author: TALBOT, J.

text:
    BEEMAN v. MAYS et al.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Schools and School Districts (§ 107)— School Tax Election — Injunction.
    Property owners and taxpayers of a school district were authorized to sue to enjoin defendant, as presiding officer, from holding an election to abrogate a school tax, voted by the taxpayers in 1902 to supplement the general school fund apportioned to the district.
    [Ed. Note. — Por other cases, see Schools and School Districts, Cent. Dig. §§ 253-256; Dec. Dig. § 107.]
    2. Schools and School Districts (§ 107)— School Tax — Election—Injunction.
    In a suit by taxpayers in a school district to enjoin the presiding officer from holding an election to abrogate a school tax previously voted to supplement the general school fund, neither the commissioners’ court nor the persons petitioning for the election were necessary parties defendant.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 253-256; Dec. Dig. § 107.)
    3. Schools and School Districts (§ 103)— School Taxes — Additional Tax — Increase —Election—Ballot.
    An order, directing an election to ascertain whether an additional school tax should be levied, stated that its purpose was to determine whether the commissioners’ court should be authorized to levy a tax of 30 cents on the $100 valuation, and that the ballot should have written or printed thereon the words “for school tax” and “against school tax.” Reid, that a ballot in conformity with the order, though not in strict compliance with Rev. Civ. St. 1911, art. 2833, providing that the form shall be “for increase of school tax” and “against increase of school tax,” was not so misleading as to render the election void.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 246-245, 252; Dec. Dig. § 103.)
    4. Schools and School Districts (§ 103)— School Taxes — Additional Tax — Election to Abrogate — Time—Injunction.
    Rev. Civ. St. 1911, art. 2833, authorizes the holding of an election to increase the school tax after any district has levied the same, provided that an election to determine whether the tax so levied shall be abrogated can be held only after two years from the levy thereof. A school district voted a tax of 20 cents on the $100 in 1902, and in June, 1913, another election was held at which the district voted an additional tax of 30 cents. Reid, that an election to abrogate the original 20-eent tax of 1902 could not be held until within two years from the June, 1913, election.
    [Ed.-Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by J. W. Mays and others against M. S. Beeman. Judgment for complainants, and defendant appeals.
    Affirmed.
    Robertson & Kemp, of Dallas, for appellant. Connor & Wills, of Dallas, for appel-lees.

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

   TALBOT, J.

Appellees brought this suit against appellant to enjoin him, as presiding officer, from holding an election, which had been ordered, by the county judge or commissioners’ court of Dallas county, Tex., to be held in school district No. 10 in said county and state, to abrogate a school tax of 20 cents on the $100 valuation of property, situated in said district, voted in 1902 to supplement the general school fund apportioned to said district. The ground alleged and relied upon for the granting and issuance of the injunction is that there had been an election within two years, namely June 21, 1913, to increase the school tax of the district, and that the pending election to abrogate the tax voted in 1902 was therefore unauthorized and illegal. The district court granted a temporary injunction as prayed for, and the defendant, Beeman, appealed.

Briefs have been filed in this court by both parties to the appeal, and appellant’s first contention is that the plaintiffs show in their petition no such interest in the result of the election sought to be enjoined as entitled them to maintain this suit. This contention is not sustained. The petition alleges, and it so appears without dispute, that the plaintiffs were qualified voters, property owners, and taxpayers of the school district in question. As such they were authorized to maintain this suit. The well-established principle that,, “when the injury inflicted or threatened is of a character which affects the public generally, and inflicts no special wrong on the individual, the suit must be brought by those who are intrusted with that duty by the Legislature” is not, in our opinion, applicable. In Oden v. Barbee, 103 Tex. 449, 129 S. W. 602, it is held that an injunction is the proper remedy for preventing, at the suit of citizens and taxpayers of an unorganized county, its illegal organization.

It is further contended that the commissioners’ court or the persons petitioning for the election were necessary parties defendant, and that appellant’s special exception, challenging the sufficiency of the plaintiff’s petition for the want of such parties, should have been sustained. In this contention we do not concur. The statute authorizes and directs the county judge, and not the commissioners’ court, to order elections to determine whether or not a tax for school purposes shall be levied in school districts, and tile county judge of Dallas county, Tex., ordered the election sought to be enjoined in this case. No good reason is pointed out why they were necessary parties to the suit, and none occurs to us at this time. The petition, after stating the date when the election was ordered to be held, avers that by said order the defendant, Beeman, was appointed presiding officer of said election, and authorized and directed to select two judges and two clerks to assist him in holding said election, and to make due return thereof; “that notices of said election had been posted, and, unless restrained, said defendant would hold said election,” etc. The purpose of this suit was to prevent the holding of the election, and, the defendant, Beeman, having been appointed and directed to hold it, an injunction restraining him from doing so would effectually accomplish the purpose in view. The commissioners’ court had no functions to perform, and could do nothing in relation to the election, except to canvass the returns after it was held and declare the result. Manifestly, at the time this suit was instituted, neither that court nor the members thereof had any such interest in the matters involved as rendered them necessary parties to it, and we know of no act which they could have been enjoined from doing. The suit was therefore properly brought against appellant. Clearly the parties at whose instance the election was ordered are not necessary parties, nor are they, in our opinion, proper parties.

The next contention is that “the court erred in holding that the election, or pretended election, to enforce a tax upon school district No. 10, held June 21, 1913, was not void as shown in the findings of the court, because said findings show such election to not in any manner conform to, or pretend to conform to, the requirements of the statute to increase the school tax in said district, and said election as held, or pretented to he held, was after the manner of holding an election to impose an original tax upon this district, calculated to, and did, have the effect to mislead the voters, and was wholly void, as shown by the proceedings of said election introduced in evidence by both parties and made a part of the judge’s findings.” The election of June 21, 1913, which was held for the purpose of increasing the tax in the district for school purposes, was doubtless irregular and not held in the precise manner provided by statute, but it was not void. It operated as an expression of the will of the people of the school district with respect to the levy and collection of an additional tax in the district, and its legal effect was to increase the tax of the district from 20 to 50 cents. In fact we do not find that the statute which authorized the election of June 21,1913, to determine whether or not the school tax of the district «should be increased, definitely prescribes the form in which the question should be submitted to the voters, and in such case it is held that “the language in which the proppgition was submitted is immaterial, provided it substantially submits the question which the law authorizes with such definiteness and certainty that the voters are not misled.” Reynolds Land & Cattle Co. v. McCabe, 72 Tex. 57, 12 S. W. 165. The petition for the election of June 21, 1913, calls for an election to determine whether or not an additional tax of 30 cents on the $100 valuation of taxable property in the district shall be levied for school purposes, and article 2833 of the statute which authorizes an election to increase the tax of a school district does not prescribe the form of the order. The order directing that the election of June, 1913, should be held stated, in substance, that its purpose was to determine whether the commissioners’ court should be authorized to levy, assess, and collect annually a tax of 30 cents on the $100 valuation of taxable property in the district for school purposes, and that the ballot should have written or printed thereon, “For School Tax,” “Against School Tax.” The form of ballot prescribed by statute to increase a tax is, “For increase of school tax,” “Against increase of school tax.” Was the form of the order and ballot thereby directed to be used such as was calculated to, and probably did, mislead the voters as to the purpose of the election? We conclude they were not. A tax of 20 cents on the $100 valuation of taxable property was legally voted in 1902 to supplement the free school fund apportioned to the district, which has been annually assessed and collected since that date. The petition for the election of June, 1913, as hereinbefore stated, asked for an election to determine whether or not an additional taco of SO cents should be levied for school purposes. In the case of the City of Austin v. Austin Gas, Light & Coal Co., 69 Tex. 180, 7 S. W. 200, it appeared that the city of Austin, in the year 1880, had voted a special tax of two mills on the dollar, and that in 1SS3, another election was ordered for the purpose of determining whether an additional tax of 1 ⅛ mills should be levied and collected for school purposes. It was urged that this last tax was invalid, because the commissioners’ court did not submit the question of whether or not it should be levied to the voters as provided by statute. The Supreme Court held that the voters were presumed to know what taxes the city was authorized to levy at the time the election in 1883 was held, and that they must have understood that the proposition, as submitted to them, if carried, would empower the city to impose upon them a tax of one-third of 1 per cent., being the sum -of 2 mills, which was voted in 1881, and 1⅛ mills voted in 1883, although no mention was made of the first election held in 1881, and the tax thereby authorized in the orders and proceedings of the second election in 1883. So in the case at bar the voters in the school district in question knew, at the time the election of June, 1913, was held, that the levy and collection of a tax of 20 cents by the election of 1902' had been authorized, and was being levied annually; they were presumed to know what taxes the district was authorized to impose, and must have understood that the proposition to empower the commissioners’ court to levy the tax of 30 cents, as submitted to them in the election of June 21, 1913, if carried, would authorize that court to impose upon them a tax of 50 cents, being the sum of 20 cents voted in 1902, and the thirty cents voted in said election of June 21, 1913, although the election of 1902 or of an increase in the '20-cent tax was not mentioned in the order for the said 1913 election. That they were apprised by the proceedings had in the election of June, 1913, that if the proposition therein submitted carried, it would have the effect to authorize an increase of their taxes for school purposes of 30 cents on the $100 valuation of their taxable property is made manifest by the language of the petition asking that said election be held to determine whether or not an additional tax of 30 cents on the $100 valuation of taxable property in said district shall be levied for said purpose. In reference to the form of the ballot, it may be said that, while that ballot directed to be used by the order of the eourt ordering the election did not literally conform to the ballot prescribed in article 2835 of the statute, still we think this irregularity did not render the election of June, 1913, a nullity. In McGaskey v. Ratliff, 159 S. W. 115, it appeared that the form of the ballot used was “For Tax,” “Against Tax,” instead of “For School Tax,” “Against School Tax,” as prescribed by article 2829 of the statute, and it was there held that the will of the people should not be defeated because of such variance in the form of the ballot.

Nor do we think that the court erred in holding that the election here sought to be enjoined was prematurely brought. Article 2833 of the statute, which authorizes the holding of an election to increase a school tax after any district has levied a school tax on itself, provides, in substance, that an election to determine whether such school tax which has been so levied shall be abrogated can be held only after the expiration of two years from the levy of: such tax. School district No. 10, as heretofore shown, voted a tai of 20 cents in 1902 and -in June, 1913, another election was ordered and held,, at which said district voted on itself an additional tax of 30 cents, and the election here sought to be enjoined, and which was ordered to determine whether or not the tax of 1902 should be abrogated, was ordered to be held in October, 1913, less than two years from the date of the election held in June, 1913. The limitation placed in article 2833 upon the right to hold an election to abrogate an existing school tax applies as well, in our opinion, to an election at which an increase of the tax has been voted as to one held at which the first or original tax was imposed.

We are of opinion that the injunction to restrain the holding of the election ordered to be held in October, 1913, to determine whether or not the tax voted on in 1902 should be abrogated, was properly granted, and the judgment of the court ibelow is affirmed.


source: Caselaw Access Project

author: HUFF, C. J. HUEE, C. J.

license: Public Domain

text:
    WRIGHT v. BOTT.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1914.
    On Motion for Rehearing, Feb. 7, 1914.)
    1. Vendor and Purchaser (§ 44) — Action by Purchaser — Sufficiency of Evidence.
    Evidence, in an action for specific performance of defendant’s contract to sell land or, upon refusal of that relief, for recovery of the part of the price paid, held not to show that defendant relied on any representations as to the contents of the contract of sale with reference to the time of performance, etc.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dee. Dig. § 44.]
    2. Vendor and Purchaser (§ 44) — Parol Evidence — Varying Contract.
    If the vendor examined the contract of sale and did not rely on any representations of the purchaser as to its contents, the minds of the parties are presumed to have met in executing it, in absence of fraud, so that the vendor cannot claim that the contract signed was not the contract of the parties.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dec. Dig. § 44.]
    3. Vendor and Purchaser (§ 44) — Action— Sufficiency of Evidence — Fraud and Mistake.
    In an action by the purchaser of land under a contract to sell for specific performance or, if that is denied, for recovery of part of' the price paid, evidence held not to show fraud or mutual mistake in the execution of the contract, resulting in the omission, of a provision for forfeiture of the sum paid, 'upon failure to-pay the balance within a certain time.
    LEd. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dec; Dig. § 44.]
    4. Reformation of Instruments (§ 43) — Contracts — Proof of Contract.
    In order to reform a contract, plaintiff must show the exact form to which the contract should be brought.
    [Ed. Note. — For other cases, see Reformation of. Instruments, Cent. Dig. § 154; Dec. Dig, § 43.] ••
    5. Damages (§ 76) — Penalties.
    ‘ The courts are strongly inclined to treat agreements to pay a lump sum, in case of failure to perform a contract, as a penalty.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 154, 155; Dec. Dig. § 76.]

      6. VENDOR AND PURCHASER (§ 78) — CONTRACT —Time as Essence — Evidence.
    Unless it clearly appears that time was intended to be of the essence of a contract to convey,' the courts should not so construe the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Big. §§ 121-125; Dec. Dig. § 78.]
    7. Vendor and Purchaser (§ 80) — Actions by Purchaser— Sufficiency oe Evidence.
    In an action by the purchaser to recover earnest money paid the vendor on the contract price on the vendor’s refusal to perform evidence held to show that the contract of sale did not contemplate that the vendor should retain the amount paid as a forfeit, upon failure to pay the balance on a certain date.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 132-135; Dee. Dig. § 80.]
    8. Public Hands (§ 173) — Certificate oe Occupancy.
    The certificate of proof of occupancy cannot be gone back of to show collusion, nonset-tlement, or lack of intention to settle.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    9. Public Lands (§ 173) — Certificate oe Prooe oe Occupancy — Effect.
    A certificate of proof of occupancy of public school land does not establish a clear and perfect title which it is beyond the power of the state to cancel.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 644-551; Dec. Dig. § 173.]
    10. Vendor and Purchaser (§ 140) — Abstract oe Title.
    Under a contract for the sale of land occupied as public school land, where it required vendor to furnish an abstract showing clear and perfect title, the abstract should show the price for which the state sold the land, the amount originally paid thereon, that the principal due the state and annual interest have been paid, and that such sum was not greater than the amount the purchaser agreed to assume in the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. § 140.]
    11. Public Lands (§ 178) — Disposal of School Land — Sale by Purchaser — Proof oe Occupancy — Who may Make.
    That the purchaser of public school lands from the state conveyed the land before obtaining a certificate of occupancy would not affect the title of his grantee, or others holding under him, especially where the sale was not made till after the three years’ occupancy required by law, as the statute permit^ proof of occupancy to be made by the grantee of the purchaser from the state or by the purchaser himself.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. § 178.]
    12. Vendor and Purchaser (§ 133) — Title Conveyed.
    Where the right to complete the purchase of state school land stood on the books of the land office in the purchaser from the state, while the equitable right to the land was in fact in one claiming under him, the latter did not have a clear and perfect title to the property, so as to enable him to comply with an agreement in a contract of sale to furnish an abstract showing clear and perfect title in himself.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 234-237; Dec. Dig. •§ 133.] ' '
    13. Vendor and Purchaser (§ 134) — Title Conveyed.
    Under a contract of sale requiring the vendor to furnish an abstract showing clear and pérfect title, the purchaser had the right to have a lien for. $8.88 taxes removed before paying the purchase money.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 238, 250-254, 258; Dec. Dig. § 134.]
    14. Vendor and Purchaser (§ 79) — Performance by Vendor.
    Where the vendor of land insists on construing the contract of sale strictly in favor of a forfeiture of- the amount paid, upon failure to pay the remainder, the law will require strict performance on his part in furnishing an abstract of title showing clear and perfect title as agreed.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 7, 8, 127-131; Dec. Dig. § 79.]
    15. Vendor and Purchaser (§ 140) — Abstract of Title — “Abstract.”
    An “abstract” is a statement in substance of what appears in public records affecting the title of property agreed to. be conveyed, and also a statement in substance of such facts as do not appear upon the public records which are necessary to perfect the title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. § 140.

    For other definitions, see Words and Phrases, vol. 1, p. 46; vol. 8, p. 7560.]
    16. Vendor and Purchaser (§ 341) — Actions by Purchaser — Sufficiency of Evidence.
    In an action by the purchaser of land for specific performance or, in the alternative, to recover amount paid on the price, evidence held to show that it would be inequitable to permit the vendor to retain $500 paid to him on the contract of purchase.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008-1017; Dec. Dig. § 341.]
    On Motion for Rehearing.
    17. Appeal and Error (§ 395) — Bond—Parties Appealing — Failure to Give.
    Where the appellee did not perfect an appeal by executing an appeal bond as to certain defendants, appellee’s cross-assignment attacking the judgment in favor of such defendants against him cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 2064-2070, 2085, 20S6, 3127; Dec. Dig. § 395.] >
    Appeal from District Court, Potter County ; Jas. N. Browning, Judge.
    Action by R. L. Bott against I. M. Wright and others. From a judgment for plaintiff against the defendant named, he appeals.
    Affirmed.
    Crullgington & Works, of Amarillo, for appellant. Cooper, Merrill & Lumpkin, of Amarillo, and R. E.' „Taylor, of .Henrietta, for appellee.

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

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

   HUFF, C. J.

The appellee, R. L. Bott, brought this suit originally in the district court of Wheeler county, the venue of which was afterwards changed to Potter county by 'agreement, against Ida Wright and I. M. Wright, husband and wife, and W. A. Lay-bourne- for specific performance- of a certain contract for the sale of section 4, block L, 1/28, J. Pouintervant survey in Wheeler county. Laybourne, it is alleged, purchased from Wright and wife the section of land, after the above contract was entered into, with full notice. The appellee asked, in case of failure to get specific performance, for judgment' against appellant,. I. M. Wright, for the sum of $500, and interest thereon, the amount paid as part of the purchase money for the section. The appellant, Wright, joined by his wife, Ida Wright, alleged in reply thereto that the land contracted to be sold was the separate property of his wife, Ida Wright, and that he (I. M. Wright) alone signed the same as her agent, and the contract was not binding upon her, and therefore could not be enforced against her. They further allege that the contract made between appellee and appellant was, in part, that time was the essence of the contract, and that, if the balance due on the contract price was not paid within 30 days, the $500 paid should be forfeited to Ida Wright, and that the appellee drew up the contract and “handed it to I. M. Wright to sign, telling him that it embodied all the terms of said verbal contract; that said defendant, I. M. Wright, is and was an illiterate man, without education, ignorant of the details of such transactions, and having confidence in his fellow man, and at that time reposed perfect confidence in plaintiff, and, by reason of the said representations of the plaintiff and relying on the truth thereof,- signed said instrument under the confident belief that it contained all the terms, conditions, and provisions of said verbal contract theretofore made and entered into. Defendants say that plaintiff is and was at that time an educated business man, experienced in drafting of such contracts, and defendants say that the said omissions in said instrument were due to either the mutual mistake of plaintiff and said I. M. Wright, or the fraud of plaintiff in intentionally omitting some portion of said contract” They further allege that he promised the abstract agreed upon, showing a good merchantable title in Ida Wright, and that appellee exercised no diligence, but negligently allowed said limit to pass, while pretending to have the title examined by a Kansas lawyer, and that' finally on December 7, 1907, appellant declared the trade off, took down the. deed and abstract, and kept the $500, and sold to his codefendant, W. A. Lay-bourne.

W. A. Laybourne answered, setting up the invalidity of the contract on the grounds pleaded by Wright and wife, and that the deed signed by Wright and wife to appellee, Botts, was in fact not delivered in escrow and never passed from the control of Mrs. Wright. He also alleges negligence and delay on the part of appellee in asserting the invalidity of the title to the land, as shown by the abstract and other matters not necessary to set out.

Judgment was rendered in favor of W. A. Laybourne for the land against appellee on his plea for specific performance, but in his (appellee’s) favor against I. M. Wright for the sum of $500 and interest, amounting to the total sum of $664, from which judgment appellant brings this appeal.

The appellant presents his first assignment of error on the ground that the trial court instructed the jury to find a verdict for ap-pellee against appellant for the sum of $500 and interest, the amount paid on the contract or in case they should find against appellee on specific performance, because it is asserted that time was the essence of the contract, and that that sum should be forfeited in case the balance of the purchase money was not paid within the time limit, and because the pleadings and evidence raise the issue that the terms agreed upon were omitted by mutual mistake of the parties to the contract or by the fraud of the appellee.

The contract as' written is as follows:

“Contract made and entered into this the 17th day of October, 1907, by and between I. M. Wright of Kent, Texas, and R. IL. Bott of Hummeston, la., witnesseth: That the said I. M. Wright has this day sold to R. L. Bott the following land, legal numbers as follows: Section four (4) block L, land lying just west of Clay section, for the sum of five thousand dollars ($5,000.00) on the following terms: $500.00 cash paid in hand, which is hereby receipted for and $4,500.00 on or before thirty days from this date. I. M. Wright is to deed by warranty deed and furnish abstract showing clear and perfect title and to send deed and abstract to the Hummeston State Bank, Hummeston, la., and the warnt. deed is to be free and clear of all incumbrances, except $624.00 back to the state.
“[Signed] Ida Wright,
“By I. M. Wright, Agent,
“And R. L. Bott.”

I. M. Wright testified with reference to the execution of the contract: “I do not remember having any conversation with him (Bott) prior to the time he and I began negotiating with reference to this land. I met him on the street in Shamrock on the 17th of October, 1907. I was introduced to him by Ulm, as I remember. We talked some on the street. We went then to his office. At first I don’t know whether there was but two of us there in the office. Bótt and myself walked in first, and Ulm finally came in, and Walter Williams was in there a part of the time. I made a contract with him there with reference to the sale of this section of land in question. I have seen the copy of the contract read in evidence here a while ago. It is the one we made. He read it over to me at the time. Don’t think I read it myself. I thought I understood it. I understood that I was to give Mm a perfect title to the land. I did not expect him to pay me $4,500 until I did that. I had the abstract and deed sent to the bank at Hurnmes-ton, Iowa. Mr. Nicholson of the Shamrock Bank sent it for me.” Again he testified: “Plaintiff was to put up $500 for a forfeit and pay the balance in 80 days or sooner, if he could have the papers examined sooner. That was the deal. I suggested the time limit of 80 days.” Again he says: “We had agreed upon the $5,000 as the price while we were yet on the street. Bott went into the office and drew the contract. I don’t think I read it. He read it to me. I am not accustomed to making deals of that kind. I have had very little business of that sort to do. I don’t remember fixing up a contract on land before. I may have done so. I don’t remember whether the $500 was mentioned wMle either Ulm or Williams was in the office. I don’t remember whether the $500 was called a forfeit or not. I would not say about that positively. I don’t know whether the contract was understood by me as embodying the terms of our conversation or not. It called for the $5,000, of course, the $500, and then the $4,500. He wrote it out and read it to me and I signed it that way.”

Walter Williams testified that he heard the trade talked over two or three times, and heard it mentioned then that there was $500 up as a forfeit, and the $4,500 was to be paid within 30 days.

The record in this case discloses the fact that appellant dealt considerably in land, and had done so before entering into the contract in question. We find no evidence that he was an ignorant man, but, on the contrary, we think -the record discloses him as rather well informed as to his own rights.

It will be noted that appellant does not allege that the contract was misread to Mm by appellee. He testified the contract was read to him. He did not recollect that the $500 was mentioned as a forfeit in the conversation before signing the contract, and did not know whether he understood the contract or not. The evidence nowhere indicates that the appellee made false representation as to the contents of the instrument. On the other hand, it clearly indicates it was read to appellant as drawn. The terms of the contract were not concealed from appellant, but read to him. He took the instrument and signed it at the time. There is no allegation or proof that the appellant, through an infirmity on his part of any kind, was unable to read the contract.

The evidence does not show that he relied upon representations as to its contents, but for himself he had the instrument read. He did not accept the statement of appellee as to its legal effect, but judged for himself after hearing it read.

The appellant having undertaken for himself to examine the contract for himself, and with equal opportunity for so examining it, and without relying on the statement of appellee, acted for himself, and should not now be heard to say the contract which he then signed was not his contract. Hawkins v. Wells, 43 S. W. 816. The presumption that the minds of the parties met in the contract signed by them can only be rebutted by proof of fraud, which in this case is wholly lacking. The whole transaction, in so far as appellee was concerned, was open and fair. The instrument was drawn when both were present and read and signed at one sitting. The trade was made,' agreements reached, and contracts executed at the same time without a separation, and while everything was then fresh in the minds of the parties.

We do not see the slightest evidence of fraud. We think it equally clear there was no mutual mistake shown. It is urged that appellant was an uninformed man and unacquainted with contracts of this kind, and that appellee was a shrewd business man. “Courts cannot measure the relative intelligence and business qualifications of parties to a transaction, unless it reaches the point where it appears that one overreached the other by reason of his incapacity.” Moore v. Cross, 87 Tex. 557, 29 S. W. 1051. If we were to pass on, the capacity of the two men from tMs record, we would say that appellee had no advantage over appellant in that respect.

The appellant in this case seeks to rectify the contract so that it will read that, in case appellee failed to pay $4,500 within 30 days, the $500 should be forfeited to appellant as liquidated damages as a compensation to him for the damages sustained by him by reason of the breach.

In order to rectify a contract, the party seeking to do so must be able to show exactly the form to which the contract should be brought. Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290; Ry. Co. v. Shirley, 45 Tex. 355. This the evidence in this case leaves much in doubt. It would be hard, under appellant’s contention, to tell the form which the contract should take in order to give him the right to retain the $500 as a forfeit to him in compensation for the damages occasioned by the breach.

Courts are strongly inclined to treat all. agreements to pay a lump sum in case of failure to perform the terms of a contract as a mere penalty. Farrar v. Beeman, 63 Tex. 175; Eakin v. Scott, 70 Tex. 442, 7 S. W. 777.

Time does not appear to have been the essence of this contract, either in the written instrument or by appellant’s testimony, and, unless it is clearly so, the courts should not declare it to be. We are not inclined to hold that the evidence of appellant, even if allowed to change the form of the contract, authorized him to retain the $500, but by the evidence he should be held to prove his damages. This he has not done. There is no claim that the appellee was not entitled to the purchase money paid on the contract, but Ore only question urged is that the court should have left it to the jury whether the testimony as to the actual agreement made did not authorize the jury to find the contract as contended for by appellant.

We think in this ease the court properly held under the contract appellant was not entitled to hold the money, and, as there was no other damages proven, the appellee should have recovered that sum with interest. The facts do not show fraud on appellee’s part in making the contract, and do not show a mutual mistake. The abstract called for in the contract was to show “a clear and perfect title,” and the “warranty deed is to be free and clear of all incumbrances.” The evidence in this case as to the abstract shows the land to have been public free school land. The abstract in the record shows a certificate by the Land Commissioner dated September 27, 1905, reciting that W. C. Wright on December 20, 1912 (this is evidently an'error in the record) filed proof of three years’ occupancy of section 32, block A-8, grantee H. & G. N. Ry. Co. Said land having been sold to W. C. Wright November 15, 1899; the certificate showing additional lands, one section of which is section 4, certificate 1/28, grantee J. Pouintervant, which certificate was recorded in the Deed Records of Wheeler county October 12,1905. The abstract further shows that W. C. Wright and wife, Bernice Wright, conveyed to I. M. Wright May 25, 1903, which was recorded in the 'Deed Records of Wheeler county, date not given, and deed from I. M. Wright to Ida Wright August 22, 1903, for a recited consideration of $3,000. A deed of trust to secure two notes, one for $1,754.50 and one for $1,259.50, both dated November 28, 1905, due in one and two years, payable to R. N. Sewell. The deed of trust is to L. R. Clay, trustee, by I. M. Wright, for the benefit of R. N. Sewell, and is dated November 28, 1905. A release of the above deed of trust, executed by R. L. Clay, trustee, properly acknowledged as to Clay, trustee, and also signed by R. M. Sewell, whose acknowledgment was taken before a justice of the peace in Oklahoma. The date of the release is October 14, 1907, but the record does not show when recorded. The abstract also shows taxes due on the land for the amount of $8.88. This appears to have been the abstract as presented to the appellee by appellant. Afterwards, and after a contract with Laybourne, a supplement was added, showing the land was in the name of W. C. Wright in the Land Office, and a new release of the above deed of trust was obtained, properly acknowledged and recorded, and that the taxes mentioned in the original abstract had been paid. Now, did this abstract, as presented to appellee, show a “clear and perfect title”.? The abstract of title does not show an application to purchase the home section No. 32, its classification, or the price of the land; nor the application to purchase section No. 4 as an additional section, or its price, or when it was placed on the market. There is no award shown to either the home or additional section. The price for which the land was sold to W. C. Wright by the state, its classification and appraisement is not shown. There is nothing in the abstract showing the payment of i/40 of the purchase money, or that the amount of interest due on the purchase had been regularly paid; or in other words, the abstract does not show the standing of the land in the Land Office at the date of the contract. In the first place, there is no award shown to W. O. Wright. In the case of Corrigan v. Fitzsimmons, 97 Tex. 595, 80 S. W. 989, and Smyth v. Saigling, 110 S. W. 550, it is held that upon the proof of award it will be presumed that the land was properly classified and appraised. It will be found, upon examination of those cases, that the application and the obligation to purchase the land, which were made and accepted by the Land Commissioner, were introduced in evidence. It is a well-known fact that the application gives the classification and valuation of the land when filed in the Land Office by the proposed purchaser. Just how far the certificate of the proof of occupancy and its recordation should be held to cure the defects, we are not prepared at this time to say.

The case of Logan v. Curry, 95 Tex. 664, 69 S. W. 129, has settled that the certificate cannot be gone back of in order to show collusion, nonsettlement, or lack of faith or intention. Salgado v. Baldwin, 105 Tex. 508, 152 S. W. 165. The power of the Commissioner is derived from the statute giving it, and will not be extended beyond it. It has been held that the sale of school land at less than its appraised value is invalid, and, while the purchaser may maintain a suit of trespass to try title on the award to him, yet the state is not precluded from setting it aside. Erp v. Robison (Sup.) 157 S. W. 1160; Id. (Sup.) 155 S. W. 180; Erp v. Tillman, 103 Tex. 574, 131 S. W. 1057. It is also held that, if the land is sold for less than its value by mistake, the Commissioner of the Land Office has no power to cancel the sale, even if the state had the right to avoid the sale. Harper v. Terrell, 96 Tex. 479, 73 S. W. 949. The fact that the certificate of ttie Commissioner may now by law be recorded as a muniment of title, it occurs to us, does not necessarily dispense with proof of the award. The proof of occupancy does not prove a sale, but establishes that the party to whom it is issued has resided upon the land the required time, and precludes any question on that ground. We are inclined to think the statute limits its effect to that point. However, we are not undertaking to say just how far it should- go or just what its effect should be in establishing the title in the purchaser from the- state.

Under the law and decisions as'we read them, such certificate does hot make the title “clear and perfect,” passing it out of the power of the state to cancel.

At least a prospective purchaser would have the right to have the abstract show the price which the state sold the land for and the amount originally paid thereon. The abstract, we think, should also show that the land is in good standing in the Land Office with reference to the payments of the principal due the state and the annual interest required to be paid by law in order to show a “clear and perfect title.” The appellee had the right, as we think, to have an abstract showing that' there was no greater sum due the state than the amount which he had agreed to assume in his contract.

Again, this land, as shown by the abstract, stood in the Land Office in the name of W. C. Wright. He conveyed this land before he obtained a certificate of occupancy. The statute authorized the vendee therein to make the required proof of occupancy, and, if he refused, the vendor could do so. This fact did not affect the title of Ida Wright, especially if the same was not conveyed out of W. O. Wright until after the three years’ occupancy.

However, as the title or right to complete the purchase stood in the Land Office, it was in W. C. Wright; and to that extent the legal right was in him, and the equitable right in Ida Wright. If the patent should issue with the record in the Land Office as it was when the abstract was delivered to appellee, it, as we understand, would be issued to W. O. Wright, clearly placing the legal title in him. With the legal title in one person, and the equitable in another, we do not think it appears to be a “clear and perfect title.” It therefore became an important question to appellee to know who paid the purchase money, and who was paying interest installments. If W. O. Wright had decided to pay the balance of the purchase money and did so, receiving the patent to the land in his own name, serious complications may have arisen. It appears to be conceded that the release of the deed of trust 'was not, as to Sewell, properly authenticated for record. Under the facts of this case, it may have been sufficient and yet not clear and perfect.

The taxes due for $8.88 was an in-cumbrance, though small, it was still a lien which appellee had the right to have removed before he paid his money.

Appellant in this cause insists on construing the contract strictly in favor of a forfeiture as he claims it. The law will therefore require of him a strict performance on his part of the agreement before he can recover it. This we do not think he has done.

This court, through Mr. Justice Hendricks, in the ease of Sparkman v. Davenport, 160 S. W. 411, defined an abstract in the following language: “By an ‘abstract’ is meant a statement in substance of what appears in the public records affecting the title, and also a statement in substance of such facts as do not appear upon. the public records, which are necessary to perfect the title.” We believe this to be a correct definition, and the authorities collated and cited in that case support it. In the case of Moore v. Price, 46 Tex. Civ. App. 304, 103 S. W. 234, Mr. Justice Key held substantially that a purchaser contracting for an abstract showing a merchantable title is entitled to an abstract showing a good title, and, upon the failure of the vendor to furnish such abstract, the vendee was entitled to recover the purchase money paid on the land. A writ of error was denied in that case. To the same effect is the case of Poster v. Eoff, 19 Tex. Civ. App. 405, 47 S. W. 399. “Tested by this construction, we feel constrained to hold that ap-pellee failed to show a compliance on his part with the condition upon which the. notes were executed and delivered, and hence that the failure of consideration pleaded must be sustained.” Loring v. Oxford, 18 Tex. Civ. App. 415, 45 S. W. 395. The above case was one in which the vendor had not furnished an abstract showing a good title as he agreed to do.

The contract in this case evidences that ap-pellee was to pay $4,500, but, before he paid the sum, I. M. Wright promised to furnish the abstract and a warranty deed. He testified: “I was to give him a perfect title to the land. I did not expect him to pay $4,500 until I did that.” The abstract above set out was all he ever furnished. The appellee had delivered the abstract to a lawyer in Topeka, Kan., who was not satisfied with the title shown thereby, and advised appel-lee to get a Texas lawyer to pass on the ti-. tie. When the appellant demanded a return of the deed and abstract, the appellee wrote to the party into whose hands appellant had placed the deed and abstract, and requested that, on account of' the defects pointed out, he be permitted time in which to have it examined by a Texas lawyer. Appellant testified he never heard of the request. It is shown, however, that some few days before he wired for the abstract he and Laybourne were negotiating for a sale of the land, if they had not then reached an agreement. Appellant and his wife alleged that I. M. Wright had no authority to bind the wife in the contract for the sale of the land, and sought to defeat a specific performance on that ground. Laybourne relies on the same facts to defeat recovery. It is also shown by the record that it took about 90 days after the Wrights had entered into a contract with Laybourne to get the abstract and title in such condition that would enable Lay-bourne to take it. The. facts further show that the Wrights lost nothing in the trade. They got the same price for the land from Laybourne that appellee bad agreed to pay for it. The appellee was never in possession of tbe land, and did not derive any benefit therefrom in so far as the record discloses.

We think it will be inequitable for I. M. Wright to retain the $600 paid him on the contract, and we believe that justice will be done, at least in part, in requiring him to return this sum of money with interest. The appellee offered to take the land, and tendered the contract price to appellant or to Laybourne, and also kept up the tender in court; but appellant peremptorily refused to complete the trade in order that he might sell to Laybourne. In our judgment, the court properly instructed the jury to find for appellee the $500, with 6 per cent, interest from the date it was turned over to him.

The cross-assignments will not be considered. As we understand appellee, we are not requested to consider them in the event we affirm the case. In discussing the abstract, we have in a way considered appellee’s assignments as to the charge of the court in that particular, and, as seen, we do not agree with the trial court as to his construction of the abstract and the contract under which it was made. The case is therefore affirmed.

HENDRICKS, J., not sitting.

On Motion for Rehearing.

HUEE, C. J.

In the original opinion we stated that appellee desired us to consider his cross-assignments only in the event of reversal. Upon reading the brief of appellee, we find this to be incorrect. Appellee requested a reversal upon his cross-assignments.

The suit was brought against Ida Wright, I. M. Wright, and W. A. Laybourne for the specific performance of a contract made by I. M. Wright, and also, in the alternative, to recover $500, with interest, paid Wright as part of the purchase money for the land on the contract. The land was the separate property of Mrs. Wright, and she and her husband sold the land to W. A. Laybourne after the contract sued on was executed. A verdict and judgment was had and rendered on appellee’s suit for the specific performance in favor of Ida Wright and W. A. Laybourne thereon and against appellee. A personal judgment was rendered against I. M. Wright in favor of appellee for the sum of $664; from this judgment, I. M. Wright alone appeals, and asks for a reversal of that judgment against himself. Ida Wright and W. A. Laybourne, in whose favor judgment against appellee on a suit for specific performance was rendered, are not before this court by appeal or otherwise. The appellee made a motion for new trial, and gave notice of appeal, but did not perfect his appeal by executing an appeal bond. The cross-assignment urged by appellee in this court attacked the judgment against him in favor of Ida Wright and W. A. Laybourne on his suit for specific performance, because it is asserted therein that the uncontroverted evidence showed that he was entitled to specific performance as against Ida Wright and W. A. Laybourne. The appeal, as presented by I. M. Wright, in no way affects the judgment obtained by Ida Wright and W. A. Laybourne against appel-lee’s cause of action.

These parties not being before the court, a reversal of the judgment against I. M. Wright would not affect the judgment on specific performance in favor of Mrs. Wright and Laybourne. Ry. Co. v. Welch, 100 Tex. 118-122, 94 S. W. 333; Lauchheimer v. Coop, 99 Tex. 386, 89 S. W. 1061, 90 S. W. 1098. The appellee having failed to perfect his appeal by executing an appeal bond as to Ida Wright and W. A. Laybourne, we are without jurisdiction to consider appellee’s cross-assignment assailing the judgment in their favor against him. Hoover v. Kearbey, 25 Tex. Civ. App. 71, 60 S. W. 782; Munoz v. Brassel, 108 S. W. 417; Ry. Co. v. Cheek, 159 S. W. 427. The appellee’s cross-assignments of error are therefore overruled. We also overrule appellee’s motion for rehearing.

We find nothing in the motion of appellant for rehearing which induces us to change our views as expressed in the original opinion; his motion for rehearing is also overruled.

HENDRICKS, J., not sitting.


author: MOURSUND, J.

text:
    ODOM’S UNKNOWN HEIRS et al. v. CREWS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1914.)
    Pbocess (§ 106) — Publication—Length oe Publication — “Eoue Weeks.”
    Under Rev. Civ. St. 1911, art. 1874, requiring citation of a nonresident defendant, whose residence is unknown, to be published once in each week for four consecutive weeks previous to the return day thereof, publication must exist for full 28 days before the return day.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 133; Dee. Dig. § 106

    For other definitions, see Words and Phrases, vol. 3, p. 2928.]
    Appeal from District Court, Karnes County; F. J. Chambliss, Judge.
    Action by W. C. Crews and others against the unknown heirs of Britton Odom and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    M. B. Little, of Karnes City, for appellants. L. H. Browne, of San Antonio, for appellees.

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

   MOURSUND, J.

Appellees on September 18, 1913, sued appellants to remove cloud from title to certain land. On the same date citation by publication was issued for the purpose of summoning the defendants, who were nonresidents, and whose residence was unknown. This citation was published on September 19th, September 26th, October 3d, and October 10th, in the year 1913. Oourt convened on October 13, 1913, at which term the cause was continued, and thereafter citation for the unknown heirs of the parties defendant was issued, and duly published for more than eight weeks prior to the next succeeding term of court, which began on January 5, 1914. At the January term of court, the judgment appealed from was rendered, and it is now contended by appellants that the court erred in rendering judgment at said term of court. The contention is that, as the citation first above described was not published for 28 days prior to October 13, 1913, such publication was not complete, under article 1874 of the Revised Statutes of 1911, when the court convened, and therefore, under article 1905 (Statutes of 1911), the ease should have been continued at the January term, 1914. The Question is whether the publication required by article 1874 must exist for 28 full days prior to the return day, or whether the same is sufficient although only 23 days elapsed before the return day, provided one publication took place in each of the four weeks out of which said 23 days are taken.

The act of 1848 (Laws 1848, c. 95) provided: “That if the plaintiff, his agent or attorney shall, at the time of instituting suit, or at any time during the progress thereof, make affidavit before the clerk of the court, that the defendant is not a resident of this state, or that he is absent from this state, or that he is a transient person, or that his residence is unknown to the af-fiant, the clerk of the court shall issue a citation to the proper officer (which citation shall contain a brief statement of the cause of action), commanding the said officer to summon the defendant, by making publication of the citation in some newspaper published * * * in said county; bub if not, then in the nearest county where a newspaper is published, for four weeks previous to the return day of such process.”

The act of March 15, 1875 (Laws 1875, c. Ill), contained the following provisions: “Be it enacted by the Legislature of the state of Texas, that any person made defendant to any civil suit, may be cited by publication upon the plaintiff, his agent or attorney making affidavit that the defendant is a transient person, that his residence is unknown, or that he is a nonresident of the state of Texas. That said citation may be published in any newspaper published in the county where the suit is pending, and if there be no paper published in said county, then it must be published in the nearest paper to the county seat where the suit is pending. Said citation shall be published for four weeks prior to the setting of the court, and no judgment shall be taken in said cause until the second term after the citation is served. The person publishing such notice shall make an affidavit showing the length of time he published the same, and the return of the officer making such service must show how he executed the same; provided, that service of certified copy of petition, by any person competent to make oath of the fact, upon any absent or nonresident defendant may be made outside of the limits of this state; and the oath of the party making such service shall be sufficient return. The return shall show when and where the said copy was delivered to the defendant.” This act did not purport to amend or repeal any other act, but was merely entitled “An act prescribing the mode of service in certain cases.”

On July 28, 1876 (Laws 1876, c. 60), an act was passed providing for the appointment of a commission to make a complete revision and digest of the laws of Texas, and report which statutes in their opinion ought, and which ought not, to remain in force, and suggest such omissions and contradictions as they should find in the statutes, and the mode in which they could be reconciled, supplied, or amended, and further providing: “They shall arrange under appropriate chapters and sections all the different acts and parts of acts relating to the same subject-matter which they shall deem ought to be continued or adopted, with such marginal and footnotes and explanations as they may deem essential to a clear understanding of the same; and shall execute and complete the revision in all respects in such a manner as in their opinion will render the general statutes most concise, plain and intelligible.” This commission made a report calling attention to changes made in the law by their revision. ■ In speaking of title 29, which embraced the laws relating to process, as as well as other matters of practice in the district and county courts, they said: “The statutes relating to the subject-matter of the above titles have been arranged under their appropriate heads, without change of verbiage, unless absolutely necessary to render the meaning clear.” Sayles’ Statutes 1888, vol. 2, p. 721. The report contains the statement (Sayles’ Statutes 1888, vol. 2, p. 723) that the second section of the act of March 15, 1875, was amended in articles 1230 to 1234. These articles in the Statutes of 1879 correspond with articles Í869 to 1873 inclusive of the Statutes of 1911, and relate solely to service upon nonresidents by means of personal service. Article 1874, Statutes of 1911, now being construed, is an exact copy of article 1235 of the Statutes of 1879. Said article 1235 appears to have been based upon the act of 1848, and it seems not to have occurred to the commissioners that it was also an amendment of the act of March 15, 1875, as they do not include said article in the list of articles which they say are amendments of that act, and in fact they make no comment whatever concerning said article 1235. In 1879 article 1235 was changed by using the word “successive” instead of “consecutive” in describing the time of publication, but in the revisions of 1895 and 1911 the codifiers again used the word “consecutive.”

The act of 1848 also provided for citation by publication in suits against unknown heirs, and this portion was amended in 1866 (Laws 1866, c. 124).. In each act it was provided that the publication in such ca'ses was to be made “for eight weeks previous to the return day of such process.” In the revision of 1879, article 1236 is based upon said act of 1866, the language being improved, and it is provided that the citation shall be published “once in each week for eight successive weeks previous to the return day of such citation.” No comment is made by the commissioners in their report concerning article 1236.

At the time the commissioners drafted their revision of the statutes, the Supreme Court in several cases had construed statutes relating to publication of citations or notices.

In the case of Hill v. Faison, 27 Tex. 428, it was held that a statute requiring citation by publication issued by a justice of the peace to be published at least three successive weeks before the return day, required publication for 21 days, exclusive of the first day of publication and of the return day of the writ.

In Allen v. Wyser, 29 Tex. 153, citation by publication issued under the act of 1848, hereinbefore mentioned, was returnable on the fourth Monday in October, and the sheriff’s, return showed that it was executed by having the same published on the 16th day of September. The court said: “Publication of the process should have been made for four successive weeks previous to the return day.” It appears that the court construed the law to mean “successive weeks,” although said law did not so state, and also that the publication must take place each week.

In the case of Stephenson v. Railway Co., 42 Tex. 169, it was held that publication under the act of 1848, in a suit against a nonresident, must be for not less than 28 days between date of first publication and return day, and that publication in four weekly issues previous to the return day was not sufficient because extending over a period of less than 28 days.

In the case of Simpson v. Mitchell, 47 Tex. 572, section 230 of the act of August 15, 1870, requiring notice of application by a creditor to have a guardian sell real estate to be “published at least once a week for four weeks successively” was considered, and, as we understand the opinion, was held to require publication for 28 days before the date when the application should be passed upon by the court, •

With these decisions before them, the commissioners, “learned in the law,” having in mind their instruction's to revise the statutes in such manner as would make the same “most concise, plain, and intelligible,” appear to have written articles 1235 and 1236 of their revision so as to be concise and yet to clearly state the kind of publication required, as had theretofore been held by the courts to be meant by the acts relating to publication. In accordance with the construction placed upon the act of 1848 in the case of Allen v. Wyser, they expressed the idea that the weeks in which publication should be made must be successive by inserting the word “consecutive,” and the idea that at least one publication must' be made during each week of the four weeks by inserting the words “once in each week.” They knew that the courts had held 28 full days to be the time meant by four weeks, and, if they had desired to change that requirement, it is reasonable to suppose that they would have called attention to such change in their report. We find nothing therein indicating any intention to change the law with respect to this matter, other than to make it “concise, plain, and intelligible,” so that the necessary things to be done would appear from the statute and not have to be sought in the opinions of the Supreme Court. As “statutes regulating the general subject of notice are always to be construed, as respects the computation of time, most liberally in favor of the party who is to be affected by the notice which the statute provides,” we hold that publication under article 1874 must be made for 28 days, exclusive of the date of the first publication and of the return day, and that the words “once in each week” are merely descriptive of the manner in which the publication must be made. The language is susceptible of such construction, and the commissioners who first used the same did not intend to express a different meaning.

We have considered this question as an original proposition only in deference to appel-lees’ earnest contention that the question has never been directly passed upon by our courts. While we find no ease in which the question herein raised has been discussed, we find several cases in which the courts have adopted without hesitation the construction we place upon said statute. This fact in itself shows that the statute is susceptible of the construction placed thereon by us, and that such interpretation is the natural and correct one in view of the rule of law above stated, which fayors the construction most beneficial to the person to be notified.

Our Supreme Court, in the case- of Davis v. Robinson, 70 Tex. 397, 7 S. W. 749, stated the law in accordance with the conclusion arrived at by us. Appellees say that the decision of the question was not necessary in that case, and that the change in the law was probably not called to the attention of the court; yet the court considered the direct question, stating:' “The law requires that the citation shall be published ‘once in each week for four successive weeks previous to the return day thereof.’ We .are of the opinion the proper construction of the law is that the publication shall be for full 28 days before return day, once in each week, for four successive weeks.”

In the eases of Tobar v. Losano, 6 Tex. Civ. App. 698, 25 S. W. 973, Blackman v. Harry, 35 S. W. 290; Patterson v. Seeton, 19 Tex. Civ. App. 430, 47 S. W. 732; Irion v. Bexar County, 26 Tex. Civ. App. 527, 63 S. W. 550, this court held that publication of a citation such as was had in this case, although not complete for the term to which returnable because not covering 28 days, was good for the next term of court. See, also, Eels v. Blair, 60 S. W. 462.

In 1897 the Legislature provided for citation in tax suits against nonresidents and unknown owners being published “one time a week for three consecutive weeks.” We find no case construing the quoted words.

The bar of Texas has apparently taken for granted that the construction given in the case of Davis v. Robinson settles the law regarding the time of publication, and questions like the one raised in this case have been avoided by not taking judgment until authorized under the rule laid down in said case. In support of the conclusion reached by us, we cite also the following cases from other states. Young v. Downey, 150 Mo. 317, 51 S. W. 751; Loughridge v. City of Huntington, 56 Ind. 253; Bank v. Bank, 89 N. Y. 398.

The case of Ronkendorff v. Taylor, 4 Pet 348, 7 L. Ed. 882, relied upon by appellee, construes an act of Congress which required the collector to give public notice once a week for three months. It was admitted that the publication extended over the full period of 3 months, but intervals of 11, 10, and 8 days occurred between publications. The publication was held sufficient on the ground that it was not required to be made on any particular day of the week; that a week is a definite period of time commencing on Sunday and ending on Saturday,- and, the notice having been published once during each of the weeks of the three months, the law was complied with. The point decided in that case is not before us in this case, and we do not regard said case as in conflict with the conclusion arrived at by us.

In the case of Alexander v. Alexander, 26 Neb. 68, 41 N. W. 1065, the court construed a law authorizing a probate notice to be given by publication in such newspaper as the judge shall direct, “three weeks successively” previous to the time appointed for consideration of the matter, and held that publications on the 12th, 19th, and 26th days of November were sufficient, although the hearing was set for November 28th. The language is different from that of our statute, and, we think, is much more susceptible of the construction given it by the court than is our statute of being construed in accordance with appellees’ views.

Because the judgment was prematurely rendered, the same is reversed, and the cause remanded.


author: RAINEY, C. J.

text:
    KNOLES et al. v. CLARK et al.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1914.
    Rehearing Denied Feb. 7, 1914.)
    1. Tenue (§ 17) — Title to Land — Location —Failure to Object.
    In the absence of a plea or demurrer interposed by defendants, the district court of one county has jurisdiction to try title to land located in another.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 28-31; Dec. Dig. § 17.]
    2. Pleading (§ 104) — Plea of Privilege— Sufficiency.
    In trespass to try title to land located in another county, defendants, who were nonresidents,. pleaded that the court ought not to take jurisdiction, because it affirmatively appeared from plaintiffs’ petition that defendants were nonresidents, and that the land was located in another county, wherefore defendants claimed that the court was without jurisdiction, Held, that it was a sufficient plea of privilege by defendants to be sued in the county where the land was located.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 213-217; Dec. Dig. § 104.]
    3. Venue (§ 5) — Trespass to Try Title.
    The statute fixing the venue of actions against nonresidents in the county of plaintiffs’ residence is subordinate to the statute requiring the suits concerning realty to be brought in the county where the land lies, when invoked by defendants.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 4-11; Dec. Dig. § 5 ]
    4. Pleading (§ 104) — Plea of Privilege— Venue.
    Since nonresident defendants are entitled to the same rights as resident citizens, such nonresidents in trespass to try title may by plea claim the right to have the action brought in the county where the land lies.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 213-217; Dec. Dig. § 104.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge. "
    Trespass to try title by T. S. Knoles and others against T. Ewing Clark- and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    C. M. Smithdeal, of Dallas, for appellants. Brooks & Worsham, of Dallas, for appellees.

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

   RAINEY, C. J.

Appellants Knoles and Marple filed their petition in trespass to try title in the district court of Dallas county to recover possession of a tract of land in Hans-ford county of defendants, Clark, McGinty, Schmalling, and Hoffman, who are alleged to be nonresidents of Texas. Plaintiff Knoles is alleged to be a resident of Dallas county, Tex., and plaintiff Marple is a resident of California. Defendant Clark filed a disclaimer; and the other defendants filed a plea to the jurisdiction of the district court in Dallas county, which, plea was sustained, and the cause transferred for trial to Hansford county, Tex., and the plaintiffs appeal.

Appellants’ second assignment of error is as follows: “The court erred in sustaining the exception or demurrer of the defendants McGinty, Schmalling, and Hoffman, to the plaintiffs’ petition, and in ordering this cause sent to Hansford county, for the reason that the district court of Dallas county had jurisdiction of the subject-matter, and there was no plea of privilege filed in behalf of said defendants, or either of them, and the court was in error in holding that it had no jurisdiction, and that only the district court of Hansford county had jurisdiction.”

The contention of appellant under this assignment is: First, that, “it appearing from the plaintiffs’ petition that the district court of'the Sixty-Eighth Judicial District had jurisdiction of the subject-matter, and the defendants having failed to file a plea of privilege, it was error for the court to hold in passing on a demurrer, which simply raised a question of jurisdiction, that the defendants were entitled to have the venue changed to Hansford county;” and second, that, “if the defendants had a right under the statute to have the ease transferred to Hansford county, it was incumbent on them to assert that right by a plea of privilege, and, having failed to file a' plea of privilege, they waived the right, and it was error for the court to order the case transferred.”

The defendants’ plea reads: “Now come T. Ewing Clark, Joseph M. McGinty, Alfred F. Schmalling, and Chas. E. Hoffman, defendants in the above^ styled and numbered cause and respectfully show to the court: That this court ought not to have and take jurisdiction of this cause, for that it affirmatively appears from the plaintiff’s petition that the defendant T. Ewing Clark is a nonresident of the state of Texas and a resident of Tu-lare county, state of California; that the defendants Joseph M. McGinty and Alfred F. Schmalling are nonresidents of the state of Texas, and are residents of the county of Carroll, stite of Illinois; and that the defendant Chas. E. Hoffman is a nonresident of the state of Texas, and is a resident of the county of Hamilton, state of Kansas; that it affirmatively appears from plaintiffs’ petition that the land described therein, which constitutes the subject-matter of this suit, is located in the county of Hansford, state of Texas, and not in the county of Dallas, in which this cause is pending; that it further affirmatively appears from said petition that this is an action to try title, as well as for damages, and that in their said petition the plaintiffs seek to recover judgment for the title and possession of said promises. Wherefore the defendants say that. this court is without jurisdiction to hear, try, and determine said cause, and of this exception the defendants pray judgment of the court”

In the absence of a plea or demurrer interposed by defendants, the district court of Dallas county had jurisdiction to try title to land in Hansford county, but the. question arises, Was the plea filed by defendants sufficient to apprise the court that it was intended as a plea of privilege by defendants to be sued in Hansford county? We think so. The plea was, in effect, an objection to the court taking jurisdiction of the suit when the title and possession of the land involved was not situated in Dallas county, but in Hansford county. Under our statutes jurisdiction could have been maintained in Dallas county, subject, however, to a plea of privilege, but when such a plea was filed by them the court lost jurisdiction to try the case, and properly transferred it to Hansford county for trial. Russell v. Ry. Co., 68 Tex. 646, 5 S. W. 686; Houston Oil Co. v. Bayne, 141 S. W. 544; Railway Co. v. Foster, 44 S. W. 198. While the question here, as contended by appellants, is one of venue, and not one of jurisdiction, the court treated it as one of venue. In Wolfe v. Willingham, 43 Tex. Civ. App. 167, 94 S. W. 362, cited by appellants, the court sustained a plea to its jurisdiction, because the land was situated in a county other than that in which suit was brought, and dismissed the case. The Court of Appeals held this to be error. The court in this case did not treat the plea as one simply of jurisdiction and dismiss the case, but treated it as a plea of privilege for the change of venue, and entered an order transferring the case to Hansford county.

In this character of case we think the statute fixing the venue against nonresidents in the county of the plaintiff’s residence is subordinate to, when evoked by defendant, the statute that requires suit to be brought in the county where the land lies. “This construction is required, we think, by the terms of section 23 of the same article, prescribing that, ‘whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.’ ” Railway Co. v. Jenkins, 29 S. W. 1113.

As heretofore stated, we think it settled that the district court of Dallas county had jurisdiction of the suit unless a claim of privilege was interposed by defendants, which we conclude was, in effect, done by them, but it is contended by appellant Marple that, as he was a resident of Dallas county, he had the right to sue in Dallas county under the statute, irrespective of subdivision 14, fixing venue for suit to recover land in the county where the land is situated, and that defendants, being nonresidents, could not interpose said plea. •

The case of Neill v. Owen, 3 Tex. 145, is cited by appellant as being in point as controlling, in respect to the construction to be given the two subdivisions, 3 and 14, of article 1830, that is, that subdivision 14 is subordinate to subdivision 3. If said case is susceptible of said interpretation, we do not think it should control, as later expressions of the Supreme Court have recognized the rights of citizens of this state to interpose the plea of privilege in evoking subdivision 14, as in Bussell v. Railway Co., 68 Tex. 646, 5 S. W. 686, and our Courts of Civil Appeals have recognized this rule in Oil Co. v. Bayne, 141 S. W. 644, and other cases.

As to defendants being residents of states other than Texas, we will say that in a suit of this kind a nonresident has the right to interpose a plea or claim any protection that is afforded a citizen by the laws of this state. Carroll v. Bank, 148 S. W. 818.

There was no error in the refusal of the court to enter judgment by default, or in refusing to hear evidence in support of plaintiffs’ claim of title. The court having sustained the demurrer and transferred the case to Hansford county, it very properly declined to take any further action in the case.

The judgment is affirmed.


author: BASBUBY, J.

text:
    ATHENS TELEPHONE CO. v. CITY OF ATHENS.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Injunction (§ 148) — Preliminary Injunctions — Bond — Municipal Corporations.
    Under Bev. Civ. St. 1911, art. 4654, providing that, upon the filing of the petition for a writ of injunction and the order of the judge directing its issuance, and before the issuance thereof, the complainant shall execute a bond conditioned for the payment of all sums of money and costs adjudged against him, if the injunction be dissolved, and that, if the state be'complainant, no bond shall be required, and article 768, providing that it shall not be necessary, in any action in which a city organized under the provisions of that title shall be a party, for any bond, undertaking, or security to be executed in behalf of the city, but that all such actions shall be conducted as if such bond, undertaking, or security had been given, and that the city shall he liable as if it had been duly given, in an action by a city it was not required to give a bond as a condition for the issuance of a temporary injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 323-334; Dec. Dig. § 148.]
    2. Constitutional Law (§ 278) — Due Process — Preliminary Mandatory Injunction.
    In an action by a city to enjoin a telephone company from charging more than $1.50 a month for telephone service, where it appeared that it was using the streets of the city under a grant which provided that no more than that amount should be charged for a period which had not expired, but that, by denying service to the citizens, it was attempting to collect a greater sum, a temporary injunction ’•estraining it from collecting more than that «.mount, and ordering it to furnish telephones to all persons paying that amount, granted without notice, was not erroneous as depriving the company of its property without due process of law, since a mandatory preliminary injunction may properly be issued, if necessary to maintain the status quo of the subject-matter of the suit, or to prevent impending injury.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 763, 765, 767-770, 772-777, 779-806, 808-810, 816-824, 907-924, 942; Dec. Dig. § 278.]
    3. Telegraphs and Telephones (§ 10)— Bight to Use Streets.
    While, under Bev. Civ. St. 1911, art. 1231, providing that corporations created for the purpose of constructing and maintaining magnetic telegraph lines may set their poles, etc., along, upon, and across any of the public roads and streets of the state in such manner as not to incommode the public, distance telegraph and telephone companies may pass through towns and villages, using their streets free from interference by the government of such towns and villages, this is not true of a company doing a local telephone business, and such a company is subject to regulation and control by the town or village.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dee. Dig. § 10.]
    4. Telegraphs and Telephones (§ 10) — Bight to Use Streets — Conditions Attached to Grant.
    Where a city granted the right to use its streets for 50 years for the purpose of conducting a local telephone business on the express condition that a greater rental than $1.50 a month would not be charged the citizens of such city for telephones, a telephone company which had no right to use the streets until it acquired the rights of the grantee under such grant was bound by the condition of the grant.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    5. Injunction (§ 136) — Preliminary Mandatory Injunction.
    Where a telephone company which acquired the rights of the grantee under a grant of the right to use the streets of a city on condition that a greater rental than $1.50 a month should not be charged for telephones operated its business for a time on the terms and prices fixed by the grant, a mandatory preliminary injunction, in a suit by the city to restrain the company from increasing its rates, which required the company to furnish telephones to all persons paying the rental specified in the grant was properly granted, even though the corporation was not bound by the terms of the grant, since this merely maintained the status quo pending the determination of the cause on its merits.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.]
    Appeal from District Court, Henderson County; Jno. S. Prince, Judge.
    Action by the City of Athens against the Athens Telephone Company. From an order granting a temporary injunction, defendant appeals.
    Affirmed.
    S. A. Lindsey and Marsh & Mellwaine, all of Tyler, and E. P. Miller, of Athens, for appellant. W. B. Bishop and M. E. Bichard-son, both of Athens, for appellee.

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

   BASBUBY, J.

This is an appeal from an order of Hon. John S. Prince, judge of the district court of the Third judicial district, granted in vacation, directing the issuance of an injunction restraining appellant from collecting from its patrons more ttian $1.60 per month for the use of telephones in places of business in the town of Athens, and requiring appellant to furnish telephones to all persons tendering such amount. No notice was given appellant of the application for injunction, nor was it given opportunity to be present and contest the application upon hearing. The injunction was issued upon the sworn petition of appellee. No motion to dissolve was made by appellant in the court below.

Omitting formalities, the essential facts set forth in the petition are as follows: Ap-pellee is a municipal corporation, incorporated under the general laws. In the year 1901 or 1902 appellee granted the firm of Garrett & Truitt a franchise permitting said firm to use and occupy portions of its highways, streets, and alleys for a term of 50 years for the purpose of conducting a local telephone business for profit, on the express condition that appellant, during the term of the grant, would not charge the citizens of Athens a greater rental for either business or residence telephones than $1.50 per month. Garrett & Truitt accepted the terms of the grant, and did enter upon the highways, streets, and alleys of said town, and did erect, maintain, and keep telephone poles and lines upon streets thereof. After the grant Garrett sold his interest therein to one Willis, and the business was conducted by Truitt & Willis until October 1, 1904. At that time Truitt & Willis conveyed their interest in the property and franchise to O. A. and Hick Connally. The latter conveyed the property and franchise to J. E. Moore January 25, 1905. Moore conveyed to J. A. Jones March 13, 1905. All of those named conducted the business in compliance with the terms of the original grant. Subsequent to the time Jones acquired the franchise and business, although no approximate date even is given, the Athens Telephone Company, appellant, was incorporated under the laws of this state for the purpose of taking over the franchise and property owned by Jones. Afterwards Jones transferred appellant all his interest in said telephone business in exchange for stock in appellant company. After acquiring the telephone business from Jones, appellant conducted same in compliance with the franchise granted originally to Garrett & Truitt until about the time of the application for injunction, when appellant advanced the price of business telephones to $2.50 per month, and was denying telephone service to the citizens of Athens who refused to pay the advance in rentals. A temporary injunction was asked by appellee restraining appellant from increasing the rental pending a final hearing on the merits, and, as stated, was granted by the trial judge.

The order of the court directing the issuance of the injunction did not require bond by appellee, and it is urged that the trial judge erred in that respect. Appellant cites article 4654, R. S. 1911, to sustain such contention. This article does provide for the giving of a bond in such amount as may be fixed in the order granting the writ, conditioned that complainant will abide the final decision in the case, and pay all sums of money and costs adjudged against him or it as the case may be. This article exempts the state from giving such bond, but not municipalities, and, in the absence of any statutory act, would be held to exclude municipalities under the rule that the expression of one thing is the exclusion of another. It was shown, however, that appellee was incorporated under the general laws relating to the incorporation of towns and villages of 1,000 inhabitants and over. In reference to towns and villages so incorporated, it is provided by statute that it shall not be necessary in any action, suit, or proceeding 'in which such town or village is a party for any bond, undertaking, or security to be executed in behalf of the town or village, but that such town or village shall be liable in the same manner and to the same extent that it would have been had it executed bond, security, or undertaking as in ordinary cases. Article 168, R. S. 1911. This article has been held sufficient to exempt towns and villages from executing appeal bonds. Victoria v. Jessel, 7 Tex. Civ. App. 520, 27 S. W. 159; City of Vernon v. Montgomery, 33 S. W. 606. The exemption from giving any bond, undertaking, or security in any action, suit, or proceeding is broad enough to cover every conceivable character of bond arising in and necessary to the prosecution, defense, or appeal of such action, suit, etc., and includes as matter of course an injunction bond. For the remedy afforded by such bond the town or village is made liable in the same manner that it would have been had the bond actually been executed. We conclude, therefore, that it was not necessary for the appellee to give bond.

It is also urged that the trial judge, under the facts alleged, was without authority in law to require appellant to furnish phones at $1.50 per month, without notice to appellant, and an opportunity given to be heard, since to do so was to deprive appellant of its property without due process of law.' The argument made and the authorities cited in support of this contention all have reference to mandatory injunction where the judge has interfered with and attempted to change the status quo. That portion of the order requiring the appellant to furnish phones to all persons at $1.50 per month rental must be considered in connection both with the facts and the result of the order. The facts were that appellant, assuming it to be bound by the terms of the original grant, was using the streets of appel-lee under a grant by which it was provided that no more than $1.50 per month should be charged for the use of telephones for a period oí 50 years, which had not expired; but, by denying service to the citizens, appellant was attempting to collect a greater sum. Under such a state of facts the result of the order of the court could do no more than maintain the status quo under the franchise by which appellant agreed for the period of 50 years to furnish phones for $1.50. Thus it will be seen that all question involving either the propriety or right of the trial judge to issue a mandatory preliminary injunction properly has no place here, since it is agreed by all writers and supported by practically all reported cases that such writs are always to be issued when it is shown that their issuance is necessary to maintain the status quo of the subject-matter of the suit, or to prevent impending injury. I. & G. N. Ry. Co. v. Anderson County, 150 S. W. 239.

But it is urged that the facts shown by the petition are insufficient to sustain the action of the court, because it does not appear that appellant ever agreed with appellee to be bound by the grant to Garrett & Truitt, or that it is so bound, as matter of law. In order to understandingly discuss the issue thus raised, and in order to avoid confounding local telephone lines with distance telephone .lines, reference to the facts is again necessary. The original grant to Garrett & Truitt was to enable them “to carry on the business of a local telephone, and furnishing telephone accommodations to the people residing in said city of Athens,” and that appellant was incorporated for the purpose of taking over said business. Thus it will be seen that the issue here raised in no sense involves the rights of a distance telephone business' as distinguished from those of a local telephone business as construed in S. A. & A. P. Ry. Co. v. S. W. T. & T. Co., 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884, and City of Brownwood v. Brown Telegraph & Telephone Co. (Sup.) 157 S. W. 1163, where it was, in effect, held that under article 1231, R. S. 1911, distance telegraph and telephone companies might pass through towns and villages, using their streets so as not to incommode the public, free from interference by the government of said towns and villages, despite the provisions of article 1235, which only invests the municipality with power to enforce reasonable regulations in such use of its streets by distance telegraph and telephone companies. The facts in this case show appellant is conducting a local telephone business, and that a different rule with reference to the rights of such companies pertains in law is made clear by Mr. Chief Justice Brown, in the Brownwood Case, supra, by the statement in the opinion that “it is not to be inferred from this opinion that this company can, without consent of the city, transact the business of a local company.” Concluding, then, from the facts that appellant was conducting a local telephone business, and that appellee was free to regulate and control the same in a lawful manner, and that the appellant held the business subject to such regulation, the question then arises, did appellant take the business subject to the terms of the original grant? There is nothing in the petition to show that it did so expressly; but that it did so by implication we think is clear. The appellant had no original right in law to use the streets of appellee upon and along which to conduct a telephone business, without the consent of appellee, and was granted no such right prior or subsequent to the time it acquired its business from Jones. The facts show that it was organized as a corporation for the purpose of taking over the business of Jones, and any right it has must, of course, depend upon what it acquired from Jones. To hold otherwise would be to say that appellant, for the purpose of enjoying the profits and benefits of the contract between Jones and appellee, may invoke the provisions of the grant, but, in order to avoid the burdens imposed by the grant, deny the right of appellee to invoke such provisions on the .ground that it never agreed to be bound thereby. Such a construction is paradoxical and inequitable.

It may further be said, so far as relates to the right of the trial judge to make and enter the order complained of, if it can be said that appellant is not bound by the terms of the original grant, that nevertheless the writ was authorized, since it appears from the facts that appellant did operate the telephone business- on the same terms upon which Jones did, charging the price-fixed by the grant, and that the .issuance of the injunction did no more than maintain the status quo between appellant and appellee pending the determination of the cause upon its merits.

Judgment is affirmed.