text:
    RAMIREZ et al. v. LASATER et al.
    (No. 5415.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 17, 1915.
    Rehearing Denied March 17, 1915.)
    1.Insane Persons <§=>72 — Idiots — Contracts.
    A person shown to have been an idiot from birth, unable to read and write or to perform the simplest tasks, cannot be held competent to have entered into a contract.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 125; Dec. Dig. <§=>72.]
    2. Mortgages <§=>208 — Obligation—Liability.
    Thought a landowner mortgaged part of his estate to secure a debt, his whole estate was liable therefor.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 563-567; Dec. Dig. <§=>20S.]
    3. Partition <§=26 — Estoppel.
    A landowner who had mortgaged part of his estate died, and those children who had attained their majority conveyed the mortgagee a part of the property to secure a release of the remainder. Plaintiffs, who were then minors, united in a partition of the remaining property on reaching their majority. This parcel was more than sufficient to have protected plaintiffs’ interest. Held, that as plaintiffs admitted that their purpose was not to recover anything from their brothers and sisters, but from the mortgagee and those claiming under him, they were estopped to attack the conveyance, because of the partition.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 68-71, 75; Dec. Dig. <®=o26.]
    4. Tenancy in Common <§=>45 — Sales by Co-tenants.
    While one tenant in common cannot convey a specific Dortion of the land to the detriment or prejudice of his cotenants, the conveyance of the particular tract by_ plaintiffs’ brothers and sisters will be upheld in favor of a purchaser who made improvements; the whole tract being of similar character.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 135-137; Dec. Dig. <§=> 45.]
    5. Insane Persons <§=>60 — Deeds—'Validity.
    A deed of an idiot is not binding on him.
    . [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 93-99; Dec. Dig. <®=>60.]
    Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.
    Action by Maria Ramirez and others against Ed. L. Lasater and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed in part, and reversed and rendered in part.
    S. H. Woods, of Alice, and T. O. Woldert, of Corpus Christi, for appellants. G. R. Scott and Boone & Pope, qf Corpus Christi, and Dougherty & Dougherty, of Beeville, for ap-pellees.
   CARL, J.

The plaintiffs in the suit were Maria Ramirez, Rafael Ramirez, and Cesario Ramirez, and it was originally filed in Duval county. Subsequently, by agreement, the case was transferred to Nueces county, where it was tried and judgment went against the plaintiffs (appellants here). We adopt the following statement of the case as made by appellees:

“This was a suit in trespass to try title and for partition of an undivided three-elevenths of a tract of 2,500 acres in Duval county, part of an original grant of five leagues known as ‘San Pedro de Charco Redondo.’ The suit was filed in June, 1905. The plaintiffs in the case were Maria Ramirez, Rafael Ramirez, and Ces-ario Ramirez. The sole defendant named in the original and first amended original petitions filed June 15, 1909, was Ed. C. Lasater. By their second amended original petition filed December 24, 1913, plaintiffs complained of the defendants Jose Guerra, Emetitio Guerra, Antonio Guerra, Francisco Guerra, Zaragoza Guerra, and Rafael Guerra, Manuel Pinada and his wife, Santos Lopez Pinada, and Adolfo'Garcia, and for the first time asserted title against them.
“Plaintiff Oesario Ramirez, for the first time, in said second amended original petition, alleged his idiocy.
“By his fourth amended original answer on which trial was had, defendant Ed. G. Lasater disclaimed as to 1,600 acres of the tract in controversy,_ alleging that he had conveyed the same prior to the institution of the suit. As to the remaining 900 acres, Lasater pleaded not guilty, the statutes of three, five, and ten years’ limitation, improvements in good faith, and specially that the tract of 2,500 acres out of which plaintiff sought to recover a three-elevenths interest was a part of a tract of 3,824.98 acres and formerly owned by Jose Ramirez, deceased, who died intestate on the 31st day of August, 1894; that prior to the death of Ramirez he had mortgaged 2,500 acres of land (the tract in controversy) to one Pena to secure an indebtedness evidenced by a note of $2,500, and at Ramirez’s death the indebtedness remained unpaid and the lien undischarged; that he left surviving him a widow and 11 children, to wit, plaintiffs and eight others, and that said children and An-selma Ramirez, his widow, inherited the tract of 3,824.98 acres charged with the debt; that on the 9th day of July, 1898, all of the children of Jose Ramirez and wife save the plaintiffs joined in a deed whereby they conveyed to one Francis Smith the 2,500 acres in controversy in liquidation of the note for $2,500 and discharge of the lien; that after the conveyance of the 2,500 acres there remained 1,324.98 acres of land of the same character of soil and of the same market value, acre per acre, aside from the improvements placed thereon by defendant Lasater and his vendees, codefendants; that all of said Ramirez children held said remaining 1,324.98 acres in common until long after the filing of the suit to partition the 3,-824.98 acres, and that on November 16, 1908, during the pendency of the suit, and without 'the knowledge or authority of the'court, or of Lasater, the 'plaintiffs and the other eight heirs of Ramirez (Smith’s vendors) proceeded to divide up the 1,324.98-acre tract — the equities of all these defendants being in issue by the pleadings filed at the time in this cause. Defendant Lasater further pleaded that the 1,324.98 acres was more than sufficient legally and equitably to protect any interest that plaintiffs had in the land; that notwithstanding this fact plaintiffs ignored their own rights and the rights of defendant Lasater, and with full knowledge of his equities in the land by virtue of his purchase of the 2,500 acres, conveyed and partitioned said 1,324.98 among themselves and the other eight children of Ramirez, who were at the time defendants in said cause, all of whom had knowledge of Lasater’s rights; that therefore plaintiffs were estopped to repartition the whole or to recover of Lasater any part of the 2,500 acres. Lasater further pleaded that said partition of November 16, 190S, was fraudulent and collusive, and made for the purpose of subjecting the 2,500 acres to partition and avoiding the .equities of Lasater by endeavoring to place the 1,324.98-acre tract beyond the power of the court to divide among them so as to protect the interests of plaintiffs, if any they had, and that plaintiffs were estopped thereby from asserting any claim to the 2,500-acre tract; that defendants had erected, valuable improvements upon the tract, and should be quieted in their title and possession of the land, and in the alternative, if the court should hold that the 2,500 acres should be partitioned, then that the whole tract of 3,824.98 acres be partitioned; that the partition of November, 1908, be disregarded, and that the interests of plaintiffs be set apart to them out of the 1,324.98 aeres; and that defendants’ interest be set apart to them out of the 2,500-acre tract, including their improvements.
“The defendants Juan Jose Guerra; Emeterio Guerra, Antonio Guerra, Francisco Guerra, Za-ragosa Guerra, and Rafael Guerra, Manuel Pin-ada and wife, and Adolfo Garcia, who held title by purchase under Lasater, adopted his answer, pleaded not guilty as to the tracts purchased and held by each, respectively, and disclaimed as to the balance of the land, pleaded their improvements, the various statutes of limitations, and prayed for the same relief, and that if the 2,500 acres were partitioned, the various tracts purchased by each be set apart to them respectively, as described in their deeds.
“The defendants Encarnación Ramirez, Pedro Ramirez, Yldefonso Ramirez, Santos Ramirez, Agapito Ramirez, Gleofas Ramirez, Delic-ita Ramirez de Ysaguirre, joined by her husband, Diego Ysaguirre, Ricarda Ramirez de Ghapa joined by her husband, Pedro Chapa, the eight other surviving children of said Jose Ramirez and wife, both deceased, answered plaintiffs’ petition. In substance they pleaded the death of the common ancestor of plaintiff and themselves, the inheritance of the 3,824.98 acres, their sale of a specific 2,500 acres to F. Smith, the subsequent purchase of same by La-sater and his improvement thereof; that at the time of the conveyance to Smith plaintiffs were minors and incompetent to join in the conveyance to Smith, but that the conveyance was made for the mutual benefit of all the heirs of Ramirez and to avoid the loss of the entire inheritance, that the land brought its reasonable market value at the time of the sale, and that, with knowledge of these facts, and after plaintiffs and the last-named defendants had reached their majority, they partitioned the 1,324.98-acre tract among themselves, and had ratified and acquiesced in the conveyance to Smith which was made for the joint benefit; that each of said Ramirez heirs, defendants, had erected certain improvements upon the various tracts so set apart to them under the deed of partition of November 16, 1908, and were in possession of same; that 'the entire trhct of 3,824.98 acres was of the same character and value, and that if the court should decree a partition, then that the 2,500 acres which had been conveyed by them by metes and bounds be set apart to Lasater and his vendees, and that the partition of the 1,324.98 acres made in November, 1908, be confirmed, and that they be quieted in their possession of same.
“By second supplemental petition plaintiffs aver that after the said 2,500 acres had been conveyed to said E. C. Lasater, to wit, on the 16th of November, 1908, the said 11 children of Jose Ramirez, deceased, including plaintiffs, executed among themselves the deed of partition of the remainder of the 3,824.98 acres, and each and all of said parties to said partition deed have received and accepted the shares assigned to them in and by said partition deed.”

The property in question was the separate estate of Jose Ramirez, who died intestate about August, 1894, and left surviving him his wife, Anselma Salinas de Ramirez, and 11 children, who are the plaintiffs and some of the defendants in this cause.

On June 11, 1894, Jose Ramirez executed and delivered to L. P. Rena a note for $2,-500, bearing 10 per cent, interest per annum, ánd providing for 10 per cent, attorney’s fees, in the usual form, due two years after date, and secured the payment of same by a deed of trust lien on 2,500 acres undivided interest in 3,824.98 acres of land in Duval county, Tex., which entire tract was Jose Ramirez’s interest or share in the tract known as San Pedro de Charco Redondo, originally granted by the state of Tamaulipas, Republic of Mexico, to Rafael Ramirez, and patented by the state of Texas to said Ramirez, his heirs or assigns, on August 29, 1S56. This note and lien are transferred to and became the property of Francis Smith before the maturity of the same; and on or about July 9, 1898, Anselma Salinas de Ramirez, the surviving wife of Jose Encarnación Ramirez, Yldefonso Ramirez, Santos Ramirez, Pedro Ramirez, Ricarda Ramirez de Chapa, joined by her husband, Pedro Chapa, Felicita Ramirez de Ysaguirre, joined by her husband, Diego Ysaguirre, Agapito Ramirez, and Oleofas Ramirez conveyed to Francis Smith 2,500 acres of the land by metes and bounds, in satisfaction of the debt represented' by said note. This 2,500 acres specifically conveyed was taken out of the 3,824.98-acre tract, in which the 2,500 acres so securing the note was an undivided interest. This conveyance was by general warranty deed, which was recorded in that county August 12, 1898, having been filed the day before. The plaintiffs did not join in that deed. On August 13, 1898, Francis Smith executed and delivered a release to said land from the trust lien to the parties, who conveyed the 2,500 acres to him, and same was filed for record in Duval county on October 13, 1898. Smith conveyed said 2,500 acres of land to Ed. O. Lasater for a consideration of $5,042.-22, on March 27, 1899; but the deed contained this clause attached to the warranty clause:

“ * * * By, through or under me, save and except as to Faustina Resendes de Pena against whom I warrant generally against any and all persons claiming title by, through or under said Faustina Resendes de Pena.”

Immediately after said purchase, Lasater went into possession, and he and those claiming under him have continuously been in possession thereof ever since, using and enjoying the same, and paying taxes thereon, and holding the same under said deed, which conveyed all of said 2,500 acres, and not merely the grantors’ undivided interest therein.

The surviving wife of Jose Ramirez died intestate November 23, 1907, and no administration was had on her estate. The court found that all of the 3,824.98 acres of land is practically of the same character, quality, and value, and this, of course, included the 2,500 acres sold to Francis Smith.

On December 14, 1900, Lasater sold 1,200 acres out of the 2,500 acres to Jose Guerra, Emeterio Guerra, Antonio Guerra, Francisca Guerra, Zaragosa Guerra, and Rafael Guerra for a consideration of $1,200, which was described by metes and bounds. The deed was recorded March 6, 1902, and the grantees in said deed immediately went into possession of said 1,200 acres and have since been holding and asserting title thereto; their possession has been continuous, exclusive, and adverse, and previous to their purchase this 1,200 acres had been segregated from the other and inclosed by a substantial fence. On June 18, 1904, Lasater conveyed 400 acres out of said 2,500-acre tract to Manuel Pinada and his wife, and this deed was filed March 14, 1905, and the grantees therein went immediately into possession and have since continued in exclusive adverse possession thereof, cultivating, using, and enjoying the same. Both of the above deeds were general warranty deeds. On November 16, 1908, by an instrument in writing signed and acknowledged by each of them, Maria S. Ramirez, Oleofas Ramirez, who signed the same as Oleofas R. Salinas, Felicita R. de Ysaguirre, joined by her husband, Diego Ysaguirre, Encarnación Ramirez, Yldefonso Ramirez, Agapito Ramirez, Ricar-da R. de Chapa, joined by her husband, Pedro Chapa, Santos Ramirez, Pedro Ramirez, Cesario Ramirez, and Rafael Ramirez, subdivided and partitioned among themselves the remainder of said land which was estimated to contain 1,313 acres, after deducting the Lasater 2,500 acres, and this instrument was duly filed for record and duly recorded on November, 1908, and are each yet in possession of the respective tracts set apart to them therein. On June 11, 1894, the title to the land in controversy was in the plaintiffs below.

The sale to Smith was made in satisfaction of the $2,500 note secured by lien against the 2,500 acres undivided interest in the 3,824.98-acre tract, and the entire estate of Jose Ramirez was liable for said debt, and the nine grantors in said deed warranted the title thereto generally, and the deed conveyed a well-defined 2,500 acres by metes and bounds, which is a part of the 3,824.98-acre tract. The purchase of the 2,500 acres was made in good faith by Lasater, and he has made valuable improvements thereon, and his use and possession thereof has been continuous, peaceable, and adverse to all the world to all of said land, except as to that sold as above set out, and he rendered and paid taxes thereon, and his title was never questioned until this suit was filed. Lasater and his vendees have paid the taxes on said land since their respective purchases, and all of them have made valuable improvements. After the sale of the 2,500 acres to Francis Smith, there remained 1,324.98 acres of the 3,824.98-acre tract, which all 11 of the heirs of Jose Ramirez partitioned among themselves, subsequent to the filing of the suit, without the knowledge or consent of the court, or of the said Lasater and his vendees; and the respective heirs went into possession of the shares allotted to them in such partition and have improved the same and are still in possession thereof. The court found that this partition was made for the purpose of perpetrating a fraud on the court by | putting it out of the power of the court to adjust the equities and as a fraud against Lasater and his vendees.

The trial court also finds that Cesario Ramirez is a paralytic and has been crippled from birth, is weak-minded, but has lucid intervals, and that there is no proof that at the time he joined in the partition deed to the 1,324.98 acres, he was of unsound mind. This 'court, however, does not agree with the trial court in this finding, for the overwhelming testimony is to the effect that he was and is an idiot, or at least an imbecile to such an extent as to be totally incompetent to make or to understand the nature of a contract, and we so hold. The testimony is practically uncontroverted that he has been in his present condition since birth; the family physician said he had been practicing in the family for 15 years, and he says Cesario is an idiot. No witness undertakes to state any fact which would show him to be able to understand or to make a binding contract. To hold that an imbecile or idiot, who could not talk intelligently and who could not read and write, who could not drive a wagon or go 50 yards to a store and back by himself, and who does not know how to buy a dime’s worth of coffee or sugar, could make a valid and binding contract would be a travesty on justice and destroy the protection that the strong arm of the law throws around these unfortunate people. The fact that his name was placed in the pleadings as- a plaintiff, and that he did not appear by next friend until about the last amended petition was filed is absolutely immaterial. The one important thing is the condition of his mind; and if he was not of sound mind, what others did for him or in his name was not in any sense binding on him.

When the heirs made the partition of the 1,324.98 acres of land, on November 16, 1908, they took into consideration the fact that the 2,500 acres had been conveyed, and that they were partitioning all that was left. And the plaintiffs, except Cesario, who is non compos mentis, did not expect anything out of the shares of the other heirs. The plaintiffs had pleaded that the heirs had received and accepted their shares so assigned to them in the partition. And the court found that, by their knowledge of the proceedings and by their conduct, the plaintiffs were estopped from asserting any claim to the land in controversy, or to the shares of the other heirs in that assigned to them out of the 1,324.98 acres, because they not only testified that they did not want to recover anything as against the other heirs, and in open court, through their attorneys, stated that they were unwilling to take any interest that they might have out of said tract, since they had partitioned same in a manner satisfactory to themselves. Since all of said heirs knew that the 2,500 acres had been conveyed in settlement of a debt due by the estate and which was a charge upon it, and before they partitioned the remainder among them, and treated that as satisfactory, by. partitioning such remainder with each other' without taking into consideration any interest the plaintiffs may have had by reason of not joining in said deed, the plaintiffs, except Cesario Ramirez, would be, and are, estopped now to question the title so passed - to Francis Smith and now held by Lasater and his vendees.

Conclusions of Law.

The heirs who conveyed the 2,500 acres of land warranted title thereto generally, and were liable on that warranty for the land conveyed. The debt they satisfied by conveying said land was not only a lien burden on the 2,500, acres undivided interest, but was a burden on the entire estate of Jose 'Ramirez. If the land given as security has not satisfied that debt, the balance would have .been a provable claim against the es-. tate of Jose Ramirez, and by the $2,500 so being paid, the plaintiffs below, as well as the other heirs, were benefited, for the reason that the remainder of the land was thereby freed of debt. The plaintiffs, with full knowledge that this 2,500 acres had been conveyed, not as an undivided interest but as a whole, and the purposes for which it was conveyed, permitted the heirs who made that conveyance to share equally in the remaining 1,324.98 acres, and said on the trial they knew all about that sale and the purposes for which it was made, at and before the partition of the remainder was made. No offer has ever been made to return any part of the debt satisfied by the conveyance of said land. And we hold that the plaintiffs below acquiesced in the sale to Smith by the other heirs, and ratified the same by their conduct in making settlement in partition.

“I knew that Mr. Lasater held the 2,500 acres. We partitioned this 1,300 acres among ourselves, deducting the 2,500 acres of Mr,-Lasater’s.”

This is the testimony of Miss Maria Ramirez, and she proceeds:

“I knew that my brothers and sisters and my mother had conveyed the 2,500 acres that I now claim an interest in, in settlement of my father’s debt. ⅜ ⅜ ⅜ At the time I executed the partition deed, at the time I brought suit, and at all times, my idea was not to take anything from my brothers, and that is the reason that we gave them their full share in the 1,300 acres. It was our idea that we would just recover this from Mr. Lasater and those who claim under him. At the time of the execution of this partition deed the purpose of it was to recover from Mr. Lasater our interest in the 2,500 acres, and to divide the 1,300 acres in such a shape that that would be Settled, and that we couldn’t recover anything out of it. That was the idea. I was then of age. That is exactly my purpose, and that is what I want to do here.”

In Talkin v. Anderson, 19 S. W. 354, decided by the Commission of Appeals, and affirmed by the Supreme Court, it was said:

“We understand the law to be that one tenant in common cannot convey a specific portion of the common land to the detriment or prejudice of his cotenant, but that, subject to this limitation, such a conveyance will be upheld in equity, and the vendee’s right to the specific land will be sustained when the circumstances render this course equitable.”

It is found by the court and not excepted to, that the sale to Smith was fair and equitable. The eight heirs who conveyed to him owned 2,781.76 acres. The plaintiffs were entitled to and owned 1,043.16 acres in the whole 3,824.98 acres, and there were 1,324.98 acres left after the sale of 2,500 acres to Smith, and the land was all of the same quality and value.

Again, in Maverick v. Burney, 88 Tex. 561, 32 S. W. 512, the Supreme Oourt, through Chief Justice Gaines, said:

“It is held in many jurisdictions that the deed of a tenant in common to a specific parcel of the land held in common by him with others is absolutely void. But it is settled in this court by a long line of decisions that such a deed is good as between the parties, and is voidable only by the cotenants of the grantors, and not by them except in so far as it may affect their rights” (citing Arnold v. Cauble, 49 Tex. 527; March v. Huyter, 50 Tex. 243; Fitch v. Boyer, 51 Tex. 336; Camoron v. Thurmond, 56 Tex. 22: Rutherford v. Stamper, 60 Tex. 447).

These parties (the eight heirs) warranted' the title to the 2,500 acres, and there was ample land left, out of which plaintiffs could protect their rights, but which they voluntarily partitioned without so doing. Smith's vendees would undoubtedly have the right to have the specific 2,500 acres set apart to them in a partition, and adjustment, because there was no difference in the character of the land, and they had made valuable improvements on it; and they also had the right to hold the shares of the eight heirs who conveyed upon their warranty. In Cook v. Railway, 3 Tex. Civ. App. 125, 22 S. W. 1012, it is said:

“While it has been held that the deed of a tenant in common for a portion of the land by metes and bounds is void, the recognized doctrine in this state is that such a deed will convey an equity which the grantee has a right to assert in a suit for partition, and to have the land conveyed and set apart to him in the partition, if it can be done without prejudice to the other tenants in common. Plaintiffs in this case, after the sale by their cotenants to the defendant [railway company], proceeded to partition the remainder of the land among themselves. The partition was exclusive of the land conveyed to the defendant, and they did not make it a party to such partition, but in fact cut themselves off from the power to have any other partition with the defendant, such as would recognize its right to have the land in controversy set apart to it. Such proceedings were equivalent to a recognition of the right of the defendant to have the land set apart to it, because all of the rest of the land was appropriated by plaintiffs, and the defendant could not have a proportional part of the land set apart to it elsewhere in the tract if it should appear inequitable for it to remain the identical tract conveyed to- it by plaintiffs’ cotenants.”

What we have said as to plaintiffs ratifying or acquiescing in the settlement made by the conveyance of the 2,500 acres to Smith, and estoppel now to claim any part of the same, does not apply to Cesario Ramirez, whose mental condition was and is such as to preclude the idea that he could legally acquiesce in or ratify any contract. It is therefore the opinion of this court that the judgment of the trial court should be and the same is hereby affirmed in all things, except as to Cesario Ramirez, in whose favor the judgment of the trial court is reversed and judgment here rendered that the said Cesario Ramirez do recover against Ed. La-sater and his vendees, defendants herein, an undivided one-eleventh of the 2,500 acres of land involved in this suit.

One-third of the costs will be adjudged against appellees, and the other two-thirds is adjudged against Maria Ramirez and Rafael Ramirez and their bondsmen.

The judgment is affirmed in part and reversed and rendered in part.
      <gus>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    BABCOCK v. GLOVER.
    (No. 6758.)
    (Court of Civil Appeals of Texas. Galveston.
    March 9, 1915.
    Rehearing Denied March 25, 1915.)
    1. Brokers <@=>88 — Actions bob Compensation — -Findings—Sueeioienct.
    In an action for a broker’s commission, findings that the broker had procured a purchaser who had entered into- a binding contract for the purchase of the land, and who was at all times a man of ample means to carry out the contract, and against whom it could have been enforced, are 'equivalent to a finding that the broker procured a purchaser ready, willing, and able to buy.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. <@=>38.]
    2. Appeal and Error <@=>907 — Review—Presumptions — Findings oe Fact.
    In the absence of an- assignment attacking the court’s findings of fact, the Court of Appeals will presume that there was evidence to warrant the findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. <@=>907.]
    3. Brokers <@=>74^-Compensation — Liability — Joint Owners.
    ‘ Where a husband, as the owner of an undivided one-half interest in a tract of land, and as agent for his wife, who owned the other interest therein, promised to pay to a broker a commission for effecting a sale of the land, the husband’s obligation for the commission was joint and several, and could be recovered in an action in which service was not obtained upon the wife.
    [Ed. Note. — For other cases, see Brokers, ■Cent. Dig. § 62; Dec. Dig. <@=>74.]
    4. Appeal and Error <@=> 907 — Review—Presumptions — Findings and Conclusions.
    In an action for a broker’s commission, where error was assigned to the court’s conclusion of law that the sale was closed by a binding contract which was, in fact, a present sale and conveyance, and that by virtue thereof plaintiff became entitled to his commission, but there was no assignment of error to the court’s findings of fact that the sale was closed by a binding contract which was a present sale and conveyance, it may be presumed that tbe facts adduced warranted tbe conclusion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §| 2809, 2911-2915, 2016, 3673, 3674, 3676, 3678; Dec. Dig. &wkey;907J
    5. Appeal and Error. <&wkey;742 — Proposition op Law — Statement op Facts.
    A proposition in support of an assignment of error in an action for a broker’s commission that the purchasers could have paid the purchase price and obtained the conveyance, and were not prevented by the defendants from doing so, is a statement of facts, and not a proposition, and will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]
    6. Appeal and Error <&wkey;742 — Questions Presented — Necessity op Statement.
    An assignment of error not followed by a statement as required by tbe rules will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action by J. E. Glover against J. W. Babcock and wife. Judgment for tbe plaintiff against tbe defendant J. W. Babcock, and that defendant appeals.
    Affirmed.
    W. W. Cruse, of Beaumont, for appellant. Geo. D. Anderson and R. E. Masterson, both of Beaumont, for appellee.
   McMEANS, J.

J. E. Glover brought tbis suit against J. W. Babcock and bis wife, Helen M. Babcock, to "recover tbe sum of $1,060, claimed to be due him by defendants as a commission for selling about 4,000 acres of land belonging to defendants.

Before tbe trial plaintiff dismissed his suit against Mrb. Babcock, and a trial before the court without a jury resulted in a judgment against defendant J. W. Babcock for tbe full amount of plaintiff’s claim, and said defendant has appealed.

Tbe court, upon proper request, reduced to writing and filed its findings of facts, which, at tbe risk of being tedious, we here copy in full:

“(1) I find that on or about December 2, 1905, defendant J. W. Babcock and his wife, Helen M. Babcock, who was also named a party defendant in plaintiff’s petition, but as against whom this suit has been discontinued for want of service upon her, were the owners of about four thousand (4,000) acres of land situated at Devers, in Liberty county, Tex.; that they were desirous of selling the same; that defendant J. W. Babcock, acting for himself and his said wife, offered said property for sale to plaintiff, J. E. Glover; that plaintiff was not able to buy the land, and so informed said J. W. Babcock, but further stated he thought he knew of a party or parties to whom he could sell it; that said J. W. Babcock wanted $12.-50 per acre for the land, but agreed that same should be offered and he did offer the same to plaintiff at $15 per acre, or a total of $60,-000, upon the understanding that defendant J. W. Babcock and wife should have $50,000, and plaintiff, J. E. Glover, and the party or, parties who might join him in the purchase, should have the remaining $10,000 as a commission, and said J. W. Babcock, acting for himself and his said wife, wrote and delivered to plaintiff a letter dated December 2, 1905, substantially to the effect above set forth, said letter also stating that the terms of sale were to be $1,500 down on or before January 1, 1905, $11,000 more on or before March 17, 1906, and tbe balance could run for ten years at 6 per cent., payable semiannually, and plaintiff was given by said letter until January 1, 1905, to secure parties to take an interest with him, and a reasonable time after that to examine the lands and title thereto, etc.; that said negotiations occurred at Houston and Devers, Tex., and, upon receiving said letter of December 2d, plaintiff at once left for Minneapolis with a view of securing a purchaser for said property; that on the following day, December 3, 1905, defendant J. W. Babcock wrote and mailed to plaintiff a letter stating, in substance, that since plaintiff left, in thinking over the land deal, said J. W. Babcock has decided to say to plaintiff not to lose a sale of the lands trying to get $15 per acre, and that, if plaintiff could not get over the $12.50, to ‘close trade, and we will give a thousand or more dollars besides your expenses going borne, but get the $15 if you can, and get good commission out of it.’
“(2) I find that plaintiff, J. E. Glover, on arriving at Minneapolis, Minn., undertook to find a purchaser for said property; that he was unable to find a purchaser at $15 per acre, and did not delay the matter to do so, but, in accordance with said letter of December 3, 1905, offered the land and found a purchaser of same at $12 per acre, namely, one Andrew Sundseth; that it was understood between plaintiff and said Andrew Sundseth that plaintiff should join said Sundseth in the purchase of said property, but should not be required to pay any part of the purchase money, and. that plaintiff’s interest in the property should be one-seventh thereof, and that defendant J. W. Babcock was fully advised of this understanding before the formal contract of sale was made and signed on the 19th day of January, 1906; that defendant J. W. Babcock was advised that said purchaser had been found and the sale would be made, during the month of December, 1905, and that some time was consumed in agreeing on the details of the contract; that plaintiff and said Andrew Sund-seth also came down to Devers, Tex., to look over the land, and that a contract for the sale of same was made and executed between said parties on January 19, 1906, the following being the terms of said contract as per a certified copy thereof from the deed records of Liberty county, Tex.:
“ ‘Houston, Texas.
“ ‘Know all men by these presents that we, John W. Babock and Helen M. Babcock, his wife, all of Bay City, Bay county, and state of Michigan, parties of the first part, and John E. Glover and Andrew Sundseth, all of Minneapolis, state of Minnesota, parties of the second part, enter into the following agreement:
“ ‘John W. Babcock and Helen M. Babcock hereby agree to sell and do sell a certain tract of land containing about four thousand acres (4,000) 'more or less for the sum of fifty thous- and dollars ($50,000.00), payments to be made as hereinafter mentioned. As a further description of said land, about three thousand (3,000) acres more or less are in the Malina Whittington league, about eight hundred (800) acres more or less are in tbe Chism league, and about three hundred and thirty-seven (337) acres more or less in the Jesse Woodberry league, all lying in the township of Devers, county of Liberty, and state of Texas, and more particularly described in a certain instrument now on file at Liberty, county seat of Liberty county. The above instrument is a vendor’s lien note and trust deed covering the above-mentioned land, and it is expressly intended to, and does, convey all the land covered by that trust deed to John E. Glover and Andrew Sundseth, parties of the second part, the payments to be made as follows: One thousand and five hundred dollars ($1,500.00) heretofore paid, the receipt whereof is hereby acknowledged, eleven thousand dollars ($11,000.-00) on or before January 1, 1907, as a second payment, whereupon the said John W. Babcock and Helen M. Babcock, his wife, parties of the first part, will execute and deliver to said second parties a warranty deed conveying to said second parties, their heirs or assigns, free and clear of all incumbrance, said four thous- and acres (4,000) more or less. The .above-mentioned eleven thousand dollars ($11,000.00) shall be used to pay off a certain trust deed hereinbefore referred to and now of record at Liberty, Liberty county, state of Texas. The balance of the fifty thousand dollars ($50,000.-00) remaining unpaid, namely, thirty-seven thousand and five hundred ($37,500.00) dollars, shall be paid on or before the expiration of ten years from January 1, 1906, with interest on all deferred payments at the rate of six (6) per cent, per annum, payable semiannually, beginning January 1, 1906. John W. Babcock and Helen M. Babcock agree to pay all the taxes, also the interest, on the said incumbrance of eleven thousand ($11,000.00) dollars up to January 1, 1906. John E. Glover and Andrew Sundseth are upon delivery to them of said warranty deed to give their notes for the aforesaid remaining thirty-seven thousand and five hundred ($37,500.00) dollars secured by vendor’s lien or first mortgage on said four thousand (4,000) acres, more or less. Said interest on all deferred payments to be paid semiannually at city .of Houston, Tex., at South Texas National Bank, January 1st and July 1st of each year until all of the above thirty-seven thous- and and five hundred ($37,500.00) dollars is paid. It is expressly understood that Helen M. Babcock is part owner of said land in her own name and right, and not as a dower right. The above notes are to be given to each party as their interest shall appear.
“ ‘Parties of the second part are to assume the payment as a part of the said purchase price of the $11,000.00 lien hereinbefore referred to which lien bears interest at 8 per cent, per annum, payable annually, and parties of the second part are to pay the 8 per cent, interest thereon after January 1, 1906.
“ ‘It is hereby agreed, if parties of the second part fail to make any payment when due, the whole indebtedness shall become due. Parties of the second part are to pay all taxes and assessments of every name and nature after January 1, 1906.
“ ‘In testimony whereof, all parties hereto have hereunto set their hands and affixed their seals this 19th day of January.
“‘Helen M. Babcock. [Seal.]
“‘John W. Babcock. [Seal.]
“ ‘[Here follow acknowledgments in due form of J. W. Babcock and Helen M. Babcock.]
“‘Filed for record January 25, A. D. 1906, at 9 o’clock a. m. Recorded March 13, A. D. 1906, at 9:15 o’clock a. m.’
“ ‘(3) I further find that said contract was accepted by plaintiff, J. E. Glover, and said Andrew Sundseth, and that said Andrew Sundseth. paid the one thousand five hundred. ($1,500.00) dollars cash referred to therein by a written draft in favor of said J. W. Babcock, which was duly cashed; that two copies of said contract was executed; and that said J. E. Glover and Andrew Sundseth signed one of the copies of same. I further find that on or about February 10, 1908, plaintiff, J. E. Glover, and said Andrew Sundseth sold and conveyed the land . hereinbefore referred to, to George W. Jenkins, in consideration, among other things, that said George W. Jenkins assumed the payment of the indebtedness to the Grand Lodge of Texas, A. F. & A. M., being the indebtedness of eleven thousand ($11,000.00) dollars referred to in said contract of January 19, 1906, as being secured by trust deed upon said property, and also assumed the remaining indebtedness to said J. E. Glover’s wife, evidenced by said contract of January 19, 1906, the assumption of all of said indebtedness being recited, in deed from said J. E. Glover and Andrew Sundseth to said George W. Jenkins; that said Andrew Sundseth paid the interest upon said eleven thousand ($11,000.00) dollars indebtedness to said Grand Lodge, and also the interest upon remainder of the purchase money, to said J. W. Babcock and wife until said sale to George W. Jenkins, and that after the conveyance of said property to said George W. Jenkins the latter secured a further extension of said indebtedness to said Grand Lodge, and paid all interest thereon, and also all interest on the remainder of the purchase money, to said J. W. Bab-cock and wife for about two years, at the end of which time said George W. Jenkins failed to keep up the further payments thereon, and thereupon defendant J. W. Babcock sent the following notice to said Sundseth and Glover:
“ ‘Beaumont, Texas, April 14, 1910.
“‘Mr. Andrew Sundseth and Mr. John Glover, Minneapolis,. Minnesota, U. S. A. — Dear Sirs: I take this occasion to notify you jointly and severally that your agent or assignee, Mr. Geo. W. Jenkins, now of Houston, Texas, has notified me in writing that he has not paid the interest on the eleven ($11,000.00) thousand dollars mortgage held by Mr. B. F. Frymier, as treasurer of A. F. & A. M. at Waco, Texas. The interest was due March 17, 1910, just past, and also the three years’ taxes are unpaid and overdue. Now, I expect you to take care of my interest by coming forward, and paying the interest and taxes thereby gaining time to set the lands that I sold you.
“ T give you each further notice that I hold you respectively responsible each for whatever the lands bring less than my claims are against you that you will make good to me.
“ T am, as ever, truly yours,
“‘J. W. Babcock.
“ ‘Address me 1215 Park St., Beaumont,
“(4) I further find that on January 3, 1911, said Grand Lodge of Texas filed suit upon said indebtedness of eleven thousand dollars ($11,000.00) and for foreclosure of its lien securing the same' against defendant J. W. Bab-cock and wife, Helen SM. Babcock, plaintiff, J. E. Glover, Andrew Sundseth, George W. Jenkins, and other parties not necessary to mention, but that said suit was never tried nor prosecuted to judgment, same being dismissed at the February term, 1911, of the district court of Liberty county, by order of dismissal therein entered reciting, in substance, that E. F. Moore has by purchase become ⅛⅝ owner of the title of J. w. Babcock and George W: Jenkins in all of said land and by assignment of the eleven thousand ($11,000.00) dollar note and deed of trust securing the same from the Grand Lodge of Texas, A. F. & A. M., and that the title to said lands and indebtedness is now assembled in the person of said E. F. Moore; that on or about the time of the dismissal of said suit J. W. Babcock and wife executed their deed for said property to said George W. Jenkins, and that said George W. Jenkins, in turn, executed his deed for said property to said E. F. Moore; that said E. F. Moore paid off said indebtedness of eleven thousand ($11,000.00) dollars to said Grand Lodge of Texas, and paid the balance of the purchase price for said property to said J. W. Babcock and wife, but not upon the original basis of twelve and 50/100 ($12.50) dollars per acre, the purchase price having been reduced in connection with said settlement to eight ($8.00) dollars per acre by agreement by the said J. W. Babcock and wife and George W. Jenkins, and said J. W. Babcock and wife did not consult plaintiff or Andrew Sundseth in making-said settlement on said reduced price, nor procure their consent thereto, but made it because they said Babcock and wife thought it was the best thing to do under the circumstances in view of the threatened foreclosure by said Grand Lodge.
“(5) I further find that Andrew Sundseth was at all times hereinbefore mentioned, and still is, a man of ample means to carry out and perform his said contract of January 19, 1906, and that his financial responsibility was and is such that said contract would have been enforced against him.
“(6) I further find that the land above referred to was to the extent of about one-half thereof the separate property of said Helen M. Babcock, but that the agreements between said J. W. Babcock and said Helen M. Bab-cock, acting by said J. W. Babcock, with plaintiff, regarding the commission he was to receive on said sale, were made by said J. W. Babcock and wife jointly and severally.
“(7) I further find that said Andrew Sund-seth had knowledge that plaintiff was to receive a commission from J. W. Babcock and wife, he having seen letters of December 2 and December 3, 1905, hereinbefore mentioned, and that it was his understanding and agreement that he, said Sundseth, should not share in the said commission to be paid by J. W. Babcock and wife, but same should go entirely to plaintiff, J. E. Glover.
“(8) I further find that for making said sale defendant J. W. Babcock by his letter of December 3, 1905, agreed to pay plaintiff a commission of one thousand ($1,000.00) dollars, besides his expense going home, and that this agreement was not altered or rescinded in the subsequent dealings of the parties; and I further find that a reasonable commission to plaintiff for making said sale is the sum of one thousand ($1,000.00) dollars in addition to his expenses; and I further find that no part of said commission or expenses has been paid except forty ($40.09) dollars.”

Appellant submits his first, second, third, and sixth assignments of error together, and in so doing necessarily sends us to the propositions advanced under the assignments to ascertain the points presented for our consideration. The. first proposition is:

“Before a broker can lay claim to commission for a sale, he must provide a purchaser who is ready, willing, and able to take the property upon the terms fixed by the owner.”

The trial court found as a fact, in substance, that the plaintiff had procured a purchaser with whom the appellant had, on January 19, 1906, entered into a contract of sale of the land, and that said purchaser “was at all times hereinbefore mentioned, and still is, a man of ample means to carry out and perform his said contract of January 19, 1906, and that his financial responsibility was and is such that said contract could have been enforced against him.” This is tantamount to a finding that the purchaser was “able.” The fact that he entered into a contract of purchase of the land and paid the stipulated cash consideration of $1,500 evidenced his willingness and readiness to purchase under the terms and conditions prescribed by the owner.

Appellant does not by any of said assignments attack the court’s findings of fact, and, in the absence of such an attack, this court must and will presume that the facts found were warranted by the evidence adduced upon the trial. This applies also to the second proposition under the assignments, wherein it is urged that an action by a broker to recover commissions will not lie until he has effected or procured a sale of the property. The assignments are overruled.

fourth assignment complains of the action of the court in rendering judgment against appellant, J. W. Babcock, for the full amount of jthe commission sued for; the con-conbeing, in effect, that Mrs. Babcock, being the owner in her separate right of half of the land, and that the agreement to pay the commission being made by both owners, it imposed a several, and not a joint and several, liability, and therefore appellant was liable, if at all, for only one-half of the amount of commissions promised. We can-canagree to the contention that the agree-agreeto pay a fixed sum as commission was several, but our opinion is that it was joint and several. This being true, while Mrs. Babcock, because of her coverture, might avoid liability, the appellant was bound in the full amount of the sum promised. Baum v. McAfee, 125 S. W. 987. The assignment is overruled.

The seventh assignment attacks the following conclusion of law of the trial court:

“That said sale was closed by a binding contract, dated January 19, 1906, between J. W. Babcock and wife and J. E. Glover and Andrew Sundseth, same being, in fact, a present sale and conveyance of said property, and that by virtue thereof plaintiff, J. E. Glover, became entitled to receive from defendants, J. W. Bab-cock and Helen M. Babcock, jointly and severally, the sum of $1,000.”

The propositions advanced are: (1) That plaintiff sues for commissions for making a sale of the land to himself and Andrew Sund-seth, and a valid and binding contract for a sale is not the making of a sale; and (2) that Glover and Sundseth could have paid the $11,000 and obtained a deed under said contract prior to January 1, 1907, and that Bab-cock and wife did nothing to prevent them making this payment. The facts upon which the court based the conclusion that the sale was closed by a binding contract, and that the same was a present sale and conveyance of the property, is not assailed by any assignment of error, and therefore we must presume that the facts adduced warranted the conclusion. The second proposition is not a proposition of law, but a statement of certain facts, and therefore raises no question that we are called upon to consider. The assignment is overruled.

The eighth assignment is not followed by a statement, as required by the rules, and will not, therefore, be considered. If, however, we should waive this objection to it, we are of the opinion that the assignment is without merit.

This disposes of all the assignments presented in appellant’s brief. We find no reversible error in the record. The judgment of the court below is affirmed.

Affirmed.
      £=»For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

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


author: FLY, C. J.

text:
    ST. LOUIS & SOUTHWESTERN RY. CO. et al. v. GRANT.
    (No. 5425.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 24, 1915.
    Rehearing Denied March 24, 1915.)
    Carriers &wkey;>134 — Carriage oe Perishable Freight — Failure to Ioe Cars — Negligence.
    A carrier sent a car fully iced to a station not an icing station for loading of perishable freight by a shipper who unnecessarily delayed the car until the ice was too low to protect the freight. The carriel-, as soon as he reached the nearest icing station, filled the car with ice, and did not delay the movement of the car. The freight when delivered to the carrier was apparently sound, and when delivered to the consignee at destination it was in a defective condition. The consignor could have loaded the car in 10 hours, but delayed it 34 hours. Held, that the carrier was not guilty of actionable negligence, . though the freight was delivered in apparent good condition and on arrival at destination was in bad condition.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. &wkey; 134.]
    Appeal from Bexar County Court; John H. Clark, Judge.
    Action by R. A. Grant against the St. Louis & Southwestern Railway Company and another. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellants. McCollum Burnett, of San Antonio, for appellee.
   FLY, C. J.

This is a suit for damages to a car load of peaches shipped from Pittsb.urg, Tex., to San Antonio, in July, 1913, instituted in the justice’s court, appealed by appellants to the county court, and from the latter court to this court from a verdict and judgment for $180.55. The suit was instituted against the St. Louis & Southwestern Railway of Texas and the International & Great Northern Railway Company. The only ground of negligence is “failure to re-ice a certain car of peaches, transported over said lines of railway, on or about July 25, 1913, same being transported from Pittsburg, Tex., to San Antonio, Tex.”

F. G. Jones, testified, for appellee, that on or about July 25, 1913, he loaded a car of peaches at Pittsburg destined to San Antonio, that the peaches were in apparent good condition, and were consigned to appellee. He arranged with the railroad company to ice the car and keep it iced to destination. He testified that Pittsburg is a small town and has no icing plant for cars, but cars are iced ,in Tyler, and sometimes in Mt. Pleasant, and sent to Pittsburg iced. The car was detained at Pittsburg through the negligence of the shipper, as he paid a fine for the detention. That the peaches were in a damaged condition when they reached San Antonio is not denied. The uncontradicted testimony shows that the car was placed by the railway companies in Pittsburg with its bunkers full of ice, that when it left Pittsburg the bunkers were only third filled, that when the car reached Tyler, the nearest icing station, 8,-100 pounds of ice were placed in the bunkers, that when the car reached Taylor 3,800 pounds of ice were placed in the bunkers, and they were again filled when the car reached San Antonio. There is no testimony tending to show that there was insuiiicient ice in the car at any time, except, perhaps, when it left Pittsburg.

When appellants sent the car fully iced to Pittsburg, a small place where there was no icing station, they had fulfilled the duties incumbent upon them, and, if appellee unnecessarily delayed the car at Pittsburg until the ice had melted below the safety point, appellants cannot be held liable for the results. Wright v. Railway (Ark.) 163 S. W. 1151. The evidence in this case shows that the ear, with its bunkers full of ice, was placed for loading, in Pittsburg, at 1 o’clock p. m. on July 23d, and that appellee’s agent finished loading it at 11 p. m. July 24th; 34 hours being consumed in loading. The inference is that 10' hours were sufficient in which to load the car, because the party who loaded the ear paid without murmuring -a fine of $5 for detention of the ear for a day, under the demurrage rules of the Texas Railroad Commission. It was undisiruted that 35 baskets of the peaches laid on the platform at Pittsburg for a length of time before loading. It is not contended that there was any delay on the part of appellants in the transportation of the peaches, and all the testimony tends to show that appellants were diligent in keeping -an abundance of ice in the bunkers of the car.

In order to make out a case, appellee was compelled to show that the peaches were damaged by the negligence of appellants in failing to “re-ice” the car, and that was not done, for all of the evidence shows that the car was full of ice when it was delivered for loading to the consignor in Pittsburg, and that as soon as appellants reached the nearest icing station the car was again filled with ice. They cannot be held responsible for the ice getting too low, if it did get too low, in Pittsburg, for it is not claimed that they delayed the movement of the car, but that appellee’s consignor delayed the shipment for a whole day. There is not a word of testimony tending to show that the car was not properly iced and kept in that condition on the way.- 'Appellee has nothing to rely upon but the fact that the peaches were placed in the car in apparent good condition and arrived in San Antonio in bad condition. That is not sufficient, and cannot be sufficient when the entire testimony tends to show a performance of duty.

There is some conflict of opinion on the question as to whether a prima facie ease is made, when it is proved that perishable property was delivered to the carrier in a sound condition and was delivered by it in a damaged condition. We think Elliott is correct when he says:

“But the rule which affirms that the burden is on the shipper in such cases rests, we think, on solid foundations. It seems to have been overlooked, but there are few, if any, well-considered cases in which it has been expressly denied.” Elliott on Railroads, § 1516.

It does not matter in this ease, however, upon whom the burden rested, for the reason that appellants completely met the charge of negligence made by appellee.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf expended.
      tg^jFor other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


text:
    FLOYD v. FLOYD.
    (No. 6773.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 18, 1915.)
    Appeal and Error <⅜=>768 — Questions Reviewable — Errors—Conceded Epeect.
    Where appellee’s brief concedes that the cause should be reversed for errors pointed out in appellant’s brief, the court will reverse the judgment and remand the cause without passing in detail on the assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3103; Dec. Dig. <&wkey;>768.]
    Appeal from District Court, Nacogdoches County ; L. D. Guinn, Judge.
    Action by R. W. Floyd' against (Mary E. Floyd. From a judgment denying relief, plaintiff appeals.
    Reversed and remanded.
    Marshall & Marshall, of Nacogdoches, for appellant. Davis & Ramsey, of San Augustine, and June C. Harris and Audley Harris, both of Nacogdoches, for appellee.
   McMEANS, J.

R. W. Floyd brought this suit against his wife Mary E. Floyd, for a divorce, and for the custody of their children, and for partition of their community property. A trial before the court without a jury resulted in a judgment denying to plaintiff the relief sought, and he has appealed. In his brief he asks this court to reverse the judgment of the trial court, and to here tender judgment in his favor; but there is no assignment of error presented by him in such a way as to call into review the facts, or otherwise justify this court in so doing. He presents several assignments, however, in which he contends that the lower court committed errors prejudicial to him upon the trial, and, if these assignments are well taken, the judgment must be reversed, and the cause remanded.

Appellee, through her attorneys, has filed a brief in this court in which she says:

“The appellee concurs in the statement as made by appellant herein of the nature and result of the suit, and concedes that this cause should be reversed for the errors committed on the trial of the same and pointed out in appellant’s brief filed herein.”

This admission renders it unnecessary for this court to pass in detail upon the numerous assignments presented by appellant, and, in view of appellee’s admission, the judgment will be reversed, and the cause remanded.

Reversed and remanded.


author: WALTHALL, J.

text:
    NESOM v. CITY NAT. BANK.
    (No. 397.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 25, 1915.
    Rehearing Denied March 18, 1915.)
    1. Corporations &wkey;255 — Garnishment—Unpaid Stock Subscription.
    A judgment creditor of a corporation may, by garnishment, enforce liability for the unpaid balance upon a subscription to its capital stock; such unpaid subscription being treated as property of the corporation for paying its debts and making distribution of its assets.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1031-1035; Dec. Dig. &wkey;255J
    2. Garnishment <&wkey;7 — Judgment Authorizing.
    Under Rev. St. 1911, art. 271, subd. 3, providing that the district and county courts may issue garnishment when the plaintiff has a judgment and makes affidavit that defendant to his knowledge has no property in his possession within the state subject to execution, sufficient to satisfy the judgment, a judgment against a garnishee rests-on the validity of the judgment against the defendant in the original suit; and hence the garnishee’s answer that the original judgment was void for want of jurisdiction of the defendant was a good defense, though if the judgment in the original suit was only voidable and not void, and no appeal was taken, and it was not set aside, the irregularities making it voidable would be no defense to the garnishee.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 6-10; Dec. Dig. &wkey;7.j
    3. Judgment <&wkey;16 — Jurisdiction—Process.
    A judgment is void when no jurisdiction is acquired over the property of defendant, and there is no legal service of process or appearance, since he must have his day in court.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 22, 24; Dec. Dig. &wkey;16J
    4. Corporations <&wkey;216 — Liability op Stockholders — What Law Governs.
    The charter of a foreign corporation or the statute under which it was organized determines the liability of resident shareholders to its creditors; and, if a shareholder is liable at all, he is liable only according to the law of the corporation’s domicile; and, if an unpaid subscription for stock is not a corporate asset, it cannot constitute a fund from which creditors are entitled to be paid.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 829-834;' Dec. Dig. <S&wkey; 216.]
    5. Receivers <&wkey;207 — Foreign—Territorial Jurisdiction.
    A foreign receiver has no extraterritorial jurisdiction, and his functions and powers are limited to the state in which he is appointed, so that, where no ancillary proceedings for the appointment of a receiver are commenced in this state, title to property here does not vest in him.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 411-415; Dec. Dig. &wkey;207.]
    Appeal from El Paso County Court; J. M. Deaver, Special Judge.
    Action by the City National Bank against J. T. Nesom. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    ' G. L. & Atlas Jones, of El Paso, for appellant. Stanton & Weeks, of El Paso, for ap-pellee. ,
   WALTHALL, J.

In this suit, the appellee, City National Bank,, sues to collect from appellant, J. T. Nesom, as garnishee, the sum of $100 and interest thereon, alleged to be due and owing by appellant to the Western New Mexico Development Company, a corporation, upon a subscription in writing, executed by appellant for unpaid balance to its capital stock in said company. The case was tried by the court without a jury.

The court made the following findings of fact: That the Western New Mexico Development Company was organized in 1907 and was incorporated under the laws of New Mexico in that year, with its principal office in New Mexico, and stated the purposes of its organization; that a business office of said company was established in El Paso, Tex., and that the principal business of the company was transacted at its El Paso office; that, at the time of the incorporation and the service of the garnishment, a majority of the stockholders, including appellant, resided in El Paso county, Tex., and had not paid their entire subscriptions for corporate stock; that appellant had signed the subscription list and agreed to take the stock; that appellant had paid $400 of his subscription and still owed $100; that the board of directors of the company, by resolution adopted, had called on all subscribers to pay their subscriptions in full; that the appellee had recovered a judgment against the company for $583.24, and that a large portion of it was still due and owing the appellee; that the writ of garnishment was issued and served on appellant, who answered, denying any indebtedness to the company; that a fee of $50 is a reasonable attorney’s fee in the garnishment suit. , '

The court concluded that appellant was, to the extent of his unpaid subscription to the corporate stock, liable to appellee as garnishee against appellant, and rendered judgment for appellee for $100, interest and costs.

Appellant’s first and fifth assignments of error are to the overruling of a special ■exception, and the two propositions thereunder are substantially that a judgment creditor of a corporation cannot, by garnishment ■proceeding, enforce the liability for the unpaid balance due upon subscription to the capital stock of a corporation. These assignments must be overruled. The appellant has referred us to no authority sustaining the propositions contained in the assignments. The courts of this state have construed our statutes as showing that the ar-rearages of stockholders for unpaid stock are for the purposes of paying the debts and making distribution of the assets of a corporation, as much to be treated as property as anything else owned by it. Showalter v. Laredo Imp. Co. et al., 83 Tex. 162,18 S. W. 491. The case to which we are referred as sustaining the appellant’s view is Mathis v. Pridham, 1 Tex. Civ. App. 58, 20 S. W. 1015. In that case the court said that the right of a creditor to sue an individual stockholder to recover an unpaid subscription and apply it upon his debt does not conflict with the rule laid down in that case, and states the reason why it is not in conflict. Rood on Garnishment, § 112, states the rule to be that, when a subscriber for stock in a corporation is in default for installments for which calls have been made, he stands in the same attitude as any other debtor of a corporation, and may be charged as garnishee therefor in suits against it. In Hughes v. Oregonian Ry. Co., 11 Or. 158, 2 Pac. 94, the court said that the property of a corporation in the hands of one of its stockholders may be reached by garnishment.

Appellant’s second assignment is to the action of the court in sustaining appellee’s exception to a paragraph in appellant’s answer, which is in words following:

“That the judgment mentioned in said amended petition and issues, against the Western New Mexico Development Company, is void for the reason that the county court of El Paso county, Tex., which rendered said judgment, never acquired jurisdiction of or over said Western New Mexico Development Company, or any of its property, or said receiver, W. R. Merrill, in the cause in which said judgment was rendered, through process or appearance or answer by said company or said receiver, in the cause in which said judgment was rendered.”

The exception was on the ground: First, that the plea of want of jurisdiction in the court was insufficient and showed no right of the defendant to attack or in any manner bring in question the jurisdiction of said court to render the judgment in the original suit, the garnishment branch of the suit being a collateral proceeding; and, second, that the allegations wére mere conclusions of law, and set forth no specific facts which show or tend to show want of jurisdiction in the court to render the judgment.

Appellee’s garnishment suit is based on article 271 and the third subdivision of said article, Revised Civil Statutes of 1911 (former article 217), which reads as follows:

“The clerks of the district and county courts and justices of the peace may issue writs of garnishment, returnable to their respective courts, in the following cases: * ⅜ ⅜ 3. Where the plaintiff has a judgment and makes affidavit that the defendant has not, within his knowledge, property in his possession within this state, subject to execution, sufficient to satisfy such judgment.”

We believe that the petition sufficiently stated the facts which, if true, would render the judgment void, and such facts as would authorize the introduction of evidence to show want of jurisdiction in the county court to render the judgment.

The judgment rendered by the county court against the garnishee rests for its basis on the validity of the judgment against the defendant in the original suit. Edrington v. Allsbrook, 21 Tex. 186; Horst v. City of London Fire Ins. Co., 73 Tex. 67, 11 S. W. 148; Rowlett v. Lane, 43 Tex. 274.

It is true, as claimed by appellee, that if the judgment in the original suit was only voidable.and not void, and the voidable judgment was not set aside, and from which no appeal was taken, the irregularities making it voidable could form no basis of defense to the garnishee. Such judgment would conclude the garnishee as much so as it would the original defendant. Patterson v. Seeton, 19 Tex. Civ. App. 430, 47 S. W. 732. But the garnishee’s answer alleged that the judgment was void for the reason that the court “never acquired jurisdiction of or over said Western New Mexico Development Company, or any of its property, or said receiver, W,. R. Merrill, in the cause in which judgment was rendered, through process or appearance or answer.”

It is elementary that a judgment is void when no jurisdiction is acquired over the property of the defendant, and there is no legal service of process or appearance. He must have a “‘day in court.” Williams v. Warren, 82 Tex. 319,18 S. W. 560. We think there was reversible error in sustaining the exception, and the assignment is sustained.

Appellant’s third assignment of error must be sustained. The exception of appel-lee, sustained by the trial court, was directed to the fourth subdivision of appellant’s answer, in which he alleges that acting under the laws of New Mexico, the home of the corporation, and at the time of filing the certificate of incorporation to whose stock he subscribed, he obtained a release from stockholder’s liability. It seems to be the rule that the charter of the foreign corporation, or statute under which it was organized, furnishes the guide in determining the liability of resident shareholders to its creditors. If the shareholder is liable at all, he is in general liable only according to the law of the domicile of the corporation. If the unpaid subscription for stock is not a corporate asset, it cannot constitute a fund from which creditors are entitled to be paid. 10 Cyc. of Law and Procedure, p. 670, and the authorities in note 56, on page 671.

Appellant, in his fourth assignment of error, complains of the action of the court in sustaining appellee’s exception to the answer setting up the defense that, before the said garnishment proceeding was issued, the assets of the Western New Mexico'Development Company had, by a decree of a court of New Mexico, under the laws of New Mexico, become vested in a receiver for the benefit of divers creditors of said company. This assignment must be overruled. A receiver has no extraterritorial jurisdiction, and his functions and powers, as receiver, are limited to the state in which he is appointed. ’ The petition did not allege that ancillary proceedings for the appointment of a receiver had commenced in this state, so as to vest the title to property here in him.

There is no merit in appellant’s sixth and seventh assignments, and they are overruled. There is no statement of facts in the record, and we cannot know what the evidence was from the findings of fact, so as to determine a question of variance between pleading and proof.

For the reasons stated, the case is reversed and remanded.
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author: LEVY, J.

text:
    WRIGHT v. GLASS et al.
    (No. 1416.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 5, 1915.
    Rehearing Denied March 25, 1915.)
    ■Vendor and Pubchaser <&wkey;140 — Contracts —Construction—‘ ‘Abstract. ’ ’
    Where a contract for the sale of land provided that the vendor should deliver an abstract to the land to the purchaser’s attorney at a stipulated time, and that the purchaser should pay over the purchase money on delivery of a deed duly executed and an abstract, it was the obvious purpose that the “abstract,” which is a compilation in abridged form of the record of title, should show that the vendor had the record title, and a claim of title by limitations is insufficient.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. &wkey;>140.
    For other definitions, see Words and Phrases, First and Second Series, Abstract of Title.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by G. C. Glass and others against C. H. Wright From a judgment for plaintiffs, defendant appeals.
    Reversed.
    Appellee sues for the $500 deposited as earnest money upon a contract for the purchase of real estate, claiming that he had complied with the terms of the written agreement by furnishing to the purchaser the full abstract as provided for, and that appellant had failed and refused to accept it and comply with the agreement of purchase. The parties on December 6, 1913, made the following written agreement:
    “We, the undersigned persons, parties to the deed to which this memorandum is attached, hereby enter into the following agreement with reference to said deed and five hundred dollars which is put up with said deed. G. C.. Glass hereby agrees to deliver an abstract td the land described in said deed as soon as abstractor can finish same, not later than Jan. 1, 1914, and C. H. Wright agrees to accept said deed ón said date and pay five thousand dollars in cash to the said G. C. Glass on delivery to him by said G. C. Glass oí said deed duly executed and said abstract.
    “And it is specially understood that in case the said C. H. Wright fails to comply with the provisions of said deed with reference to paying said cash and executing said notes, and all other provisions of same, that the First National Bank shall pay over said five hundred dollars to said G. 0. Glass, and same shall be forfeited to him as a penalty for failure on C. H. Wright’s part in complying with the said provisions of said deed as aforesaid, and it shall become his money. .Said abstract to be sent to Newman Phillips for examination. It is specially agreed and understood that the said O. H. Wright is.to assume the contract between G. G. Glass and Tom Belcher, with reference to the lease on said land, and said lease contract is hereby transferred to said C. H. Wright.”
    Appellee in ample time forwarded an abstract to Newman Phillips, an attorney. The abstract contained a full extract of the records of the county pertaining to the land. The hbstract exhibited of the records showed certain uncanceled vendor’s liens and as well a missing conveyance to one of the grantees in the chain of title. The attorney named gave a legal opinion that the abstract exhibited did not show a perfect chain of title to the present intended vendor, and declined to approve the title to the land as shown by the abstract. Appellee, for the purpose of curing and removing objections to the title, sent additional documents, consisting in part of affidavits of his use, occupation, and possession of the premises for a number of years, for the purpose of showing that he had acquired title by adverse possession. Mr. Phillips, in his further legal opinion, with the additional documents added, did not approve the title as a complete record legal title, and did not pass a legal opinion on the title in respect to adverse possession. It is not contended by appellee that he exhibited in the abstract an unbroken chain of transfers, but that through all the deeds he had in connection with adverse possession a limitation title complete. It was shown that the courthouse of Titus county, together with all the public records, were destroyed by fire on September 20, 1895, which fact was known to both parties at the time of the contract. It was admitted, though, that pri- or to the burning of the records G. F. Gonley had made a full abstract from the records of this land, and that it was in existence; and this old abstract, brought down to date, was the abstract exhibited. The fact that there was an old abstract to date of the fire was known and understood by the parties at the date of the contract.
    J. A. Ward, of Mt. Pleasant, and Newman Phillips, of Cooper, for appellant. J. M. Burford and T. O. Hutchings, both of Mt. Pleasant, for appellees.
   LEVY, J.

(after stating the facts as above). It is the contention of appellant, by proper assignment of error, that he was not bound under the contract to consummate the purchase unless the vendor had a good record title to convey to him, and therefore, under the facts, he was discharged of the agreement It is the contention of the appellee that the contract does not stipulate for a good record title, and that he had a right to show that he had acquired title by adverse possession. A construction of the contract is therefore decisive of the case, in view of the admitted fact of limitation title only in the vendor. According to the language of the contract, the vendor agreed “to deliver an abstract to the land,” which was “to be sent to Newman Phillips for examination” at a time “not later than January 1, 1914.” The purchaser was to pay over the purchase price-at the date of January 1, 1914, “on delivery to him by G. 0. Glass of said deed duly executed and said abstract.” The rights of the parties should be determined by the practical meaning ascribed by them to the language employed by their contract. Contracting, as the parties did, for an abstract of the title to the land, and that it should be sent to an attorney of the purchaser for examination, comprehends the purpose of the parties that the abstract exhibited should be subject to-reasonable examination and approval by the-purchaser. A provision that the abstract should be first sent to an attorney “for examination” would be meaningless unless construed as words intended to be appropriate to a condition that if after reasonable examination by the attorney the abstract exhibited failed to show a good title in the-vendor, the purchaser was not then bound to-consummate the purchase and should not forfeit his earnest money. There would be no-necessity for an “abstract to the land” unless it was for the purpose of exhibiting a record title. As ordinarily used and understood “an abstract” is simply a compilation-in abridged form of the record of the title,. In this meaning of the term, as commonly understood, such construction of the contract should be adopted as would require an abstract showing a good record title. Anything less than this would not satisfy the term and; carry out the implied intention of the parties. The- terms used by the parties exclude, it is thought, any expectation on the part of the-purchaser that there would be offered to him a title by limitation, depending, as it doesj upon facts outside of and independent of the-records. In the absence of adjudication in-some way, a title by limitation is not settled..

Had the abstract as exhibited been subject only to the objection that it was not free-from incumbrance or cloud, it may have been-, as contended by appellee, that he had within, the meaning of the contract tendered a marketable title. And appellee might have a title by limitation such as would constitute a good title in law, but the terms of the contract here do not include or contemplate such character of title. The decision here is upon the latter ground.

As the construction here given the contract should have been given it by the trial court, the judgment is reversed and here rendered in favor of appellant, with all costs.
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text:
    FIRST NAT. BANK OF FT. WAYNE, IND., v. HOWARD.
    (No. 5428.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 3, 1915.
    Rehearing Denied March 24, 1915.)
    1. Execution <&wkey;194r-Claim of Thibd Person — Sufficiency of Evidence.
    In the trial of the claim of a third party to personal property levied on as the property of a judgment debtor, evidence held to sustain a finding that the claimant had no interest in the property.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 571-674; Dec. Dig. &wkey;194.]
    2. Evidence &wkey;>594 — Weight and Sufficiency — Uncontbadicted Evidence.
    The jury may disregard the testimony of a witness, who has neither been impeached nor contradicted, if they believe his testimony to be untrue from his manner of testifying, prejudice shown toward the opposite- party, his interest in the result of the litigation, or other indications that his testimony is not reliable.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2431; Dec. Dig. <&wkey;594.]
    3. Evidence <&wkey;273 — Declabations—Bailee in Possession.
    A bailee’s declarations to a sheriff coining to serve an execution, as to who the bailor was, were admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. &wkey;273.]
    4. Execution <&wkey;196 — Claim by Third Person — Question fob Jury — Possession of Claimant.
    In the trial of the claim of a third person to personal property levied on as the property of a judgment debtor, held on the evidence that the question whether such third person had possession, or as to who had possession, of the property, was for the jury.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 576; Dec. Dig. &wkey;196.]
    5. Trial <&wkey;194r — Instructions—'Weight of Evidence.
    A charge that the sale of property by a debtor must be accompanied by an open and visible change of possession to the purchaser was not objectionable as a charge upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. &wkey;194.]
    6. Execution &wkey;>197 — Instructions — Conflicting Instructions.
    Such charge was not in conflict with a special charge given for the claimant explaining the meaning of delivery and possession and applying the law to the facts.
    [Ed. Note! — For other cases, see Execution, Cent. Dig. § 577; Dec. Dig. <&wkey;197.]
    Appeal from Dimmit County Court; J. O. Rouse, Judge.
    Action by S. W. Howard against the Had-sell Band Corporation, in which the First National Bank of Ft. Wayne, Indiana, filed a claim to property levied on as the property of defendant. Judgment for plaintiff, and claimant appeals.
    Affirmed.
    L. Old and L. E. Lanier, both of Uvalde, and W. H. Davis, of Crystal City, for appellant. Vandervoort & Johnson, of Carizzo Springs, for appellee.
   FLY, C. J.

Appellee, having a judgment in the county court of Dimmit county against the Hadsell Land Corporation for $328.40, and a foreclosure of an attachment lien on certain personal property, had an order of sale of such property issued, and the sheriff levied same on such property and proceeded to advertise for sale. Appellant filed its claim to the property, gave the necessary bond, and a trial of the right of property was had in the statutory manner. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee.

The evidence of appellee showed that the Hadsell Land Company was the owner of the personal property levied on by appellee. There was on record a bill of sale from the Dimmit Hardware Company to the Hadsell Land -Company, showing that the property was conveyed by the former to the latter. This was of date March 3, 1914. That bill of sale was the only documentary evidence of title to the property, and it is admitted that it vested title in, the property in the Hadsell Land Company.

C. E. Hadsell testified that he lived in Ft. Wayne, Ind., and was president of the Hadsell Land Company; that in the latter part of February, 1914, he borrowed $3,500, for the land company, from appellant and agreed to deliver to it the property in question as security for the debt. He used the money, or a portion thereof, in settling an execution against .the property. He further testified that he came from Indiana to Texas, got the bill of sale, 'which was recorded, and then placed the property in the house of J. L. McCaleb for appellant; that this was on March 3, 1914. He paid for moving the property and for two months’ storage. Nothing else was given to secure the $3,500 borrowed money except the property in controversy, which was appraised by the sheriff at $420. The bank was not represented in Texas in connection with the property unless Hadsell represented it, as well as the land company. There is in the record a receipt signed by J. L. McCaleb, reciting that appellant had paid $2 for two months’ storage, evidently the money paid by Hadsell. The facts show that appellant did not pay the storage.

No one connected with the appellant ever came to Texa-s, or testified in the case. No one connected with appellant claimed that the loan was made or had anything to do with the transfer of the property. The land company was in debt. Everything was sworn to and was done by the president of the land company. The whole transaction, as narrated, was weighted down with improbability. It is inconceivable that a national bank in Indiana would lend money to a land company in Texas, without taking a promissory note or any evidence in writing of the loan, having no security except the word of the president of the land company that he would place personal property, of value of less than one-fourth the amount loaned, in pledge with some person in Texas. The jury evidently rejected the testimony, as they had the right and authority to do. They had the right to conclude that the bank had no connection with or interest in the property. A jury need not believe a witness because he is not contradicted by some other witness. Coats v. Elliott, 23 Tex. 606; Pridgen v. Walker, 40 Tex. 136; Railway v. Runnels, 92 Tex. 306, 47 S. W. 971.

Not only was Hadsell, the only witness as to the transfer to appellant, an interested witness, whose evidence was not supported by the circumstances surrounding the transaction, but he further weakened his testimony by inconsistencies and flat contradictions which would stamp it with suspicion. Eor instance, in regard to paying Gates for moving and storage, he stated in one part of his testimony:

“I never gave Mr. Gates a check for this $12. Paid him in cash. My memory is clear on this.”

Immediately afterwards he stated:

“Tes, it is a fact that even the $12 check that I gave Mr. Gates for moving the property and paying the storage was turned down by the First National Bank of Ft. Wayne, and that payment on the check was refused after I had borrowed $3,500 from them without any further security.”

As said by the Supreme Court in the Runnels Case herein cited:

“It is the province of the jury to pass upon the credibility of the witnesses, and they may disregard the testimony of a witness who has neither been impeached nor contradicted, if they believe his statements to be untrue from his manner of testifying, prejudice exhibited towards the opposite party, or his interest in the result of the litigation, or other things indicating that the evidence is not reliable.”

See, also, an opinion by this court delivered through Associate Justice Moursund, in which the authorities are collated. Jones v. Jones, 146 S. W. 265.

J. L. McCaleb was the bailee of the property, and his declarations to the sheriff when he went to serve an execution as to who was the bailor were permissible. He 1 knew who had placed the property in his hands and could testify to that fact. Chamberlayne, Ex. § 2599; Golden v. Vyse, 115 Iowa, 726, 87 N. W. 691; Myer v. Bernstein, 102 Ga. 579, 27 S. E. 681; Hoffman v. Trust Co., 198 Ill. 452, 64 N. E. 1027; Greer v. Mercantile Co., 86 Kan: 686, 121 Pac. 1121.

third, fourth, and fifth assignments of error are overruled. The only objection urged to the c-harge therein is that the court should not have submitted the question of burden of proof to the jury. The charge was to the effect that if the jury found that the property was in the possession of appellant the burden of proof was on appellee; but, if the property was not in such possession, then the burden of proof was on the appellant. The question of possession was one of fact that might be found by the jury, and it was proper for the court to submit to the jury the question as to whose possession the property was in. The contested point was as to whether the property was in possession of appellant at time of the levy, and it was not improper to allow the jury to determine that issue. Brown v. Lessing, 70 Tex. 544, 7 S. W. 783. The failure of the court to de-dein whose possession the property was found could not have-injured appellant. It was agreed by the parties that “the ques-quesof possession of said property was the issue involved in this suit.” It was one of fact which the court properly submitted to the jury. The evidence did not show that the property was ever in the possession of the appellant.

The court charged the jury that the sale of property by a debtor must be accompanied by a change of possession from the seller to the purchaser, and the change of possession must be open and visible, and that charge is attacked in the sixth assignment of error because it was on the weight of evidence, placed too great a burden on the appellant, and was in conflict with a special charge given at the request of appellant. The assignment is overruled. It was not upon the weight of the evidence, did not increase the burdens of appellant, and was not in conflict with appellant’s charge. The latter merely elucidated,what was' meant by delivery and possession and applied the law to the facts.

The other assignments are without merit and are overruled.

The judgment is affirmed.
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author: BROWN, C. J.

text:
    DUMPHY et al. v. COMMERCIAL UNION ASSUR. CO., LIMITED, OF LONDON.
    (No. 2382.)
    (Supreme Court of Texas.
    March 31, 1915.)
    1. Insurance <s=»336 — Forfeiture — Provision Against Other Insurance — Knowledge of Insured.
    A fire insurance policy provided that it should be void if the insured thereafter procured other insurance on the property, and that if, with the consent of the insurer, an interest under the policy existed in favor of one having an interest in the property insured, the conditions of the policy should apply according as such conditions should be written upon or attached thereto. Insured sold the property for part cash, and assigned his interest in the policy to a purchaser, with the consent of the insurer, who attached a rider providing that any loss payable under the policy should be payable to the first insured as his interest appeared, and thereafter the husband of the purchaser, without the knowledge and consent of either the insurer or insured, obtained other insurance payable to the first insured as his interest appeared. Seld, that such additional insurance did not destroy the rights of the first insured in the policy, because obtained without his consent, and because his rights were created by the rider, and were exempt from forfeiture where the conditions of forfeiture expressed in the policy were not “written upon, attached or appended to the policy.” t
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 856-873; Dec. Dig. ⅞^>336.]
    2. Insurance <®=>146 — Contract— Construction.
    Conditions of forfeiture contained in an insurance policy must be strictly construed as against the company.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. <S=>146.]
    Error to Court of Civil Appeals, Sixth Supreme Judicial District.
    Action by Mrs. Matilda Dumphy and others against the Commercial Union Assurance Company, Limited, of London. From a judgment of the Court of Civil Appeals (142 S. W. 116) affirming a judgment for defendant,' plaintiffs bring error.
    Judgments reversed, and cause remanded to district court for trial.
    Webber & Webber and Rodgers & Dor-ough, all of Texarkana, for plaintiffs in error. Wm. Thompson and 6. S. Wright, both of Dallas, and Smelser & Vaughan, of Tex-arkana, for defendant in error.
   BROWN, C. J.

The statement of facts of this case we copy from the opinion of the Court of Civil Appeals as follows:

“December 26, 1906, appellee issued its policy for $2,000, insuring Mrs. Dumphy during a period of five years from that date against loss by fire of a dwelling house owned by her. After-wards Mrs. Dumphy sold the property so insured to one Hunter for $3,500. Of this sum $1,000 was then paid by Hunter, and the remainder was covered by his promissory notes in favor of Mrs. Dumphy. December 19, 1907, by a writing on the policy, appellee consenting, Mrs. Dumphy assigned her interest therein as owner of the property to Hunter’s wife, to whom it seems the conveyance of the property from Mrs. Dumphy had been made. On the same day (December 19, 1907) appellee attached to the policy a rider as follows: ‘Any loss that may be ascertained and proven to be due the’ assured under this policy shall be held payable to Mrs. Matilda Dumphy as interest may appear.’ February 20, 1909, Hunter, without the consent or knowledge of either appellee or of Mrs. Dumphy, procured the issuance by another company of another policy, insuring the property in the further sum of $500, payable to Mrs. Dumphy as her interest appeared. May 22, 1909, the property was destroyed by fire. The notes made by Hunter to Mj:s. Dumphy being unpaid, she, joined by her husband and the Hunters, sought by the suit they instituted against appellee a recovery of the amount of the policy it had issued. The Hunters afterwards took a nonáuit, and the action was prosecuted by Mrs. Dumphy and her husband alone. The appeal is from a judgment in appellee’s favor, rendered on a verdict instructed by the trial court.
“By their assignments appellants complain of the action of the court in refusing to instruct a verdict in their favor and in instructing a verdict in favor of appellee.
“The policy contained these stipulations :
“ ‘This entire policy, unless otherwise provided by agreement hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.’
“ ‘If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any other person or corporation having an interest in the subject of insurance other than the interest of the insured as described therein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached or appended hereto.’ ”

There are two questions in this case, either one of which is sufficient, in the judgment of the writer, to reverse the judgment of the Court of Civil Appeals: First, the procurement of the subsequent policy of insurance under the conditions stated by Hunter without the knowledge or consent of Mrs. Dumphy did not have the effect to destroy her rights in the policy; second1, Mrs. Dum-phy’s rights in the policy were created by the rider, and were exempted from forfeiture by the terms of the policy, because the conditions of forfeiture expressed in the policy were not “written upon, attached or appended to the policy.”

There is some conflict of authority upon the question as to the construction of the policy in this case, and upon which the Court of Civil Appeals has chosen to rest its opinion with that construction which is favorable to the insurance company and against the insured.

We think that it is well established, especially by the decisions of this court, that the conditions of forfeiture contained in an insurance policy must be strictly construed as against the company. British-American Assurance Co. v. George E. Miller, 91 Tex. 419, 44 S. W. 60, 39 L. R. A. 545, 66 Am. St. Rep. 901; East Texas Fire Insurance Co. v. I-I. Kempner, 87 Tex. 229, 27 S. W. 122, 47 Am. St. Rep. 99; 19 Cyc. p. 656, § 3, and note. Following this rule, the construction of the policy and rider in this case would be that Mrs. Dumpily is not affected by those conditions of forfeiture in the policy which are not reiterated, referred to, or indorsed upon or in any wise made a part of the policy.

The procurement by Hunter of the policy of $300, payable to Mrs. Dumphy, without her consent, could not in any reasonable construction of the statute or of law make a forfeiture for her, since she had no part nor lot in the making of the contract, and knew nothing of it. It can in no sense whatever be •construed as her act, nor is it the act of the owner of the property or the payee in the original policy, and Hunter was not a payee and had no interest, except as husband to the payee in the original policy.

We therefore conclude that the trial court committed error in instructing the jury to find for the insurance company, and the Court of Civil Appeals also erred in affirming that judgment, for the reasons heroin given, which are too plain, as we regard it, to admit of argument.

It is therefore ordered that the judgments of the Court of Civil Appeals and the district court be reversed, and the • cause remanded to the district court for further trial.
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