers testified that, to the best of their recollection and according to their best memory, a formality commonly recognized as a necessary prerequisite was actually complied with, and that to the best .of their recollection such a blank was signed by the expelled member, and in the possession of the lodge, accompanying that member’s readmission, at least to the local lodge, the testimony is sufficient on that particular question to go to the jury that such a blank was signed.

Bacon, in his work on Benefit Societies and Life Insurance, vol. 2, § 385a, says that a provision is contained in the by-laws of many associations that the officers of the subordinate lodge, so far as the collection and remitting of assessments is concerned, shall be the agents of the members and not of the superior body. “Wherever such provisions have come before the courts they have held, with practical unanimity, that the duty of the member is discharged by the payment of his assessments to the officer designated by the laws of the society to receive them, and his rights will not be affected by the failure of such officer of the lodge to remit the amount collected to the Supreme or Grand body.” This is the rule, though it is stipulated in the ordinances that the subordinate lodge and its officers are the agents of the members and not the agents of the Supreme Lodge. Same authority.

The Supreme Court of the United States, with reference to the failure of an officer of a local lodge in remitting the payment of dues, and, .also passing upon the stipulation that such an officer was the agent of the members and not of the Grand Lodge, said:

“The position of the secretary must be determined by his actual power and authority and not by the name which the defendant chooses to give him. To invest him with the duties of an agent, and to deny his agency, is a mere juggling with words. Defendant cannot thus play fast and loose with its own subordinates. Upon its theory the policy holders had absolutely no protection. They were bound to make their monthly payments to the secretary of the section, who was bound to remit them to the Board of Control; but they could not compel him to remit, and were thus completely at his mercy. If ho chose to play into the .hands of the company, it was possible for him, by delaying- his remittance until after the end of the month, to ca.use a suspension of every certificate -within his jurisdiction,” etc. Supreme Lodge Knights of Pythias v. Withers, 177 U. S. 267, 20 Sup. Ct. 611, 44 L. Ed. 765; Wagner v. Supreme Lodge, Knights of Honor, 128 Mich. 660, 87 N. W. 903; Knights of Pythias v. Bridges, 15 Tex. Civ. App. 196, 39 S. W. 333.

The right of reinstatement, through the medium of the subordinate lodge to restore pre-existing rights, after expulsion, is just as much a right, in a contractual sense, as the right to pay dues to the officers of a local lodge, with the expectation of a remittance to a Grand Lodge, for the purpose of keeping alive existing privileges. An expelled member who follows the law of the order, in signing a proper application for readmission, looking to a restoration of his membership, after signature to the proper form and reinstatement by the subordinate lodge, is just as much at the mercy of the officers of that body, with no practical control over them, as one who pays his dues for regular membership and pursues his ordinary avocations without thought but that such local officers will fulfill their duty.

The case of Moderns v. Pike, 76 S. W. 774, is cited as asserting a contrary principle to the one herein enunciated. A careful reading- of the case and consideration of the basis of facts in the opinion probably do not justify the asserted analogy; however, we think the correct rule applicable to the facts here is the one asserted by Bacon and the Supreme Court of the United States.

The ease of Brotherhood of Railway Trainmen v. Dee, 101 Tex. 598, 111 S. W. 396, by the Supreme Court of the state, on the facts found by us in this ease, is not in conflict with our conclusion.

We think the other assignments do not require discussion, and they are overruled.

The judgment of the trial court is affirmed.
      . —.For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    REYES et al. v. KINGMAN TEXAS IMPLEMENT CO.
    (No. 5619.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 27, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Appeal and Error <&wkey;80(5) — “Final Judgment.”
    In suit for foreclosui'e of a judgment lien against land, praying that the land be sold and the proceeds be applied first to pay the vendor’s lien balance to plaintiff, judgment for plaintiff against a defendant for the debt, rendered on findings on special issues, ordering- the land to be sold and directing the application of the proceeds, was final and appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 450, 456, 457; Dec. Dig. <i&wkey;80(5).
    For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    2. Judgment &wkey;>632,,707 — Lien Foreclosure Decree — Binding Force.
    A subsequent vendee or lienholder is not es-topped or bound by a foreclosure decree to which he was not a party, and such decree does not estop or conclude the vendor or superior lien holder as to the sublienholder, not a party when the contract of sale foreclosed was executory.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1148, 1230; Dec. Dig. <&wkey;>632, 707.]
    3. Vendor and Purchaser <&wkey;54 — Executo-ry Contract — Superior Title of Vendor.
    Where landowners made an executory contract of sale requiring their vendee .to pay them $1,000 of the purchase money for the lots one year after the date of the deed, such execu-tory contract left the superior title or fee in the owners, the buyer and his successor having only the right to acquire title by paying the price on the date fixed, not, strictly speaking, an equity of redemption, but a right to demand specific performance after complying with the condition.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 85; Dec. Dig. <®=^54.]
    4. Vendor and Purchaser <&wkey;185 — Execu-tory Contract — Breach of Condition by Buyer.
    Where landowners made an executory contract of sale, requiring their vendee to pay $1,000 of the purchase money one year _ after date, and the vendee’s successor defaulted in the payment on the date of maturity of the debt, he lost his right to demand specific performance, and the owners were then authorized to actually sell and convey absolute title to the land without any foreclosure suit, since they owned the fee free from condition.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dec. Dig. &wkey;>185.]
    5. Vendor and Purchaser &wkey;>185 — Executo-ry Contract — Right of Buyer.
    Where the vendors of land by executory contract sued their buyer and his successor on default in payment for debt and to foreclose their lien, the buyer’s successor, by tendering the purchase money, could have obtained title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dec. Dig. &wkey;185.]
    6. Judgment <&wkey;632 — Repudiation—Effect.
    Where vendors by executory contract sued their buyer and his successor upon default in payment for the debt and to foreclose their lien, a judgment creditor of the buyer’s successor, claiming that it was not a party to the foreclosure suit, could not claim any right given by the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1148; Dec. Dig. <&wkey;>632.]
    7. Judgment <&wkey;780(l) — Lien — Property Covered — Statute.
    Filing, recording-, and indexing of an abstract of judgment, by virtue of Rev. St. 1911, art. 5616, operates as a lien on all the judgment debtor’s realty, but only on such interest or right as he actually owns.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1341, 1347; Dec. Dig. &wkey;780(l)J

      8. JUDGMENT <&wkey;801 — Filing — Judgment — Rights Acquired.
    By filing, recording, and indexing an abstract of judgment, tbe judgment creditor only acquired tbe right to acquire tbe rights, if any, of bis judgment debtor in land purchased by the latter under executory contract of sale, which right of the judgment creditor must be foreclosed and sold under a foreclosure judgment at public sale.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1387, 1575; Dee. Dig. &wkey;>801.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by the Kingman Texas Implement Company against Santos Reyes and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    See, also, 156 S. W. 614.
    R. E. Hannay, Jr., R. P. Ingram, and Raymond Edwards, all of San Antonio, for appellants. I. B. Henyan, of San Antonio, for appellee.

      writ of error pending in Supreme Court.

   SWEARINGEN, J.

On March 29, 1915, appellee filed its fourth amended original petition against appellants, showing substantially the following facts relevant to our disposition of the case: October 22, 1907, Stieren and DobrowlsM owned certain lots in San Antonio, Bexar county, Tex., and on that date they executed and delivered to A. Schawe a deed to the property, reserving in the deed a vendor’s lien to secure the payment of the purchase money, evidenced by two promissory notes for $500 each, payable to Stieren and DobrowlsM. The vendor’s lien provision in said deed is as follows:

“But it is expressly agreed and stipulated that the vendor’s lien is retained against the above-described property, premises and improvements until the above-described notes and all interest thereon are fully paid according to their face, tenor, effect and reading when this deed shall become absolute.” •

On May 27, 1908, Schawe conveyed the same property to W. F. Borders, who assumed and promised to pay the vendor’s lien indebtedness. A vendor’s lien was retained in the deed from Schawe to Borders, to secure the payment of the two notes of $500 each. On November 13,1908, appellee herein had an abstract of judgment in its favor against W. F. Borders, duly filed, recorded, and indexed in Bexar county, Tex. Thereafter, on November 17, 1908, Stieren and. DobrowlsM filed' suit against Schawe and Borders on the two vendor’s lien notes and to foreclose the vendor’s lien. The appellee, who was the owner of the judgment against Borders which was abstracted, was not a party to the Stieren and DobrowlsM foreclosure suit. On January 29, 190.9, judgment was rendered in the foreclosure suit, decreeing a foreclosure of the vendor’s lien as of October 22, 1907, and ordering a sale of the lots. The order of sale issued on February 4, 1909, and on March 2, 1909, the sheriff sold the property involved in the foreclosure suit to Stieren and Do-browlsM, plaintiffs. therein, for $710, which amount was credited on the notes, amounting at that time to about $932, as shown by the decree. Thereafter Stieren and DobrowlsM sold various lots to various persons, all parties to the suit at bar. Appellee prayed for foreclosure of the judgment lien claimed by it against the land, and prayed that the land be sold and the proceeds be applied first to pay the judgment lien balance to appellee, and made other alternative prayers for relief. Appellants made appropriate answers. The cause was submitted to a jury on special issues, upon the findings of which the court rendered judgment in favor of appellee, plaintiff below, against Borders for the debt; ordered the land sold, the proceeds from which to be applied: First, to pay the amount of the purchase-money notes owned by Stieren and DobrowlsM, amounting at date of judgment to $1,250.13; second, to pay the amount of the judgment lien of appellee and then the balance to appellants. It appears from the deed signed by Stieren and DobrowlsM to A. Schawe, introduced in evidence, that both the $500 notes were dated October 22, 1907, and were due and payable one year after their date, which was October 22, 1908. Ap-pellee has sold this cause of action pendente lite. Appellants’ motion for new trial was overruled.

Appellants’ first assignment, asserting that the judgment is not final, is overruled. Trammell v. Rosen, 157 S. W. 1161.

The second assignment complains that the court erred in refusing to give the requested peremptory instruction in favor of defendants, who are appellants here. Appellee, plaintiff b.elow, claims a lien by virtue of an abstract of judgment duly filed and recorded November 13, 1908, against Borders and his real estate in Bexar county, Tex., and contends that it, appellee, and its judgment lien were not affected by the foreclosure suit, decree, and sale, obtained by the vendors, Stie-ren and DobrowlsM against Borders, because appellee’s lien was recorded and indexed November 13, 1908, and the Stieren-Borders suit was filed November 17, 1908, and appellee was not made a party to that suit, and did not exercise its privilege of intervening therein. McDonald v. Miller, 90 Tex. 309, 39 S. W. 89.

It is, of course, obvious and well-settled law that a subsequent vendee or lienholder is not estopped or bound by the decree to which he was not a party, and equally as obvious and well settled that such a decree does not estop or conclude the vendor or superior lienholder as to the sublienholder not a party when the contract of sale foreclosed was executory. Gardener v. Griffith, 93 Tex. 358, 55 S. W. 314; Gamble v. Martin, 151 S. W. 329; McDonald v. Miller, 90 Tex. 309, 39 S. W. 89; Pierce v. Moreman, 84 Tex. 601, 20 S. W. 821.

In tlie case at bar Stieren and Dobrowlski owned the fee to the lots involved on October 22, 1907. On that day they executed an executory contract of sale (Simpkins on Equity, 387) to Schawe. The terms of that deed, or executory contract of sale, required the vendee to pay to the vendors $1,000 of the purchase money for the lots on a certain day, viz. one year after the date of the deed. The deed was dated October 22, 1907. After payment of the purchase money on the day named, the vendee had the right, under the deed, to have the absolute fee. The effect of this executory contract was to leave the superior title or fee in Stieren and Dobrowlski. Masterson v. Cohen, 46 Tex. 524; Baker v. Ramey, 27 Tex. 52; Simpkins on Equity, 387: Schawe, the vendee, conveyed to Borders by deed, vesting in him Schawe’s right. Borders acquired by the deed from Stieren et al. nothing more than the right to acquire title after paying the purchase money on the date fixed in the deed. Estes v. Browning, 11 Tex. 247, 60 Am. Dec. 238; O’Donnell v. Chambers, 163 S. W. 140.

This is not, strictly speaking, an equity of redemption, but is, more properly speaking, a right to demand specific performance after complying with the condition named in the deed, namely, payment of the notes at maturity. Poster v. Powers, 64 Tex. 248. Borders defaulted in the payment on the date of maturity of the debt, October 22, 1908. Upon this default, Stieren et al., vendors holding the superior title, owned the fee free from condition. The vendors were then authorized by law to actually sell and convey absolute title to the lots without any suit. Tom v. Wollhoefer, 61 Tex. 277.

On November 17, 1908, the vendors, Stieren et al., sued Schawe and Borders for debt and to foreclose the lien. No answer of any kind was filed. In that foreclosure suit Borders could have tendered the purchase money and obtained the title because the vendors had elected to sue to foreclose the lien and recover the purchase price; but no such tender was made. This right to tender the money after default and to get the title was a right given to Borders by the suit to foreclose; but Borders did not avail himself of it. It must be borne in mind that ap-pellee claims that it was not a party to that suit; therefore not bound by it; wherefore it follows that appellee could claim no right given by that judgment. “Since the decree did not estop the subsequent vendee, it did not estop the vendor as to him.” Gardener v. Griffith, 93 Tex. 358, 55 S. W. 314. After default, Borders lost his right to tender the money and obtain specific performance.- Estes v. Browning, 11 Tex. 247, 60 Am. Dec. 238; O’Donnell v. Chambers, 163 S. W. 139. Borders had no title, and has lost his right to demand specific performance. Masterson v. Cohen, 46 Tex. 520; Webster v. Mann, 52 Tex. 416; Hale v. Baker & Rice, 60 Tex. 217; Dicken v. Cruse, 176 S. W. 655. If, however, Borders had demanded specific performance and pleaded and proven justification for the default, he could have prevailed in such a suit. But he was legally bound to plead and prove sufficient justification for the default.

“This subject is elaborately reviewed by that distinguished jurist, Chancellor Kent, in the case of Benedict v. Lynch, 1 Johns. Ch. (N. Y.) 370, 7 Am. Dec. 484; and the rule, as deduced from the authorities, is laid down by him to be, in substance, that where a party who applies for specific performance has omitted to execute his part of the contract, by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in the delay, the court will not compel a specific pci-formance. That time is a circumstance of decisive importance, in these contracts, but it may be waived by the conduct of the other party; that it is incumbent on the plaintiff, calling for a specific performance, to show that he has used due diligence, or, if not, that his negligence arose from some just cause, or has been acquiesced in.” Estes v. Browning, 11 Tex. 237, 60 Am. Dec. 238; Parks v. Worthington, 39 Tex. Civ. App. 421, 87 S. W. 720; Scarborough v. Arrant, 25 Tex. 120; Secrest v. Jones, 21 Tex. 121; Tom v. Wollhoefer, 61 Tex. 277; Stone Cattle Co. v. Boon, 73 Tex. 549, 11 S. W. 544; O’Donnell v. Chambers, 163 S. W. 139.

It is true, as heretofore mentioned, when the vendors after default elected to sue to foreclose they extended the right to Borders to tender the money. Borders did not avail himself of the privilege. Because appellee herein was not a party to that suit, it cannot claim even the benefit of the election in that suit to foreclose. Gardener v. Griffith, 93 Tex. 358, 55 S. W. 314. The terms of the deed were binding upon Borders and his judgment lien creditor. Neither Borders nor the lienholder could extend the date of payment. In additipn to the cases hereinbefore cited, we find tbe same principle expressed in an analogous line of decisions which hold that a sale, under a deed of trust containing a power of sale, extinguishes the rights of a subvendee, or subsequent lienholder. Wynne v. Bank, 82 Tex. 378, 17 S. W. 918; Milmo National Bank v. Rich, 16 Tex. Civ. App. 364, 40 S. W. 1032, The reason is that the subsequent rights are acquired subject to the terms of the deed of trust. In this case, all subsequent rights of the lienholder were acquired subject to the terms of the original vendors’ deed, of' which he had notice, because a recorded link in' the chain of title under which he asserts his rights. The terms of the original vendors’ deed bind ap-pellee, though the decree in the foreclosure suit did not because not a party.

The right or title in and to the lots owned by Borders after the default on October 22, 1908¡ was nothing; all had expired and been lost. Such was the condition on November 13, 1908, when the abstract of judgment against Borders was filed and recorded and indexed, by the appellee. It may be that if appellee had been placed in the shoes of Borders, which it was not, as will later be considered, it could have tendered the purchase money and demanded specific performance of the vendors, provided it had pleaded and proved sufficient justification for the default. Estes v. Browning, 11 Tex. 237, 60 Am. Dec. 238. Appellee did not then, and has not now, sued for specific performance of the original executory contract of sale and pleaded and proven any justification for the default.

The filing, recording, and indexing of the abstract of judgment against Borders, by virtue of the statute (article 5616) operated as a lien on all of the real estate of Borders, but only on such interest or right as Borders actually owned. Grace v. Wade, 45 Tex. 524; Dixon v. McNeese, 152 S. W. 676; Blankenship v. Douglas, 26 Tex. 228, 82 Am. Dec. 608. As Borders did not own any title in the real estate involved herein, and had lost his right to own it by his own default, appellee acquired no right or title.

Then, again, appellee by filing the abstract of judgment, only acquired the right to acquire the rights, if any, of Borders. This right of* appellee must be foreclosed and sold under a foreclosure judgment at public sale; then, if at that sale appellee had bought the foreclosed right of the judgment debtor, he would have stood in the very shoes of Borders, and not until then. McDonald v. Miller, 90 Tex. 309, 39 S. W. 89; Gamble v. Martin, 60 Tex. Civ. App. 517, 129 S. W. 387; Jackson v. Butler, 47 Tex. 427. Appellee has never acquired the rights even that Borders might have had.

Often the equity of a particular case will induce the courts to exercise their power to give great weight to seemingly trifling facts to justify a default, especially where a substantial portion of the purchase money has been paid and where valuable improvements have been constructed by the vendee. But in every case such facts must be pleaded and proven. In the case at bar we can conceive of no facts that could be pleaded to excuse appellee in ignoring the plain terms of the deed and withholding the purchase price for four years, actually knowing, or charged with knowledge, that valuable improvements were being put on the property by purchasers for value, and then at this late date tendering only the promise of a defunct foreign corporation, without assets of any kind or character, and without the least interest in this suit itself to pay the balance due on the original purchase price. The attitude of appellee smacks more of culpable negligence or avarice than of that clean-handed equity which this suit in equity requires of it.

We conclude that appellants retained the superior title to- ail the land described in their executory contract of sale; that title became absolutely free from the condition of payment by the default of Borders; that the purchase at the foreclosure sale by the ' original vendors merged in the original vendors the complete fee; and that their deeds thereafter passed the fee to the various parties made defendants below, and who are appellants here, free from any claim of any kind or nature of appellee.

The trial court erred, as assigned, by not peremptorily instructing the jury to find for the defendants.

The question presented in the third assignment was properly decided adversely to appellants by Judge Taliaferro on the former appeal of this case. Kingman Tex. Implement Co. v. Borders, 156 S. W. 614; Vidor v. Rawlins, 93 Tex. 259, 54 S. W. 1026.

All the,other assignments must be overruled, in view of the disposition of this case by our ruling on the second assignment.

The judgment of the trial court is reversed, and judgment is here rendered that the King-man Implement Company take nothing by its suit, and that all the appellants go hence without day.

Reversed and rendered.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @u=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    MALMSTROM v. GULF, C. & S. F. RY. CO. et al.
    (No. 5652.)
    (Court of Civil Appeals of Texas. Austin.
    May 31, 1916.
    On Motion for Rehearing, Oct. 4, 1916.)
    1. Limitation or Actions <&wkey;127(4) — Commencement or Action — Amendment—Contract Action.
    Where a petition alleged that defendant railway agreed to install a crossing on plaintiff’s farm three miles east of M. on B. creek, containing- 171 acres out of school section 2, an amended petition, correctly changing the latter part of the description to 160 acres out of
    1. R. R. Co. Survey No. 1, continues the original cause of action so far' as the statute of limitations is concerned.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 544; Dec. Dig. &wkey;>127(4); Pleading, Cent. Dig. § 688.]
    On Motion for Rehearing.
    2. Railroads <&wkey;17 — Right or Wat — Authority of Agent.
    An open crossing over a railroad right of way is so intimately connected therewith that an agent, to obtain the same, should be presumed to have authority to agree to leave such open crossing as a part of the consideration for such right of way.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 36-38; Dec. Dig. &wkey;>17.]
    Appeal from McCulloch County Court; J. E. Brown, Judge.
    Action by D. J. Malmstrom against the Gulf, Colorado & Santa Fé Riailway Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Shropshire, & House, of Brady, for appellant. Terry, Cavin & Mills, of Galveston, Andrews, Streetman, Burns & Logue, of Houston, Sam McCollum, of Brady, and Lockett & Rowe, of Ft. Worth, for appellee.
   JENKINS, J.

Appellant filed Ms original petition herein October 29, 1912, and Iris first amended original petition on May 20, 1918. In said original petition he alleged that in 1910 he was the owner of a tract of land situated about three miles east of Melvin, Tex., on Brady creek in McCulloch county, Tex., more particularly described as follows : Describing a tract of 171 acres out of school section No. 2. For cause of action he alleged that at said time the Ft. Worth & Bio Grande Bailway Company was desirous of building a railroad from Brady, Tex., to Melvin, Tex., in McCulloch county, partly on or across appellant’s land, and was desirous of obtaining a right of way across said land; that appellant entered into a contract with said railway .company, whereby he granted to it a right of way across his land for, among other considerations, that said railway company would leave an open crossing over its railway through appellant’s land; that the said railway company subsequently sold its right of way through McCulloch county to the Gulf, Colorado & Santa FS Bailway Company, which constructed its railroad along said right of way and through appellant’s land; that about September 1,1911, the Gulf, Colorado & Santa B'S Eailway Company fenced its right of way through appellant’s land without leaving an open passway across the same; that in so doing it divided one of appellant’s fields, leaving it separated and cut into two parts, and segregated and cut off one of appellant’s pastures from Brady creek, where appellant’s stock had to get water ; that the pool in Brady creek on appellant’s land was the only water that appellant had for his stock, and that appellant has no other available means of obtaining water for his pasture; that by fencing said right of way appellant’s field, which is a separate inclosure, has been segregated, and that his pasture, which is a separate inclosure, has been segregated and cut off from his water, by reason of which appellant alleges that he was damaged in the sum of $800.

In said first amended petition the injury to appellant by reason of fencing said right of way was more specifically alleged. On April 21, 1915, appellant filed his second amended original petition; and on July 22, 1915, he filed his third amended original petition. In these amended petitions appellant alleged the same contract to leave an open way across said right of way, and the same injuries by reason of the right of way’s being fenced, as in his original and first amended petitions, but he described the land upon which said improvements were situated as being about three miles east of Melvin, Tex., on Brady creek in McCulloch county, and more particularly described as follows: Being 160 acres of land out of I. B. B. Co. survey No. 1, instead of 171 acres out of school section No. 2, as alleged in his original and first amended petitions. The evidence in the case was sufficient to sustain the allegations in appellant’s petition as to his contract with the railway company for an open way across its right of way, and as to the damages he had suffered by breach of such contract had such issues 'been submitted to the jury, and had the jury found in his favor of these issues.

At the conclusion of the testimony the court instructed the jury as follows:

“Gentlemen of the jury, the evidence in this cause shows that the cause of action sued on by the plaintiff is barred by limitation, and the evidence is insufficient to warrant a recovery by plaintiff, and you will therefore return a verdict for the defendant.”

The jury returned a verdict in accordance with said instruction, and judgment was entered thereon for appellees. Appellant duly excepted to said charge, as is shown by his bills of exception herein.

It is the contention of appellees that the court correctly instructed the jury as to the statute of limitation, for the reason that the third amended original petition, which was the first in which the land upon which appellant’s improvements are situated, was correctly described, was filed more than two years after said right of way was fenced, .and that therefore the second and third amended petitions set up a new cause of action. With this contention we do not agree. Appellant’s cause of action was the segregation of his field and pasture by reason of the fencing of appellees’ right of way. The object of a petition is to notify the defendant of the grounds of complaint against him; and, when this is done with sufficient certainty that he may know the grounds of such complaint and prepare himself for his defense, it suspends the statute of limitation. In this case it is true that in the original petition the improvements alleged to be injured are described as being situated on school section No. 2; but they are also described as being in McCulloch county, about three miles east of Melvin and on Brady creek, and on land through which' appellant deeded appellee a right of way. Appellee, the Ft. Worth & Bio Grande Bailway Company, obtained such deed from the appellant at the time alleged in the petition for its right of way through 160 acres of land out of the I. B. B. Co. survey No. 1, in McCul-loch county, about three miles east of Melvin on Brady creek, and, so far as the record shows, never obtained any deed for a right of way through school survey No. 2, and, so far as the record shows, its railway does not run through said school survey. Appellee must have known that the allegation that in fencing its right of way it segregated appellant’s field and pasture on school survey No. 2 was a mistake on the part of the pleader, and must have known that the damages sought were by reason of having fenced its right of way across the only tract of appellant’s -land over which its railway ran. For these reasons we do not think that the second and third amended petitions set up a new cause of action. Upon this subject, we quote from Townes on Pleading, page 316, as follows:

“We may say that our courts have held that if the amendment sets up facts regarding the same transaction as are set up in the original pleadings, and so germane to it that it is reasonably apparent from the pleadings that they refer to the same matters, and that it was the intention of the pleader in preparing the former pleading to litigate the matters set up in the amendment, the amendment will be regarded as a continuation of the suit, and not the institution of a new one.”

We further quote from 34 Oye. p. 416, as follows:

“So long as the facts added by the amendment, however different they may be from those alleged in the original pleadings, show substantially the same injury in respect to the same transaction, the amendment is not objectionable as setting up a new and distinct cause of action.”

See, also, Baker v. G., C. & S. F. Ry. Co., 184 S. W. 257.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

On Motion' for Rehearing.

Appellee insists that the judgment of the trial court should be affirmed for the reason that it apijears that the contract for the right of way of the railway company over appellant’s land was made by a committee of citizens of Menardville, and that it is not shown that they were representing the railway company in such transaction. The fact that the deed was taken to the railway company, and that it constructed its railway across appellant’s land as conveyed in such deed, is sufficient evidence of the agency of such parties, either originally given or by ratification.

Appellee further contends that agency to procure a right of way for a railway company does not imply authority to promise an open crossing over such right of way. In support of this contention it cites Railway Co. v. Garrett, 52 Tex. 133, Railway Co. v. McKinney, 55 Tex. 182, and Railway Co. v. Sweetwater, 104 Tex. 320, 137 S. W. 1120. We think that:

“An open crossing over a railroad right of way is so intimately connected therewith that an agent, to obtain the same, should be presumed to have authority to agree to leave such open crossing as a part of the consideration for such right of way.’’’

The motion for rehearing is overruled.

Overruled.
      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RIGE, J.

text:
    WESTERN UNION TELEGRAPH CO. v. HUFFSTUTLER.
    (No. 5666.)
    (Court of Civil Appeals of Texas. Austin.
    June 21, 1916.
    On Motion for Rehearing, Oct. 7, 1916.)
    1. Justices of the Peace <&wkey;90 — Pleading— Sufficiency;
    Under Vernon’s Say les’ Civ. St. 1914, art. 2326, permitting oral pleadings in justices’ courts, pleadings need not, even if written, be so particular or full as in other courts.
    [Ed. Note. — For other cases, see Justices oí the Peace, Cent. Dig. § 306; Dec. Dig. <®=»90.]
    2. Justices of the Peace <&wkey;91 (2) — Failure to Transmit Message — Pleading-Sufficiency.
    Failure of petition in justice’s court for loss of profit on resale contract due to failure to transmit prepaid message to allege the special damage does not render it demurrable; allegations of general damage being- sufficient.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 310; Dec. Dig. <&wkey;91 (2)-]
    3. Telegraphs and Telephones <&wkey;66(4)— Failure to Transmit Message — Evidence.
    Evidence held to show notice to telegraph agent of special character of message, so as to render company liable for failure to transmit.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. § 63; Dec. Dig. <&wkey;> 66(4).]
    On Motion for Rehearing.
    4. Appeal and Error <&wkey;216(3),. 263(1)— Scope — Preservation of Exceptions.
    A party who fails to except to an erroneous charge given, or to request a correct charge, acquiesces in the given charge, and cannot thereafter have the verdict set aside for insufficiency of the evidence which was sufficient under the given charge, although he moved for peremptory charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516, 1583; Dec. Dig. &wkey;> 216(3), 263(1); Trial, Cent. Dig. §§ 627, 660.]
    Appeal from Lampasas County Court; J. Tom Higgins, Judge.
    Action by T. J. Huffstutler against the Western Union Telegraph Company. Decree in county court affirming, on certiorari, de'cree of justice court for plaintiff, and defendant appeals.
    Affirmed.
    Alfred T. Benedict, of New York City, and McCartney & McGee, of Brownwood, for appellant.
   RIGE, J.

This suit arose in the justice court, where judgment was rendered for ap-pellee, and was removed by certiorari to the county court, where a trial was had and judgment again rendered in favor of appel-lee, from which this appeal is prosecuted. This is the second appeal in this case. See 170 S. W. 1053.

In September, 1912, appellee made a contract with J. A. Scurlock, by which he purchased a carload of fat beef cattle, to be shipped from San Augustine county to Lo-meta, Tex. On October 1, 1912, Scurlock telegraphed appellee that he had the cattle ready for delivery to the Gulf, Colorado & Santa F6 Railway Company at San Augustine, Tex., for shipment to Lometa, requesting ap-pellee to pay his sight draft for $500. On receipt of the telegram, appellee requested his agent, McCarson, to send Scurlock a telegram that he would pay the draft when the cattle were loaded and consigned to him at Lometa, which telegram was delivered, charges prepaid, to appellant for transmission, but was never sent, and appellee never received tlie cattle. The facts show that he had resold the cattle to one Joe Watson, and would have realized a net profit of $190 on the sale if the telegram had been delivered.

Appellant urged a general demurrer and numerous special exceptions to the petition, among others, one to the effect that, as appellee was suing to recover special damages, it was necessary for him to aver that appellant had notice of such contract of resale to Watson, as claimed by him, at or prior to the delivery to it of said message. The petition did not contain such allegation, for which reason appellant insists that the same is defective, citing in support of its contention the following cases: Railway Co. v. Brown, 33 Tex. Civ. App. 237, 76 S. W. 580; Telegraph Co. v. Thomas, 7 Tex. Civ. App. 105, 26 S. W. 117; Telegraph Co. v. Grocer Co., 28 S. W. 905; Telegraph Co. v. True, 101 Tex. 236, 106 S. W. 315; Telegraph Co. v. Barkley, 62 Tex. Civ. App. 573, 131 S. W. 849; Elliott v. Telegraph Co., 75 Tex. 18, 12 S. W. 954, 16 Am. St. Rep. 872; Clark Mfg. Co. v. Telegraph Co., 152 N. C. 157, 67 S. E. 329, 27 L. R. A. (N. S.) 643; Evans v. Telegraph Co., 102 Iowa, 219, 71 N. W. 219.

The cases cited are in point, and if the instant case had been originally filed in the district or county court, we would sustain appellant’s contention; but the rule is quite different when applied to a case originating in the justice’s court. Article 2326, vol. 2, Vernon’s Sayles’ Oiv. Stats., provides that pleadings in the justice’s court shall be oral, except where otherwise specially provided, but a brief statement thereof may be noted on the docket., It is well settled in this state that the rules applicable to formal' written pleadings in the district and county courts have no application to proceedings in the justice’s court. The fullness and particularity required of written pleadings are dispensed with in the justice’s court. See I. & G. N. Ry. Co. v. Philips, 63 Tex. 590; also I. & G. N. Ry. Co. v. Donalson, 2 Willson, Civ. Cas. Ct. App. § 239. See, also, Threadgill v. Shaw, 130 S. W. 707, and authorities there cited. And this is true even if the pleadings in the justice’s court be in writing. See Howard v. Fabj, 42 Tex. Civ. App. 42, 93 S. W. 225. And the pleadings on appeal from the justice to the county court are governed by rules applicable in the justice’s court. See Threadgill v. Shaw, supra; Barnes v. Sparks, 62 Tex. Civ. App. 451, 130 S. W. 610. We think the petition stated a good cause of action, and, under the decisions above cited, was not required to contain the allegations mentioned, for which reason we overrule appellant’s assignments of error assailing same.

Appellant is mistaken in the contention that its agent was not notified of the purposes and object of the message at the time it was delivered for transmission. Appellee testified as follows:

“The Western Union Telegraph Company’s agents Jackson and Rogers knew me and knew what business I was engaged in. I had frequent transactions with them in shipping cattle. They knew the purposes of the telegram I had received and was attempting to send. I told them.”

We have examined the remaining assignments, and regard them as not well taken.

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

Affirmed.

On Motion for Rehearing.

This being an action to recover special damages, it is insisted by appellant that it was essential to show that the telegraph company had notice of the resale of the cattle at the time it received the telegram for transmission. In the original opinion we recited a conversation occurring between appellee and the agents of the company, in which he claimed to have notified them of such contract and the purpose and object of the telegram. But it is contended on the part of appellant that this conversation did not occur at the time the telegram was delivered to the company’s agents, hut several days, thereafter, for which reason it is insisted that the evidence is insufficient to warrant the verdict in appellee’s favor. Conceding that the conversation did not occur at the time of the delivery of the telegram to. appellant’s agents, still- it does not follow that appellant would be entitled to have the verdict set aside, for the reason that the court submitted the case to the jury on a general charge which authorized a recovery by appellee without such proof, and which charge must be regarded as approved by appellant, since it failed to except thereto. See Acts 1913, p. 113; article 2061, vol. 2, Vernon’s Sayles’ Rev. Civ. Stats.; Floegge v. Meyer, 172 S. W. 194; Railway Co. v. Bartek, 177 S. W. 139; Railway Co. v. Alcorn, 178 S. W. 833; Steele v. Dover, 170 S. W. 813; Railway Co. v. Barnes, 168 S. W. 991; Elser v. Putnam, 171 S. W. 1052; Railway Co. v. Wadsack, 166 S. W. 45; I. & G. N. Ry. Co. v. Bland, 181 S. W. 504. See, also, Hume v. Carpenter, 188 S. W. 707, decided by this court June 14, 1916, not yet published. Nor was any special charge requested by appellant covering this feature of the case.

It is true that appellant did ask a peremptory charge in its favor, but reserved no exception to the refusal of the court to give the same. As appellant, under the authorities above cited, must be regarded as having acquiesced in the charge given, it cannot now, we hold, complain that the verdict is unsupported by the evidence, because it failed to show want of notice of the purpose and object of the telegram when delivered; and especially is this true where the evidence, as in the instant case, under the charge as given, warrants the verdict.

So believing, we think the' motion for rehearing should be overruled; and it is so ordered.

Motion overruled.
      <gc=jFor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WHITAKER v. McCARTY.
    (No. 1023.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 21, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Public Hands <§=>173(17) — School Lands —'“Right to Pubchase” — “Suit by Claimant of Right to Pubchase.”
    A title interposed to divest from an adversary is not a claim, or right to purchase free public school land, nor a suit by one claiming the right to purchase land, within Rev. St. 1911, art. 5458, requiring such claimants to sue within one year of the award and article 5459, making failure to sue within such time conclusive that all requirements of the law as to such sales have been complied with.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. &wkey;173(17).
    For other definitions, see Words and Phrases, Second Series, Right to Purchase.]
    2. Public Lands <&wkey;173(17) — School Lands — Sale — Rights of Puechasebs — Assignees.
    In view of Acts 29th Leg. c. 47, § 10, providing that purchasers of school lands may also sell their lands or a part thereof in quantities of 40 acres or multiples thereof, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5435a, as to sales of such lands, article 5435b, providing that when the judgment of any court is filed wherein the title to any such land is decreed out of the owner, such judgment shall be duly certified, article 5435d, providing that no account shall be opened and np patent issued except in such quantities as are now provided by law m excess of personal transfer, and Rev. St. 1911, art. 5436, permitting purchasers to sell their land in quantities of 40 acres or multiples thereof, the ten-year statute of limitation is not applicable in favor of an adverse occupant of school land, and cannot be invoked against a purchaser from the state before patent, where the amount of land is not a multiple of 40 acres and the adverse claimant claims under transfer by a judgment against the purchaser.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. <§=>173(17).]
    Appeal from District Court, Dickens Caunty; Jo A. P. Dickson, Judge.
    Action by Jennie McCarty against B. F. Whitaker. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. D. Wilson, of Spur, and W. H. Bledsoe, of Lubbock, for appellant. B. G. Worswick, of Dickens, and B. D. Glasgow, of Spur, for appellee.

      Application for -writ of error pending in Supreme Court.

   HENDRICKS, J.

The appellee, Jennie McCarty, sought to recover from appellant, B. F. Whitaker, the title and possession of 320 acres of land, the west half of survey No. 4, A. C. 1-1. & B., in Dickens county, Tex., alleging the right through a school land title,, evidenced by a sale and award by the state of Texas, to the original purchaser, on November 2, 1897, with proof of three years’ occupancy, made on October 22, 1901, payment of one fortieth of the purchase money by the original purchaser, with all interest due the state of Texas, and that thirty-nine fortieths of the purchase money was still owing to the state of Texas for said land. She also averred that her husband, now deceased, was the vendee of the land through mesne conveyances, in good standing in the general land office of the state. She also pleaded the act of the Twenty-Ninth Legislature (Acts of 1905, p. 35; now article 5458, Revised Civil Statutes), which prescribes a limitation of one year for the bringing of suits by all persons claiming the right to purchase any land belonging to the state and sold and awarded under the provisions of the law authorizing said sale, and that no suit had been brought by the defendant or any one else for the title and possession of said land within the limitation of time prescribed by the act. The defendant, Whitaker, additional to exceptions, pleaded not guilty; also asserted title under the ten-year statute of limitation, and disclaimed all interest in the land except 42Vio acres particularly described by metes and bounds. The plaintiff, by supplemental petition, interposed a general demurrer to the whole of the defendant’s answer, also an exception to defendant’s plea of limitation. The trial court sustained the plaintiff’s general demurrer to the whole of defendant’s answer, and likewise sustained the special exception — really a general demurrer — to the defendant’s plea of title under the ten-year statute of limitation. The appellee, Mrs. McCarty, proved her school land title at the trial, in accordance with the pleading and assertion of same in her amended petition.

The cause is principally briefed, and controverted as a pivotal question in this" court, as to the application of articles 5458 and 5459, Revised Statutes. Article 5458 prescribes:

“All persons claiming the right to purchase or lease any public free school lands, * * *- which have been heretofore, or which may be hereafter, sold or leased to any other person under any provision of the law * * * shall bring his suit therefor within one year after the date of the award of such sale or lease, and not thereafter.”

Article 5459 prescribes:

“If no suit has been instituted by any person claiming the right to purchase or lease any of said land within the period of time limited in the foregoing article, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been eojnplied with”

—except that any action of the state as to the land shall not be affected. It is clear, a¡% applicable to the ten-year statute of limitation, that a, title interposed for the purpose of obtaining a divestiture from an adversary is not a claim, or right to purchase, public free school land, and neither is it a suit “instituted by [a] person claiming the right to purchase any of said land,” and hence, without unnecessary argument, we think that the purpose and scope of the articles in question do not embrace the particular subject-matter mentioned; and, to that extent, as an academic question, we think appellant’s position, addressed to the action of the trial court, is correct. However, upon consideration of this record, we infer that, as a matter of practical importance referable to the antagonism of titles between these litigants, the crucial question is, whether the ten-year statute of limitation is applicable in favor of an adverse occupant of school land, and can be invoked against a purchaser thereof from the state before patent, where the amount of land in litigation, claimed under the statute, is not a multiple of 40 acres.

In consideration of this question we are confronted in appellant’s brief with authorities, urged as decisive, in favor of the contention that such an adverse occupancy absorbs the titlq to school land upon the conditions presented, as much so as the divestiture of patented land under similar conditions. Paterson v. Rector, 127 S. W. 561; Thompson v. Dutton, 96 Tex. 205, 71 S. W. 544; Dutton v. Thompson, 85 Tex. 117, 19 S. W. 1026; Parker v. Brown, 80 Tex. 557, 16 S. W. 262; Lawless v. Wright, 39 Tex. Civ. App. 26, 86 S. W. 1039.

In the cause of Dutton v. Thompson, 85 Tex. 117, 19 S. W. 1027, by the Supreme Court (Chief Justice Stay ton rendering the opinion) J. E. Brooke contracted to purchase the land from the state, February 26, 1877, which was patented on November 26, 1889. The appellant, Dutton, was assignee of Brooke; the appellee Thompson asserted title to 9 and a fraction acres by the statute of limitation of five years. The court held that limitation would run in favor of appellee before the patent issued, stressing the proposition that Mrs. Dutton, as well as the person through whom she acquired the right to a patent, had such an interest in the land as would have entitled either of them to have maintained an action of trespass to try title against any person entering upon the land during the time of each respective ownership; and it was said:

“We see no reason why limitation would not run against a person having such interest in land, although the state could not be thus barred.”

The same case was thereafter decided again on appeal (San Antonio court), styled Thompson v. Dutton, 69 S. W. 641, 642, wherein the ten-year statute of limitations, interposed by Thompson, tacking his possession with that of others, was one of the principal questions involved. Chief Justice Fisher said:

“When the state parted with the title by patent, it related back to the inception of title, which commenced with the application to purchase, and the title established at that time was sufficient to sever the land from the mass of the public domain, so that limitation would operate against it.”

This doctrine was expressly denied by the Supreme Court of the United States. Gibson v. Chouteau, 13 Wall. 92-100, 20 L. Ed. 534. The same case (Thompson v. Dutton, 96 Tex. 209, 71 S. W. 545, opinion by Chief Justice Gaines) asserts the proposition of limitation, in holding that the court'was of opinion “that the evidence tended to show that the dwelling house was so continuously occupied, and that therefore as to the land, at least upon which the house stood, he (Thompson) was entitled to a judgment,” provided the jury found on proper submission ten years’ adverse and continuous occupancy before the suit was brought.

The case of Paterson v. Rector, 127 S. W. 561, we are assuming squarely decided the question that ten years’ adverse possession (without a showing, however, that before the judgment there was a title from the state by patent) would operate against a school land title. Whether the amount recovered was a multiple of 40 acres is not disclosed.

The case of Parker v. Brown, 80 Tex. 557, 16 S. W. 262, without entering into an analysis of the same, is not authority, except by recognition in subsequent cases, as it is apparent that the question of limitation was not necessary to the decision of the case; neither was the question, herein mooted, discussed or raised.

The federal courts hold, including the Supreme Court of the United States, that there can be no disseisin, sufficient to start the statute of limitations in operation as against the locator of a claim of public land, prior to the issuance of a government patent therefor, and that limitation does not begin to run against a grantee holding under the general laws of the United States until the date when such grantee acquires title. Por a full discussion of this subject, as applied to United States lands, with citation of numerous authorities, we refer to the case of Tyee Consolidated Mining Co. v. Langstedt, 136 Fed. 125, 69 C. C. A. 548. It is not our purpose to put in opposition the antagonism of principle asserted by the appellate courts of this state, and that of the federal courts, but the same are presented in a spirit of clarification of the subject, and as some part of its present judicial history.

The Supreme Court of the United States seems to consider three elements as inherently involved in deciding and elucidating the question: First. All the cases involved the attempted acquisition of title by an adverse occupant invoking state statutes against the grantees of United ■ States land. The court asserts the principle, forbidding state legislation from interfering with the power of Congress to dispose of the public property of the United States and of depriving the grantees of its lands of the possession and enjoyment of such property, notwithstanding any delay by the government in transferring the final title by patent. Second. Ejectment in those courts is based upon the legal title, which seems to have been the form of action producing the litigation and the questions at issue, and which, in those courts, can be based only upon the legal title, which is never in the settler, but remains in the United States until final patent. Third. “The consummation of the title is not a matter which the grantees can control, but one which rests entirely with the government. With the legal title, when transferred, goes the right to possess and enjoy the land, and it will amount to a denial of the power of disposal in Congress if these benefits, which should follow upon the acquisition of that title, could be forfeited because they were not asserted before that title [the patent] was issued.” Gibson v. Chouteau, 13 Wall. 92-100, 20 L. Ed. 534; Tyee Consolidated Mining Co. v. Langstedt, supra; Redfield v. Parks, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327.

The act of April 24, 1874, providing for the sale, of alternate sections of school land, as surveyed by railroad companies, which gave validity to the title involved in the cases of Dutton v. Thompson and Thompson v. Dutton, supra, is considerably different from the act under which the present land was bought; but, so far as a decision of this case is concerned, it is unnecessary to detail all the differences and discrepancies. Section 14 of that act prescribed:

“In case said purchaser desires to sell such lands after he has settled upon the same, as above provided, he may do so, but in that event his vendee shall substitute his obligation in lieu of the obligation of his vendor.” Gammel’s Daws of Texas, vol. 8, p. 145.

Section 10 of the act of 1895, by virtue of which the particular land in controversy was purchased, provides that:

“Purchasers may also sell their lands or a part of the same, in quantities of forty acres or multiples thereof, at any time after the sale is effected under this act, and in such cases the vendee, or any subsequent vendee, or his heirs or legatees, shall file his own obligation with the Commissioner of the general land office, together with the duly authenticated conveyance * * * from the original purchaser," etc. Gammel’s Daws of Tex. vol. 10, p. 66.

Keeping thus in mind the character of personal transfers, viewing them as conveyances in person by the purchasers from the 'state to vendees and by them to sub-vendees, and also considering such vendees as purchasers direct from the state, when the commissioner files such conveyances of public school land, thus creating a change of title recognized by the state, it is noted that the Degislature, in 1911 ([Vernon’s Sayles’ Ann. Civ. St. 1914] article 5435a) provided for transfers, other than personal, also effectuating a change of title, and for the keeping of accounts with the transferees, which transfers were not probably embodied within the purview of the previous acts — at least not all of them. Transfers other than by the direct purchasers by the heirs, executors, administrators, and survivors in community, as well as by guardians and trustees under deeds of trust or mortgages, are recognized; also transfers executed by the officers of court, by virtue of an execution or order of sale, and in all cases where the title emanates and is authorized by any court proceedings of the courts of the state. In those cases it is now the duty of the commissioner to cause the transfer, together with the necessary obligations, and other instruments of verification, to be filed in his office, and a separate account of the land is to be transferred from the direct purchaser and from the state, and from the parent tract. Article 5435b provides for the character of certified copies to be filed with the commissioner of the general land office, and also says:

“When the judgment or decree of any court of this state is filed wherein the title to any of such lands is decreed out of the owner, such judgment shall be duly certified to by the clerk of the court in which judgment was rendered.”

A part of article 5435d prescribes:

“ * * * That no account shall be opened and no patent issued as provided for in this act, except in such quantities as are now provided by law in cases of personal transfer.”

Article 5436 provides that:

“Purchasers prior to August 12, 1907, may also sell their lands or a part of the same, in quantities of forty acres, or multiples thereof, at any time after the sale”

• — and further providing, as in the act of 1895, above quoted, that the purchaser shall file his obligation with the transfer from the original purchaser with the intermediate vendees’ transfer in the land office.

It is evident that if an account cannot be opened, nor a patent issued, with reference to the transfers of land other than personal (regarding a judgment for the land as such) except in such quantities as are provided by law in cases of personal transfer, and, if purchasers from the state can only sell their lands in quantities of 40 acres or multiples thereof a judgment of a court, considering it as a transfer of land not personal, if decreeing a tract of land which is not a multiple of 40 acres — such a judgment could not effectuate a transfer of the title to land that could be recognized by the state of Texas; and we construe the statute mentioned as a limitation upon the power of the holder of state school land to sell the same as long as the legal title is in the state, to purchasers, in improper quantities. It is true there has been an amendment to the act of 1895, which prescribes that:

“Dand -which has been sold by the state prior to August 12, 1907, and which has'been or may be subsequently transferred, in tracts other than in legal multiples, may, in the discretion of the commissioner, be so patented.” Article 5437, Acts 1905.

This article, though it be construed, in its literal terms, to cover a purported transfer of school land by judgment, could not assist a judgment for an illegal multiple of land based upon the statute of limitation, because, under that statute, the judgment when rendered should at that time purport to carry the title, between the parties, emanating from the state, “full title, precluding all claims.” Article 5679, Rev. St.; Burton’s Heirs v. Carroll, infra. A judgment, depending as a passage of title, upon the exercise of a subsequent discretion of tire commissioner of the general land office, would not meet the statute of limitation. This particular question was neither discussed nor mooted in the cases of Dutton v. Thompson and Thompson v. Dutton, supra, or any other case. It would not toe denied, of course, that the sovereignty, at least before final divestiture of title, has the right to prescribe and regulate the mode, the amount, and the character of alienation of its public school lands by its grantees to others. The third ground mentioned above, actuating the Supreme Court of the United States in excluding the disseisin of an adverse occupant as an element of the acquisition of title under the statutes of limitation, we think is applicable to this particular question, without any conflict whatever with our Supreme Court:

“The consummation of the title is not a matter which the grantees can control, but one which rests entirely with the government.” Gibson v. Chouteau, supra.

Justice Pleasants, in the case of Dooley v. Maywald, 18 Tex. Civ. App. 391, 45 S. W. 224, said:

“We are of the opinion that the statute of limitations is not available to the appellee, for the reason that the title, legal and equitable, is still in the state, and the appellant has but an inchoate title, a right under the statute upon compliance with its terms, to acquire the title from the state, to the exclusion of all claimants. The evidence in the case shows the appelleei to be but a squatter upon the land; never having made any effort to acquire it from the state; and to permit him to defeat a purchaser from the state from recovering the possession of the premises, by plea of the statute of limitations, would, in effect, be to deprive the state of the power to sell its lands, in the mode and manner prescribed by its laws.”

We are not quoting Justice Pleasants’ language because, forsooth, it might be considered in opposition to the principle enunciated in Dutton v. Thompson, and the cases following, but as applicable to the condition apparent in the record here of an attempted transfer of a school land title by a judgment against the owner of same under the plea of the statute of limitations, when the amount involved, 42Vio acres, is an incommensurate amount, violating the spirit, if not the letter, of the statutes with.reference to alienation of the amount of school land cited above.

We assume it is clearly discernible how such a judgment would interfere with the-state’s constituted authorities as to its lands: The state cannot recognize a judgment for such a quantity of land as a transfer of title; the law says the purchaser may sell in 40-acre tracts or multiples thereof, and such a conveyance passes title to the vendee, which the commissioner shall file with the necessary obligations. The implied meaning of the acts.is in opposition to the judgment, “No account shall be opened and no patent issued,” for such an attempted transfer of such a quantity of land. It would have a tendency to produce forfeitures, prevent the sate of the land by the purchasers in proper quantities, cloud the titles to land in which the state has an interest, and interfere with the payment to the school fund of the principal and interest. Such a judgment holder, with no contract with the state, might very readily rely, in some instances, on the purchaser to pay his own obligation, who again might very conveniently fail to pay. Article 3347, now 5679, Revised Statutes, reads as follows:

“■Whenever in any case the action of a person for the recovery of real estate is barred by any of the provisions of this chapter, the person having such peaceable and adverse possession shall be held to have full title, precluding all claims.”

The Supreme Court has said:

“By the plain terms of this statute the continuous, peaceable, adverse possession of the lland for ten years, claiming title thereto, conferred upon the defendants in error ‘full title’; that is, all of the title which had emanated from the state vested in defendants in error as against the claim of any and all persons.” Burton’s Heirs v. Carroll, 96 Tex. 320, 72 S. W. 582.

If, in this character of case the state is forbidden from opening an account with the judgment holder, and issuing a patent for such an amount of land recovered, the judg-' ment holder clearly does not receive- the equity of redemption from the purchaser from the state by such a judgment different from an ordinary case of an adverse holder of land against a vendee who owes the vendor and from whom the adverse-occupant, especially after judgment could redeem. Hence, if under the law the state cannot approve nor recognize such a title, and is forbidden to issue a patent thereupon, does such a judgment holder obtain from the purchaser from the state the title which the state has vested in such a purchaser? We think not, because it is in violation of the spirit, if not the letter, of the law regarding the alienation and patenting of the state’s land. If that be true, it follows that such an adverse occupant cannot maintain such an action: He does not get the title “which had emanated from the state,” using eon-versedly the language of Justice Brown. This case is not in conflict with Higginbotham v. Weaver, 177 S. W. 532. That was -a case of an occupant claiming the land under a school land deed, prescribing under the statutes of limitation of five years, as against a claim of documentary title from the state in another under a senior survey and patent.

An analysis Of appellant’s third and fourth assignments of error show that the complaint is against the trial court’s action in sustaining a demurrer to his plea of limitation of ten years.

The fifth assignment of defendant is a complaint that under the facts alleged in his answer (we assume also he means the statute of limitation) plaintiff is not entitled to recover. The first assignment challenges the action of the court in overruling his exception to the one-year statute of limitation, pleaded by plaintiff, and the second assignment is wholly immaterial to the merits. We are considering that the real issue is one of limitation, and that plaintiff has the school land title, as pleaded and proved by her. Defendant, in his first assignment rather admits. that:

He “was not in any way attacking the regularity or validity of the sale and award by the state of Texas of the lands in controversy to the plaintiff,” etc.

Hence in the interest of expedition of a determination of this cause, which we assume counsel for defendant will’ favor, and to the end of a speedy movement to the Supreme Court, we affirm the judgment of the trial court. Affirmed.
      other capes see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes