author: CONNER, C. J.

text:
    GULF, C. & S. F. RY. CO. v. DAVIS et ux.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 28, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Carriers (§ 316)—Caebiage of Passengers—Presumption—Res Ipsa Loquitur.
    In an action by a female passenger who fell while alighting from a railroad train owing to her dress catching upon something, where there was no showing that it caught on any screw or projection upon the platform,_ the doctrine of res ipsa loquitur cannot be relied on to raise an inference of negligence, because it would be basing inference on inference; the first inference being that by reason of the fall there must have been some obstruction, and the second that the defendant was negligent in failing to discover and remove the projection.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.]
    2. Carriers (§ 318)—Carriage of Passengers—Actions.
    In an action against a railway company for injuries received by a passenger who fell while alighting from a car, a judgment in favor of the passenger cannot be upheld, where the testimony showed that the accident was as reasonably attributable to a nonactionable cause as to the company’s negligence.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dee. Dig. § 318.]
    3. Carriers (§ 316)—Carriage of Passengers—Duty of Care.
    While it is the duty of a railroad company to exercise a high degree of care to furnish and maintain suitable cars and platforms upon which passengers may move with safety, it is not an insurer in this respect, and one injured upon a car platform has the burden of proving the company’s negligence.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.]

      Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Action by L. C. Davis and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    See, also, 139 S. W. 674.
    Terry, Cavin & Mills, of Galveston, Brown & Lockett, of Cleburne, and Lee & Lomax, of Ft. Worth, for appellant. J. B. Haynes, W. Poindexter, and Walker & Baker, all of Cle-burne, for appellees.

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

   CONNER, C. J.

This appeal is from a judgment in appellees’ favor for the sum of $12,500 as damages for personal injuries alleged to have been received by Mrs. Davis while she was a passenger on one of appellant’s trains on the 16th day of January, 1909. A number of assignments of error relating to the rulings of the court on the instruction and rejection of evidence and to special charges given and refused have been presented, but, in the view that we have taken of the case, it will not be necessary for us to determine them. The vital question, as we conclude, is whether there is any evidence in support of the issue of negligence upon which the case was submitted.

Several grounds of negligence were alleged. All 'but one, however, were excluded from the consideration of the jury by the court’s charge, and of this no complaint is made, so that in our statement of the case we will confine ourselves to the issue of negligence submitted. It was alleged, in substance, that on the evening of the day stated Mrs. L. C. Davis took passage at Cleburne, Tex., upon one of appellant’s passenger trains for the purpose of being transported to her home in Alvarado. Mrs. Davis without dispute paid the customary railroad fare and became a passenger. She thus alleges the manner of her injury: “And when said passenger train reached the defendant’s passenger station in Alvarado, Johnson county, Tex., and had stopped at said station for the purpose of allowing passengers to disembark from said train, and from the coach in which she was riding, the plaintiff in the exercise of due care arose from her seat in said coach and passed out of the usual and regular door to said coach onto the platform thereof, and while she was attempting to pass down the steps of said coach from the platform, the lower and back portion of her dress and skirts caught upon one or more nails, screws, bolts, or other projection negligently allowed and permitted by the defendant to protrude above the surface of said platform, or to be attached to said coach, and the back part of her dress and skirts being thus caught and fastened by said projection, nails, screws, or bolts, caused the front and lower part of her dress and skirts to pull and jerk her feet from under her, and caused her to fall and to be thrown down said steps from near the top thereof to the lower part of said steps, and the stool placed beneath the lower step and on the ground, and as a direct and proximate result thereof severely and permanently injured her.” And thus charges the issue of negligence upon which the case was submitted: “That the defendant was guilty of negligence in allowing and permitting said nails, screws, bolts, or other projections to thus stand up and protrude above the surface of said platform or other part of said coach near the door and platform of said coach, and was guilty of negligence in permitting the same to remain in such condition.”

Mrs. Davis testified that when the station of Alvarado was called she got up and started out, and got to the edge'-of the platform to make her first step, when her dress caught behind on something and jerked her feet from under her and threw her forward to the ground, from which she suffered injuries as related in her testimony. She said: “I do not know what my dress caught on; it caught on the platform somewhere. The skirt just jerked me and jerked my feet out from under me.” She further testified that the obstruction tore her dress, which was exhibited before the jury, and which was thus described by her: “No one has worn this dress since that night. Prior to the time I fell from the train there was no holes in this dress. It is torn now crossways at the bottom of the placket and towards the left side. This tear is about eight inches to the left side of the placket; the tear extending from the bottom of the placket to the left. The hole at the bottom of the skirt is just over the hem and is about six inches in length and extends to the hem. Then it is torn slightly at the left side and not quite so much to the right. It is a hole your fist could slip through easily.”

Other than the evidence of appellee quoted, there is none that corroborates her theory of the fall, save the testimony of Silas Bank-ston, who testified: That he was present and within some eight or ten feet of Mrs. Davis when she fell. That “when I first saw Mrs. Davis she was standing out on the platform between the coaches and started down; she took one step and started to take another one and fell. Her dress was pulled behind, and she fell. * * * Her dress swung right backwards from where she was getting off. I just happened to be noticing her dress. It drew in front of her and about her shoe tops.” The brakeman, however, at the foot of the steps, a bus driver standing near, and some four or five other persons, also near by, either passengers or waiting on appellee to take passage, all deny seeing a screw, nail, or other thing upon the platform on which appellee’s dress could have caught. These witnesses all believed themselves in position in which to have seen had there been anything of the kind. One or more of them testified specifically that they thought they would have seen it had there been a projection, and all also denied that they observed or heard any tearing of appel-lee’s dress, or any drawing of the dress from behind immediately preceding the fall; one witness giving it as her opinion that appellee either fell in a fit or voluntarily. All other observers save one thought her fall was with design.

Adopting, however, in deference to the verdict of the jury, appellee’s own account of her fall, there yet remains the vital issue of whether appellant or its servants were guilty of negligence in permitting the platform or steps of the car in question to be in the condition alleged. Other than the mere fact that appellee’s dress caught on “something,” there is nothing in the evidence from which to draw an inference of negligence. The evidence shows that appellant’s car inspectors at Cleburne inspected the car during the day preceding the occurrence; that the ear was also inspected by the brakemen on the way to Dallas shortly afterwards, and yet later after the arrival of the car at Dallas, and yet again with particularity on the day after at Cle-burne, when appellant’s inspectors at that place were informed that appellee claimed to have been thrown by catching her dress on a screw or other thing on the platform. On none of these occasions was a defect or obstruction found as shown in the evidence. It is not contended that such inspectors were incompetent and that appellant was guilty of negligence in their employment or retention; nor is it contended that there is any evidence, save the mere fact that appellee’s dress caught, that indicates carelessness on the part of any of appellant’s inspectors, or of an insufficient inspection; nor is it contended that the inspections were not with sufficient frequency, nor that the car was old and worn, or defective in construction, and that appellant was guilty of negligence in this respect. Then in what respect was appellant negligent? The allegation, as will be seen from the quotation made, is that appellant was guilty of negligence in “permitting said nail, screws, bolts, or other projection to thus stand up and protrude above the surface of the platform or other part of said coach near the door, and was guilty of negligence in permitting the same to remain in such condition.” But what proves it? As seen, inspection was made before the car was started on its way to Alvarado, and no screw, bolt, or other projection was apparent. The evidence shows that screws in the platform of like cars sometimes work out, but nothing is here shown when, if at all, the raised screw or other projection first protruded above the platform. For aught that appears in the evidence, it may have been but a moment before appellee appeared on the platform. It cannot be reasonably said that the brakeman or other employes were guilty of negligence in failing to discover the elevated screw when neither the appellee nor any of the descending or ascending passengers and other observers were able to observe it before or after the fall. None of them testified that he or she saw, tripped over, had clothing caught on, or otherwise discovered a protruding screw, or other thing upon which a dress could have caught. On the submission it was suggested in argument that appellee’s dress may have extracted the screw, thus accounting for the failure of the witnesses to see it; but this is a mere conjecture. No loose screw was found on the ground or other place afterwards, nor does any witness indicate that there was a vacant hole in the platform. In brief, as stated, there is nothing in- the evidence, which we have carefully considered, upon which to found the conclusion that appellant was guilty of negligence in the respect alleged by appellee, except the isolated fact that appellee’s dress caught upon something and that she was thereby caused to fall.

Numerous cases might be cited where an inference of negligence has been held to be justified from the very nature of the defect causing an injury, but this principle — that of res ipsa loquitur — has no proper application here. The defect, the cause of the fall in the instance before us, is not shown with any degree of certainty. That there was a loose screw or other projection on the platform of the ear in question is a mere inference from the fact that appellee’s dress caught, and to proceed yet further in the course of reasoning, and infer negligence in permitting the screw or projection to be there, seems to be adding presumption upon presumption, which the law never permits.

One of the passenger witnesses, Baxter Walton, testified that he was in the middle of the platform and about three feet behind appellee and in position to have seen her dress if it caught anything as she got off; there being nothing to obstruct his view. He not only denied seeing any obstruction, but further testified that “another boy came out there where I was after I had gotten out there, and stood kinder behind me on the same platform that I was on. I don’t know when he came out there, but he was standing there after she fell. I noticed him before any other passengers came along. I know he did not come up the steps and get on the train after the lady fell.” Baxter Walton denied that he, himself, stepped on appellee’s dress, but, so far as we can tell from the record “the boy” was not called as a witness. It is possible that either the boy or some other person not observed inadvertently stepped upon appellee’s dress, and thus tore it and threw her. This, of course, is but a mere conjecture that will not be indulged by the law, but is given merely as illustrating that appellee’s testimony accounting for her fall is not inconsistent with causes of her fall other than that of a projecting screw. And the rule undoubtedly is that, where the testimony shows that an accident is as reasonably attributable to a nonactionable cause as to one that is, the law will not uphold a conclusion in the nature of a mere guess in favor of the latter.

While it was appellant’s duty to exercise a very high degree of care to furnish and maintain suitable cars and platforms upon which passengers could move with safety, it was not an insurer in this respect, and the burden of proof rested on appellee to show such a state of circumstances as affords a reasonable conclusion of negligence as alleged. It is not sufficient for a plaintiff to show that the defendant may have been guilty of negligence; the evidence must point out that he was.

We conclude that in this appellee has wholly failed, and that such failure entitles, appellant to judgment. Texas & P. Coal Co. v. Kowsikowsiki, 118 S. W. 829, s. c. 103 Tex. 173, 125 S. W. 3; St. Louis, S. F. & T. Ry. Co. v. Cason, 129 S. W. 397. Such being our conclusion, and it further appearing that this case had been twice tried and fully developed, we think in the interest of all parties that the litigation should be brought to an end. It is, accordingly, ordered that the judgment be reversed and here rendered for appellant.

Reversed and rendered for appellant.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    COODY v. SHAWVER et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 8, 1913.
    Rehearing Denied Dec. 13, 1913.)
    1. Pleading- (§ 301) — Verification—Verification by Attorney.
    The fact that a pleading was verified by a party before one of his attorneys in the case was not ground for sustaining a special exception thereto.
    [Ed. Note. — For other cases, see Pleading, .Cent. Dig. §§ 314, 318, 892-897, 904-906; Dec. Dig. § 301.]
    2. Partnership (§ 213) — Allegations—Relation.
    The mere allegation in the petition of joint ownership of the mules sought to be recovered was not equivalent to an allegation of partnership as to the mules.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 408, 409; Dec. Dig. § 213.]
    3. Replevin (§ 8) — Issues.
    In an action by two persons to recover mules, or their value, which were claimed to have been converted by defendant, the questions whether plaintiffs were partners, and whether one plaintiff had paid the other for his interest therein, were immaterial.
    [Ed. Note. — For other cases, see Replevin, Cent. Dig. §§ 45-68; Dec. Dig. § 8.]
    4. Partnership (§ 218) — Existence oe Relation-Submission op Issue.
    In an action to recover possession of mules claimed to have been converted by defendant or their value, whether defendant was the partner of plaintiff need not be submitted; . the evidence not tending to show a partnership.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 49, 426-428; Dec. Dig. § 218.]
    5. Partnership (§ 20) — Existence op Relation.
    An agreement that one of the parties thereto would furnish the money to purchase horses would not of itself constitute a partnership between the parties.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 6, 7; Dec. Dig. § 20.]
    6. Partnership (§ 218) — Instructions—Defining Terms.
    A requested instruction submitting the issue of partnership was defective for not stating to the jury what would constitute a partnership.
    [Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 49, 426-428; Dec. Dig. § 218.]
    7. Partnership (§ 218) — Existence op Relation.
    An instruction, that if the purchase of horses by plaintiff was under an agreement by which defendant was to have a third interest therein upon paying to plaintiff a third of the price without fixing a time for payment, unless he paid such third within a reasonable time he would not be a partner in the stock, was not erroneous on the ground that it authorized the finding that failure to pay defendant’s part of the price would dissolve the partnership, though a partnership had been consummated.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 49, 426-428; Dec. Dig. § 218.]
    Appeal from Knox County Court; J. H. Milam, Judge.
    Action by G. H. Shawver and another against C. H. Coody. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Jas. A. Stephens, of Benjamin, for appellant. D. J. Brookreson, of Benjamin, and Robert Cole, of Crowell, for appellees.

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

   DUNKLIN, J.

G. H. and J. A. Shawver instituted this suit against Henry Coody to recover possession of three mules and one horse, or, in the alternative, the value thereof, also for $250, the value of two mules alleged to have been converted by the defendant; title to all of said stock being claimed by the plaintiffs. Judgment was recovered by plaintiffs, and the defendant has appealed.

The animals in controversy originally belonged to a herd of 37 head of horses and mules purchased at public sale; plaintiff G. H. Shawver furnishing the purchase money therefor, and defendant Coody bidding in the stock and taking and holding possession thereof for quite a long period of time. According to the testimony of plaintiff, G. H. Shawver, he agreed with Coody prior to the purchase that he (Shawver) would furnish the purchase money, and after the purchase Coody and plaintiff J. A. Shawver might each become the owner of a one-third interest in the stock upon payment of one-third of the purchase price, but that Coody had never paid, or offered to pay, such consideration, and had refused to turn over to the plaintiffs the stock in controversy. According to Coody’s testimony, prior to the auction sale noted, plaintiff G. H. Shawver had agreed unconditionally that, if he (Coody) would bid In the herd, G. H. Shawver would furnish the purchase money, and that the two plaintiffs and Ooody would become partners and own the stock in equal shares, and that X A. Shawver and Ooody should each owe to G. H. Shawver one-third of the purchase price of the stock. The difference in these two versions of the terms of the agreement was the only controverted issue upon the trial.

The allegation contained in Ooody’s answer of a partnership formed between the two plaintiffs and himself for the ownership and management of the herd was specially denied by plaintiffs in their supplemental petition, and this pleading was verified by plaintiffs before one of their attorneys who acted as notary public in taking the affidavit. Defendant’s special exception to this pleading on the ground that the attorney was not a proper official to take the affidavit was correctly overruled. Ryburn v. Moore, 72 Tex. 85, 10 S. W. 393; Kosminsky v. Raymond, 20 Tex. Civ. App. 702, 51 S. W. 51.

G. PI. Shawver, after testifying that his brother, X A. Shawver, owned an interest in the horses in question and that defendant did not own any interest in them, was asked by defendant’s counsel if X A. Shawver had ever paid to witness any part of the purchase money for the herd. Plaintiffs objected to this question on the ground that defendant had ‘not by answer denied under oath allegations in plaintiffs’ petition that the two plaintiffs owned the horses as partners. This objection was sustained, and this ruling is made the basis of the second assignment of error. While the petition claimed a joint ownership of the horses in plaintiffs, there was no allegation of a partnership between them, nor of any fact that would constitute a partnership. Evidently the allegation of joint ownership was construed by the court as equivalent to an allegation of partnership in the plaintiffs in such ownership, which was incorrect. However, the issue of whether or not the plaintiffs were partners in the ownership of the horses was immaterial, and it was also immaterial whether or not J. A. Shawver had paid his brother for his interest in the horses. Accordingly, the second assignment of error is overruled.

Appellant complains of the refusal of two special instructions requested by him upon the issue of' partnership between himself and the plaintiffs. Whether or not the defendant was a partner of- plaintiffs was an immaterial issue. His contention, that plaintiff G. H. Shawver agreed unconditionally that as soon as the herd was purchased defendant should become the owner of a one-third interest therein and should thereafter pay one-third of the purchase price, was submitted to the jury in the court’s charge, together with an instruction that, if that contention was sustained by the evidence, a verdict should be returned in the defendant’s favor. In order to establish the alleged partnership between the plaintiffs and the defendant, it would have been neces-. sary for the, defendant to .show, not only that he acquired an interest in the stock, but also further facts necessary to constitute a partnership. The charge given by the court was therefore more favorable to the defendant than the two requested instructions last noted.

Furthermore, one of the requested instructions was erroneous, in that it. contained the proposition that, if it was agreed between the parties that G. H. Shawver would furnish the money to purchase the horses, that agreement alone would constitute a partnership between them, and the other requested instruction submitted the issue of partnership with no guide to the jury for the purpose of determining what would constitute a partnership. Hence the assignments complaining of the refusal of the requested instructions are overruled.

Complaint is also made of an instruction given by the court, in effect, that if the purchase of the stock was made under an agreement whereby defendant was to have a one-third interest in the stock provided he would pay to G. H. Shawver one-third of the purchase price and no time fixed for such payment, the defendant would have a reasonable time to pay the same, and, unless he paid the same within a reasonable time, he would not be a partner with the plaintiffs in the stock. The criticism of the instruction is that by the instruction the jury were authorized to find that, although a partnership had been in all things consummated, the defendant’s failure to pay his portion of the purchase price would dissolve the partnership. By the very terms of the instruction the acquisition of an interest in the property by the defendant was made to depend upon the payment by the defendant of one-third of the purchase price. In other words, the agreement submitted was merely one giving the defendant an option to become the owner of an undivided one-third interest in the stock, and, according to the defendant’s own testimony, he never paid nor offered to pay any part of the purchase price. For this reason there is no merit in the assignment

Another paragraph of the court’s charge is criticised as being upon the weight of the evidence in assuming that the stock in question belonged to the plaintiffs; but, when considered in connection with other instructions contained in the charge clearly submitting that issue as a disputed issue, it is altogether improbable that the jury interpreted the charge in the manner suggested in the assignment.

There is no merit in appellant’s seventh assignment complaining of an instruction permitting a finding in plaintiffs’ favor of compensation for the use of certain animals claimed by the plaintiffs and used by the defendant, since it appears from the verdict of the jury that no such allowance was made. We are of the opinion further that the evidence was ample to support the verdict.

By another assignment it is insisted that the judgment should be reversed because the court failed to prepare a correct statement of facts. In answer to this assignment, it is sufficient to say that a statement of facts prepared by the judge and duly certified appears in the record, and that appellant has not attempted in any manner to point out wherein the statement of facts is defective, neither has he submitted any motion to strike it from the record.

The judgment is affirmed.


text:
    GILLISPIE v. AMBROSE et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 1, 1913.)
    1. Landlobd and Tenant (§ 223) — Claims Abising out of the Same Tbansaction.
    Under Rev. Civ. St. 1911, art. 1330, providing that the preceding article, which provides that, if plaintiff’s cause of action be a claim for unliquidated or uncertain damages founded on a tort or breach of covenant, the defendant shall not be permitted to set off any debt due him by the plaintiff, and, if the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant, shall not be so construed as to prohibit the defendant from pleading in set-off any counterclaim founded on a cause of action arising out of, incident to, or connected with plaintiff’s cause of action, in a landlord’s action to recover rent and compensation for the use of farming implements and mules, the defendant could set up as a counterclaim a breach of warranty of two horses which he agreed to buy from the landlord in part consideration for the lease, since this claim arose out of plaintiff’s cause of action.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 885-893; Dec. Dig. § 223.]
    2. Pleading (§ 228) — Exception to Pleading Good in Past.
    An exception to five counts in a petition of reconvention was properly overruled where one of the counts stated a proper counterclaim.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584^590; Dec. Dig. § 228.]
    3. Pleading (§ 228) — Demttebeb—Opebation and Effect of Decision on Demubeeb.
    An exception of misjoinder of causes of action is properly addressed to the entire pleading, and, if sustained, the entire pleading is stricken out, leaving it optional with the pleader to select such portions of the plea as he may see fit, and the court cannot make this selection for him; and hence an exception to five counts in a plea of reconvention for misjoinder, by which it was proposed to strike out such counts and permit three other counts to remain, was properly overruled.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584r-590; Dec. Dig. § 228.]
    4. Appeal and Ebeoe (§ 732) — Assignments of ERBoe — Sufficiency.
    In a landlord’s action for rent and for compensation for the use of farming implements and mules, in which the tenant filed a plea of recon-vention for breach of warranty and to recover damages for torts, an assignment of error that the court erred in overruling plaintiff’s motion for a new trial because the jury allowed the full amount claimed by defendant’s plea, except the sum claimed as damages for the breach of warranty, was too general to require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.]
    5.Tbial (§ 250) — Instructions—Confobmity to Pleadings and Evidence.
    Where, under a plea of reconvention alleging that defendant had falsely and maliciously declared that defendant was a dishonest person, owed plaintiff money that he would not pay, and for which she held a lien on his cotton, by reason of which acts defendant was unable to market his cotton in the town of A., where he was accustomed to sell his crops, and had been suspected by his neighbors and others of being dishonest, lost their respect, and suffered withal humiliation, there was neither allegation nor evidence of the amount of pecuniary loss resulting from defendant’s inability to market his crop, the claim set up should not have been submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584r-586; Dec. Dig. § 250.]
    6.Appeal and Ebeoe (§ 1140) — Cube of Eb-BOB BT REMITTITUB.
    Where defendant, under a plea of reconvention in a number of counts claiming in the aggregate $196.50, obtained a verdict of $136.50, indicating that the jury allowed a portion of a claim of $70, which under the pleadings and evidence should not have been submitted, the judgment would be reversed unless defendant filed a remittitur of the whole $70.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. § 1140.]
    Appeal from Jones County Court; Joe C. Randel; Judge.
    Action by Mrs. Jerome Gillispie against J. W. Ambrose and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded, unless plaintiff files remitti-tur.
    H. H. Sagebiel, of Ganado, and W. S. Pope, of Anson, for appellant. Brooks & Brooks, of Anson, and Davenport & Davenport, of Stamford, for appellees.

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

   DUNKLIN, J.

J. W. Ambrose and Guy Ambrose rented land from Mrs. Jerome Gil-lispie, who instituted this suit against them to recover several items claimed to be due for rents and for the use of farming implements and mules. But the suit was dismissed as to the defendant Guy Ambrose. J. W. Ambrose, in addition to a general denial, filed a plea in reconvention in which he sought to recover for certain labor performed for the plaintiff and in which he further sought to recover damages, the nature of which will hereinafter be noted. Judgment was rendered upon the verdict of a jury denying plaintiff any recovery and awarding defendant a recovery against the plaintiff for $136.50, from which plaintiff has appealed.

The land was rented for two years, as shown by two leases, which were in writing, and one of them contained the stipulation that defendant would purchase from the plaintiff two horses and would pay plaintiff for one of them $100 and for the other $135. This agreement to purchase the horses was one of the considerations for the lease to the defendant.

In the fourth count of defendant’s plea in reconvention it was alleged that plaintiff warranted those two horses to be in sound condition and of certain ages, but that they were both unsound and older than represented, and that by reason of those misrepresentations they were worth $60 less than the price which defendant agreed to pay, and he sought to recover of plaintiff that sum as damages. By the fifth count in the plea damages were claimed in the sum of $17.60 as the value of certain feed stuffs which it was alleged belonged to the defendant and were wrongfully taken from his barns during his absence by plaintiff’s agent. By the sixth count in the plea it was alleged that plaintiff, through her agents, caused his arrest and prosecution on a charge that he had unlawfully used two of her mules without her consent; that he had been duly acquitted of the charge upon trial; that the prosecution of him by the plaintiff was malicious and without probable cause; and that he was damaged thereby in the sum of $15, the fee which he was forced to expend in the employment of an attorney to represent him, and in the further sum of $5, loss of time in attending court. By the seventh and eighth counts in the plea it was alleged that defendant had falsely and maliciously published and declared that defendant was a dishonest person, was owing plaintiff money that he would not pay, that he was due her rent for which she held a lien upon the cotton grown upon the premises by the defendant, and that by reason of such acts on the part of the plaintiff he was unable to market his cotton in the town of Anson, where he was accustomed to sell his crops, and had been suspected by his neighbors and others of being dishonest, had lost their respect and esteem, and had suffered mental humiliation and harassment by reason of such charges, all to his damage in the sum of $70, for which he prayed judgment.

Plaintiff addressed an exception to those five counts in the petition collectively, which was overruled. By the first assignment of error complaint is made of that ruling. By the first proposition it is insisted that the damages claimed and to which the exception is addressed are for tort and breach of covenant, which cannot be pleaded and set off against plaintiff’s claim, which is a certain demand. By the second proposition it is insisted that, if plaintiff’s demand be unliquidated, defendant’s counterclaims cannot be offset because they constitute unliquidated demands and are founded upon alleged torts. As noted already, the claim made in the fourth count in the plea in reconvention was for damages growing out of an alleged breach of warranty of the condition and ages of the two horses which he had agreed to buy from the plaintiff in part consideration for the lease of the land. This claim arose out of the plaintiff’s cause of action, and hence was a legitimate counterclaim to plaintiff’s suit. Revised Civil, Statutes, art. 1330. The exception now under discussion having been addressed to this claim, together with four other counterclaims mentioned above, collectively, and being in effect a general demurrer to all five of those claims, was properly overruled. This conclusion renders it unnecessary to determine whether or not the other counterclaim could properly be considered, if special exceptions had been addressed to each one separately.

Another special exception was addressed to the five counts in the plea of reconvention above noted upon the ground that the claims there asserted sounded in tort and were improperly joined to the claims made in the first, second, and third counts in the plea which arose from contractual relations. By this exception it was proposed to permit the claims set out in the first, second, and third counts to remain and to strike out the remainder of the counts. As we understand the rule, an exception of misjoinder of causes of action is properly addressed to the entire pleading, and, if the exception is sustained, the entire pleading is stricken out, thus leaving it optional with the pleader to select such, portions of the plea as he may see fit to urge, and it is not the province of the court to make this selection for him. Furthermore, as noted already, the claim made in the fourth count of the plea was a proper counterclaim.

A general demurrer was addressed to the entire plea in reconvention, and by different assignments it is insisted that upon such demurrer certain counts in the plea should have been stricken out. These assignments are overruled for the reason that at all events some of the counts were proper, and it was not the duty of the trial 'court to carve the demurrer into separate parts and apply it to the different items and to sustain it as to some counts and overrule it as to others. The proposition presented by the general demurrer was that the entire plea should be stricken out, and to have sustained this clearly would have been error for the reasons already noted.

By the fifth assignment it is contended that the court erred in overruling plaintiff’s motion for a new trial because the jury allowed the full amount claimed by the plea in reconvention except the sum of $60 claimed as damages for a breach of warranty in the sale of the two horses above mentioned. This is the only reason assigned for the contention that the verdict was contrary to the law and the evidence and is too general to merit consideration.

We are unable to say that the jury allowed the defendant a recovery for attorney’s fees in defending Mm in the criminal prosecution noted above and for the §5 claimed for loss of time in attending court. Hence the sixth assignment of error, in effect that the trial court erred in overruling the motion for new trial because those two items were allowed by the jury, is overruled.

The aggregate of all the items claimed by the defendant in his plea of reconvention was $196.50. By the verdict the defendant was allowed a total of $136.50, thus indicating that they allowed at least a portion of the claim of $70 made in the seventh and eighth counts of the plea for the alleged publication of false reports concerning the appellant. The only false statement alleged to have been made by the plaintiff and upon which the claim for damages in these two counts was predicated consisted of an assertion by the plaintiff that defendant was indebted to her for rents, and that for such indebtedness’she held a lien upon the cotton grown upon the farm by the tenant, and the only predicate for damages claimed as a result of such false statement was that the defendant could not market his crop in the town of Anson, and that he sustained feelings of humiliation and was suspected of dishonesty by his neighbors on account of such charges. The amount of pecuniary loss resulting from his inability to market his cotton in the town of Anson was neither alleged in the plea nor supported by any testimony. Such being the record, the court should not have submitted to the jury the claim last noted. Accordingly appellant’s seventh assignment of error to the trial court’s refusal of the motion for new trial is sustained, and, because tMs claim was allowed, in part, at least, the judgment will be reversed and the cause remanded, unless appellee shall within ten days from the rendition of this decision file a remittitur of $70, the full amount of the claim last referred to. If such remittitur is filed within the period indicated, the judgment will be so reformed as to be in favor of appellee for $66.50 only and in all other respects affirmed, otherwise the judgment will be reversed and the cause remanded for another trial. In either event the costs of appeal are taxed against the


author: SPEER, J.

text:
    IVY v. PUGH et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 8, 1913.)
    1.Estoppel (§ 37) — Property Subjeciv-Aeter-Acquired Property — Crops.
    A chattel mortgage upon property not in existence may become operative if the property covered subsequently comes into the possession of the mortgagor, on the equitable principle of estoppel, rather than on the principle that the execution of the mortgage then creates a valid lien upon the thing mortgaged.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 91-98; Dec. Dig. § 37.]
    2. Vendor and Purchaser (§ 54) — Remedies oe Vendor — Lien.
    A vendor of real estate retains the superior title until the purchase money is paid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § $5; Dec. Dig. § 54.]
    3. Chatted Mortgages (§ 138) — Lien—Priority.
    Rev. Civ. St. 1911, art. 5475, gives to a landlord a preference lien upon the crops raised for any rent and for money and supplies furnished to the tenant in making a crop. A purchaser in possession of land, subject to a vendor’s lien in favor of the plaintiff, on November 23, 1911, executed to defendant a chattel mortgage on cotton to be raised the next year on the land, and thereafter on March 26, 1912, before any crop had been planted, conveyed to plaintiff, and the same day entered into a rental contract with plaintiff for the lands. Held that, though a chattel mortgage upon property not in existence may become operative if the property subsequently comes into the possession of the mortgagor, ye.t that, as the mortgagor never acquired any but a qualified interest in the crop, the landlord’s lien thereon was superior to that of the mortgagee.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. § 138.]
    Appeal from Parker County Court; T. F. Temple, Judge.
    Action by W. T. Ivy against H. R. Pugh, J. M. Hart, and another. Judgment for defendant Hart, and plaintiff appeals.
    Reversed and judgment rendered for plaintiff against defendant Hart.
    R. L. Stennis, of Weatherford, for appellant. Preston Martin, of Weatherford, for appellee.

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

   SPEER, J.

This suit was instituted by W. T. Ivy against PI. R. Pugh, J. W. Light, and J. M. Hart, alleging that the defendant Hart had wrongfully converted to Ms own use certain cotton upon wMeh plaintiff as landlord held a valid lien as against Pugh and Light, his tenants. Hart pleaded that he took the cotton under a mortgage lien which was prior in law to plaintiff’s lien. The honorable county judge before whom the case was tried made the following findings of fact, which we adopt:

“1. I find that on the 10th day of September, 1909, the defendant I-I. R. Pugh purchased 70 acres of land from one I-I. Burns in Parker county, Tex., and the said H. R. Pugh with his family has resided upon said 70 acres of land since said purchase.
“2. About the same time the defendant J. W. Light purchased a small farm of about 70 acres, situated near the said farm of H. R. Pugh, and since said purchase has resided with his family on said farm.
“3. On the 1st day of July, 1910, the said H. R. Pugh and J. W. Light purchased from F. M. Copps 70 acres of land joining said farms of H. R. Pugh and J. W. Light for the consideration of $1,400. That the title to said 70 acres was then in F. M. Copps, by agreement of all parties, the conveyance was made by deed direct from F. M. Copps to H. R. Pugh and J. W. Light, and the total consideration was to be paid by H. R. Pugh and J. W. Light to plaintiff, be having advanced the entire purchase price, and was evidenced by seven vendor’s lien notes executed by H. R. Pugh and J. W. Light in the sum of $200 each and payable to plaintiff, and to secure said notes a vendor’s Tien was expressly retained in said deed, and said deed was duly recorded in the deed records of Parker county on the 12th day of July, 1910.
“4. On the 23d day of November, 1911, the said H. R. Pugh was indebted to the defendant J. M. Hart in the sum of $385.10, and on said date executed and delivered to said J. M. Hart his note in writing for said sum of $385.10 due' October 1, 1912, with interest from date at the rate of 10 per cent, per annum, and on said 23d day of November, 1911, the said H. R. Pugh by his chattel mortgage in writing conveyed to said J. M. Hart the following described property: ‘My first eight bales of cotton raised next year, 1912, raised on my farm nine and one-half miles from Weatherford on Toto Road, said eight bales to weigh five hundred pounds and to be free from all other liens, said cotton to be raised in the field north of the house. I am to plant thirty acres and work in a farmer-like way.’ Said mortgage provides that it is given to secure said note for $385.10 and to cover any and all other amounts that the said Pugh then owes and. might thereafter become indebted to and owe the said J. M. Hart, such as book accounts, etc., and said mortgage was on the 23d day of November, 1911, duly filed for record in the office of the county clerk of Parker county, Tex., and was on said date filed on the chattel mortgage records for said county.
“5. The said J. M. Hart after the 23d day of November, 1911, and on faith of said mortgage, sold supplies to said H. R. Pugh in the sum of $49.05 and received payment thereon in the sum of $11.70, and at the institution of this suit there was due on said account a balance of $37.35.
“6. At .the institution of this suit the said IT. R. Pugh was indebted to the said J. M. Hart in said sum of $385.10 with interest thereon at the rate of 10 per cent, per an-num, on the 23d day of November, 1911, and the additional sum of $37.35, balance on said account.
“7. On the 26th day of March, 1912, the said H. R. Pugh and J. W. Light on good faith by their deed in writing conveyed to the plaintiff the 70 acres of land which had been conveyed to them by said P. M. Oopps as aforesaid, and said conveyance was made in consideration of the cancellation and surrender by plaintiff to said Pugh and Light of said seven vendor’s lien notes then held by plaintiff in the sum of $200 each with all interest due thereon. The amount due by said Pugh and Light on said notes to plaintiff was the full value of said seventy acres of land. The wife of said J. W. Light joined her husband in said deed, and said deed signed and duly acknowledged by said Pugh and Light and the wife of Light was on said 26th day of March, 1912, delivered to-plaintiff with the understanding that, if plaintiff desired, the wife of Pugh would: come in thereafter and sign and acknowledge the deed; and thereafter on the 28th day of September, 1912, the wife of said Pugh signed and duly acknowledged said deed when same was presented to her for her signature by plaintiff, and said deed was duly recorded in the records of Parker county on said 28th day of September, 1912. On said 26th day of March, 1912, the wife of Pugh was prevented by sickness from coming to town and joining in the execution of said deed, but then fully approved of said conveyance for said consideration.
“8. On the 26th day of March and immediately after the delivery of said deed by said Pugh and Light to plaintiff, the said Pugh and Light and plaintiff entered into a rental contract in writing, whereby the plaintiff, in consideration of the sum of $144.50 to be paid by said Pugh and Light, rented and leased the said 70 acres to said Pugh and Light for and during the term beginning on the 26th day of March, 1912, and ending on the 31st day of December, 1912, and- at the same time the said Pugh and Light executed and delivered to plaintiff their joint note for the sum of $144.50 of date March 26, 1912, and payable to plaintiff on the 1st day of November, 1912, in the sum of $144.50, with interest from maturity at the rate of 10 per cent, per annum, and providing for 10 per cent, as attorney's fees, if collected by suit or placed in the hands of an attorney for collection, and by the terms of said rental contract it was expressly agreed that plaintiff should have his preference landlord’s lien as provided by the statutes to secure his rent, and in said rental contract plaintiff gave to Pugh and light an option of buying back said-70 acres of land upon certain conditions any time prior to January 1, 1913, which option was forfeited.
“9. The said J. M. Hart had no notice of the sale of said land by Pugh and Light to plaintiff until after the first four bales had been gathered by Pugh from the said field north of his house and had been brought to market, and of said account advanced by said Hart to said Pugh after the execution of said mortgage as aforesaid the sum of $18 had been so advanced after the 26th day of March, 1912.
“10. The said 70 acres of land was rented by plaintiff to said Pugh and Light jointly, but the said Pugh by agreement with Light worked and cultivated the north half of said tract and the said Light by agreement with said Pugh worked and cultivated the south half of said tract, during the year 1912, but the plaintiff had nothing to do with’ said agreement between Pugh and Light.
“11. During the year 1912, said Pugh raised and gathered from the north half of said 70 acres sis bales of cotton, all of which was of the value of $300, and all of which was appropriated by said Hart and applied by him on said indebtedness due him by said Pugh, and all of said six bales of cotton were gathered from the field on which said Pugh had given said Hart a mortgage as aforesaid.
“12. On the 26th day of March, 1912, when said Pugh and Light conveyed said 70 acres ■of land to plaintiff, no crop had been planted on said land, and all cotton grown on said land during the year 1912 was planted after the execution and delivery by said Pugh and Light to plaintiff of said deed on the 26th day of March, 1912.
“13. No part of the rents due by said Pugh and Light have been paid, but defendant J. W. Light tendered to plaintiff, Ivy, one-half of the amount of the rental note sued on prior to trial in justice court upon condition that he be released from further liability on the note.
“14. This suit was instituted in less than ■30 days after the removal of the first three bales of cotton from the Ivy premises and before the last three bales had been removed.
“15. In the field north of the house referred to in said mortgage there was one patch of cotton of about 18 acres' directly north of the house, and another patch of 20 acres in the same field northwest, from the house, and the eight bales of cotton taken by J. M. Hart were gathered from this 20-acre patch, six bales off the Ivy land, and two bales of the home tract of Pugh, purchased by him from Burns; but all the cotton was grown in one inelosure or fence north of the house, though in two patches.
“16. This suit was instituted by pláintiff, W. T. Ivy, in the justice court of precinct No. 1 in this county against the defendants H. R. Pugh and J. W. Light, for rents on said 70-acre tract of land, known as the Ivy tract, for the year 1912 in the sum of $144.50 and interest and attorney’s fees as evidenced by said refit note and for a foreclosure of his landlord’s lien on all cotton grown by said Pugh and Light on said land during the year 1912, and against the defendant J. M. Hart; the plaintiff alleging that said J. M. Hart had converted to his own use and benefit part of said crop and was setting up some sort of claim or lien against all of said crop, and prayed for judgment on said rent note and for foreclosure of his landlord’s lien and for judgment against said Hart for such part of said crop as had been converted by said Hart, and for judgment declaring said landlord’s lien to be superior to the mortgage lien of said J. M. Hart. The pleadings of the plaintiff in said justice court and in this court were oral.”

Upon these facts the trial court held that the mortgage lien of the defendant Hart on the six bales of cotton gathered by Pugh from the north half of the plaintiff’s 70-aere tract was superior to plaintiff’s landlord’s lien. The plaintiff has appealed.

We think the holding of the trial judge was error.

It is well settled in this state that a chattel mortgage executed upon property at the time not in existence may become operative if the property covered subsequently comes into the possession of the mortgagor. This, however, is not upon the ground that the execution of such instrument creates at the time a valid lien upon the thing mortgaged, for in the supposed ease the thing mortgaged is not in existence, and necessarily there can be no lien against it. It is rather upon the equitable principle of estoppel, or, as it is sometimes expressed, that the subsequent acquisition of the property feeds the mortgage.

It is equally well settled, under the peculiar rule of decision in this state, that the vendor of real estate retains the superior title until the purchase money is paid.

Bearing in mind these rules of decision, we hold that appellant’s landlord’s lien is superior to appellee Hart’s mortgage lien. Appellee’s mortgage lien became effective upon the planting and growing by defendant Pugh of the crop embraced in its terms, but it was effective only to the extent of the interest owned by said Pugh in the crops. Pugh could in no event convey a greater title than he had, which, under the operation of our landlord’s lien act (Revised Statutes 1911, art. 5475), was one subject to the lien of the landlord for rents. In other words, he never acquired an absolute title to the property previously mortgaged, but only a qualified title. So that the mortgage in the very nature of things could only operate upon the limited ownership of the mortgagor. See Neblett v. Barron (No. 6,236) 160 S. W. 1167, not yet officially reported. The principle which controls us is illustrated in the ease of New Orleans & O. Ry. Co. v. Mellen, 12 Wall. 362, 20 L. Ed. 434, holding that a mortgage by a railroad company covering all its future acquired property attaches only to such interest therein as the company acquires, subject to any liens under which it comes into the company’s possession. A contrary conclusion upon facts very similar has been reached by the Supreme Court of Alabama (Hamilton v. Maas, 77 Ala. 283), but the decision in that case appears to be based in part upon a statute which is not before us, and furthermore proceeds upon the theories that the purchaser of lands not paid for is the owner thereof, and that the mortgagee of chattels takes the legal title thereto, which theories are not in consonance with the decisions of this state.

The judgment of the county court is reversed, and upon the facts stated judgment is .here rendered in favor of appellant against appellee J. M. Hart ior the amount of Ms debt against defendants Pugh and Light; that amount being less than the established value of the property converted.

Reversed and rendered.


text:
    BURNS & BELL v. LOWE et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.)
    1. GARNISHMENT (§ 105) — GARNISHING CREDITORS — -RIGHTS. •
    Garnishing creditors occupy no better position with reference to the fund garnished than did their debtors at the service of the writ.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 216; Dec. Dig. § 105.]
    2. Garnishment (§ 108) — Bank Deposit — Ownership oe Fund.
    L., being indebted for rent, delivered to his wife $113, the proceeds of his crops, with instructions to pay it to the landlord. She instead deposited the amount in a bank to her credit and later drew against the fund in favor of the landlord a check for a larger amount, containing the $113. After delivery of the cheek, but before it was paid, the account in the bank was garnished in suit against L. Held that, to the extent of the $113 so deposited, the rights of the landlord were superior to those of the garnishing creditor, though the check be not regarded as an equitable assignment of so much of the funds to the wife. '
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 220-226; Dec. Dig. § 108.]
    3. Parent and Child (§ 9) — Emancipation.
    A father may make a valid gift to his minor son in the absence of complaint by an existing creditor that the gift is fraudulent, whether the son has been emancipated or not.
    [Ed. Note. — -For other eases, see Parent and Child, Cent. Dig. §§ 74, 111-135; Dec. Dig. §
    Appeal from District Court, Mitchell County ; W. W. Beall, Judge.
    Garnishment proceeding by Burns & Bell against C. C. Lowe and others. Decree for defendants, and the plaintiffs appeal.
    Affirmed.
    L. W. Sandusky and C. H. Earnest, both of Colorado, Tex., for appellants. Royall G. Smith, of Colorado, Tex., for appellees.

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

   SPEER, J.

This i§ a garnishment suit wherein Burns & Bell, judgment creditors of O. C. Lowe, sought to hold City National Bank as garnishee; the fund in controversy being a deposit of $408.36 in the name of Mrs. Belle Lowe and the sum of $10 in the name of Ruel Lowe. The bank answered, disclosing these deposits, but alleging that the one was the separate property of said Belle Lowe and the other the individual property of said Ruel Lowe, and otherwise denying any indebtedness or liability to C. C. Lowe. The answer was traversed by the plaintiffs, and on the issues thus presented a trial was had before a jury resulting in a verdict and judgment against the plaintiffs, and they have appealed.

On the trial the court instructed as follows: “The uncontroverted evidence in this case shows that the rent item of $113 included in said $363 check was included in the deposit of Belle Lowe in the City National Bank of Colorado, Tex., and was paid out by said bank cashing said check. As to this item I charge you that the same was the property of W. L. Lowe, though deposited in said bank by Belle Lowe among other funds deposited in her name and was not subject to the garnishment herein, and as to this item the plaintiffs would not be entitled to recover.” It is complained that this charge is erroneous because the item of $113 was community property of defendant C. C. Lowe and his wife, Belle Lowe, at the time of the service of the writ and was therefore subject to appellant’s demand. The facts, however, appear to be undisputed that C. C. Lowe was indebted to W. L. Lowe, his-landlord, for rents and delivered this sum of money, the proceeds of farm products grown by him, to his wife, with instructions to deliver the same to W. L. Lowe. Mrs. Lowe deposited this sum in the bank because she did not care to keep that amount of money around the place and gave to W. L. Lowe her check for $363, covering this and other items of indebtedness. It is undisputed that this check was drawn by Mrs. Lowe and accepted by W. L. Lowe prior to the service on defendant bank of the writ of garnishment, though the bank had not paid or accepted for payment the check.

In this state of the evidence there was no error in the charge quoted, since appellants, as garnishing creditors, could occupy no better position with reference to the fund than did. their debtor at the time of the service of the writ.

Equity will not aid the statutory remedy of a garnishment, and, even though it should be held that the drawing of the check was not an assignment pro tanto of the funds of Mrs. Lowe in the bank in the sense that the bank could be sued on the same prior to acceptance, still as between O. G. Lowe and W. L. Lowe, and necessarily between appellants and W. L. Lowe, since appellants take the place of G. O. Lowe, the rights of W. L. Lowe are superior and the bank would not be liable to the writ. Neely v. Grayson County Nat. Bank, 25 Tex. Civ. App. 513, 61 S. W. 559; N. Y. Life Insurance Co. v. Patterson, 35 Tex. Civ. App. 447, 80 S. W. 1058.

The remaining assignments in effect attack the sufficiency of the evidence to support the verdict finding that the deposits belonged, respectively, to Mrs. Lowe and Ruel Lowe. The evidence, we think, abundantly supports the conclusion that the small item of $10 to the credit of Ruel Lowe was a gift by the father to the son for minor services, and it is immaterial whether the son had been emancipated by the father or not. At all erents, the fattier could make a valid gift even to ¿is minor son, in the absence of a complaint by an existing creditor' that such gift was fraudulent and void. There is no such complaint in this case. The evidence furthermore supports Mrs. Lowe’s contention that the deposit in her name was a fund paid to her by her husband in repayment of borrowed money, the proceeds of an inheritance from her father.

There is no error in the judgment, and it is affirmed.


author: CARL, J.

text:
    ZIMMERMANN et al. v. BAUGH.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 17, 1913.)
    1. Trial (§ 139) — Questions for Jury — Directed verdict.
    The court should not direct a verdict on an issue of fact unless the evidence shows that reasonable men could not draw a different conclusion.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.)
    2. Adverse Possession (§ 115) — Actions— Evidence.
    In trespass to try title, where plaintiff claimed under a prescriptive title, evidence held to raise a question for the jury and not to warrant a directed verdict in plaintiff’s favor.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. § 115.]
    3. Evidence (§ 213) — Admissions—Title.
    In trespass to try title, evidence that plaintiff offered to purchase a deed from defendants to the property is inadmissible, for that fact will not affect plaintiff’s title, being a mere attempt to remove a possible cloud.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. § 213.]
    Error to District Court, Bexar County; A. W. Seeligson, Judge.
    Action by W. Pauline Baugh against Bridget Zimmermann and others. There was a judgment for plaintiff, and defendants bring error.
    Reversed and remanded.
    See, also, 160 S. W. 593.
    Don A. Bliss, of San Antonio, for plaintiffs in error. Augustus McCloskey and Alex C. Bullitt, both of San Antonio, for defendant in error.

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

   CARL, J.

The defendant in error, Mrs. W. Pauline Baugh, brought this suit in trespass to try title against plaintiffs in error, Mrs. Bridget Zimmermann, Florence, and Minnie Zimmermann, the land in controversy being a small triangular piece out of what is designated as the north part of lot 7 in block 18, New City block 525, in the city of San-Antonio, Bexar county, Tex., and is more fully described by metes and bounds in plaintiff’s (defendant in error’s) petition. The plaintiff below asserted title in herself under the three, five, and ten years’ statutes of limitation, but relied in the proof on the ten years’ statute. Plaintiffs in error answered by the usual plea of “not guilty,” and relied on a record title to the land, which it was admitted was regular, from the city of San Antonio down to and including them.

At the conclusion of the testimony, the court instructed the jury to return a verdict in favor of Mrs. Baugh, the plaintiff there, which was accordingly done. Whether the court was correct in so instructing the jury is the issue before this court. If the evidence is such that reasonable minds would not differ as to the facts established, the court was correct in giving the instruction.

Let us, then, see what the evidence is. Mrs. W. Pauline Baugh, the plaintiff below, testified that she had owned lot 5, block 18, N. C. B. 525, twenty-seven years; that she inherited it from the Kelleys in 1885, and they had bought the property from Elliston. She says: “I meant this part in controversy —this part was all fenced and is fenced now, and has been ever since I came to San Antonio, which was in 1877.” Her evidence is, further: That she had had the property fenced in with, lot 5 twenty-eight years and had kept it rented out; the part in controversy being used as a passageway for her tenants in going to and coming from Chestnut street. “That fence I had was up there until two years ago. It had been repaired from time to time. It was standing up there until Mrs. Zimmermann changed the line. Q. Do you know who lived on that little piece of ground that inclosed the red triangle (the land in controversy) ? A. -Well, there was a man by the name of Pieper. He didn’t live on it; he rented it out. I do not know who had it prior to that; I do not know who his tenants were. They have had tenants there about 28 years, I presume.” The witness, upon redirect examination, said she had reference to the large triangle, but not the land in dispute, which she said she and those under whom she held had had fenced since 1877 when she came to San Antonio.

J. W. Houston, who was called by defendant in error, said he had lived in San Antonio 34 years and had known this property all his life. He says: “I remember well the location of the fence of that property with reference to the streets. * * * I know there was a fence in there through to what we called McGowan’s. The fence did not take in the little triangle (property in controversy). The little triangle wasn’t there then; Baugh’s fence didn’t fence in any triangle. It came to the point of the triangle and stopped at the triangle, and the triangle extended about three or four feet from the south fence of the Baugh property.. No sir, the south f^nce was not a little longer, the north fence was the longer; and, when this south fence came down, it struck a little triangle, just a little nose of a property that came in there just like the point of the triangle.”

J. R. Studer, for plaintiffs in error, said that he had resided near the property for close to 20 years. He says that Pieper fenced the entire block 7. “I don’t know who built that cross-fence. There was a closet built back there somewhere. My father-in-law (Pieper) had it done. There was no fence which included that when it was built 16 to 18 years ago. When that closet was built, the fence did not come right along the side of Chestnut street. It was open — most of the years there was nothing at all. I doffit remember any more whether when the fence was put up across there they tore down any portion of the old fence that I have said fenced in the entire lot 7. I patched it up so much I got disgusted. * * * I don’t know when the fence running across was built so as to cut off this little piece (in controversy). Whoever did that did it without my knowing anything about it When I first knew of it was maybe six or eight years ago.” Studer says that 16 or 18 years ago the land in controversy was open, and he also says that the north comer of the land in dispute is in the same place it has always been and has not been changed. “I knew that the land in controversy was inside my father-in-law’s fence at the time I first knew it (about twenty years). There was not any cross-fence there just prior to that time. It was fenced at the time he (Pieper) bought it.” So the state of the evidence is that Mrs. Baugh says her fence was up there until about two or three years ago, when it was knocked down. Houston says this little triangle was out, not fenced at all when he can first remember, and he is 34 years old. Studer says Mrs. Baugh’s fence was not there when Pie-per bought the property about 20 years ago, and that Pieper built a closet on the property in controversy about 18 years ago. He says further that it was under fence before Pieper bought it.

We think the condition of the evidence was such that reasonable minds might honestly differ, and that the court' erred in refusing to submit the case to the jury. Choate v. Railway, 90 Tex. 88, 36 S. W. 247, 37 S. W. 319; Mustain v. Stokes, 90 Tex. 358, 38 S. W. 758. “It is only when it is so clearly established from the undisputed testimony as to admit of no other reasonable hypothesis or conclusion that either a fact essential to plaintiff’s action is not proven, or one which is a complete defense has been shown, that it becomes the duty of the court to instruct a verdict for the defendant.” Southern Pacific Ry. Co. v. Winton, 27 Tex. Civ. App. 514, 66 S. W. 483, and cases cited. The possession and use by Mrs. Baugh is not so conclusively shown as to take the case from the jury.

It is a matter of no consequence that Mrs. Baugh may have offered $35 for a deed from the plaintiffs in error to this property. Citizens have a right to clear their titles of those things which would hinder a sale, and, if they have title to the property, a mere attempt to remove clouds therefrom would not affect the title they already have. This court so held in Cuellar v. Dewitt, 5 Tex. Civ. App. 568, 24 S. W. 671, and has recently reaffirmed the same doctrine.

Since we have concluded to reverse the judgment, it is not necessary to pass on any other questions raised.

The judgment is reversed, and the cause remanded.


author: HALL, J.

text:
    CLEGG et al. v. ROSCOE LUMBER CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1913.)
    1. Limitation of Actions (§ 123) — Toiling Statutes — Pending Action.
    The pendency of an action will prevent the running of limitations, though the petition be bad on general demurrer, and is not amended until after the period of limitation has elapsed; and the fact that when plaintiff corporation filed an action on the notes sued on, it was not legally entitled to sue under Rev. Civ. St. 1911, art. 7399, because it had not paid its franchise tax, would not cause the action to be barred by the four-year limitation, .though before an amended petition was filed showing compliance with the statute more than four years had elapsed since maturity of the last note.
    FEd. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. § 539; Dec. Dig. § 123.]
    2. Abatement and Revivad (§ 22) — Plea in Abatement — Right to Sue.
    The fact that plaintiff corporation had not paid its franchise tax, so that it was not entitled to maintain an action under Rev. St. art. 7399, could only be urged by a plea in abatement.
    [Ed. Note. — For other cases, see Abatement ’ and Revival, Cent. Dig. §§ 148 — 156; Dec. Dig. § 22.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Suit .by the Roscoe Lumber Company against Mida Clegg and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Cooper, Merrill & Lumpkin, of Amarillo, for appellants. Gustavus & Jackson, of Amarillo, for appellee.

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

   HALL, J.

This suit was filed in the county court of Dallas county, July 14, 1910, by appellee lumber company, praying recovery upon three notes in the sum of $100 each, dated October 1, 1907, and payable February 1, 1908, October 1, 1908, and February 1, 1909, • respectively, bearing interest at 8 per cent, per annum from date, and stipulating for the usual 10 per cent, attorney’s fees. Appellants, Mida Clegg and Mrs. Emma Tyde-man, being residents of Potter county, filed their pleas of privilege in Dallas county in September, 1910, which were sustained, and the case transferred to Potter county. On February 3, 1912, the defendants filed their first amended original answer in the county court of Potter county, amending their original answer, alleging that the appellee corporation had forfeited its right to do business in Texas on the 2d day of July, 1909, by failing to comply with chapter 3, Revised Statutes of 1911, in the payment of the franchise tax due to the state, as required by said chapter, and that the Secretary of State, in accordance with the provisions of said law, had duly forfeited the plaintiff’s permit to do business in the state, and, under article 7399 of said statute, plaintiff was denied the right to sue defendants. The appellee corporation filed no other pleading than the original petition and a supplemental petition (which was filed July 14, 1910, in which it alleged that Mida Clegg had married J. T. Harrison, and prayed that citation issue to her and her husband), until it filed its amended supplemental petition in the county court of Potter county, styled “Plaintiffs’ Second Supplemental Petition,” which was filed March 29, 1913, alleging, in reply to the defenses it exposed by appellants, that on the 24th day of June, 1911, it had paid to the Secretary of State all franchise taxes, interest, and penalties due under the law, and had restored its corporate standing within the state, and on the same day it filed an amended original petition, in which was sought a recovery against Mrs. Mida Clegg and Mrs. Emma Tydeman, a feme sole, declaring upon the notes as in its original petition, and stating the same cause of action, with the exception of admitting a credit of $35 paid on June 23, 1908. To this last petition the appellants filed an amended answer, pleading by special exception: First, that the cause of action was barred by the statute of four-year limitation; second, pleading affirmatively the four-year limitation as a bar by reason of the failure of ap-pellee to file any cause of action at a time when it was authorized, under the law, to maintain a suit for affirmative relief, within the period of four years; and, further in bar of appellee’s right to recover, it was alleged that said cause of action was barred by the statute of four-year limitation in that appellee had no right to maintain the cause at the time when the suit was brought, and that the first pleading filed, after it had reinstated its corporate privileges, was more than four years after the cause of action had matured. The facts are that the suit as originally filed was against Mida Clegg and Mrs. Emma Tydeman, both alleged to be feme soles. On the same day a supplemental petition was filed, alleging the marriage of Mida Clegg with J. T. Harrison, making him a party. Appellee’s petition, filed on March 29, 1913, merely alleged the death of J. T. Harrison, and Mrs. Harrison (née Mida Clegg), being then a widow, pleaded the same cause of action as before. The judgment was against both Mrs. Harrison and Mrs. Tydeman.

The sole question raised by the assignments is one of limitation. It is true, as contended by appellants, that the appellee’s right to sue at the time its original petition was filed is denied by article 7399, Revised Statutes, supra, and it is further true that, before its amended pleading was filed, showing compliance with that act, more than four years had elapsed since the maturity of the last note sued upon, but it appears that appellee had paid its franchise tax on June 24, 1911, within less than 12 months from the filing of the original suit and within less than four years from the date of the maturity of the first note. The amended petition did not allege the fact that appellee had obtained permission to do business in Texas, and revived its right to sue by complying with the law, until more than four years after the cause of action had accrued. It has been frequently held in this state that a suit will prevent the running of the statute of limitation, although the petition be bad on general demurrer, and is not amended until after the period of limitation has elapsed. Killebrew v. Stockdale, 51 Tex. 529; Tarkinton v. Broussard, 51 Tex. 550; I. & G. N. R. R. Co. v. Irvine, 64 Tex. 529.

The fact that appellee had not paid its franchise tax could be reached only by plea in abatement. Harvey v. Provident Ins. Co., 156 S. W. 1127. In Frazier v. Waco Building Ass’n, 25 Tex. Civ. App. 476, 61 S. W. 132, in which writ of error was denied by the Supreme Court, Fisher, C. J., said: “There was no error in the court’s overruling the amended motion for a new trial on the grounds claimed in appellants’ eighth assignment of error. The right of appellee to bring and maintain the suit because it had not paid its franchise tax should have been raised before judgment, and came too late when first presented by the motion for new trial. Further, we are also of the opinion that the subsequent payment of the tax related back and revived whatever rights the appellant had at the time the suit was instituted.” Appellants’ assignment are disposed of by what is.here said; and the judgment of the trial court is affirmed.


text:
    H. O. WOOTEN GROCER CO. v. SMITH et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 1, 1913.)
    Husband and Wife (§ 268) — Community PROPERTY — SEPARATE DEBTS.
    Where a husband and wife to secure notes executed by them, the proceeds of which were not used for the benefit of the wife’s separate estate, and upon which she was therefore a surety, executed a deed of trust to land, in which the wife owned an undivided one-half interest as her separate estate, the other one-half interest being community property, and the husband thereafter to secure a note executed by him executed a second deed of trust, the right of plaintiff owning the debts secured by both deeds to have the wife’s interest first sold and applied to the payment of the debt secured by the first deed, in order that the husband’s interest might be available for the payment of the debt secured by the second deed, was a mere equity and not a legal right, and was subordinate to the wife’s equity which entitled her to have the husband’s interest sold and applied to the debt secured by the first deed before resorting to her interest.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 953-967; Dec. Dig. § 268.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by the H. 0. Wooten Grocer Company against R. D. Smith and others. From a judgment for plaintiff for insufficient relief, it appeals.
    Affirmed.
    Kirby & Davidson, of Abilene, and Theodore Mack, of Ft. Worth, for appellant. Eugene De Bogory and J. M. Wagstaff, both of Abilene, for appellees.

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

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

   SPEER, J.

This suit was instituted by H. 0. Wooten Grocer Company, a corporation, against R. D. Smith, his wife, T. E. Smith, and R. G. Patton and F. G. Alexander, trustees in certain deeds of trust, to recover against the defendant R. D. Smith as maker of two promissory notes and against him and his wife for k foreclosure. The action was dismissed as to the trustees, and as to the other defendants resulted in a partial recovery by the Wooten Grocer Company, and that company has appealed.

The findings of fact upon which the appeal is predicated are as follows:

“I. The court finds that on December 1, 1905, the defendant R. D. Smith and his wife, T. E. Smith, executed and delivered to the American Freehold Land Mortgage Company of London, Limited, a series of certain notes, the following of which are unpaid, to wit: Principal notes Nos. 5, 6, 7, 8, 9, and 10, for the sum of $300 each, all dated December 1, 1905, executed by said R. D. Smith and T. E. Smith, payable as aforesaid on the 1st day of January, 1911, 1912, 1913, 1914, 1915, and 1916, respectively, after-date, all bearing interest from date until paid at the rate of 8 per cent, per annum from maturity, payable annually, and interest from maturity at 10 per cent, per an-num, the interest being payable annually on the 1st day of January of each year, and providing for the usual accelerative maturity clause and default in the payment of interest, and providing for 10 per cent, attorney’s fees. Also the following interest notes: No. 7 for $96; No. 8 for $72; No. 9 for $48;' No. 10 for $24 — executed by said parties aforesaid, and payable to said mortgage company aforesaid on the 1st day of Jan- ' uary, 1913, 1914, 1915, and 1916, respectively, after date, and providing for interest after maturity at the rate of 10 per cent, per annum and 10 per cent, attorney’s fees, all of which notes are now owned by the plaintiffs herein, and that to secure said notes said R. D. Smith and wife, T. E. Smith, on said December 1, 1905, executed and delivered their certain deed of trust upon all of the property involved in this suit to secure said notes; said deed of trust having the following provision in same, to wit: ‘The money advanced in and secured by this deed of trust is furnished us in part for the purpose of taking up and extending the time of payment of three certain promissory notes executed by R. D. Smith and T. E. Smith, payable to the order of the Abilene Trust Company as follows: One for $500.00 due December 1, 1905, one for $500.00 due December 1, 1906, and one for $1,000.00 due December 1, 1907, all of said notes dated November 10, 1904, and secured by a deed of trust on the land hereby conveyed in favor of K. K. Legett, trustee, which is recorded in volume 8, pp. 538-541, of the Deed Records of Jones county, Texas, and the American Freehold Land Mortgage Company of London, Limited, the beneficiary herein, is hereby specially subrogated to and continued in all the rights, legal and equitable, conferred by said notes and the deed of trust lien securing same.’ This deed of trust was duly acknowledged and duly filed for record in Jones county on December 5, 1905, and duly recorded, and all the rights thereunder are now owned and held by plaintiff.
“II. That prior to and at the time of the giving of the deed of trust last mentioned an undivided one-half of the property in controversy was owned by the said Mrs. T. E. Smith as her separate property, and the other undivided one-half of the property in controversy was community property, and the record title of same was in the name of said R. D. Smith, and there was no other outstanding lien against any of said property.
“III. The notes mentioned in finding No. I are now due and unpaid by reason of the election of. the holder under the terms thereof, and they are a valid and subsisting indebtedness secured by said lien.
IV. That on January 2, 1911, the said R. D. Smith executed and delivered to the plaintiff the following note and deed of trust, to wit: ‘Abilene, Texas, Jan. 2, 1911. $3,-668.45. On or before January 1, 1912, after date for value received I promise to pay to. the H. O. Wooten Grocer Company, or order, $3,668.45 at Abilene, Texas, to bear interest at the rate of eight per cent, per annum from date, 'and further hereby agree that, if this note is not paid when due, to pay all costs necessary for collection, including ten per cent, attorney’s fees. [Signed] R. D. Smith. Due January 1, 1912.’ Deed of trust was executed by said R. D. Smith against all of the property in controversy conveying the same to F. G. Alexander, trustee, to secure the plaintiff as beneficiary in the payment of said note last mentioned. The said deed of trust was duly acknowledged and filed for record on January 3, 1911, and duly recorded in the records of Jones county, Texas.
“V. The court finds that at the time the said last-mentioned note was given the defendant R. D. Smith was owing the plaintiff the sum covered by said note, and that the same was past due, and that the said note and deed of trust was given in consideration of the extension of time evidenced by said note, to wit, one year.
“VI. The court finds that none of the proceeds of the first note and deed of trust were spent for the benefit of the separate estate of Mrs. T. E. Smith, but that all of same were used originally by the said R. D. Smith for the purpose of engaging in the mercantile business at Delk and Hawley, Texas.
“VII. That at the time the last note and mortgage mentioned in these findings were given the said R. D. Smith was insolvent, and has been insolvent at all times thereafter, but that the plaintiff had no notice of such insolvency whatever until after the giving of said last-mentioned note and mortgage.
“VIII. The court finds that the defendant R. D. Smith acquired his undivided one-half of the property in controversy through the following deed, to wit: ‘A deed from R. D. Moore to the defendant R. D. Smith, dated October 7, 1897, and recorded in volume 9, page 344, of the Deed Records of Jones county, Texas, reciting a consideration of $857.00 paid and five notes for $428.57 each, due January 1, 1899, 1900, 1901, and 1902, and 1903, respectively, duly acknowledged, and conveys an undivided one-half interest in the property in controversy.’ And that the vendor's lien notes mentioned in said deed were after-wards released of record to the said R. D. Smith by the assignee of said payee of said note, Sarah J. Moore, and payment being acknowledged ; but how or in what manner the same were paid the evidence in this case fails to disclose.
“IX. That the time the said last-mentioned note for $3,668.45 was given to the plaintiff by the defendant R. D. Smith the plaintiff, up to and including the time, had no actual notice of any right, claim, or title to any of said lands in, to,, and by the said Mrs. T. E. Smith other than whatever constructive notice he may have been charged with by reason of the deed being upon record in Jones county.
“X. Prior to the giving of the first mortgage by R. D. Smith and T. E. Smith the deed conveying to her an undivided one-half of the property in controversy was of record in Jones county, Texas, and there being a recitation in said deed that said property was her own separate interest, and estate, and as a gift from her aunt Sarah J. Moore.
“XI. It was agreed by the parties to the case and the court finds that R. D. Moore was the common source of title, and that R. D. Moore conveyed an undivided one-half of the property in controversy to Sarah J. Moore, and she in turn conveyed the same to Mrs. T. E. Smith, and that the said R. D. Moore conveyed the other one-half to the defendant R. D. Smith.”

Upon these facts, which we adopt, the trial court properly rendered judgment personally against appellee R. D. Smith for the amount due on both notes, together with a foreclosure of its deed of trust lien on the property described; as against both defendants subject to the provision that the undivided one-half interest of appellee R. D. Smith shall be first sold, and the proceeds applied to the payment of the amount due on the note first given, with the surplus, if any, to be returned to said appellee, and, if said one-half interest should not sell for enough to satisfy said note, then the undivided one-half interest of the appellee T. E. Smith in the land shall be sold, and the proceeds applied to the payment and satisfaction of any balance due on said indebtedness, with the surplus, if any, to be returned to her. The gist of appellant’s contention is that the court erred in not holding, as a matter of law, that the interest of appellee T. E. Smith in the land should first be sold to satisfy its demand on the first mortgage note, to the end, of course, that appellee R. D. Smith’s interest in the land could be subjected to the payment of the second mortgage. This is not a legal right of appellant’s, but at most is only an equity which it seeks to have enforced, but over against it, and in óur opinion exceeding it, is the equity of Mrs. Smith to have the community property of R. D. Smith and herself first sold to satisfy the debt for which her separate property at best is only bound as surety.

The decision in James v. Jacques, 26 Tex. 320, 82 Am. Dec. 613, is very much in point, and the language of that opinion peculiarly apt in the present controversy. It is there said: “The true controversy here is between James and Mrs. Shehan, and we are of opinion that James cannot claim the right to have the respective liens so adjusted as to subject the lots which were community property to the Belger judgment (a second lien), and the piece of land called the Rincon, which is Mrs. Shehan’s separate property, to the lien of the deed of trust, or to the payment of the debt to Vance (a first lien). Mrs. Shehan is shown to be a surety for her husband in the note to Vance. Her separate property is in no way liable to the judgment in favor of Belger. It is true her separate property is liable to the debt of Vance, but only in connection with community property, which ought first to be exhausted. In this .state of case to adjust the liens of Vance and Belger in such way as to make the separate property of Mrs. Skehan liable to the whole of the Vance debt is to deprive her of a right viz., to have the community property first made subject to that debt, and would be the same thing in the end as to make her separate property liable to the judgment of Belger.”

So here to sustain appellant’s contention would be the same thing in the end as to make Mrs. Smith’s separate property liable to the second debt and mortgage of her husband, a thing to' which she is in no manner bound either by contract or estoppel. It would be a strange equity that would thus take one person’s property for the payment of another’s debt.

There is no error in the judgment, and it is affirmed.