author: HENDRICKS, J.

text:
    BISWELL v. GLADNEY et al.
    (No. 900.)

    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 26, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. Vendor and Purchaser <@=>265 — Rights of Parties — Notice.
    The purchaser'of vendor’s lien notes without actual notice of a conveyance by the purchaser was not charged with any fact upon which, on the doctrine of inquiry, notice of such deed could be imputed to him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. <@=>265.]
    2. Vendor and Purchaser <@=3281 — Bona Fide Purchaser — Payment.
    In a suit by the assignee of a vendor’s lien note against the purchaser and a purchaser from him, evidence held not to establish the defense of payment as against the assignee’s position of bona fide purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. <@=>281.]
    3. Vendor and Purchaser <@=3281 — Lien Notes — Holder in Good Faith — Burden oe Proof.
    The possession of a vendor’s lien note, together with its indorsement by the vendor “without recourse,” put the burden of proof upon the purchaser and his grantee to show that the as-signee was not an innocent transferee of the note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. <@=>281.]
    4. Marshaling Assets and Securities <@=>5 —Rights of Purchasers of Part of Tract of Land.
    In marshaling securities in favor of a prior grantee, the rule is that where, from the character of his conveyance, it is inequitable that his land should primarily bear the burden of the common charge, either in whole or in part, equity will presume an intention of the parties that the part conveyed should be free from such burden until the grantor’s land is first exhausted, and the grantee has the superior equity.
    [Ed. Note. — For other cases, see Marshaling Assets, and Securities, Cent. Dig. § 10; Dee. Dig. <@=>5.]
    5. Mortgages <@=287— Sale by Mortgagor-Quitclaim Deed — Equities.
    Where one purchases part of a mortgagor’s land by quitclaim deed and pays an agreed valuable consideration, without the mortgage debt in any way becoming a part thereof, the presumed intention between the parties is that the grantor will pay his own debt, and equitably his land should be first condemned for that purpose; the rule not depending upon the existence or nonexistence of covenants of warranty.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 782, 783; Dec. Dig. <@=>287.]
    6. Vendor and Purchaser <@=>265 — Assignment of Vendor’s Lien Note — Vendor’s Subsequent Quitclaim Deed — Notice.
    The record of a quitclaim deed, not on its face showing that the grantor and grantee contracted in regard to the grantor’s debt for purchase money of a larger tract, as a part of the real consideration, affords notice of the equities to a subsequent assignee of the vendor’s lien notes, as a vendor with notice of his purchaser’s subsequent deed is not bound to impart his knowledge to his assignee, or to notify his grantee that he has sold the lien notes, so that the grantee can notify the assignee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. <@=>265.]
    7. Vendor and Purchaser <@=3231 — Equities —Notice—Subsequent Deed.
    A subsequent deed of record does not afford constructive notice to an anterior holder of an interest in the land, since record notice goes forward, and not backward.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. <@=>231.]
    8. Vendor and Purchaser <@=>231 — Bona Fide Purchaser — Notice.
    A subsequent purchaser of part of land affected with a common charge has constructive notice of the equities of a prior grantee, who has bought another part of the same land and placed his deed on record.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. <@=>231.]
    9. Vendor and Purchaser <@=3265 — Bona Fide Purchaser — Search.
    A subsequent purchaser of land subject to a vendor’s lien is not required to go further than the record in searching the vendor’s lien note, if he does not know it has been assigned.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. <@=>265.]
    10. Vendor and Purchaser <@=3261 — Vendor’s Lien — Assignment—Registration.
    The assignment of a vendor’s lien is within the registration statutes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. <@=>261.]
    11. Vendor and Purchaser <@=3265 — Lien— . Release — Effect.
    B. conveyed land to G., retaining an express vendor’s lien. G. thereafter quitclaimed to M. a part of the land for a consideration which was paid by M.’s conveyance of other land to G.; the parties to the deed agreeing between themselves that the land conveyed should be discharged from the vendor’s lien. The quitclaim deed was upon record before W. acquired the vendor’s lien notes. B., together with C., a prior assignee of the notes, with notice of the conveyance and before W. acquired the notes, released another part of the land exceeding in value the notes held by W. Held that the land conveyed to M.. was discharged, and sucb discharge inured to M.’s grantee under a general warranty deed.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. <S^v265.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by W. H. Biswell against R. L. Gladney and others. Judgment for defendants, and plaintiff appeals. Affirmed.
    Ben H. Stone, of Amarillo, for appellant. Jas. N. Browning and Kimbrough, Underwood & Jackson, all of Amarillo, for ap-pellees.

       Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

On May 19,1905, Charles Brinkman conveyed to Gladney a section of land situated in Potter county, Tex., upon the cash consideration of $1,000 and a deferred consideration of four vendor’s lien notes; the first two for $1,000 each, and the last two for the sum of $740 each, being negotiable in form and recognizing the vendor’s lien, which was also expressly retained in the deed. On the 9th day of October, 1905, Gladney executed a quitclaim deed to Will A. Miller, Jr., to 157.47 acres of said land, which was recorded November 22, 1905. The land was school land, and it was agreed between Gladney and Miller, in the trade producing the conveyance above mentioned, that Miller’s land should be relieved of the vendor’s lien and that the land should be patented, Gladney to furnish the consideration for the patent, which, after the execution of said deed, was obtained in 1906.

The two $740 notes matured, on their face, respectively, the 1st day of January, 1907, and the 1st day of January, 1908. In 1907, probably the latter part of May of that year, W. H. Biswell, the plaintiff in this suit, acquired the possession of the two $740 notes, thereafter transferring the same to one Cooper. When Cooper was in possession of the notes, he executed with Brinkman a release of a part of the land, which, it is agreed, was of the value of $2,400 at the time of the release. At the time Biswell received the notes they were in the possession of the First National Bank of Amarillo, as collateral security for the payment of indebtedness evidenced by Brinkman’s note to the bank, and which provided for the sale of collateral.

When Biswell received the notes there was no transfer in writing from Brinkman, or the bank, assigning the lien. Biswell had no actual notice at that time of the conveyance from Gladney to Miller, executed in October, 1905; nor does this record charge him with any fact by which, on the doctrine of inquiry, notice of said deed could be imputed to him. The only notice of which he could be charged is constructive notice by the record, which will be discussed later. Bis-well reacquired the two notes from Cooper, and we find from his testimony that he knew of ttie execution of the Cooper-Brinkman release of the debt remaining to another portion of the land than Miller’s, of the value as stated,'before he reacquired said notes. The note in suit was indorsed upon the back with Brinkman’s signature, with a further indorsement, “Without recourse,” immediately preceding his name. Biswell asserts that he is an innocent purchaser of the note in suit in due course of trade, paying full value therefor, without any knowledge of the Glad-ney-Miller deed, executed in October, 1905.

In the trial court it was litigated as a jury question whether Biswell, when he acquired the possession of the note, was a transferee or assignee of the same, or whether the money furnished him was used for the purpose of paying said note, thereby operating as an extinguishment of same. The jury found upon special issues that the note sued upon was “paid” while owned by the payee and before plaintiff acquired the same, and further responded that Biswell, the plaintiff, paid the note. Judgment was rendered against Gladney for the debt evidenced by the note, but plaintiff was denied a foreclosure of the lien against any of the defendants.

Plaintiff asserts that the testimony was insufficient to permit the submission of the issue that the note was paid, and not assigned, and considered from the angle that the indorsement upon the back of the negotiable note, with the possession in Biswell, placing the burden of proof upon defendants to show that he was not an innocent transferee of the note, we would reverse and remand this case upon plaintiff’s exceptions, that the testimony was insufficient to show that the note was paid as against his claim of innocent purchase, if we were not of the opinion that the judgment should be affirmed upon another ground.

Appellees say that Brinkman gave the bank no authority to sell the note, and that the president of the bank testified that it was not customary to sell securities to a collateral note unless with the consent of the owner. The president could not recall the transaction, if it occurred, but said, however:

“That sometimes, when we don’t think the party that owes us would 'object, and that it would be agreeable if we would get all of his money and stop the interest, that (meaning the sale of the note) would be all right.”

Appellee asserts that Gladney paid the note and sold it to Biswell, or, further, as we inferred from the argument, that he received the funds from Biswell and paid the note at the bank, and then forwarded it to Bis-well, and that in either event, as between Gladney and the bank, it was a payment, and not a transfer. It is noted that the jury found that Biswell paid the note, which means that he furnished the money, notwithstanding it was found that he paid the note. Brinkman said that he merely placed the notes in the bank for collection. The particular note had not matured. “Payment can only be made before maturity by consent of both debtor and creditor.” Daniel, Neg. Inst. vol. 2, § 1233. Of course, it is really true that a sale of a note is a contract requiring the meeting of minds, the same as any other agreement.'

It is asserted that Brinkman’s testimony that he only placed the note in the bank for cancellation, in connection with the testimony of the president of the bank as to the custom of the bank in matters of that kind, precludes the idea of a sale. There is no fact in the statement of facts connecting Gladney with the payment of the note at the bank. Brink-man never testified that he authorized the payment of the note before maturity. The fact that Gladney requested or wrote to Bis-well to carry the notes for him does not justify the inference that Biswell sent the money to him, or that Gladney took his own money to the bank, paid the note before maturity, and then sold the same to Biswell. Who put the indorsement, “Without recourse,” on the back of the note, is not shown. Brinkman said he did not do it; a great many of the letters of Gladney were attached to Biswell’s deposition; we assume the letters were not introduced; neither do we find any attempt to prove that Gladney wrote the indorsement. Gladney was not believed by the jury in regard to a part of the transaction with Miller; but we find nothing to “build to” in the record that Glad-ney or Biswell paid the notes at the bank, except that Brinkman said he placed the notes in the bank merely for collection, and the testimony of the bank president that it was not customary, without the owner’s consent, to sell the collateral, and at that time such a matter would probably have been referred to him, and the further fact that Gladney requested Biswell to carry the note. This transaction was eight years old, and whatever occurred, and whether the note was paid or sold, the president of the bank had no recollection whatever of any such transaction, and the president’s testimony necessarily was opinionative.

There seems to be no question but what the form of collateral note gave the power to sell the paper. He did say that “sometimes,” where they thought it would be agreeable to the owner, for the purpose of getting 'all of his money and stopping the interest, they would sell the paper. If Biswell furnished the money, the question left is how he furnished it. The bank had more power, according to this record, to sell the note than to receive payment before maturity. The president said:

“When a note is placed in my bank for collection, and when it is paid before maturity, my bank ordinarily stamps ‘Paid’ on such note, * * * unless there was a request to the contrary.”

This note was not stamped “Paid.” Bis-well testified that to the best of his recollection he purchased the note through one of the banks at Amarillo during the first half of 1907, and did so at the request of Gladney; that he trusted the matter to the bank, and sent the funds, and the bank procured the note and mailed it to him. His recollection was that Gladney requested him to send the money and instructions to the First National Bank, and that he was not sure whether the Amarillo National, where he had an account, or the First National, forwarded the notes.

Without detailing further facts and inferences, applicable to the jury’s finding that the note was paid, we would reverse this case upon appellant’s assignment questioning the sufficiency of the facts to submit the defense of payment as against his position of bona fide purchase, but conclude that it should be affirmed upon another ground. We find the facts on this issue for appellant’s benefit, referable to future proceedings to the Supreme Court, without, of course, anticipating any future action on our part.

Relative to the proposition upon which we affirmed the judgment of the trial court, the record is in this condition: Brinkman conveyed to Gladney, retaining an express vendor’s lien for the deferred consideration. Glad-ney thereafter, by quitclaim, transferred whatever interest he had to Miller, reciting a consideration of $2,200, in payment of the land. This consideration was paid by the conveyance of other land to Gladney. This deed was upon the record before Biswell acquired the notes. Brinkman had notice of the sale to Miller before Biswell acquired the notes. Cooper, with Brinkman, relinquished 160 acres to Gladney, out of the mortgage (different land from that conveyed to Miller), of which Biswell had notice, and the land released to Gladney exceeded in value the debt when released. All the land, except Miller’s, was released from the lien, but we shall argue the ease referable to the one release mentioned, of which Biswell had actual notice.

The appellant and appellee tender a controversy over the doctrine of inverse order of alienation; the appellant contending that it does not apply to this record for two reasons : First, Cooper or Biswell must have had actual notice of the conveyance from Gladney to Miller; and, second, Miller, acquiring his interest by a quitclaim deed, is not in a position to invoke the equitable principle. The last proposition will be discussed first.

Strictly speaking, inverse order of alienation is not applicable to this record, though argumentatively involved. There is no proof that there were any other purchasers of this land from Gladney except Miller. Plaintiff did allege that all the land except the 157 acres had been previously released and that it was done for the benefit of the “then” owners of the land; still this record presents the question merely of the equality or inequality of the equities between Miller and Gladney, and whether or not the assignee of the vendor’s lien had sufficient notice of the same, and, If superior, in favor of Miller, whether the release by Cooper and Brink-man disturbs such equities, thereby releasing the land to Miller. It will be conceded, we assume, that, if the equities of Miller are superior to the equities of Gladney, who, so far as this record shows, was the owner of the balance of the land when the releases were made, and if the mortgagee or his as-signee is chargeable with notice of such equities, the release of Gladney’s land, being in value more than the amount of the debt, would release Miller’s land. Where the owner of a parcel of land, who has previously executed a mortgage upon the same, sells one parcel to another and retains a part, where the contract between the parties is such, with the aid of equity, that it can be presumed that the part retained should first hear the burden, preferable to the land of his vendee, the mortgagee, with notice of these equities, disturbs them at his peril. In case of successive purchasers, with the owner the latter retaining a part, where neither has the right that the other’s portion should be primarily subjected to the mortgage debt, the equities between all the parties are then equal; and if a purchaser redeems the mortgage, the others are entitled to a pro rata contribution, and a pro rata subjection of the land to the payment of said debt. Beck v. Tarrant, 61 Tex. 405, 406. This latter fundamental rule, as between different portions of the premises subject to a common charge, assists in the birth of the maxim that “equality is equity,” and, where applied, ratable contribution always follows. Same case.

Where the mortgagee sues the owner and successive purchasers from him to foreclose his mortgage, and one defendant has a prior equity over another defendant as to the land liable primarily, if no release is made by the mortgagee to the land primarily liable, he is not interested, whether he had notice, or not, of the equities between them. If he has done no act to prejudice the right of the holder of the superior equity, his mouth is closed as to the enforcement of the equity and the sale of the land in accordance therewith, unless the foreclosure sale of the land in parcels would prejudice his debt and prior rights, where his mortgage is a blanket one on the land as an entire tract; and in that character of case first stated the equities are unequal; one has a superior equity.

In marshaling securities in favor of a prior grantee, it is true you may not base it on the simple fact of the earliest grant; however, the rule is, and properly, dedueible from equitable principles, that where, from the character of the first conveyance, it is inequitable that the grantee’s land should primarily bear the burden of the common charge, either in whole or in part, equity will then presume the intention of the parties to the conveyance that the portion conveyed should be free from the common burden, until the grantor’s land is first exhausted ; the grantee has the superior equity.

Eor the moment eliminating the matters of the Cooper-Brinkman release to Gladney’s land, we will present the condition as follows: If Gladney owned all but 157 acres of the land, and the holder of the vendor’s lien notes had sued both Gladney and Miller, instead of Miller, for the purpose of foreclosure on both tracts, and the issues were presented, which land, under considerations of equity, should be first subjected? This condition may assist some in the solution of the ease. If the equities between the parties were equal, the burdens would be equal; but, if superior in favor of Miller, Gladney’s land should be sold first. If they are equal, the whole land would be subjected as a whole; if Gladney’s were superior, making the equities unequal in his favor, Miller’s land should be sold first. The inequality of the equity would destroy the equity of burden. Appellant has Pomeroy in his favor. He says:

“The doctrine * * * is one or purely equitable origin, and is not an absolute rule of law, and if the peculiar equitable reasons on which it rests are wanting, it ceases to operate. Whether it does or does not apply to any particular case may be sufficiently determined by a careful consideration of the following principles: The doctrine, in its full scope and operation, primarily depends upon the relation subsisting between the mortgagor or other owner of the entire mortgaged premises and his grantee of a parcel of land. This relation, in turn, results from the form of the conveyance, which, being a warranty deed, or equivalent to a warranty, shows conclusively an intention between the two that the grantor is to assume the whole burden of the incumbrance as a charge upon his own parcel, while the grantee is to take and hold his portion entirely free.” Section 1225, vol. 3, Equity Jurisprudence.

We assume, of course, that a warranty deed, or a deed equivalent to a warranty, would show conclusively an intention that the grantor is to bear the whole burden as a charge upon his own land. He further says:

“When the deeds to the successive grantees are not warranty, or equivalent thereto, but simply purport to convey the mortgagor’s right, title, and interest in the parcels, the intention is clear that the grantees respectively assume their portion of the burdens. Their several parcels are all Viable ratably, and not in the inverse order." Same section, supra. (Underscoring is ours.)

Pomeroy is speaking more particularly probably of the subjection of land against grantees in the inverse order of their alienation, when he refers to the character of the instruments conveying the mortgagor’s interest. If it is meant, however, by this language that the interest of one who purchases a part by quitclaim deed and pays a valuable consideration for the interest purchased as agreed upon between the parties, without the mortgage debt in any manner becoming a part of the consideration, and without anything showing that the grantee and grantor intended that the land of the grantee should be so charged, we think that the presumed intention between the parties is that the grantor will pay his own debt,' and equitably his land should be first condemned for that purpose, and that his grantee should not be compelled to pay it out of his land as between the immediate parties. The cases under note 4 and note “e,” under section 1225, vol. 3, Pomeroy, Eq. Jurisp., cited by the great jurist, in so far as they are accessible to us, do not support the doctrine. We are unable to obtain 2 Leading Cases in Equity (4th Am. Ed.) p. 304, and Aiken v. Gale, 37 N. H. 501. Erlinger v. Boul, 7 Ill. App. 40, is the nearest case on the facts supporting the doctrine accessible to us, and in that case the purchaser bought the land at execution sale.

The Supreme Court of Michigan, in the case of Cooper v. Bigly, 13 Mich. 474, at a time when Justices Campbell and Cooley were members of that court, said that:

The doctrine “rests chiefly, perhaps, upon the grounds that, where one who is bound to pay a mortgage confers upon others rights in any portion of the property, retaining other portions himself, it is unjust that they should be deprived of their rights, so long as he has property covered by the mortgage out of which the debt can be made. In other words, his debts should be paid out of his own estate, instead of being charged on the estates of his grantees. Any other rule would be, in effect, to enable him to enjoy for his own benefit that which he has once vested in another, and in a measure to recall his own grant. The rule cannot, therefore, depend upon the existence or nonexistence of covenants of warranty. It depends simply on the fact whether he has or has not seen fit, in making a disposition of a part of his incumbered premises, to charge it primarily with the payment of the incumbrance. * * * It has, indeed, in several cases cited at the bar, been held that the covenant of warranty was very important, in determining the intent of the mortgagor not to charge the mortgage on the property sold. But there is no satisfactory authority holding that, in the absence of such a warranty, no such intent could be presumed. On the contrary, wherever the doctrine of priority is respected at all, it has been enforced unless an opposite intent was made out. And such appears to us the common-sense inference; for a man owing a debt, for which his own property remains liable, must naturally be supposed to expect to have it paid out of his own means, unless he has bargained to the contrary. And this equity, having arisen in favor of the first purchaser, must remain in his favor against any subsequent equities of other parties derived from his grantor.”

We are unable to find a case deciding, where the point was involved, that the equity could not be founded upon a quitclaim deed; and in combing the authorities, according to the best investigation we are able to make, neither can we find a case which affirmatively decides that the rule depends upon the existence or nonexistence of covenants of warranty. We find cases abundant deciding, where the owner of land conveys by deed “with covenants of warranty,” the part retained by him is charged primarily. The intention is then conclusive as Pomeroy states; but the genesis of the rule should be an answer to the question — like other equitable rules — what are the equities derivable from the relation of the parties? We find, wherever the mortgage debt enters into the contract of conveyance between the parties, generally one way or the othér, the equities become unequal in favor of one or the other. If the mortgage debt is deducted from the consideration, the grantor’s land is not primarily charged with the burden. If the grantee assumes the debt, of course, his land is charged with the burden. If the conveyance uses language “subject to the mortgage,” some of the courts construe that the grantee’s land is also charged, because the intention is manifested by the use of such language, or expressions equivalent thereto, that it is intended that his land will be first subjected thereto. In other words, if the mortgage debt enters into the deed in some manner, affecting the consideration, different rules of burden and contribution result; but if a man sells his land, or all of his interest in same, it being the same land and the same interest he has previously mortgaged, but the previous mortgage debt does not enter into or become a part, contractually speaking, of the trade between the parties, and the vendor receives his agreed consideration for the land or his interest, we are unable to see why he should not be compelled first to pay his own debt out of his- own land, and think that, as between him and his grantee, the latter should not be compelled to again pay for the land in whole or in part, or more than the value agreed upon between the parties. We are unable to say, neither does the law justify, upon careful consideration, as a matter of evidence, that a man pays less for a quitclaim deed than for any other deed — that fact alone considered.

Hence, back to the case put, where the mortgagee sues the owner and his grantee under the conditions mentioned, the latter holding under a quitclaim, to hold that the equities are equal as between the mortgagor and his grantee is to hold that the grantee in equity should be compelled to pay more than he originally agreed to pay to the owner of the land for his parcel, and is required to pay in whole or in part his grantor’s debt, for which the latter is alone responsible. If such were equity, an owner of 100 acres, who sold nine different 10-acre tracts to different grantees, by quitclaim deeds, receiving $1,000 for each tract, and retained 10 acres, when sued by a mortgagee upon a $5,000 mortgage, with the other owners, and the mortgagor’s tract retained by him were the least valuable, the mortgagor would, by the doctrine of equal equities, if the whole land brought the debt, practically have his debt paid and receive $9,000 for the land; and upon the doctrine that his equity was superior, and the grantee’s land should be first subjected, others would pay the debt for which he alone is responsible. This would not be equity. It would be injustice.

It may be that, if a mortgagor were to pay the debt before suit, the same would be extinguished, and in that event he would not be able to proceed against the other grantees. Washburn on Real Property, vol. 2, c. 16, § 8, subsec. 4. But if one of these successive grantees were to agree to pay off the whole mortgage, and the mortgagor, on account of the default of his obligor, would then be required to pay it, and thereby raise an equitable assignment to him of the mortgage, such an owner of the land and as-signee of the mortgage, in proceeding against the whole land for subjection to the mortgage, would be in a splendid position, selfishly, if his obligor were insolvent, to add to his assets. Eight of them have paid for their land. If the equities were even equal, requiring a ratable contribution, the mortgagor and owner of the remaining tract, who had become the equitable assignee, would have sold $8,000 worth of land, and have the right to proceed upon his own debt against his own grantees, who had not assumed it, absorbing their land for the payment thereof. If the mortgagor’s equity were superior, his land would not be subjected; he would pay nothing, have his own debt paid, keep his own land, and receive $8,000. Indirectly, he would make Ms grantees pay his own debt and also recall his own grant. Neither do we think this would be equity. Equities are equal where there is equality. This would be inequality of the grossest nature.

There are cases, where a part of a greater tract is sold under execution and the whole is subject to a blanket mortgage, holding that the purchaser at sheriff’s sale has no superior equities; the holding, it is true, is rather placed upon the ground that the purchaser at sheriff’s sale bought only the equity of redemption. It is apparent, however, that a substantial distinction exists between such a purchaser and one under voluntary sale directly from the owner, where he pays the agreed consideration. It is also true in this state that an owner, who sells a part of his tract' by quitclaim deed, merely conveys the equity of redemption and the title he then owned; but that should not be a criterion creating the equality or inequality of the equities between the parties. The owner has sold all that he possessed, and the purchaser pays that which the owner demands. At sheriff’s sale the law condemns and sells the land, and the owner is the beneficiary only to the extent of the money paid by the higher bidder. When the owner sells with a warranty, the purchaser has made it conclusive that his land should not be incumbered with the whole burden of the debt as between him and the mortgagor; but we see no equitable reason, as between a grantee under a quitclaim and his vendor, when the outstanding mortgage does not enter into the consideration in the face of the deed, and he receives from the grantee what he demands for the land, that such grantee’s land should be primarily charged with the burden of the debt, or equally charged with the grantor with an equal burden. The consequences derivable result in injustice. When a grantor receives his price for the land, he should not be paid again indirectly, through the medium of a mortgage foreclosure by a cancellation in whole or in part of his own indebtedness with his grantee’s land, and resulting in a benefit to him, more than the consideration for which he has sold his interest in the land. There is no necessity of becoming confused with the rights of holders of unrecorded deeds, or equitable or legal outstanding titles, from a common source, not passing by a quitclaim deed, and the grantee not being an innocent purchaser of such title under such deed.

Under the law of this state a holder under a general warranty, or a deed conveying the land, unless he has notice, is of course in a better position than the other. But because such deeds are of more strength for such purposes, and may be stronger evidence for the purpose of proving more conclusively the equities of the grantee, is no sound reason against the equity. 'But, though a covenant of warranty runs with the land, even to the extent of passing to a holder of a quitolaim, however, as to the indemnity feature between the parties, it is, at last, only a personal covenant; and when an owner conveys a part of his land, with covenants of general warranty, and retains a part, the mortgagee does not become a party to the covenant, and has the right of lien just the same, except that he must not disturb the equities, if he knows, and providing it is not prejudicial to his debt to enforce the equity. The owner, legally speaking, does not contract with his grantee, even under a warranty deed, that the land retained by him shall bear the whole burden. Equity permits the grantee to place the burden primarily upon his grantor’s land, not because the contract of the grantor did so, for there is nothing in the warranty, or the deed, or in the contract, making the land retained bear such burden. Strictly speaking, there is no breach, nor does the grantee have to show a breach. Hawkins v. Potter, 130 S. W. 644, 645 (writ of error denied). It has been the history of equity to create rights where a contract does not really provide for them. The equitable vendor’s lien is a notable example. The parties do not contract for a lien, but a court of equity says it is unjust for a grantee upon a deferred consideration, though the deed does not provide for the lien, and though the instrument may recite that the consideration has been paid, to keep the land freed from such a lien. Equity charges it upon the land on account of the relation between the parties because it is just.

Again, under appropriate conditions, where a prior mortgagee has two funds, and a junior mortgagee has only one, without the semblance of contractual relation between the two lienholders, equity stays the hand of the prior mortgagee upon the latter fund until he has exhausted the other fund. Whenever by the .evolution of juridical conscience an equitable rule is deducible from the relation of the parties, the province of equity, though sometimes slow in development, is to apply that rule.

It may be said that to permit such a rule would produce this result: The first purchaser gets his part of the land by quitclaim ; a second purchaser might receive his parcel by a conveyance of warranty; and if you make the first grantee’s equity superior to the grantor’s, you would make his deed, in cases of inverse order of alienation, superior to the warranty deed. We do not think this should complicate the real equities between the first parties. It is a settled rule that, if the superior equity exists, a subsequent purchaser, though buying a different portion of the same tract, is charged with notice of the first deed and the equity created by the relation between that holder and the common grantor. The principle causing the subjection of land by the inverse order of alienation is based upon this condition: When, between the first grantee of a parcel out of a large tract the relation between these parties makes it equitable that the land retained by the grantor, covered by a previous mortgage, should bear the burden first, that burden is transmitted to succeeding purchasers, and the last is first, and first last, in the order of condemnation and sale. Hence, if you once establish logically the premise that it is truly equitable, between the grantor and his first grantee, that the land retained by the former should primarily bear the burden, such an equity is fixed, and the personal covenant in a subsequent deed should not necessarily destroy the prior equity produced by a quitclaim considered alone. Equity, if the rule of right really exists, has already burdened the land sold to the next purchaser.

Of course, as stated, the real question in this record is not strictly one of inverse order of alienation, but is one of equitable right between Gladney and Hiller, and the assignee of Brinkman’s lien, though, as a matter of logical result, the principle may be involved.

As to the other mooted question: Does the record of a quitclaim, which does not upon its face show that the grantor and grantee contracted in regard to the mortgage debt as a part of the real consideration, afford notice to a subsequent assignee of such prior lien of the equities? It is true the authorities are unanimous that a prior mortgagee is not affected with notice by the record only of a subsequent deed, and the equities created thereby, against the mortgagor. The reason of the rule is simple and apparent: a subsequent deed of record does not afford constructive notice to an anterior holder of an interest in the land. The record notice goes forward, and not backward. The mortgagee does not have to be running to the record to ascertain if his lien has been subsequently affected.

It is also as thoroughly well settled that, if the prior mortgagee has actual notice of a subsequent deed, he is affected with the equities. It is likewise the unanimous rule that a subsequent purchaser of part of the land, though he is not purchasing the same land as a previous grantee, has, however, constructive notice of a prior grantee’s equities who has bought a part of the same land covered by prior mortgage. It is the policy of the registration statutes to give constructive notice of such equities to subsequent purchasers.

Hence, take the actual case in this record: Brinkman, the original holder of the lien, has notice of Miller’s deed before the assignment of his lien. If a purchaser of a part of the tract has afforded actual notice to a prior mortgagor, if thereafter the mortgage is assigned, is such grantee, who has a deed of record previous to the assignment, compelled to constantly inquire of the mortgagee if he has assigned his mortgage? A subsequent purchaser of the land is not required to go further than the record in hunting the note, if he does not know it has been assigned. Moran v. Wheeler, 87 Tex. 183, 27 S. W. 54. We know of no duty upon the mortgagee, who has thus been notified, to transfer his knowledge to his assignee; neither is the duty imposed upon him to notify such grantee that he has sold the mortgage, so that the latter can notify the assignee of the mortgage. If the assignment of the lien is in writing and placed of record, it is a subsequent record, not affording notice to a prior deed holder; either duty you would, force upon the grantee, situated as Miller, is equally Unreasonable and illogical. What should be the true rule? The assignment of a lien is within our registration statutes. Because a vendor’s lien note is negotiable does not afford immunity to subsequent assignees, when the assignment is not of record, if the record embodies an instrument from the original holder of the lien, affecting the land, though subsequent to the mortgage, if made and placed of record, without knowledge of the assignment. Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54; Drumm v. Core, 47 Tex. Civ. App. 216, 105 S. W. 843. The real holding of those cases, of course, is not just as stated, but clearly supports the proposition, and we are using them to enforce the position that parties buying liens, and interest in lands, should go to the record. Careful purchasers do. The record of a quitclaim deed affords notice within the scope of the instrument as much as any other deed. If, when purchasing, the subsequent assignee had gone to the record, he would have seen a deed conveying all the interest Gladney possessed to Miller, which is covered by the lien he is purchasing, and which deed on its face does not purport to contract in regard to tlie lien debt as a part of the consideration, and which deed he cannot presume is a voluntary instrument. He must presume on the face of the record, though we are not holding that he is bound by the amount of the consideration stated in the deed, that Gladney has sold to Miller that which he possessed for a valuable consideration. The record supports the inference and negatives on its face, every other inference than the one stated. If our premise is correct, that a grantee of a mortgagor’s interest, who has paid the consideration, where the instrument does not show that the mortgage debt has not so entered into the consideration as to change the equity — that such grantee, who has once paid the grantor, should not be compelled, primarily, to pay the grantor’s personal debt with his land (it being the grantor’s duty to pay his own debt), and if Miller’s deed presumptively shows that he paid a valuable consideration for the grantor’s interest in the land, the subsequent assignee of the mortgage should be charged with notice of the record of that deed, and the holder’s equity created thereby, the same as the record of any other deed.

The value of the land released being more than the balance of the debt, we think: Miller’s land should be discharged, and of course the same right would inure to Muncie, his remote vendee under Miller’s general warranty deed.

The judgment is affirmed.
      <@=31?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    WM. D. CLEVELAND & SONS v. JAMISON.
    (No. 8307.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 15, 1916.
    Rehearing Denied Feb. 19, 1916.)
    1. Factors <@=>25 — Duties—Sale of Goods— Liability in Damages.
    Where a factor, to whom no instructions are given, exercises ordinary care, skill, and diligence to obtain the fair market value of his principal’s goods, placed in his hands for sale, he is not liable in damages, though he sells the goods for less than their market value.
    [Ed. Note. — For other cases, see Factors, Cent. Dig. § 26; Dec. Dig. <@=25.]
    2. Factors <@=>47 — Sale oe Goods —Reimbursement foe Advances.
    Where there is no agreement or direction to the contrary before any advances are made, a factor, who has made- advances on goods consigned to him for sale, may sell enough of the goods, over his principal’s objection, to reimburse himself for the advances; his right of sale not being limited by any subsequent order of the principal, except as to the surplus not necessary to effect the reimbursement.
    [Ed. Note. — For other cases, see Factors, Cent. Dig. §§ 65-71; Dec. Dig. <@=»47.]
    3. Factors <$=>47 — Sale of Goods — Rights of Factors — Reimbursement for Advances.
    Where cotton was consigned to factors to sell, without any special instructions or agreement that same should be held for a specified price, and they advanced sums approximately equal to the value of the cotton, and the principal expressly authorized them to sell the cotton the best they could, usin'g their own judgment in the matter, and the principal, though notified that the advancements were in excess of the value of the market price of the cotton and requested to remit the difference, failed to remit and asked for more time, the factors had a right to sell at what seemed to them the market price.
    [Ed. Note. — For other cases, see Factors, Cent. Dig. §§ 65-71; Dec. Dig. <@=>47.]
    4.Customs and Usages <§==>12 — Rules of
    Cotton Exchange — Factors—Knowledge
    of Principal.
    Where a principal, with knowledge, actual or constructive, of a rule of the Cotton Exchange that, after a purchaser of cotton has rejected bales for defects, he may, before a resale to others, reconsider and accept the rejected bales at the price first agreed upon, consigns cotton to factors to sell, he is estopped to deny the binding effect of such rule.
    [Ed. Note. — For other ¿ases, see Customs and Usages, Cent. Dig. §§ 23, 24; Dee. Dig. <§=> 12.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by Wm. D. Cleveland & Sons against J. B. Jamison. Judgment for defendant in justice court, and on appeal to the county court, and plaintiffs appeal. Reversed and rendered.
    Huff, Martin & Bullington, of Wichita Falls, for appellants. T. R. Boone, of Wichita Falls, for appellee.
   BUCK, J.

This suit was filed in the justice court of Wichita county by Wm. D. Cleveland & Sons, of Houston, against J. B. Jamison, of Wichita county, upon a verified account for $197.50, for money advanced by plaintiffs as cotton factors to defendant, who was the owner and shipper of 101 bales of cotton consigned by defendant to plaintiffs at Houston, in September, 1911. The defendant denied owing the plaintiff anything and reconvened for damages, claiming that plaintiffs owed him a balance of $173.38, damages for selling 61 of the 101 bales of said cotton below the market price and without the authority of the defendant. From a judgment in favor of defendant on his cross-action for the amount claimed, the plaintiffs appealed to the county court, and there, in a trial before the court, the defendant likewise recovered the full amount claimed on his cross-action. Plaintiffs appeal.

In September and October, 1911, Jamison, who then lived at Sylvester, in Fisher county, Tex., consigned to Cleveland & Sons 101 bales of cotton, and drew drafts on them, with bills of lading attached, for some $45 per bale, said cotton being consigned in the usual way, without agreement or instructions as to the price, time, or terms of sale. These drafts were paid by Cleveland & Sons, and aggregated some $4,605, for which advancement or loan Jamison agreed to pay 6 per cent, interest. On September 30, 1911, Jamison wrote Cleveland & Sons that he did not expect to hold Ms cotton long and'that he would wire them when to sell. On November 25th Cleveland & Sons wrote Jami-son that the market had declined to such an extent that he had an overdraft with them of $214, and asked him to send them $2 or $3 per bale margin to cover this overdraft; that the 101 bales of cotton at 9 Vie cents basis middling would amount to $4,527, while Jamison owed them $4,740. In this letter they advised Jamison to sell inasmuch, as stated, they did not see very much future in the price of cotton. On November 28th, in reply to the last-mentioned letter, Jami-son wrote Cleveland & Sons that he would sell the cotton in December, and asked them to wait 10 days or 2 weeks, until he could get his cotton seed loaded out, and promised to send them a check for the amount claimed. On December 9th Cleveland & Sons wrote, acknowledging Jamison’s letter of November 28th, and reminded Jamison that it was rarely that they were asked to hold cotton with an overdraft against it, and expressed a dislike to do it in his case, and a hope that it would be convenient for him to send the amount of the overdraft, and a little margin in addition thereto, if he desired to continue to hold his cotton. On December 17th Jamison answered the last letter from Cleveland & Sons, and stated that he was going to Sylvester, the letter being written from Cleburne, in a day or two, and that, as the market was advancing some, he would like very much to hold his cotton until January, but stated further:

“However, if you do not want to do so, I will tell you to soil it the best you can. That is, will ask you to use your own judgment in the matter. I thank you for waiting on me, and will show you my appreciation in the future.”

On December 19th Cleveland & Sons wrote to Jamison, acknowledging receipt of his last letter and further stated:

“Carrying out your instructions, we have this day sold your cotton at 9 Vie cents basis middling.”

On January 6th Cleveland & Sons wrote Jamison that they had sold his cotton on the 19th day of December, 1911, but had not been able to deliver it until the 5th of January following, on account of the long spell of rainy weather, and that the purchaser, on examining it, rejected 61 bales on account of it being sandy, and that the purchaser would not take these 61 bales, and they had it on hand and would hold it until they heard from Jamison. On January 9th the original purchaser agreed to take the 61 bales of rejected sandy cotton at the same price as the other 40 bales, the price of cotton having advanced to 9% cents basis middling, and Cleveland & Sons delivered the 61 bales of cotton to this original purchaser at the same price as the other 40 bales, to wit, 9Vi6 cents basis middling. On January 12th Cleveland & Sons wrote Jamison, inclosing account sales for the 101 bales, with statement of account showing Jamison’s indebtedness to them for advancements, freight charges, storage, insurance, commissions, etc., in excess of the amount received for the cotton of $197.15, for which amount they drew on Jamison. On January 14th Jamison wrote Cleveland & Sons, acknowledging their letter of the 6th inst., and stating that he was surprised at the amount of cotton refused on account of sand, etc., and asked them to hold the 61 bales and he would try to come down to Houston soon. However, he did not go to Houston, but on January 21st wrote Cleveland & Sons to send him the number of bales refused on account of sand, and also date of delivery, and that he would have a man come to Houston in a short time to call upon them. On January 24th Cleveland & Sons again wrote Jamison that, if he doubted their statement as to the manner in which they had sold and delivered his cotton, to send a man to Houston to talk to the purchaser. On February 21st a fire destroyed the compress and warehouse of Cleveland & Sons, together with 30,000 bales of cotton on hand. On March 11th Cleveland & Sons sent out to all their customers a printed circular letter, announcing the fact that they had settled with the insurance company, at 10% cents basis middling, and that as soon as account sales could be made up they would be sent out to the customers, and asking them to ship more cotton, etc. One of these letters was received by Jamison, and he replied on the 13th of March that he would accept their offer of 10% cents basis middling, and asked for remittance to cover. Cleveland & Sons replied on March 15th that Jamison had no cotton on hand, and referred him to their letter of January 24th, in which they explained the sale and delivery of the cotton, and again requested him to send a man to see them if he was not satisfied.

Upon these facts the trial court found that the 61 bales of cotton were sold by Cleveland & Sons without authority of law, and that the difference between what Jamison owed Cleveland & Sons for advancements, storage, insurance, etc., and the aggregate of what the 40 bales brought at 9 Vie cents basis middling, and the 61 bales should have brought, if sold at ’the market price, was $173.38, for which he gave defendant judgment.

No objection was made to the introduction of evidence by either party, and no bills of exception are contained in the record. Appellants rely on alleged errors occurring to their prejudice in the court’s conclusions of law, which conclusions are in part as follows:

“(1) I find that during the fall of the year 1911 the defendant shipped to the plaintiff 101 bales of cotton upon consignment.
“(2) I further find that plaintiff made defendant advances on said cotton so consigned in the sum of $4,740.”
“(4) That on December 19th plaintiffs notified defendant that said cotton had been sold at 9Vig cents basis middling.
“(5) That none of the cotton on of December, 1911, was delivered until January 6, 1912, on which date 40 bales were delivered to the purchaser, who refused to accept 61 bales at 9°/i6 cents basis middling, on account of sand in said cotton, and that on said date plaintiffs notified defendant by letter of the action of the purchaser, and told defendant that they would hold said cotton until plaintiffs heard from defendant.
“(6) That plaintiffs, without waiting to hear from defendant, on January 9, 1912, sold the remaining 61 bales to the original purchaser of the other 40 bales at the same price, to wit, »»/16 cents basis middling.”

Appellants’ first assignment is leveled at the court’s conclusion of law in paragraph 1 above set out. The proposition under this assignment is that:

“Where an owner consigns cotton to a factor who advances the owner money upon such cotton to an amount equal to or in excess of the value of said cotton, and there is no agreement between them as to price or time of sale of such cotton, and all the instruction given by the owner is for the factor to use his own good judgment as to when to sell, the time of sale and price at which the cotton shall be sold is within the sound discretion of the factor, exercised in good faith and with ordinary care and prudence.”

We believe it to he well established, no instructions being given, that where a shipper’s agent, or factor, exercises ordinary care, shill, and diligence to obtain the fair market value of the shipper’s goods consigned or placed in his hands for sale, such agent or factor is not liable in damages to the shipper, although the goods were sold for less than their market value. Drumm-Flato Commission Co. v. Union Meat Co., 33 Tex. Civ. App. 587, 77 S. W. 634; Webster v. Richardson, 55 Tex. Civ. App. 391, 119 S. W. 142. We further believe it to be the rule that in the absence of an agreement to the contrary, or instructions from the shipper, before any advancements are made, to the contrary, that a factor who has made advances on the credit of the goods consigned to him for sale has the right to sell enough of the goods to reimburse himself for his advances, and that after the advancements are made the factor is not hound to obey the subsequent instructions of his principal as to the sale of the goods. His right of sale is not limited by any subsequent order of his principal, except as to the surplus not necessary to effect tfie reimbursement. John Flannery Co. v. James, 13 Ga. App. 425, 79 S. E. 912; Duffy v. England, 176 Ind. 575, 96 N. E. 704; Justice v. Brock, 21 Wyo. 281, 131 Pac. 38, 133 Pac. 1070; Blaisdale v. Lee, 127 N. C. 365, 37 S. E. 509; 19 Cyc. 126; 11 Mechem on Agency (1914) §§ 2537, 2540, 2567. Therefore we conclude that, by reason of the fact that the cotton was consigned to appellant company by Jamison, without any special instructions from him, or agreement between him and Cleveland & Sons, to hold for a specified price, and by reason of the further fact that Cleveland & Sons had advanced to Jamison large sums of money almost equal to, if not in excess of, the full value of the cotton, even if sold at the highest market price claimed by appellee, and the further fact that by his letter of December 17, 1911, Jamison expressly authorized the defendant company to sell the cotton the best it could, and to use its judgment in doing so, and the further fact that in spite of ffotices to Jamison that the advancements made were in excess of the value of the cotton at the price then obtaining, and requests to remit to cover the difference, said Jami-son failed to do so, but contented himself with writing various letters asking for more time, that the factors had the right to sell the 61 bales at what seemed to them the market price. We are of the opinion that the trial court erred in rendering judgment for defendant on his cross-action, and in failing to render judgment for plaintiffs on their verified account. It is true that by their letter of January 6, 1912, plaintiffs, after notifying defendant that 61 bales of cotton had been refused on account of sand, stated that they had said 61 bales on hand, and would hold it until they heard from him, yet, since Jamison had already authorized the factors to exercise their judgment in the sale of the cotton, even if the question of advancement was not in the case, we think they would, in the absence of further instructions, have the right to sell the 61 bales at a price which, in the exercise of good faith and good judgment, they deemed a fair one.

Moreover, it might be well to note that plaintiffs’ witness, Victor Snyder, who had charge of the sale of this cotton, testified that under the rules of the Cotton Exchange a purchaser of cotton, where he had rejected certain bales on account of claimed defects, such as the presence of sand, had the right, before the sale of the cotton to other parties, to reconsider and accept the rejected bales at the price first agreed upon. There is nothing in the record which even tends to contradict the truthfulness of this statement, or to question the binding effect of such a rule upon defendant. We are inclined to think that if a principal selects an agent to handle and sell his goods, and has knowledge, constructive or actual, of the existence of certain rules, customs, or usages pertaining to the business in which the agent and the purchaser of the goods is engaged, and the agent, in the exercise of good faith, submits to the operation of such rules in the handling and sale of his principal’s goods, that the principal could not he heard to deny the binding effect of such rules. There is nothing in the record in the instant case to suggest that the defendant did not know of the custom or rule as to the right of the purchaser to reconsider his refusal, and to take the cotton at the price theretofore agreed upon prior to the sale by the agent to other parties, or that in dealing with his chosen agents he did not do so with full knowledge of the existence of such rule. If we are correct in this conclusion, it affords us a further sound reason why the judgment of the trial court was erroneous.

Eor the reasons hereinabove set forth, the judgment of the trial court is reversed, and inasmuch as the evidence seems to have been fully developed, and the claim of the plaintiff on his verified account is practically acknowledged to be just and due, if not to be defeated by defendant’s counterclaim, no good purpose could be subserved by remanding the cause for another trial, and therefore judgment is here rendered for appellants in the sum of $197.50, with interest from date of judgment in the trial court, and all costs, including costs of this appeal, and that the ap-pellee take nothing by reason of his cross-action.
      <@r=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    MANSELL v. WESTERN UNION TELEGRAPH CO.
    (No. 524.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 10, 1916.)
    1. Evidence <S=3352 — Time-Table—Admissibility.
    In an action for delay in the delivery of a telegram, resulting in inability of the addressee to attend his brother’s funeral, where it was shown that a time-table admitted in evidence was issued by the railroad company to the public for guidance with respect to its trains and was in force on the date in question, its admission was not error.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1398-1403; Dec. Dig. <§=>352.]
    2. Appeal and Error <§=31050 — Review —
    Harmless Error — Admission op Evidence.
    Any error in the admission of parol evidence of the contents of railroad time-tables is not ground for reversal, where another witness testified to the same facts without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-1157, 4166; Dec. Dig. <§=>1050.]
    3. New Trial <§=>103 — Grounds — Newly
    Discovered Evidence.
    In an action for delay in delivering a telegram, preventing the addressee from attending his brother’s funeral, newly discovered evidence that a time-table admitted in evidence was not in force at the date in question is not ground for new trial, where the testimony of the plaintiff and another witness showed that there was a train which plaintiff could have taken on the afternoon of the day when he received the message, that he did not start until the next morning, and that he reached his destination in time to attend all the burial and funeral services shown to have taken place except the removal of the remains from the home to the vault at the cemetery, and the time of removal is not shown.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 215-217; Dec. Dig. <§=>103.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by Walter Mansell against the Western Union Telegraph Company. Prom a judgment for defendant, plaintiff appeals. Affirmed.
    Jones, Jones & Hardie, of El Paso, for appellant. Beall, Kemp & Nagle, of El Paso, for appellee.
   WALTHALL, J.

This is a suit by appellant against appellee for $3,000 damages alleged to have been sustained by reason of its failure to promptly deliver a message sent from Cumberland, Md., by appellant’s sister, addressed to appellant, notifying him of the serious illness of appellant’s brother and requesting him to come at once and not delay. The message was received at appellee’s office at Cumberland, Md., on the 2d day of June, 1913, and was forwarded by appellee to its El Paso, Tex., office on the same day at 7:41 o’clock p. m. The message was addressed to Walter Mansell. When the message reached appellee’s El Paso office, it was placed in an envelope, sealed, and addressed to Walter Marshall, care El Paso & Southwestern Shops, El Paso. By reason of the change in the name of the addressee, the delivery of the message was not made until the next day at 1 o’clock, June 3d. If the message had been promptly delivered, appellant could and would have left El Paso in time to have reached Cumberland, Md., before his brother’s funeral and burial. The damages sued for are alleged to have been sustained in consequence of the disappointment, grief, and mental anguish suffered by reason thereof. Appellant alleged that the act of appellee in changing the name of the addressee from Mansell to Marshall, and thereby causing the delay in the delivery of the message, was gross negligence on the part of appellee and its employés.

Appellee answered denying that it was guilty of gross negligence, alleged that it exercised ordinary care, admitted that it had made the mistake of writing the name Marshall on the envelope inclosing the message, instead of the name Mansell, traversed the facts alleged in the petition, and pleaded the laws of Maryland, and alleged that under said laws appellant is not entitled to recover damages by reason and in consequence of having suffered disappointment, grief, and mental anguish, as mental anguish unaccompanied by physical injuries are not recoverable under the laws of Maryland, which govern in this case. Appellee further alleged in its answer that the message was an interstate message, and the recovery of appellant is governed by the laws of the United States, under which no recovery can be had for mental anguish unaccompanied by physical injuries. We think we need not more fully state the issues. The case was submitted to the jury on special issues. The jury found that the telegram was not delivered with dispatch; that Mansell was prevented from attending the funeral, but that the failure to promptly deliver the message was not the proximate cause; that Mansell suffered great disappointment, grief, and mental anguish caused by his being prevented from attending the funeral; that no sum of money would reasonably compensate Mansell for the mental anguish suffered and assessed no damages; that, if the message had been delivered with reasonable dispatch, Mansell could and would have been present at the funeral. Judgment was rendered for appellee.

Appellant presents three assignments of error; the first, to the admission in evidence of that portion of a time-table of the El Paso & Southwestern Railroad Company, purporting to give schedules of all trains between El Paso, Tex., and Chicago,' up to the 1st of March, 1913, without evidence to prove that same was a correct time-table, or that trains ran in accordance therewith. The second assignment complains of the introduction in evidence of portions of a time-table relating to the schedule of trains between El Paso and Chicago and between Chicago and Cumberland, Md., by interrogating appellant as to the contents of said time-table. The third assignment questions the ruling of the court in overruling appellant’s motion for a new trial, the ground in the motion being newly discovered evidence of a corrected folder and time card of the El Paso & Southwestern Railway Company, showing that the folder introduced by appellee was not in force in June, 1913, at the time represented in the folder introduced.

Witness H. D. McGregor testified that he was city ticket agent for the El Paso & Southwestern Railway Company, and had been for eight years. In reference to the morning train in June, 1913, continuing on to Chicago, it was his recollection that the train was taken off from Tucumcari about that time. The next train after the morning train would be the Golden State Limited. Was familiar with the railroads running out of El Paso to the east and the connections they make between El Paso and Cumberland, Md. The most direct route is the El Paso & Southwestern and Rock Island through to Chicago. They have- the fastest trains and make the quickest time. The time-table, as to the “Golden State Limited” and “Californian,” was the correct time-table for said road even as to June, 1913; that had Mansell left El Paso on June 3d on the “Californian” which left El Paso at 5:25 p. m., he would have arrived in Chicago at 4:50 p. m., on June 5, 1913. Then if the train from Chicago to Cumberland left at 5 or 6 o’clock in the afternoon and got to Cumberland about 6 or 7 o’clock the next morning, it would be imma-’ terial whether Mansell took the Golden State Limited or the Californian, according to the time-table. The Baltimore & Ohio, according to the time-table, left Chicago at 5:45 in the afternoon. If Mansell went on the Californian, he would have, practically, one hour’s time at Chicago. Witness could not say whether any other trains were changed in the schedule except the train that was laid off; but his recollection was that was the only one; no changes were made in the summer time; just whenever it was necessary. Witness’ testimony about the trains from Chicago to Cumberland are based on the time-table. The same train is running now, and witness did not think it had been changed in several years. Knew the time only by the time-table. “This time-table is the schedule tendered us for our folder, for our use. It was tendered to us by the Baltimore & Ohio Railway Company.”

The plaintiff testified that he did not leave El Paso on June 3d on the 5:25 p. m. train, but did leave about 7:45 o’clock the next morning on the Golden State Limited. Reached Chicago on the morning of the 6th between 10 and 11 o’clock. Left Chicago about 6 o’clock that afternoon, and reached Cumberland about 7 o’clock on the morning of the 7th. 1-Iis brother’s remains were put in the ground about 9 o’clock on the day he arrived. There is nothing in the record to show why he did not leave El Paso on the 5:25 o’clock p. m. train.

It having been shown by the uncontradicted evidence that the time-table admitted in evidence was issued by the El Paso & Southwestern Railway Company to the public for guidance with respect to its trains and was in force on June 3, 1913, its admission was not error. Western Union Tel. Co. v. O’Fiel, 47 Tex. Civ. App. 40, 104 S. W. 406.

The facts stated in appellant’s second assignment do not seem to be fully- sustained by the bills of exception; but, however that may be, the witness McGregor had testified to about the same facts, without objection, and under Galveston, Harrisburg & San Antonio Ry. Co. v. Norton, 55 Tex. Civ. App 478, 119 S. W. 702, and Galveston City Ry. Co. v. Chapman, 35 Tex. Civ. App. 551, 80 SW. 856, the evidence, if objectionable, would not be reversible error.

We think the ground in the motion for a new trial, the overruling of which is made the basis for the third assignment, must be overruled. Mansell testified:

“I saw the telegram that has been introduced in evidence, I should judge it was just before noon; it was when they called me to the office on the morning of the 3d day of June. * * * After I had seen this telegram out at the shops, I knocked off work, told them I was through and wanted to go east as quick as possible. I made arrangements with the shops for transportation. * * * I got a slip for my money in the office. Then I left the office and went and changed my clothes and then proceeded to come to the city to send a telegram back. * * * I saw the Golden State Limited leaving before I got to the telegraph office. I saw it when I was on the street ear. * * * I did not take the afternoon train, the Golden State Limited, the day I received the telegram. I saw the train passing as I was coming down Myrtle avenue. I was right there close to the Elk’s Club. That is probably a mile from Union De pot. Yes, sir; there was a train known as ‘The Californian’ leaving about 5 o’clock in the afternoon ; at 5:25 p. m. Yes, sir; that train is No. 2. The Californian, leaving at 5:25, would reach Tucumcari at 4 the next morning, and would reach Chicago 4:50 p. m. of the second day. It takes more than two days, doesn’t it? It looks that way, that you would reach Chicago 4:50 p. m. on the second day. The Golden State Limited got out before I got to town. I didn’t leave on the 5:45 train that day. I left the next morning on the early morning train and stopped over at Tueumcari and took the Golden State Limited.”

Mansell also testified as to what took place at Cumberland in the matter of his brother’s burial after he reached Cumberland at 7 o’clock on the morning of the 7th of June.

“My brother's remains were put in the ground the same day I arrived there; about 9 o’clock. When he was taken from the house to the cemetery, I was not there. I was at the cemetery before he was put in the ground. I possibly did state on direct examination that I was not at his funeral. When he was put in the ground, I was there at that time. The remains before I got there had been removed from the house to the vault. The vaults are overground things with doors that you can go into.”

The record does not disclose whether any funeral service was had other than placing the body in the ground. The petition alleges that the damages suffered were occasioned by the sorrow, grief, and mental anguish because of the fact that “he was deprived of being at his brother’s funeral and the burial of his brother’s remains.”

Whatever the newly discovered time-table might show with reference to movements of the trains, the evidence of the witness Mc-Gregor and the plaintiff shows that the Californian, as a matter of fact, left El Paso on the 3d of June at 5:25 p. m.; also, the evidence discloses that Mansell reached Cumberland in time to attend all of the burial and funeral service shown to have taken place, except the removal of the remains from the home to the vault at the cemetery, and the evidence does not disclose when that occurred.

The cause is affirmed.
      <@=sPor other oases see same topic and ItBY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    HOUSTON & T. C. RY. CO. v. HOLBERT.
    (No. 5383.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Railroads <@=3443 — Killing Stock — Recovery— Sufficiency oír Evidence.
    Evidence in an action against a railroad for damages for killing a horse on the track, alleging negligence in operating a train at a dangerous and rapid rate of speed and in failing to ring the bell and blow the whistle, held to sustain a verdict for plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. <©=5443.]
    2. Railroads @=3415 — Animals on Track-Care.
    Where a place within defendant’s switch limits, where it was not required to fence its track, was grassed, and was a favorite place for stock to graze, as known to the defendant’s engineer and employes, they were bound to keep a lookout for stock, and exercise greater care to discover them and avoid injury while passing such place than would be necessary if the stock were not in the habit of grazing there.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1476-1482; Dec! Dig. <@=3415.]
    3. Railroads <@=3441 — Action for Killing Stock — Burden off Proof — Fences.
    In an action for damages for a horse killed by defendant’s engine, the burden was on defendant to_ show that it could not fence its track at the point where the injury occurred, even though within the switch limits.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. <@=3441.]
    4. Railroads <@=>441 — Killing Stock — Fences.
    Where there was nothing to show that defendant railroad could not have fenced its tracks at the point where plaintiff’s horse was killed, though within its switch limits, without inconveniencing the public, it was not necessary for plaintiff to show negligence in order to recover, the mere killing being enough.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. <&=441.]
    Appeal from Robertson County Court; J. L. Goodman, Judge.
    Action by R. R. Holbert against the Houston & Texas Central Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Perry & Woods, of Franklin, and A. P, McCormick, of Waco, for appellant. H. S, Morehead, of Franklin, for appellee.
   RICE, J.

This suit originated in the justice’s court, and was brought by appellee against appellant to recover damages for killing a horse of the alleged value of $199. There was a judgment in said court for defendant, from which appellee appealed to the county court, where judgment was rendered in his favor for the sum of $150, from which the railway company has prosecuted this appeal.

The negligence alleged consisted in operating the train at a dangerous and rapid rate of speed, and also failing to ring the bell and blow the whistle. Appellant denied that it was guilty of negligence as charged, and also defended on the ground that the injury occurred within the switch limits of the town of Bremond, where it was not required to fence its track.

The case is presented here upon one assignment of error only, which urges that the verdict of the jury is contrary to the evidence and wholly unsupported thereby. While there is some conflict in the evidence, it is shown on the part of appellee that at the time of striking the horse the train was running at a rapid rate of speed, to wit, about 30 to 35 miles an hour, and that there was a failure on the part of appellant to ring the bell or blow the whistle. It also appears by the uncontradicted evidence that grass was growing in and about the tracks where the injury occurred, and that this was a favorite place for stock to graze, which fact was known to the engineer and the employes of the railway company, the engineer testifying that he rarely ever passed there without seeing stock, which made it incumbent, we think, npon the employés of appellant to keep a lookout for stock, and exercise greater care to discover their presence and avoid injury to them while passing said point than would be necessary if stock was not in the habit of grazing there. Upon this evidence the jury found for the appellee. We think the evidence was sufficient to raise the issue as to whether appellant was guilty of negligence, under all the circumstances shown, and see no reason to disturb the verdict. See H. & T. O. Ry. Co. v. Garrett, 160 S. W. 111.

The burden of proof was upon appellant to show that it could not fence its track at the point where the injury occurred. It is true that the animal was killed within the switch limits, but there is nothing to show that the railway could not have been fenced at this point without inconveniencing the public; and, if this were true, then it is not necessary for appellee to show negligence on the part of appellant in order to recover; the mere killing being enough. See St. Louis, B. & M. Ry. Co. v. Dawson, 174 S. W. 850; I. & G. N. R. R. Co. v. Williams, 175 S. W. 486; I. & G. N. R. R. Co. v. Cocke, 64 Tex. 155; Gulf, C. & S. F. Ry. Co. v. Weems, 38 S. W. 1028. But it is not necessary to place our holding upon this point alone, since the verdict, we think, was amply sustained by the evidence, as above indicated, for which reason the judgment of the court below is affirmed.

Affirmed
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    McCARTHY v. McELVANEY et al.
    (No. 7621.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 22, 1916.
    Rehearing Denied Feb. 19, 1916.)
    1. Municipal Corporations <@=^>917 — Indebtedness — ‘ ‘Resolution. ’ ’
    Under the charter of the city of Denison, providing by article 4, § 4, that when the city council deems it advisable to issue bonds it shall, by resolution, declare the purpose for which it deems the issue advisable, the amount of bonds which it deems advisable to issue and sell, the rate of interest, and the denomination of the bonds, and shall thereupon order an election on the question of issuing bonds, a resolution reading, "Whereas the city council of the city deems it advisable to issue certain of said bonds for the purpose and of the amounts hereinafter set forth,” without reciting, “Be it resolved,” and without containing the word “resolution,” was a sufficient “resolution,” which is a mere expression of the opinion or mind of the council concerning some matter of administration coming within its official cognizance, and for which no set form of words is essential if the requirement calling for such expression is met, and was not objectionable in that it did not in express terms declare that the council deemed it advisable to issue the bonds.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1913-1918, 1941; Dee. Dig. <&=917.
    For other definitions, see Words and Phrases, First and Second Series, Resolution.]
    2. Municipal Coepoeations <§==>917 — Bonds — Preliminary Besolution — Denomination.
    Under the Denison City Charter, art. 4, § 4, requiring a resolution of the city council to issue bonds to declare the denomination in which such bonds shall be issued, a resolution, not expressly stating the denomination of the bonds to be issued, but stating the amount of bonds, the rate of interest, and when payable, and the date of maturity, in connection with the mayor’s proclamation for the holding of an. election pursuant to the resolution stating the denomination of the bonds, was sufficient, and did not invalidate the bonds.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §'§ 1913-1918, 1941; Dec. Dig. <§=>917.]
    3. Municipal Coepoeations <§=>917 — Bonds
    —PRELIMINARY ORDINANCE — TIME OE PAYMENT.
    Under the Denison City Charter, art. 4, §
    4. providing that after a vote in favor of issuing bonds, an ordinance shall be passed providing for tie issuance thereof and naming the purpose of the issue and the amount of the aggregate issue, no bonds to run for more than 40 years, an ordinance declaring that the bonds should be dated as of July 1, 1915, prior to the time they were authorized to be issued, and that they should bear interest from date at the rate of 5 per cent, per annum, while an irregularity, did not invalidate bonds which had not been issued and were still in the city’s hands.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1913-1918, 1941; Dec. Dig. <§=>917.]
    4. Municipal Coepoeations <§=921 — Issuance oe Bonds — Preliminary Ordinance-Sale Peice.
    Under the statute, requiring municipal bonds to be sold for not less than par and accrued interest, an ordinance, passed after a vote authorizing a city bond issue, providing that they should be sold at par, meant the same as the statute, thereby giving the taxpayers the principal and accrued interest stated on the face of the bonds, and did not invalidate the bonds.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1932-1935; Dec. Dig. <§=>921.]
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    Action for injunction by C. C. McCarthy against C. T. McElvaney and others. From an order refusing a temporary injunction, plaintiff appeals.
    AfiSrmed.
    Jas. P. Haven and G. D. Hunt, both of Dallas, for appellant. John T. Suggs, of Deni-son, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellees.
   RAINEY, C. J.

This suit was brought by appellant against the city of Denison, Tex., to enjoin the issuing and selling of certain bonds for the building of a viaduct. The application for a temporary injunction was made to the judge in vacation, on which day it was refused. An appeal was duly perfected.

The first assignment of error presented is:

“The trial court erred in refusing to grant the relief by injunction asked for by plaintiff on the ground that the resolution of the city council was fatally defective and wholly insufficient to authorize a submission by said city council to the electors of the city of the question of the issuance of certain municipal bonds, and that the election attempted to be held pursuant to such resolution was illegal and void.”

The proposition is made that the charter provisions require certain necessary steps to he taken by the council as a precedent for the issuance of bonds, and that those requirements were not observed; hence the issuance of said bonds would be invalid; that no such resolutions as contemplated by the charter for holding such an election were passed by the council; hence the election was void. The council of Denison, on August 12, 1915, passed a resolution as follows:

“At a regular meeting of the city council of the city of Denison, Texas, held at 3 o’clock p. m., August 12, 1915, the following proceedings were had: Alderman F. G. Coleman offered the following resolution: Whereas, the city council of the city of Denison, Texas, deems it advisable to issue certain bonds of said city for the purpose and in the amounts hereinafter set forth, it is hereby directed and ordered hy the city council of the city of Denison that an election be held in said city on the 9th day of September, 1915, at which election the following proposition shall be submitted: Shall the city council of the city of Denison be authorized to issue the bonds of the said city of Denison in the sum of fifty thousand dollars, to be payable from one to .twenty yeairs after date, twenty-five hundred dollars of such bonds maturing each year, hearing interest at the rate of five percent. per annum, interest payable semiannually, and to levy a tax sufficient to pay the interest on said bonds as it matures and to create a sinking fund sufficient to redeem them at maturity, for the purpose of constructing permanent street improvements, to wit: A viaduct connecting Rusk avenue from a point near the intersection of same with Morgan street with Austin avenue at a point near its intersection with Munson street, all in the city of Denison, said viaduct to Be constructed in a permanent and substantial manner of steel, stone and concrete, all in accordance with plans and specifications to be prepared therefor.”

The resolution then specified the places where the election was to be held, naming the respective presiding judges, and stating that the election was to be held subject to the laws of the state and charter of Deni-son, and that only qualified property owners and taxpaying voters of said city would be allowed to vote. It stated what should be printed on the ticket, and provided for the mayor issuing a proclamation for holding said election in accordance with said resolution and publishing same as provided by law. In accordance with said resolution the mayor issued his proclamation, which was duly published, and an election was duly held; the proposition to issue bonds being duly carried. The mayor’s proclamation, after reciting said passage of the resolution, further recited that it is—

“determined that it is advisable that there be issued the negotiable bonds of the city of Denison, Texas, for the purpose of construction of permanent improvements to streets by the construction of a viaduct connecting Rusk and Austin avenues between Munson and Morgan streets; that the total amount of such issue shall be $50,000.00 and bonds so issued shall bear interest, payable semiannually, at the rate of five per cent, per annum, and to be of the denomination of $500.00 each when issued and to be payable from one to twenty years after date; $2,500.00 of such bonds maturing each year.”

The charter of Denison bearing upon the proposition in question is as follows:

“Article IV. Sec. 1. The city of Denison is hereby authorized and empowered to issue bonds as herein provided hut not otherwise and all bonds hereafter issued shall be authorized by ordinance duly passed and each ordinance providing for the issue of bonds shall specify the precise purpose for which the bonds are issued and the use to which the money realized from said bonds shall be put. The city council of the city of Denison may, of its own motion, and without any vote of the people, issue bonds to refund and take up old bonds theretofore issued and to extend the time of payment of the debts represented by bonds heretofore issued and to be refunded. But it is expressly provided that all the above-named bonds which may be so issued by the city council shall not bear interest at a rate exceeding five per centum per annum and said interest shall be paid semiannually as it accrues, and it is further expressly provided that the principal aggregate amount of the above-named bonds which may be hereafter issued by the city council shall be divided into fifteen different portions and one portion of the principal amount of each issue of 'bonds shall be paid each year and the bonds represented by said payment shall be duly canceled and a record of the same made and the said bonds when paid and canceled shall be kept as evidence of payment and of the cancellation thereof.
“Sec. 2. Power and authority is hereby granted to the city of Denison to issue other bonds than those above provided for but no bonds other than those above provided for in section 1 of this article shall ever be issued unless the issuance of the same shall be authorized by a vote of the inhabitants of the city of Denison as herein provided for.
“Sec. 3. No bonds shall ever be issued under section 2 of this act except for the making of permanent improvements and for furnishing public utilities such as are named in this act, and no such bonds shall ever be issued which shall bear interest exceeding the rate of live per cent, with said interest payable semiannually as it accrues, nor shall any such bonds be issued except upon ordinance made by the city council after a majority vote of the electors of the city of Denison in favor of said ordinance and the issuance of said bonds as hereinafter determined.
“Sec. 4. Whenever the city council may deem it advisable to issue bonds other than those provided for in section 1 of this article, the council shall by resolution declare the purpose for which it deems the issuance of bonds advisable, the amount of bonds which it deems advisable to issue and sell to raise money to execute said purpose, the rate of interest which said bonds shall bear and the denomination in which said bonds shall be issued. The city council shall thereupon order an election of the qualified property owning voters in said city to be held not later than thirty days after the date of the resolution and at said election the ballot of the qualified voters shall be taken and those voting for the issuance of said bonds shall have written or printed upon their ballot ‘in favor of issuing bonds in.for the purpose of.’ and blanks in said ballot herein shown shall state in one the amount of issue and in the purpose following the resolution made by. the city council and those voting against the issue shall vote a like ballot except the words against the issuing of bonds in amount and for the purposes set forth. If at such election a majority of the voters shall have voted for the issuance of bonds then an ordinance shall be passed providing for the issuance and the said bonds shall be issued, but in every instance an ordinance shall be duly passed providing for the same and naming the purpose for which said bonds are issued and the amount of the aggregate issue thereof and no bonds herein provided for shall run for a longer time than forty years.”

It is claimed by appellant that the resolution in. its expression differs materially from what the charter of the city of Denison intended in granting the right to issue municipal bonds:

First. It is contended that the resolution does not recite, “Be it resolved,” in the beginning thereof, “that,” etc. This is true, nor is there contained therein the word “resolution,” but it was introduced as a resolution, and on its face it purports to be a resolution, and we think it is one. The law regards not so much the form of • an instrument as it does the substance, where the intention is expressed by plain and intelligible language, which is done by this resolution.

“A resolution is a mere expression of the opinion or mind of the council concerning some matter of administration coming within its official cognizance, and no set form of words is essential, if the requirement which calls for such expression is met.”

Second. It is further contended that said resolution does not, in express terms, declare that the council deems it advisable to issue the bonds, as required by section 4, art. 4, of its charter, which provides that:

“Whenevér a city council may deem it advisable to issue bonds, * * * the council shall by resolution declare the purpose for which it deems the issuance of bonds advisable,” etc.

The resolution reads:

“Whereas, the city council of the city deems it advisable to issue certain of said bonds for the purpose and in the amounts hereinafter set forth,” etc.

If the language of the resolution does not express that the city council deemed it was advisable for the issuance of bonds and effect a declaration for the purpose thereof, which at least is a substantial compliance with said charter, then we fail to grasp its meaning.

Third. It is further contended that the resolution does not state the denomination of the bonds to be issued'. While the resolution as passed did not expressly state the denomination of the bonds to be issued, -it did state the amount of bonds, the rate of interest, and when payable, the time the bonds were to mature, and the amount to mature each year. The proclamation issued by the mayor in pursuance of said resolution for the holding of an election stated the denomination of the bonds to be issued. The people were duly informed as to the denomination of the bonds, and consequently there can be no claim that they were misled. Under the circumstances, this omission was immaterial, and should not require a holding that the issuance of the bonds would be invalid.

The second assignment of error is:

“The trial court erred in refusing to grant the relief by injunction asked for by plaintiff, on the ground that the action of the city council in providing in its ordinance that the bonds should bear a date prior to the time the bonds were to be issued, and prior to the time the electors had authorized their issuance, and in dating same pursuant to such ordinance, was illegal and unauthorized, and the bonds themselves invalidated.”

The election on the issuance of said bonds was held on September 9, 1915. On September 20, 1915, the city council of Denison passed an ordinance to the effect that “said bonds shall bear date of July 1, 1915,” and, further, “all of said bonds shall bear interest from date at the rate of 5 per cent, per annum.” Neither in the ordinances passed nor in the proclamation issued by the mayor for the election held to determine whether or not bonds should be issued was there a time specified for the bonds to bear date. While the dating of the bonds July 1, 1915, was prior to the time the bonds were authorized to be issued, which appears to be irregular, yet we are unable to see that the issuance thereof affects their validity, as no injury resulted therefrom. The bonds had not been issued and were still in their hands.

No claim was made in appellant’s petition that he feared the council would sell the bonds for less than par and accrued interest, or that it intended to. The ordinance passed required that said bonds should be sold at par, and it is to be presumed that the council in so doing will conform to the law. The language of the ordinance is not in the exact language of the statute, which requires bonds to be sold for not less than par and accrued interest; but we think the ordinance means the same thing — that is, the bonds shall be sold for not less than par and accrued interest. This being so, the bonds, when sold, cannot legally be issued until then, and the council should receive par value; that is, the principal and interest as shown by the face of the bonds. If this is done, the taxpayers will receive the full value of the principal and accrued interest stated on the face of the bonds, which will be in conformity with their instructions expressed by the vote at the ballot box.

We think the city council has in every material particular substantially complied with the law for the issuance of said bonds, and the judgment refusing the issuance of an injunction is affirmed.
      ®=>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BAKER et al. v. BLEDSOE et al.
    (No. 916.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 9, 1916.)
    Gifts <&wkey;49 — Inter Vivos — Evidence.
    In an action on vendor’s lien notes, evidence held, to sustain the finding that the notes had not been given to the maker by the payee thereof since deceased.
    [Ed. Note. — Eor other cases, see Gifts, Cent. Dig. §§ 95-100; Doc. Dig. <&wkey;49.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by W. H. Bledsoe and others against E. C. Baker and others. From Judgment for plaintiffs, defendants appeal. Affirmed.
    Ferguson & Puckett, of Lubbock, for appellants. W. F. Schenck, W. H. Bledsoe, R. A. Sowder, and Benson & Spencer, all of Lubbock, for appellees.
   HENDRICKS, J.

The appellees sued the appellants, alleging the execution of three vendor’s lien promissory notes, averring ownership of said notes, by virtue of certain probate proceedings over the estate of one D. McDonald, deceased, transferred by the administrator of said estate, under an order of the probate court, in consideration of a debt claimed against the estate. The appellants who executed the notes to D. McDonald, the payee, since deceased, alleged that McDonald in his lifetime made a gift to them of said notes, and that the same, by virtue of said gift, were canceled.

An agreement in the case recognized ownership of the notes in plaintiff, with a subsisting lien on the property described by them, and that plaintiffs are entitled to judgment for the debt, together with a foreclosure of the lien, “provided that said notes were not canceled and satisfied by the purported gift of the notes by D. McDonald to the defendant E. C. Baker.” McDonald died December 8, 1909, and defendant E. C. Baker filed the purported will for probate, executed by D. McDonald, naming the said Baker as executor. The county court and the district court of Lubbock county denied the probate of said will, and, upon appeal to this court, the judgment of the district court was affirmed. Baker y. McDonald, 159 S. W. 450.

On the trial of this particular cause E. G. Baker and his brother-in-law Schmidt testified in substance: That on Saturday following the execution of the notes, D. McDonald, who was in a hospital at that time, in his last illness, arranged to leave said hospital and to return to his home, but was unable to do so. That- on the following Monday he gave the notes to defendant Baker, saying: “Baker, you take- these notes and keep them until I call for them.” That Baker asked him: “In case anything happens to you, what shall I do with them? Shall I give them to Aunt Mattie?” (meaning the wife of D. McDonald). That McDonald replied: “If anything happens to me do not give them to her or any one else. Keep them for yourself.”

The case involving the probate of the will of D. BlcDonald was twice tried in the probate and district courts, and twice appealed to the appellate court. One of the attorneys who represented Mrs. BlcDonald, the wife of deceased, in contesting the will, testified that he was intimately connected with the case at all times and was present and assisted in every trial of said cause; that he never at any time heard that E. 0. Baker, who was named as executor in said will, or Leah Blaud Baker, claimed that the note sued on in this cause had ever been given Baker by BlcDonald, and that Baker never at any time, within the knowledge of the attorney, made any such claim until after the filing of this suit; that he was present at the trial of the cause in the district court when the depositions of E. G. Baker were used in said cause, in which Baker admitted that he still owed the $2,590 to D. McDonald’s estate for said land. The following is the interrogatory propounded to Baker in the former cause and his answer thereto:

“Gross-Interrogatory No. 3: What property do you now own? Where is it situated? Do you own it individually, or in connection with some other property, and what is its value, and what do you owe on it? Give your answer in detail to this, and be certain to give all that you own. A. I own one hundred and sixty (160) acres of land in Lubbock county. It is worth about three thousand ($3,000) dollars. I owe two thousand five hundred and ninety ($2,590.00) dollars on it. The deed was made December 3, 1909, the price was sixteen and so/ioo ($16.50) dollars per acre. I paid fifty ($50.00) dollars cash, and' executed three (3) notes, agg-regating the sum of two thousand five hundred and ninety ($2,590.00) dollars. The notes were made payable to D. McDonald, or order, and the notes were signed by E. O. Baker and Leah Blaud Baker.”

The trial court found that the notes were never given to Baker, 'and the only assignment in this cause is the sufficiency of the testimony to sustain the finding, and the judgment based thereon.

The judgment of the trial court is affirmed.