author: HODGES. J.

text:
    LONG v. SHELTON.
    (Court of Civil Appeals of Texas. Texarkana.
    March 21, 1913.
    Rehearing Denied April 3, 1913.)
    1. Vendor and Purchaser (§ 242) — Bona Fide Purchaser — Burden oe Proof.
    Defendant in trespass to try title claiming as a bona fide purchaser without notice under a deed subsequent to that of plaintiff had the burden of proving payment of a valuable consideration and want of notice.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.]
    2. Vendor and Purchaser (§ 238) — Bona Fide Purchaser — Purchaser from Bona Fide Purchaser.
    A purchaser from a bona fide purchaser for a valuable consideration is protected by that purchase, regardless of the fact that he knew of an adverse claim under a prior deed.
    [Ed. Note. — For other cases, .see Vendor and Purchaser, Cent. Dig. §§ 580-582; Dec. Dig. § 238.]
    3. Trial (§ 141) — Question of Law or Fact -Credibility- of Witnesses.
    It is the province of the jury, not only to draw inferences and conclusions from the testimony of witnesses but to pass on their credibility as well, but when witnesses testify by deposition and are uncontradicted, and nothing is disclosed which tends to impeach their credibility and but one inference can be drawn from their testimony, the court may assume its truth.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.]
    4. Appeal and Error (§ 1062) — Review-Harmless Error — Rules of Court.
    Under rule 62a for Courts of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed for error of law at the trial, unless the court is of the opinion that the error was such a denial of appellant’s right as to cause the rendition of an improper judgment. the court will not reverse for” refusal to submit an issue of notice, where there is no probability that a jury would have determined the question differently.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.]
    5. Stipulations {§ 14) — Construction — Stipulation as to Issues.
    An agreement in trespass to try title, where the answer was a general denial and a plea of not guilty, that plaintiff and defendant both claimed under one K. as common source of title, not in any way modified or restricted, will be construed as intended to cover all that was put in issue by tbe pleadings, as affirming that K. held title, and to relieve both parties from the necessity of connecting themselves with title prior to the common source.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 24-37; Dee. Dig. § 14.]
    6. Stipulations (§ 18) — Effect — Common Source of Title — Right to Attack.
    In trespass to try title, where both parties agreed that they claimed under a common source of title, defendant could not impeach such title by showing a superior title from the sovereignty of the soil independent of his deed from the common source.
    [Eld. Note. — For other eases, see Stipulations, Cent. Dig. §§ 41-54; Dee. Dig. §.18.]
    7. Trespass to Try Title (§ 38) — Burden-of Proof — Want of Title in Common Source.
    When the common source has been shown by the introduction of deeds or other muni-ments of title, the defendant cannot defeat the plaintiff’s recovery by merely showing an outstanding title anterior to the common source, but must go further, and show that the common source had no title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.].
    8. Trespass to Try Title (§. 38) — Burden' of Proof.
    In trespass to try title, the plaintiff must show a good title in himself.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. -Dig. § 38.]
    9. Trespass to Try Title (§ 40) — Admissibility of Evidence.
    In trespass to try title, where defendant claimed a part of the land by a chain of title from a patentee, the report of a commissioner in partition, who was the grantee of the paten-tee at some uncertain date, and was not shown to have ever been divested of title, allotting the lands to defendant’s predecessors, could not be considered a circumstance to prove a transfer from him, without a showing that he had previously held title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dee. Dig. § 40.]
    10. Estoppel (§ 80) — Estoppel by Conduct.
    To establish a title in the heirs of an al-lottee of land by estoppel as against a commissioner in partition who appeared in their chain of title as a grantee from the patentee, it would be necessary to prove that the commissioner at the time the partition was made held the title to the land, that the heirs were ignorant of the true status of the title, and were by this conduct induced to alter their position with reference to their property rights.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 214, 215; Dec. Dig. § 86.]
    11. Estoppel (§ 116) — Estoppel by Conduct.
    ; The burden of proving the facts which constitute an estoppel by conduct rests upon the party claiming the benefit of the estoppel.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 306; Dec. Dig. § 116.]
    12. Trespass to Try Title (§ 41) — Sufficiency of Evidence — Title in Common Source.
    Evidence in trespass to try title held insufficient to show that the common source had title at the time he made the conveyance to plaintiff.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    13. Trespass to Try Title (§ 38) — Burden of Proof — Want of Title in Common Source.
    Plaintiff in trespass to try title seeking to defeat defendant’s claim under a better title from the common source must show that the common source had no title.
    [Ed. Note. — For other cases, see Trespass to ■Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    14. Wills (§ £81) — 1Title of Devisee— When Effective.
    An estate by . devise takes effect immediately upon the death of the testator, unless otherwise directed.
    [Ed. Note. — For other eases, see Wills, Cent. Dig. §§ 1005-1007; Dec. Dig. § 481.]

      15. Wills (§ 481) — Probate of Foreign Will — Effect on Title.
    Rev. St. 1895, art. 5353, providing for recording a foreign will after it has been probated according to the laws of the state in which the testator died, and article 5355, providing that such wills after probate and record should take effect as a deed of conveyance of the property from the time when it was delivered for record, were not intended to fix the time when the title to the property devised should vest; but, when it has been probated, the title of the devisee relates back to and becomes effective from the death of the testator, the same as title under a domestic will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1005-1007; Dec. Dig. § 481.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Action by L. D. Long against I. W. Shelton. Judgment for .defendant, and plaintiff appeals.
    Affirmed.
    See, also, 126 S. W. 40.
    Chas. S. Todd, of Texarkana”, for appellant. Mahaffey, Thomas & Hughes and N. L. Dalby, all of Texarkana, and J. B. Manning, of New Boston, for appellee.

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

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

   HODGES. J.

Appellant sued the appellee for the recovery of 177 acres of the Jonathan Collum survey situated in Bowie county. Appellee answered by a plea of not guilty. The principal assignment is one which complains of the action of the court in giving a peremptory instruction to find for the defendant

It was agreed upon the trial that Francis Kirby was the common source of title. Appellant offered in evidence a deed from Francis Kirby to himself, dated. February 17, 1896. This deed was not recorded until October 17, 1907, and after the institution of this suit. Appellee offered in evidence, as his chain of title from the common source, the will of Francis Kirby probated in Me-Nairy county, Tenn., and which was filed and recorded in Bowie county, Tex., March 26, 1904. By the terms of this will Francis Kirby devised, all of his land in Bowie county to his wife, Nancy Kirby. He next offered in evidence a deed from Nancy Kirby to her son James Kirby, dated December 23, 1901, and recorded in Bowie county October 26, 1903. He then offered in evidence a deed from James Kirby to himself, dated March 24,1904, and recorded in Bowie county March 31, 1904.

It will thus be seen that appellant holds the older deed from Francis Kirby, and is entitled to recover unless the appellee, or those under whom he claims, purchased for a valuable consideration and without notice of this prior conveyance. The burden of proving the payment of a valuable consideration and the lack, of notice rested upon the appellee. He depends for that proof upon the testimony of Nancy Kirby and James Kirby,, both of whom testified by deposition. Nancy Kirby testified that she was the wife of Francis Kirby, and that her husband lived and died in Tennessee; that he died there in 1899 at the age of 71 years; that at the time of his death he claimed and owned the land in controversy, and willed it to her; that she conveyed the same land to her son, James Kirby, in exchange for 50 acres of land situated in McNairy county, Tenn., which she valued at $500; that at the time she made this sale and conveyance she knew nothing of any claim of the appellant to the Bowie county land. James Kirby testified that he bought the tract of land in controversy from his mother in December, 1901, and as the consideration conveyed to her 50 acres of land he then owned in Tennessee which he valued at $500; that at the time of his purchase from his mother he had no knowledge or notice of any kind that the appellant claimed to own any part of the Bowie county land, or claimed an interest in it, or that he claimed to have purchased the land from his father, Francis Kirby. This witness also resided in Tennessee. The appellee testified that he bought from James Kirby and paid $500 for the land; that at the time of his purchase he knew nothing of appellant having any claim or deed to this land. There was other testimony tending to show that appellee did have notice that appellant was claiming the land.

If James Kirby purchased from his mother without notice and paid a valuable consideration, the appellee, as his vendee, would be protected by that purchase, regardless of the fact that he knew of the appellant’s adverse claim. Wallace v. Campbell, 54 Tex. 90; Hickman v. Hoffman, 11 Tex. Civ. App. 605, 33 S. W. 257; Long v. Fields, 71 S. W. 774. The question then is, Was the court authorized to assume as a matter of law that the testimony of James Kirby and that of his mother were true; or should he have submitted the issues upon which they testified to the jury ?

Generally speaking, it is the province of the jury, not only to draw inferences and conclusions from the testimony of witnesses, but to pass upon their credibility as well. But when the witnesses testify by deposition and are uncontradicted, and nothing is disclosed which tends to impeach their credibility, and but one inference can be drawn from their testimony, the court may assume the truth of their statements. Thorn v. Frazer, 60 Tex. 259; King v. Worthem, 37 S. W. 1133; Henderson v. Jones, 2 Posey, Unrep. Cas. 230; Teal v. Terrell, 58 Tex. 257. In this case there is no circumstance which in the least tends to contradict the testimony of James Kirby or of his mother upon the material facts bearing upon the main issue to be here considered. The fact that James Kirby resided in Tennessee, several hundred miles from the land and from the claimant, is a circumstance strongly in his favor as to the absence of any knowledge or notice of appellant’s adverse claim. While Kirby was a warrantor to the appellee, and to this extent may be considered as interested in the result of this litigation, he was also a war-rantee of his mother, and was protected by that warranty against an ultimate loss.

There is no probability that a jury would have determined the question of notice differently had it been submitted to them, and for that reason alone we do not feel disposed to reverse this judgment because of the refusal to submit that issue. Rule 62a (149 S. W. x). If we are correct in this conclusion, it follows that Shelton has shown the better title under the common source, and is entitled to recover.

But appellant contends that he has shown a superior title to a two-fifths undivided interest in the land from the sovereignty of the soil, independent of the deed from Francis Kirby. The record contains this agreement, appearing as a part of the evidence coming from the appellant: “It was agreed that plaintiff and defendant both claim under Francis Kirby as common source of title.” It has been expressly held in this state that, where the parties have agreed as to the common source, they cannot impeach the validity of the title in the common source. Swearingen v. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383; Wallace v. Berry, 83 Tex. 330, 18 S. W. 595; Crabtree v. Whiteselle, 65 Tex. 111; Skov v. Coffin, 137 S. W. 450; Evans v. Foster, 79 Tex. 50, 15 S. W. 170. In the last ease cited the court,- in disposing of an objection to a charge which instructed the jury that certain title'papers back of the common source were sufficient to establish plaintiff’s title, said: “This assignment cannot be sustained, for the reason that the defendant filed an abstract of his title under the statute, in which he stated that he claimed under M. J. Brinson as common source. M. J. Brinson having acquired title through the transfer of the certificate by Rachel Milliken to Leonard, the defendant could not question the validity of that or any other link in the chain of title between the sovereignty of the soil and the admitted common source. Pearson v. Flanagan, 52 Tex. 279; Glover v. Thomas, 75 Tex. 507, 12 S. W. 684.” The other cases referred to are more specific upon the proposition above stated. Counsel for appellant seeks to evade the force of that rule by insisting that the agreement copied above applied only to three-fifths of the land in controversy. The agreement is in the language quoted, and it is not otherwise contended that it was in any way modified or restricted in its meaning or application. The title to all of the land is involved in this suit. The petition was in the usual form of trespass to try title, while the answer consisted of a general demurrer and a plea of not guilty. We must therefore assume that, when the parties made this agreement, it was intended to cover all that was put in issue by the pleadings. The effect of this agreement was to affirm that Francis Kirby held the title, and to relieve both parties from the necessity of connecting themselves with the title prior to the common source. Glover v. Thomas, 75 Tex. 507, 12 S. W. 684. It was as binding upon the plaintiff as upon the defendant.

When the common source has been shown in the usual manner by the introduction of deeds or other muniments of title, the defendant is not permitted to defeat the plaintiff’s right to recover by merely showing an outstanding title anterior to the common source. He must go further, and show that the common source in fact has no title. Cocke v. T. & N. O. Ry. Co., 46 Tex. Civ. App. 363, 103 S. W. 407; Rice v. Railway Co. et al., 87 Tex. 90, 26 S. W. 1047, 47 Am. St. Rep. 72.

The burden is certainly none the less onerous on the plaintiff in showing a good title in himself.

Conceding that the appellant, notwithstanding his agreement, could show a .superior title in himself independent of the common source, has he done so? The following is his chain of title: Patent from the state of Jonathan 'Collum in 1844; deed from the heirs of Jonathan Collum to Robert Crossland, no date given; deed from A. S. Justice to C. Elliott and Reuben Long, dated 1856; deed from W. C. Walker and wife and five heirs of Reuben Long, conveying a two-fifths interest to C. M. Cason, dated 1873; deed from heirs of C. M. Cason to the appellant, dated 1906; deed from three heirs of Reuben Long to Francis Kirby, conveying a two-fifths interest, dated 1873. These instruments show a title in Robert 'Crossland with which neither party is directly connected. Appellant offered in evidence a report of commissioners appointed by the probate court in 1857. That portion of the report contained in the record is as follows: “Robert Crossland and C. Crossland and G. M. Collum, Commissioners, to Heirs of Reuben Long,' dec’d. Report of Commissioners, dated August 31st, 1857. Recorded in volume D, page 224, in office of county clerk, Bowie county, Texas. Description and remarks: This is the report of the commissioners appointed at August term, 1856, of probate court, to partition the land belonging to the estate of Reuben Long, deceased, between Cyrus Elliott and the legal representatives of Reuben Long, deceased, they being the heirs thereof, said commissioners report that they have allotted and set apart to the legal heirs of Reuben Long, deceased, one labor of land, the Jonathan Collum H. R. Survey; which said report was by said court received, approved and in all things confirmed, and it was ordered that title to said property be vested and divested accordingly.”

This report and the order approving it could be considered material evidence in this case only for two purposes: (1) As a circumstance to show that Robert Crossland had previously parted witli Ms title and that Reuben Long or his heirs had acquired it; or (2) that Orossland and those claiming under him are estopped from thereafter asserting title to the land which he as a commissioner allotted to the heirs of Reuben Long. Assuming from the mere similarity of names that the grantee of Collum’s heirs is the same Robert Orossland who acted as commissioner in the partition proceedings referred to above, there is no evidence in the record which shows when Crossland acquired his title, or when he disposed of it. In order for this conduct on the part of Orossland to be considered a circumstance to prove a transfer from him, it must first be shown that he previously held the title. In the absence of any proof of that fact, his conduct in allotting the land to the heirs of Reuben Long would be entitled to no evidentiary value upon that issue. To establish a title in the heirs of Reuben Long by estoppel, it would also be necessary to prove that at the time this partition was made Orossland held the title to the land which it is claimed he, with others, allotted to the heirs of Reuben Long; that these heirs were ignorapt of the true status of the title, and were by this conduct induced to alter their position with reference to their property rights. Bynum v. Preston, 69 Tex. 287, 6 S. W. 428, 5 Am. St. Rep. 49; Burleson v. Burleson, 28 Tex. 283; Page v. Arnim, 29 Tex, 53; Scoby v. Sweatt, 28 Tex. 713. The burden of proving the facts wMch constitute an estoppel by conduct rests upon the party claiming the benefit of the estoppel. That an owner would knowingly or ignorantly concur in the gratuitous allotment of his own land to another in a judicial proceeding to wMch he was not a party is too improbable to be assumed as a fact without evidence more satisfactory than that furnished by this record. The failure to connect himself with the patentee, Jonathan Collum, is a fatal defect in the appellant’s chain of title outside of the common source.

The facts relied upon by the appellant are also insufficient to negative the fact that Francis Kirby did acquire the title, and held it at the time he made the conveyance offered in evidence. The fact that his title does not appear of record is not inconsistent with the inference that he may have acquired it from a source, and in a manner, not disclosed by the record.

If in order to defeat the claim of a plaintiff deraigning title from a common source it devolves upon the defendant to show that the common source had no title, the duty is • certainly no less onerous upon the plaintiff when seeking to defeat the defendant claiming under a better title from the common source.

It is also insisted by appellant that the court could not treat the appellee, or those under whom he claimed, as innocent purchasers for value, because it appears from the evidence that the will of Francis Kirby was made in Tennessee, and was not recorded in Bowie county till after the ap-pellee had notice of the appellant’s adverse claim. This contention seems to be based upon the proposition that the title of Mrs. Nancy Kirby as a devisee dates only from the time the will was recorded in Bowie county. In support of that proposition we are referred to articles 5353 and 5355 of the Revised Civil Statutes of 1895. The first article referred to makes provision for recording a foreign will after it has been duly probated according to the laws of the state in which the testator died. This dispenses with the necessity of probating such wills in this state as was formerly requiréd. Article 5355 is as follows: “Every such will and testament, or testamentary instrument, and its probate, which shall be attested and proven, as provided in article • 5353, and delivered to the clerk of the proper court to be recorded, shall take effect and be valid and effectual as a deed of conveyance of. said property, and the record thereof shall have the same force and effect as the record of deeds or other conveyances to land' from the time when such instrument was delivered to such clerk to be recorded, and from that time only.” An estate by devise takes effect immediately upon the death of the testator unless otherwise directed, and the property then passes to the devisee. The different legal requirements as to probating and recording wills are merely designed as means to substantiate, preserve, and give notice of such instruments as evidences of title. The article of the statute quoted is not susceptible of the construction put upon it by the appellant. The language used was not intended to fix the event or the time when the title to the property devised should vest in the devisee, but to prescribe certain requirements as conditions precedent 'to the use of the foreigfi will as evidence of title and notice of its existence. The language is: “The record thereof shall have the same force and effect as the record of deeds or other conveyances to land from the time when such instrument was delivered to such clerk to be recorded, and from that time only.” Poole v. Jackson, 66 Tex. 380, 1 S. W. 75. A domestic will cannot be used as evidence of title till it has been probated. Moursund v. Priess, 84 Tex. 556, 19 S. W. 775; Ochoa v. Miller, 59 Tex. 460. But, when it has been probated, the title of the devisee relates back to the death of the testator, and becomes effective from that date. March v. Huyter, 50 Tex. 243; Ryan v. Railway Co., 64 Tex. 239. The same legal effect should be given a foreign will, subject, however, to the rights of supervening purchasers without notice. The evidence shows that the land was unenclosed and unoccupied, and that the acts of ownership exercised by the appellant were not sufficient to give actual notice of -his adverse claim.

The judgment is affirmed.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    RED DEER OIL DEVELOPMENT CO. v. HUGGINS.
    (Court of Civil Appeals of Texas. Amarillo.
    March 29, 1913.
    Rehearing Denied April 19, 1913.)
    1. Abatement and Revival (§ 14) — Other Action Pending.
    A former action brought to a court which has no jurisdiction of the subject-matter cannot be pleaded as another action pending.
    [Ed. Note. — For other cases, see' Abatement and Revival, Cent. Dig. §§ 105-110; Dec. Dig. § 14.]
    2. Courts (§ 169) — Jurisdiction — Amount in Controversy.
    Where the jurisdiction of a court is dependent on the amount in controversy, neither the amount of the verdict nor the prayer of the petition determine the question of jurisdiction, which must be determined by the amount claimed by plaintiff in his original petition, unless it appears therefrom that he has improperly sought to give jurisdiction where it did not properly belong.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    3. Courts (§ 169) — Jurisdiction—“Amount in Controversy” — Value oe Property.
    In suits to foreclose liens, the value of the property covered by the lien determines the amount in controversy for the purpose of determining whether the court has jurisdiction of the subject-matter; but such rule does not apply when the lien is' given by statute, and the only right conferred and asserted is to seize and sell so much of the property as may be necessary to satisfy the debt.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.

    For other definitions, see Words and Phrases, vol. 1, pp. 376-377; vol. 8, p. 7574.]
    4. Abatement and Revival (§ 14) — Courts (§ 169) — Another Action Pending — Amount in Controversy — Oil Well — Lien — Enforcement.
    Since Bev. Civ. St. 1911, arts. 5644-5649, conferring a lien for labor performed in the drilling of oil wells, does not limit the lien to so much of the property of the owner as may be necessary to satisfy the debt, but includes the entire property connected with the well, a lien claimant under such act could not confer jurisdiction on the county court by only -seeking to impose a lien on a part of the property sufficient to satisfy the debt, when the entire property connected with the well and subject to the lien exceeded $1,000 in value, and hence the amount in controversy in such action was the value of all the property, so that the county court had no jurisdiction of the subject-matter', and the pendency of a suit-to foreclose the lien in such court could not be pleaded in abatement of a suit on the same facts for the same relief in the district court, though no order of dismissal had been entered in the county court proceeding.
    [Ed. Note. — For other cases, see Abatement and Revival,' Cent. Dig. §§ 105-110; Dec. Dig. §14; Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    Appeal from District Court, Roberts County; F. P. Greever, Judge.
    Action by J. D. Huggins against the Red Deer Oil Development Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Ewing & Dial, of Miami, for appellant. J. A. Holmes, of Miami, and Willis & Willis, of Canadian, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. 6c Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellee filed this suit in the district court of Roberts county on the 5th day of August, alleging in his original petition, in substance, that on or about the 27th day of May, 1911, he entered into a contract with the defendant to work for it as a driller in the drilling of defendant’s well in Roberts county at a stipulated price of $6 per day; that under that contract he worked 25 days. For the same period of time he sought a recovery in the sum of $2.25 per day for the work of his minor son; -that about the 1st of September, 1911, he entered into a contract with defendant at an agreed salary of $125 a month, and worked under that contract until April 1, 1912, making a total sum due him of $875, which had not been paid except a sum of $30. It is further alleged that he filed his laborer’s lien against certain property of the defendant, and prayed for a judgment of $990 and a foreclosure of his lien, alleging the property to be worth $2,790. The defendant company answered first with a plea in abatement, alleging that before the commencement of this suit the plaintiff on the 5th day of April, 1912, filed his petition in the county court of Roberts county to recover from this defendant upon the identical cause of action as pleaded in this ease; that on the 8th day of July, 1912, at a regular term of the county court of Roberts county, and while said suit was still pending in said court, this defendant filed its answer to said petition, and further specifically alleging that the parties to the suit and the cause of action in the two suits were identical. In reply to defendant’s plea in abatement plaintiff filed a supplemental petition, pleading specially that in the suit in the county court the defendants had filed a plea to the jurisdiction of that court which they allege was well taken, and that the county court had no jurisdiction to try the issues therein mentioned, since said suit in said county court was defectively brought. The plea in abatement was overruled and a trial up on the merits resulted in a judgment in favor of the plaintiff in the sum of $895 and foreclosure of his laborer’s lien upon the property mentioned in the petition. It is claimed by appellee that, before filing the suit in the district court, the suit in the county court had been abandoned, and he had filed a motion dismissing the same anfi paid the costs of the county court suit in full. In the agreed statement of facts it is stated “that the values of the property upon which said laborer’s lien was sought to be foreclosed was more than $1,000.”

Appellant’s first assignment of error is that the court erred in the first paragraph of the conclusions of law, in this: In concluding (a) that the suit in the county court had been dismissed by the plaintiff; (b) that the lien sought to be foreclosed on the property' in the county court was of the value of more than $1,000; and (c) that the plea in abatement in the district court should be overruled, because the court had already found as a matter of fact that the defendant had filed its answer to the suit in the county court, and that the case had been continued one term after the defendant’s said answer had been filed, and that the court was not in session at the time plaintiff attempted to dismiss said suit in the county court, and because the record affirmatively shows that there was no order granted by the county court permitting plaintiff to dismiss said suit. It appears from the record that by the second amended original petition filed by the appel-lee in the county court he specified certain property, setting out the value thereof, upon which he prayed a foreclosure of his lien. The property so designated by him was alleged to be of the value of $990, and his prayer was a foreclosure, not upon the whole bulk of property covered by his lien, but to the extent only of the property so specified. The plaintiff’s motion to dismiss his suit in the county court was filed in vacation, and no order of the court had ever been entered granting the motion. Prior to the time plaintiff filed his motion to dismiss the defendant company had filed an answer, consisting of general demurrer, general denial, and plea in abatement, by reason of the fact that the value of the property upon which the lien was attempted to be foreclosed exceeded $1,000.

It is contended by appellant that because no order had been made by the county court formally dismissing the cause or permitting plaintiff to take a nonsuit the action was still pending in that court. The precise point involved in this case seems not to have been decided by the courts of this state. In 1 Stand. Proe. 1003, it is said: “A former action brought to a court which has no jurisdiction of the subject-matter cannot be pleaded as another action pending.” Rood v. Eslava, 17 Ala. 430; Phillips v. Quick, 68 Ill. 324; Louisville Water Co. v. Clark, 94 Ky. 47, 21 S. W. 246; Noland v. Sterling, 21 La. Ann. 277.

Our conclusion is that, if it appears from the proceedings in the district court that a suit is pending in the county court over which the county court has no jurisdiction, a plea of another suit pending cannot be maintained. Neither the amount of the verdict nor the prayer of the petition determine the question of jurisdiction, but that question must be determined by the amount in controversy as claimed by the plaintiff in his original petition, unless it appears from the petition in framing his pleading he has improperly sought to give jurisdiction where it did not properly belong. Mecca Fire Ins. Co. v. First State Bank, 135 S. W. 1083; Oneil v. Murray, 94 S. W. 1090; Mobley v. Porter, 54 S. W. 655; Jecker v. Phytides, 27 Tex. Civ. App. 410, 65 S. W. 1129; Euless v. Russell, 34 S. W. 176; Martin v. Jeffries, 153 S. W. 658. Both the petition and the amendment in the county court alleged the property to be of a value exceeding $1,000, and, as above stated, it was admitted upon the trial and appears in the statement of facts that such value exceeded a thousand dollars. It is held in Pecos & Northern Texas Railway Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, that after a suit has been instituted the plaintiff will not be permitted to remit a portion of the claim sued upon for the purpose of bringing his action within the jurisdiction of the justice court; and such seems to be the holding with reference to suits filed in the county court (Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S. W. 824), though in the latter case, on rehearing' (23 S. W. 91), it is said: “At the request of appellees, the judgment of this court will be so modified as to remand the case, in order that they may so amend as to bring their cause within the jurisdiction of the county court. If they shall amend their petition so as wholly to abandon their claim for attorney’s fees, it will be proper for the county court to entertain their suit, adjudging against them the costs accrued prior to the filing of such amendment.”

It seems to be definitely settled by the decisions of this state that in suits to foreclose liens the value of the property covered by the lien determines the “amount in controversy,” and this rule seems to be adhered to by the later cases. Kelley v. Stevens, 136 S. W. 94. Though it has been held that the rule does not apply when the lien is given by statute, and the only right given by the statute and asserted is to seize and sell so much of the property as may be necessary to satisfy the debt. Lawson v. Lynch, 9 Tex. Civ. App. 582, 29 S. W. 1128; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312; Irion v. Bexar County, 26 Tex. Civ. App. 527, 63 S. W. 550; Allen v. Glover, 27 Tex. Civ. App. 483, 65 S. W. 379.

Rev. Stat 1911, arts. 5644r-5649 (by virtue of which appellee’s lien exists), do not provide that only so much of the property as may be necessary to satisfy the debt shall be subject to the lien and sold for the payment of the debt, but by the operation of the statute the lien includes the entire property connected with the oil well. Since it is definitely settled that in suits to foreclose liens of this character, the value of the property upon which the lien has been fixed is the “amount in controversy,” and since the question of the “amount in eontrover§y” is not a mere matter of personal privilege (Land Mortgage Bank v. Voss, 29 Tex. Civ. App. 11, 68 S. W. 732), and since the defendant has an interest in the question as to what court shall adjudicate the controversy, we conclude that the appellee herein had no right to select certain property from the whole covered by the mechanic’s lien and seek to foreclose upon it without the consent of appellant. The defendant in an order of sale has the right to designate what particular property of a greater amount shall be sold first; and, while there are some 'cases in other jurisdictions which hold that the mortgagee in a foreclosure proceeding has the right to waive his lien as to part of the property (Jones on Mortgages [6th Ed.] § 1413; Mascxarel v. Raffour, 51 Cal. 242; Barley v. Roosa, 13 N. Y. Supp. 209; Bull v. Coe, 77 Cal. 54, 18 Pac. 808, 11 Am. St. Rep. 235; Norton v. Henry, 67 Vt. 308, 31 Atl. 787), we cannot under the decisions of this state, and in view of the fact that such proceeding would enable the mortgagee to deprive the defendant in order of sale of this right, follow the rule announced in such cases. It having been made to appear upon the trial of the issue raised by the plea in abatement that the value of the property involved in the litigation was beyond the jurisdiction of the county court, it becomes a matter of secondary consideration as to whether or not the county judge had formally and in term time dismissed the suit, since it was his bounden duty to do so upon the reconvening of his court. No amendment which had been or might be filed by the appellee in the county court could change the value of the property covered by appellee’s lien, and the rule announced above, quoted from 1 Stand. Proc. 1003, must govern the disposition of this appeal.

The judgment of the trial court is therefore affirmed.

       Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 69 Hun, 617.


author: REESE, J.

text:
    WHEELER v. CITY OF FLATONIA.
    (Court of Civil Appeals of Texas. Galveston.
    March 13, 1913.)
    1. Municipal Corporations (§ 822) — Streets — Actions fob Defects— Instructions.
    In an action for personal injuries and injuries to plaintiff’s automobile caused by the automobile striking a stump in a street, an instruction that the fact that plaintiff was running his automobile without lights would in itself preclude a recovery was erroneous, 'even if there was evidence that this was the proximate cause of the accident.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. § 822.]
    2. Appeal and Error • (§ 1068) — Harmless Error — Instructions.
    A judgment will not be reversed for errors in the charge, if upon the undisputed facts and upon the view of the evidence most favorable for appellant no other judgment than the one appealed from could properly have been rendered.
    [Ed. Note. — For other cases, see Appeal ánd Error, Cent. Dig." §§ 4225^1228, 4230; Dec. Dig. § 1068.]
    3. Municipal Corporations (§ 777) — Streets — Obstructions—Liability.
    Plaintiff sustained personal injuries and injuries to his automobile by the automobile striking a stump in a side street which, as compared with other streets, was used very little, and where very few persons lived. The street was on smooth level ground, and had never been fixed up or graded. By ordinance 10 feet was set apart for pedestrians, and the stump stood on the line of this theoretical sidewalk; there being no actual sidewalk. The' traveled way of the street was in good repair, free from obstructions and sufficiently wide for all purposes, but plaintiff left the traveled way for his own convenience to get closer to a house where he intended to stop. When the street was muddy, persons were in the habit of driving between the stump and the property line without interference, but it did not appear that they were invited to do so by the city authorities, nor that the street was muddy at the time. Although a city in name, the place was really a small town; the total revenue of which was less than $2,000. Held, that the city performed its duty by furnishing *a sufficient traveled way, and was not liable for its failure to remove the obstruction.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1631; Dec. Dig. § 777.]
    4. Municipal Corporations (§ 777) — Streets — Sidewalks.
    A driver on a city street was bound to take notice of an ordinance setting apart 10 feet as a sidewalk, although no sidewalks were actually constructed.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1631; Dec. Dig. § 777.]
    Appeal from Fayette County Court; George Willrich, Judge.
    Action by R. A. Wheeler against the City of Flatonia. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    John T. Duncan, of La Grange, for appellant. L. D. Brown, of La Grange, for ap-pellee.

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

   REESE, J.

This is a suit instituted by R. A. Wheeler against the city of Flatonia in the county court to recover damages for personal injuries to himself and his wife, and also to the automobile in which they were riding, alleged to have been occasioned by the automobile striking a stump in the street of the town. Damages are laid at $800, and it is alleged that the stump constituted a dangerous obstruction to travel, and that the defendant was negligent in allowing it to remain in the street. A trial with the assistance of a jury resulted in a verdict and judgment for defendant. Plaintiff made a motion for a new trial, which was refused, and he appeals.

The assignments of error complain of the giving and refusing of charges and the admission and exclusion of evidence.

None of the assignments of error complaining of the action of the court in the admission or exclusion of evidence presents material error. Some portion of the charge of the court" ánd' some of the charges given at the request of appellee should not have been given.. We call attention particularly to the charge referred to in the ninth assignment of error. There was no evidence that at the time appellant ran against the stump it was so dark he could not see it. The charge complained of in the thirteenth assignment of error was unnecessary, and should not have been given, though none of the objections made to it by appellant under this assignment are tenable, and the statement from the evidence accompanying the proposition has no application to the matter referred to in the assignment.

The charge referred to in the twentieth assignment should not have been given. There was no evidence that would authorize ithe inference that, even if appellant was running his automobile without lights," this fact was the proximate cause of the accident, or had anything to do with it, and, besides, it was error for the court to charge the jury as was done in this .charge that this naked fact would preclude a recovery by appellant whether it was or not a proximate cause of the injury.

But do these errors require a reversal of the judgment? We quote here the late rule adopted by the Supreme Court: “No judgment should -be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to ■such, a denial of. the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper. judgment in the case, or was such as probably prevented the appellant from making á proper presentation of the case to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error. Provided, if the erroneous action of failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of'Civil Appeals, and be such as may be corrected by "the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not oce'urred.” Independently of this rule, it has always been the practice in appellate courts in this state, as w.e understand it, not to reverse the judgment for errors in the charge if upon the undisputed facts;- and, upon the most favorable view of the evidence for appellant, no other judgment than the one appealed from could have been properly rendered.

Both under this long prevailing rule and under that lately adopted by the Supreme Court we think this judgment should stand. The practically undisputed evidence establishes the following facts: The city of Flatonia is a city only in name; is really a small town. Its total revenues for all purposes are less than $2,000. It is incorporated under the provisions of the general laws for the incorporation of towns and cities. On the evening of July 15, 1911, after sundown and about dusk, but at a time when persons and objects could be plainly distinguished at a distance .of 100 yards or more, appellant Wheeler, with his wife and a colored woman, who was his washerwoman, drove in his automobile, a large machine weighing over 2,000 pounds, down a street in the town of Flatonia to this washerwoman’s home for the purpose of getting the family washing of clothes. Arriving opposite this washerwoman’s house, appellant drove his automobile outside of the regularly traveled way of the street, and in doing so the axle of his machine struck a stump with sufficient force and violence to cause some damage to the machine and some injuries to appellant and his wife. The street in question, while it was generally used for travel, was a side street extending down into a portion of the town very sparsely populated, and in comparison with other streets in the business portion and more thickly settled residence portions of the town was not very much used. It had never been fixed up or graded as a city street. It did not need to be, as it was upon smooth, level ground. It was 60 or 80 feet wide. At the place where this .accident occurred there were very few persons living on this street. The persons living on it with two exceptions were negroes, and the neighborhood had acquired the euphonious name of “Happy Hollow.” By the ordinances of the city in .the residence portions the sidewalks were required to be of the width of 10 feet, and ordinances were passed to prohibit the use of sidewalks by bicycle riders and persons using teams and vehicles, not including, however, automobiles by name, of which there were in use in the town, at the time of the accident, about half a dozen. At the particular place where this accident occurred the sidewalk existed only in theory, as there was nothing to distinguish where the sidewalk ended and the street proper began, and it was shown that sometimes, when the street proper at this point was muddy, persons in vehicles were in the habit of driving on the sidewalk and -between the stump in question and the fence in front of this washerwoman’s house, and this.was tacitly allowed, or at least no steps were taken to prohibit it. The stump in question stood right across the line of the theoretical sidewalk or space set apart by the ordinance for the use of pedestrians. It was 9 feet, 6 inches, from the inside of the stump to the fence, U feet, one inch, to the outside. Appellant’s machine straddled the stump, or attempted to do so, which threw one of the fore wheels on the sidewalk or between the stump and the fence. The traveled, way of the street was in 'good repair, entirely free of obstacles, and amply sufficient in width for all purposes of travel by persons using the street, being about 40 feet in width. There was no occasion for appellant to leave this traveled part of the way used by persons who had occasion to travel along the street, except for his own convenience in getting up to the washerwoman’s house. The gate to the yard fence was 13 feet from the stump. This stump was 19 inches high, and it was shown that it was not a dangerous obstacle to the use of the street by other vehicles than automobiles, even if it had been further out into the street. Appellant did not see the stump before he struck it, and was not looking for obstructions of any kind. This stump had been at 'this place for more than two years prior to the accident. Its existence was well known to the city marshal, who took no measures to have it removed, because he did not consider it an obstruction to travel. It was his official duty to look out for obstructions in the streets, and to report them to the council.

Under the foregoing facts, we do not think the city authorities can be charged with negligence, as a basis for this action, in failing to have the stump removed. The city by the terms of the general law under which it was chartered had charge and control over its streets, and was charged with the duty to exercise reasonable care in keeping the same in repair and reasonably safe for travel. What is such reasonable or ordinary care varies with circumstances. Certainly it would be most unjust to require a small town, with such limited revenues as appellee enjoyed, to use the same care to keep its little used streets in a sparsely settled part of the town in good repair and free from obstructions as would be required of a city proper, with large revenues, with respect to streets over which, and every part of which, vehicles are constantly passing, and it would be a most onerous duty to impose upon such towns as appellee to require it to keep every part of all of its streets, whether used for travel or reasonably required for such use or not, in good repair for travel. It would entail an expense which such town could not bear, and most of it would be altogether unnecessary. This principle is well recognized by the authorities in those states where the courts have so much more frequently been called upon to decide such cases, as is here presented, than in this state, and certainly there is no principle of law or of right that would require a more exacting rule of small towns, newly organized and thinly settled, in our state, than is imposed upon municipal authorities iii old settled and thickly populated communities, whose villages are as large as our towns and whose towns are larger than some of our pretentious so-called cities. The authorities on this point will be found cited in the text-books from which we quote: “The general rule appears to be that the duty to keep in repair extends only to the ‘traveled path’ or portion of the way in actual use, provided it is wide enough to be safe.” Elliott on Roads and Streets, p. 455. And, after stating the law that forbids the placing of obstructions by individuals in any part of the street or way, this author adds: “Those cases which hold that a city or county is not liable for obstructions or defects outside of the traveled path are not in conflict with this rule, because they rest upon an entirely different prinei-pie.” Id. p. 479.

Referring to the statutes in the New England states, Judge Dillon remarks that it is probable that these statutes as construed impose in some respects a greater measure of liability than would elsewhere be held to exist by implication, and says: “Generally speaking, it may perhaps correctly be said that under these statutes a town or city charged with the duty of keeping its highways or streets in repair performs that duty when the traveled way is without obstructions or structural. defects which endanger the safety of travelers, and is sufficiently level and smooth to enable persons by the exercise of ordinary care to travel with safety .and convenience.” 1 Dillon, Mun. Corp. (3d Ed.) § 1033. And further it is said: “It is not requisite that a highway in its whole width as located should be fitted for travel. It is sufficient if it be of 'suitable width and in good condition for the needs of the public.” Id. §§ 1008-1011. Many authorities are cited by Elliott and Dillon in support of the text quoted. In 37 C!yc. p. 289, it is said that “an obstruction outside of the traveled part of the highway is not ordinarily a defect unless so near as to be dangerous to travelers,” and in the note there is a very full citation of authorities. In Burr v. Town of Plymouth, 48 Conn. 460, the gist of the decision is thus stated in the syllabus: “The ordinary traveled track of a highway had been for a long time blocked by snow, and the public travel had worn a track by the side of the road along the ditch. The plaintiff took this side track with a heavy load and broke in through a crust of ice and snow that covered a wet place, and was injured. In a suit against the town, in which the defendants offered evidence to. show that a path had been broken through the drift by the road contractor two days before the ae-eident, making the ordinary track of the highway passable and safe, it was held that it was not enough that the plaintiff thought it safer and better to take the side track, if the regular track was reasonably open and safe. A town cannot be liable for an error of judgment on the part of a traveler.” In the opinion the law is thus stated: “Towns are not insurers of the absolute safety of travelers; they are only bound to provide reasonable and proper roads for the public travel, and are not obliged to keep the whole width of the highway free from obstructions and in good condition for being driven upon, and the jury ought to have been so instructed, and that if the usual traveled way was reasonably open and in a safe condition, and the accident happened because the plaintiff chose, or deemed it more judicious, to take the side path, which proved to be unsafe, the town was not liable.” The text of the opinion indicates that the rule of duty and liability imposed by the statute was at least as exacting as that imposed by law upon ap-pellee in this case. In the case of Carey v. Town of Hubbardston, 172 Mass. 106, 51 N. E. 521, plaintiff drove outside of the traveled part of the highway (keeping within the public street however), and was injured by coming in contact with a projecting stone. It was held that if she, without any necessity therefor, drove outside of that portion of the way prepared for travel, she took the chances of contact with obstructions. In Wolf v. District of Columbia, 21 App. D. C. 464, 69 L. R. A. 83, it was held that a horse block at the edge of the sidewalk is not an obstruction to the walk, so as to render the city liable for injuries caused by a traveler falling over it.

It is established beyond controversy in this case that the stump against which appellant drove his machine was at the edge of the sidewalk, that there was a plain traveled way in the street of ample width for the use of all kinds of vehicles and entirely safe and free from obstructions, and further that plaintiff drove out of this “traveled way” and on to the sidewalk for his own convenience.

It does not matter, we think, that there was nothing to mark the line between the sidewalk and the street. By its public ordinances, of which every one is bound to take notice, 10 feet of the way was set apart as a sidewalk for the use of pedestrians. Nor does it matter that persons had not been interfered with in driving over the sidewalk at this point, when the traveled way was muddy. It does not appear that they nad been invited to do so by the city authorities, nor does it appear that this condition existed so as to excuse appellant for driving on the sidewalk at the time of the accident. Under the principles of law stated, it is clear that in no aspect in which the evidence can be viewed was appellee liable.

We have not considered the question as to the obligation of the city to keep its streets safe not only for ordinary vehicles, but for automobiles (Doherty v. Ayer, 197 Mass. 241, 83 N. E. 677, 14 L. R. A. [N. S.] 816, 125 Am. St. Rep. 355, and eases cited in note), but have conceded appellant’s right in this particular, as it was not necessary to decide the question. Nor have we considered the question of appellant’s contributory negligence, conceding, for the purpose of this decision, that he was not chargeable with negligence. If the court and jury have arrived at the right place, there is small profit and less sense in turning them back because they may have sometimes strayed from the beaten path in reaching it, and this, we take it, is what the late rule of the Supreme Court in its essence means. We conclude that the judgment should be affirmed, and it is so ordered

Affirmed.


author: PLEASANTS, C. J.

text:
    YARBROUGH v. CLARKSON et al.
    (Court of Civil Appeals of Texas. Galveston.
    April 4, 1913.
    Rehearing Denied April 17, 1913.)
    1. Evidence (§ 390) — Parol Evidence — Intent — Mistake in Deed.
    The description in a deed being definite and certain, parol evidence that other land than that described was intended to be conveyed is not admissible in trespass to try title; it being-only in a suit to correct a deed on the ground of fraud or mistake that its terms can be so varied or contradicted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719-1721, 1723-1728; Dec. Dig. § 390.]
    2. Trespass to Try Title (§ 10) — Title to Support.
    Plaintiff, in procuring a deed to himself from B. of land which he afterwards, by mistake, he claims, conveyed to defendant C., having been the agent of defendant P., who furnished the consideration, so that he never had title, but held it in trust for defendant P., judgment in trespass to try title was properly against plaintiff; the superior title being shown in defendant P.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 13; Dec. Dig. § 10.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by L. N. Yarbrough against A. E. Clarkson and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Masterson & Masterson, of Houston, for appellant. Dannenbaum & Taub, of Houston, for appellees.

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

   PLEASANTS, C. J.

This is an action in the ordinary form of trespass to try title, brought by the appellant against the appel-lees, ' A. E. Clarkson, G. J. Palmer, and A. W. Palmer. The land involved in the suit is a tract of 50 acres off the extreme north ends of the R. M. Armstrong and Frank Hamilton surveys in Harris county.

The defendants answered by general demurrer, general denial, and plea of not guilty.

The cause was submitted to a jury in the court below upon special issues, and upon the return of the verdict judgment was rendered thereon in favor of the defendants.

W. H. Bundy is common source of title. On February 27, 1906, he conveyed the land to appellant, L. N. Yarbrough, for a recited consideration of $1,000. The land thereby conveyed is described in this deed as follows: “Survey No. 8, block No. 1, Washington County R. R. Co. survey (R. M. Armstrong survey), and the Frank Hamilton or Swisher survey, containing 50 acres, being that part on north- side of county road belonging to said tracts (surveys) owned and known as the land belonging to W. H. Bundy, being about 200 yards wide and the lengths of said tracts of land.”

In March, 1906, appellant, Yarbrough, conveyed to defendant A. E. Clarkson the following described land: “Located and being in Harris county, Texas, in the John M. Swisher & Frank Hamilton 171.28-acre survey, patent No. 119, vol. 8, and Abstract No. 1220, Harris County Block Books, being the same tracts of land conveyed to W. H. Bun-dy by L. P. Boles by deed dated April 19, 1904, and recorded in Harris County Deed Records, vol. 163, p. 264, and conveyed to said W. H. Bundy by Jas. and Winnie E. Sumpter, April 23, 1904, as shown by the Deed Records of Harris county, vol. 163, p. 263. Reference is hereby made to said deeds for the metes and bounds of the land herein conveyed and for further and fuller description and identification; the land as set out in said deeds being in three tracts, all contiguous and adjoining, and containing 50 acres more or less. The said tracts include all lands belonging to W. H. Bundy lying N. of the Harris county public road and conveyed by W. H. Bundy to me, as shown by the deed on file among the Deed Records of Harris county.”

The Boles and Sumpter deeds to W. H. Bundy, referred to in the foregoing deed for a description of the land thereby conveyed, describe and convey three adjoining tracts of land in the southern ends of the Armstrong and Hamilton surveys; one of said tracts containing 18 acres and the other two 12 acres each. The defendants introduced pa-rol evidence to the effect that in making the conveyance to defendant Clarkson it was appellant’s intention to convey the land in controversy, which had been conveyed to him by Bundy by the deed first above mentioned. One of the questions submitted to the jury was what land appellant intended to convey to Clarkson by the deed of March, 1906, and the jury found that it was his intention to convey the land in controversy.

Under appropriate assignments of error appellant complains of the ruling of the court permitting appellees to show by parol that appellant intended by his deed to Clark-son to convey the land in controversy, and the judgment in favor of defendants, based upon the finding of the jury that the land in controversy was intended to be described and conveyed by said deed. Appellant’s objections to the introduction of this evidence should have been sustained. The deed in question conveys an entirely different tract of land from the one in controversy. The description in the deed being definite ana certain, it was not permissible to show by parol that other land than that described was intended to be conveyed. Davis v. George (Sup.) 134 S. W. 326. It is only in a suit to correct a deed on the ground of fraud or mutual mistake that its terms can be varied or contradicted by parol evidence.

If the judgment of the trial court was based only upon the finding of the jury that it was appellant’s intention to convey the land in controversy by this deed, it could not stand; but this is not the case. The jury also found by their verdict that appellant was acting as the agent of defendant A. W. Palmer in procuring the deed to the land in controversy from Bundy to himself, and that the consideration for said conveyance was furnished by Palmer and consisted of an interest in a stock of books owned by him. These findings are not challenged by any assignment presented in appellant’s brief, and upon the facts so found appellant never had title to the land, but only held the title in trust for Palmer, who was the real owner. This being so, the mistake in the description of the land in the deed by which appellant intended to convey it to Clarkson is immaterial.

The superior title being thus shown to be in defendant Palmer, judgment was properly rendered against plaintiff in favor of the defendants, and must be affirmed.

Affirmed.


author: TALIAFERRO, J.

text:
    GALVESTON, H. & S. A. RY. CO. et al. v. BLOCKER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 12, 1913.
    Rehearing Denied April 10, 1913.)
    1. Caeriers (§ 230) — Carriage of Live Stock — Actions for Delay — Evidence.
    In an action by shippers of live stock for damages for negligent delay, evidence on the issue of the undue delay of the defendant carrier held suflicient to go to the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    2. Carriers (§ 230) — Carriage of Live Stock — Actions for Delay — Evidence.
    In an action against a carrier for damages for delay in a shipment of live stock, evidence on the question of damages to the stock held sufficient to carry the case to the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]

      3. Appeal and Error (§ 1050) — Review-Harmless Error.
    In an action against a carrier for damages caused by delay in the shipment of cattle, the admission of testimony as to the customary time to keep cattle in the pens for food and water is harmless, where the time stated was the exact time fixed by statute.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    4. Appeal 'and Error (§ 1050) — Review-Harmless Error.
    In an action against a railroad company for damages for delay in a shipment of cattle which were loaded at 1 o’clock in the afternoon, the admission of a memorandum showing that the train did not start until 2:40 p. m. was harmless, in the absence of evidence by the carrier, to show that this time was not lost by its fault, for if the shipment was started at 1 o’clock it was longer on the road.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^157, 4166; Dec. Dig. § 1050.]
    5. Appeal and Error (§ 1050) — Review-Harmless Error.
    The admission of improper evidence is harmless, where evidence of the same nature was previously admitted without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ -1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    6. Carriers (§ 229) — Carriage op Live Stock — Damages por Delay — Verdict.
    In an action against a railroad company for damages caused by delay in a shipment of live stock, the verdict cannot be considered so grossly excessive as to reveal passion or prejudice, where the jury merely allowed the shipper the average diffeifence between the market price of the cattle on the day they should have arrived and on the day they did; no allowance being made for shrinkage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    7. Carriers (§. 230) — Carriage op Live Stock — Damages por Delay — Instructions.
    In an action against a railroad company for. damages for delay in the shipment of stock, which the shipper claimed would otherwise have reached the market a day earlier, a charge that, if the defendants had transported the cattle within a reasonable time, they would have reached the destination after the close of the market hours and would have been held over until the next day, the day on which they actually arrived, before being sold, then plaintiffs cannot recover, while awkwardly stated, places no extra burden on the carrier, but correctly presents the law.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.] ■
    Appeal from District Court, Bexar County.
    Action by J. R. Blocker and añother against the Galveston, Harrisbuig & San Antonio Railway Company and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed as to the named defendant, and reversed as to others.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden, and W. F. Ezell, all of San Antonio, for appellants. C. C. Clamp and S. S. Searcy, both of San Antonio, for appellees.

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

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

   TALIAFERRO, J.

The statement of the case, as set out in the brief of appellant Galveston, Harrisbury & San Antonio Railway Company, being .approved by the appellees and other appellants, we will adopt same: “This suit was instituted by W. H. Ford and J. R. Blocker, in the district court of Bexar county, Tex., Forty-Fifth judicial district, on November 7, 1908, against the Galveston, Harrisburg & San Antonio Railway Company, Texas & New Orléaps Railroad Company, Louisiana Western Railroad Company, Morgan’s Louisiana &• Texas Railroad & Steamship Company, and Illinois Central Railway Company, to recover damages alleged to have been sustained to a shipment of cattle on June 14, 1908, from Eagle Pass, Tex., over the lines named, to East St. Louis, Ill., it being alleged that the cattle were not transported within a reasonable time, and that the market declined, and that by reason thereof they were damaged in the sum of $3,124.12, for which amount they pray judgment. Appellants answered by general denial, and pleaded specially that the cattle were transported under and by virtue of a written contract, under the terms of which it was agreed that said stock were not to be transported within any specified time, or delivered at destination at any particular hour or in season for any particular market; and that the appellees were to load, unload, and reload said stock at their own risk for feed and water, and attend to the same at feeding or transfer points; that it was further provided in said contract that each of the appellants should only be liable for such loss or damage as occurred upon their respective lines of road; that the stock were transported with reasonable diligence and dispatch; and that if the stock were unloaded, it was for the purpose of feed, water, and rest, as required by law; and that it was necessary, under the circumstances existing at’ the time of said shipment, that said stock should be unloaded, fed, watered, and rested at the times and places they were so unloaded. Appellants also denied the existence of any partnership under oath. The cause was tried on February ,7, 1912, by the' court and a jury. The court peremptorily instructed a verdict in favor of the Illinois Central Railway Company, and submitted the case as to appellants (the other defendants'therein), and the trial resulted in a verdict and-judgment in favor of appellees, Ford and Blocker, for the sum of $1,032.96, apportioned equally among appellants.”

The appellant Louisiana Western Railroad Company, by its third assignment, and the Morgan’s Louisiana & Texas Railroad & Steamship Company and Texas & New Orleans Railroad Company, by their third assignment of ' error, contend that the trial court erred in its main charge, wherein it submitted to the jury the issue of whether or not they transported appellees’ cattle within a reasonable time, because there was no evidence authorizing the submission of such an issue to the jury. These assignments are well taken. The only evidence in the record with reference to the usual and customary time for the shipment of cattle over these lines is that of W. G. Van Yleck and Thornwell Fay to the effect that 15 miles per hour was the usual and proper speed. There is no evidence to put that question in issue, as the evidence of Blocker and Duncan refers only to the Galveston, Harrisburg & San Antonio Railway Company’s line. The court should not, therefore, have submitted this question to the jury, but should have instructed a verdict in favor of those lines of xoad.

In its first, second, and fourth assignments of error, the appellant Galveston, Harrisburg & San Antonio Railway Company attacks the verdict and judgment on the ground that they are unsupported by the evidence. A very careful analysis of the evidence reveals the following condition: The cattle were loaded at Eagle Pass as early as 1 •o’clock p. m. on Sunday, June 14, 1908. The •exact time of their departure is in dispute; but we will presume that the train started when the loading was done, at 1 o’clock, because that construction is as favorable as any other to the appellant, since, if it did not start at that time, the duty was incumbent upon it to explain the delay between that time and 2:40 p. m. The train arrived in San Antonio at 2 a. m. on Monday, the 15th, having been on the road 13 hours. There is evidence that this run, a distance of 168 miles, should have been made at 20 miles per hour, which would have been 8 hours and 24 minutes, or 4 hours and 36 minutes faster than the time actually made. There was a •30 minutes’ delay in San Antonio, and the train arrived in Houston at 12:30 o’clock p. m. the same day, a distance of 209 miles. This shows an average of a fraction more than 20, miles per hour on the Galveston, Harrisburg & San Antonio from San Antonio -to Houston, not including a necessary delay of 30 minutes at Glidden, the end of a division. At Houston the cattle were unloaded, fed, watered, and rested. It was shown that the usual and sufficient time to unload and reload such-a train of cattle is 4 hours and that the proper time to allow them to remain in the pens is 5 hours, or a total of 9 hours. The evid'ence is such as to justify the jury in believing that these cattle were kept there 14 hours, making a loss of 5 hours in this stop, which added to the loss in the tun from Eagle Pass to San Antonio shows a total loss, up to the time the train left Houston, of 9 hours and 36 minutes. The train arrived at Algiers at 12:30 a. m., Tuesday, the 17th, a run of 362 miles in 24 hours, and the cattle were again unloaded to be fed and watered. Appellant earnestly insists that this stop was made necessary by. failure of appellees to make written request to have the cattle retained in the cars more than the statutory 28 hours. But the view wé take of the case renders this point immaterial. There was evidence from which a jury could have reached either one of two conclusions: That the usual and proper time for trains to make on the Galveston, Harrisburg & San Antonio Railway was 15 miles per hour, in which case they must have found with appellant, or that 20 miles per hour was the time the train should have reasonably made, and 9 hours the proper time for feeding and rest, in which event they must have found that .there was a delay of 9 hours and 36 minutes in the run. " This was wholly a question for the jury, and the court did not err in submitting the issue to them. This ease does not come within the rule laid down in the case of Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. In that ease the court held that, where the evidence does no more than raise a surmise or suspicion of the fact sought to be proved, the court should take the question from the jury. But in the present case the evidence, though not abundant, is sharply conflicting, and it was not the province of the court to pass upon its sufficiency.

The fifth assignment of error, by appellant Galveston, Harrisburg & San Antonio Railway Company, asserts that the undisputed evidence shows that, as no request was made by the shipper for the confinement of the cattle in the cars for longer periods than the statutory 28 hours, two stops were necessary en route to feed and water, and therefore it would not have been possible to have reached the yards at East St. Louis for the market of the 18th of June. But this contention is not supported by the undisputed evidence. It has been seen that there was evidence that the proper and usual speed for such shipments, on the line of the Galveston, Harrisburg & San Antonio Railway, was 20 miles per hour, and that 9 hours was a proper time to be consumed in feeding and watering the stock. The jury might have taken that evidence as their guide, and if they did so it is ample to show that the cattle could have reached East St. Louis in time for the market on that day, after allowing a proper time to be consumed in both the stops made to feed and water. From the evidence it appears that the Illinois Central Railway carried the cattle from New Orleans to East St. Louis, a distance of 707 miles, in .something less than 34 hours, or about 21 y2 miles per hour. If appellants had made'the run between Eagle Pass and San Antonio at the rate of 20 miles per hour, and had not suffered the delay of 5 hours in the Houston yards, the cattle would have arrived at Algiers, notwithstanding, the stops to feed and water, and at the end of the division, 9 hours and 36 minutes earlier, thereby enabling them to be delivered to the Illinois Central Railway Company at 12:30' a. m. on the 17th, instead of 10:30 a. m. on the 17th, making it possible for tbe shipment to have reached East St. Louis at 11:20 a. m. instead of 9:20 p. m. on the 18th of June. The evidence shows that the market continued from about 8 a. m. to about 3 p. m., and that cattle are frequently sold as they are unloaded from the train. This evidence may not be satisfying to the mind; but it must be remembered that it is not for this court to be satisfied, but for the jury, for us it is only to say whether or not there was evidence upon which the trial court could properly submit the case to the jury and upon which rational minds could differ. We cannot say, as a matter of law, that such a case does not exist here, and the assignments are overruled.

The same can be said of the sixth and seventh assignments of error of appellant Galveston, Harrisburg & San Antonio Railway Company, and they are overruled.

Appellants complain that witnes^ J. R. Blocker was permitted .to testify that the customary time to keep cattle in pens for feeding and watering was five hours, because this answer was a conclusion and stated a matter regulated by law. If this was error, it was immaterial, because the witness stated the exact minimum time fixed by the statute. The eighth assignment is therefore overruled.

By its ninth assignment of error appellant Galveston, Harrisburg & San Antonio Railway Company complains that appellee was allowed to introduce as evidence a pencil memorandum on its shipping contract as follows: “Out 2-242, Erkel, 6-14, 2:40 P. M.” The object of the evidence could only have been to show when the train started and the name of the conductor in charge. If this was error, appellants cannot complain because it was shown that the cattle were loaded before 1 p. m. on that day. If they started at 1 p. m., they were 1 hour and 40 minutes longer on the road to San Antonio. If they started at 2:40, the time was spent at Eagle Pass instead of on the road. In the absence of evidence from appellant to show that this time was lost without the fault of appellants, which no effort was made to do, it cannot complain of its effect.

Appellant Galveston, Harrisburg & San Antonio Railway Company’s tenth and eleventh assignments of error must be overruled. They object to the introduction of C. K. Dunlap as to what was good time to be made over the Galveston, Harrisburg & San Antonio Railway Company’s line. This evidence was cumulative. The testimony of J. R. Blocker that the fair and usual time over the Galveston, Harrisburg & San Antonio Railway was 20 miles per hour was admitted without objection, and, if it was error to admit the question and answer to the same effect in .the deposition of Dunlap, the error was harmless. Pullman P. C. Co. v. Smith, 79 Tex. 468, 14 S. W. 993, 13 L. R. A. 215, 23 Am. St. Rep. 356; Wallis & Co. v. Schneider, 79 Tex. 481, 15 S. W. 492; Railway Co. v. Garteiser, 9 Tex. Civ. App. 463, 29 S. W. 939.

Appellants contend that the verdict and judgment are so grossly excessive as to reveal passion or prejudice of the jury. We do not think so. If appellees were entitled to recover at all, their damages could hardly be less. The only proof of market price is that the market was from 30 to 50 cents per hundredweight less on the 19th of June than it was on the 18th. The cattle weighed, at East St. Louis, 258,240 pounds. The jury found damages in the sum of $1,032.96, which shows that they calculated the damage at 40 cents per hundredweight, the mean damage between the two extremes of the evidence. No allowance was made for shrinkage. Under the only evidence upon the question of damages, the jury could have found no other verdict unless they found for the defendant or fixed the damages at 30 or 50 cents per hundred.

Appellant’s third assignment does not present an error. The charge complained of is as follows: “You are further charged that if you find that if said defendants, and each of them, had transported said cattle within a reasonable time, should you find they were not, said cattle would have reached East St. Louis on the 18th day of June, 1908, after the close of market hours, and would have been held over until next day before being sold, then you are instructed plaintiffs cannot recover, and your verdict will be for the defendants.”

The charge is unhappily worded, but the only meaning which could have reasonably been given to it by the jury was that, if they believed that, even though the defendants had transported the cattle with reasonable dispatch, they would nevertheless have arrived too late for the market of the 18th, and therefore necessarily have been kept over until the' following day, they should "find for defendants. This placed no extra burden upon the appellants, but properly, though awkwardly, presented the law to the jury. The assignment is overruled. The judgment in favor of the Illinois Central Railway Company is affirmed.

For the errors above indicated, the judgment of the lower court otherwise is revised, and judgment here rendered that appel-lees take nothing by their suit against the defendants Louisiana Western Railroad Company, the Morgan’s Louisiana & Texas Railroad & Steamship Company, and the Texas & New Orleans Railroad Company, and that the appellees recover from the Galveston, Harrisburg & San Antonio Railway Company the full sum of $1,032.96, with interest at 6 per cent, from date of the judgment of the lower court, together with costs incurred by reason of their suit against the Galveston, Harrisburg & San Antonio Railway Company.


author: HIGGINS, J.

text:
    CHAMBERS v. GRISHAM et ux.
    (Court of Civil Appeals of Texas. El Paso.
    April 3, 1913.)
    1. Appeal and Error (§ 14) — Writ oe Error-Right to Sue out.
    A party may sue out a writ of error after abandoning an appeal theretofore taken.
    [Ed. Note — Eor other cases, see Appeal and Error, Cent. Dig. §§ 48-57; Dec. Dig. § 14.*]
    2. Appeal and Error (§ 14) — Subsequent Writ of Error — Affirmance upon Appeal.
    The right to sue out a writ of error, after abandoning an appeal, is subject to appellee’s right to an affirmance upon certificate of the original appeal upon motion, though the transcript of the writ of error proceedings be filed before the filing of the ihotion to affirm the appeal.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Pig. §§ 48-57; Dec..Dig. §14.]
    3. Appeal and Error (§ 1127) — Affirmance of Appeal — Time of Motion.
    Appellee’s right to affirm upon certificate an appeal afterward abandoned by appellant, upon suing out a writ of error, is only available if the motion to affirm is filed before the termination of the term of the Court of Civil Appeals to which the appeal is returnable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432-4440; Dee. Dig. § 1127.]
    Appeal from and Error to District Court, Martin County; James L. Shepherd, Judge.
    Action by J. C. Chambers against M. A. Grisham and wife. On motion to affirm on plaintiff’s appeal, and to affirm the proceedings upon plaintiff’s writ of error, and to require the clerk of the Court of Civil Appeals to file a transcript of the proceedings upon writ of error granted to plaintiff.
    Motion to affirm appeal overruled, motion to affirm proceedings upon writ of error overruled, and motion to require the filing of the transcript granted.
    Theodore Mack, of Ft. Worth, A. H. Kirby, of Abilene, A. L. Green, of Stanton, and John B. Howard, of Midland, for appellant and for plaintiff in error. R. N. Grisham, of Sweetwater, and Stephens & Miller, of Ft. Worth, for appellees and for defendants in error.

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

   HIGGINS, J.

This cause was tried in the district court of Martin county and judgment there rendered on November 29, 1911, that the plaintiff, Chambers, take nothing by hi'j suit and the defendants, Grisham and wife, go hence without day. On January 6, 1912, Chambers perfected an appeal from this judgment by filing accost bond, and on March 30, 1912, the transcript of the record upon such appeal was filed by him in this court. On May 1, 1912, appellant filed a motion to dismiss his appeal, and on May 8, 1912, an order of dismissal was entered. The term of this court to which said appeal was returnable terminated on the first Monday in July, 1912. On November 26, 1912, Chambers filed in the lower court his petition for a writ of error for the removal of said judgment to this court for revision and correction, and upon the same date filed writ of error cost bond. Citation in error was served on Grisham and wife December 3, 1912. On January 27, 1913, a motion was filed by Grisham and wife praying the court to affirm the judgment of the lower court because of failure to file transcript of the record upon appeal within the time prescribed by law. This motion was accompanied by a certificate of the district clerk, in accordance with provisions of article 1610, Revised Statutes of 1911, and on February 19, 1913, this court entered an order affirming the cause upon such certificate. On March 1, 1913, a transcript of the record upon the writ of error proceedings was tendered by Chambers to the clerk of this court for filing. This was within the time within which the transcript of the writ of error proceedings could properly be filed; the time not expiring until March 3, 1913. On March 1, 1913, Chambers filed a motion for a rehearing of the judgment of affirmance upon certificate, calling our attention to the following authorities: Laughlin v. Dabney, 86 Tex. 120, 24 S. W. 259; Holland v. Brown, 152 S. W. 1195; Thorn v. Lahier, 57 Tex. Civ. App. 67, 121 S. W. 715; Telegraph Co. v. Wofford, 32 Tex. Civ. App. 427, 72 S. W. 620; Pickett v. Mead, 25 S. W. 654; Berry v. Blankenship, 30 Tex. 380. On March 7, 1913, Grisham and wife filed a motion to affirm the writ of error proceedings upon the ground that plaintiff in error had not filed in this court a transcript of the error proceedings within the time prescribed by law. On March 12, 1913, a motion was filed by plaintiff in error that the clerk be directed to file the transcript of the writ of error proceedings; the same having been tend.ered to him for filing within the time prescribed by law. When the transcript of the proceedings upon writ of error was tendered to the clerk, he declined to file the same because there was then pending the motion filed by Grisham and wife on January 27th praying the court to affirm the original appeal.

Under the authorities cited above, it is very clear that a motion to affirm an appeal upon certificate, in accordance with the provisions of article 1610, Revised Statutes of 1911, must be filed before the termination of the term of court to which the appeal was returnable; and the appeal having been returnable to the term of this court which terminated on the first Monday in July, 1912, and the motion to affirm the same not having been filed until January 27,1913, it therefore follows that the order entered by this court on February 19, 1913, affirming the cause, was inadvertent and erroneous.

The following authorities clearly establish the right to sue out a writ of error after the abandonment of an appeal theretofore taken: Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Hall v. La Salle County, 46 S. W. 863; Morris v. Morgan, 46 S. W. 667; Blackman v. Harry, 45 S. W. 610; Harrington v. Blankenship, 52 S. W. 585.

This right, however, to subsequently prosecute a writ oí error is subject to the absolute right of the appellee in the cause to an affirmance upon certificate of the original appeal; and this right of affirmance cannot be defeated, even though the transcript of the writ of error proceedings be filed in the appellate court prior to the filing of the motion to affirm the appeal upon certificate.

But this absolute right of the appellee is subject to the condition that he seasonably file his motion to affirm prior to the termination of the term of. the Court of Civil Appeals to which the appeal is returnable. Welch v. Weis, 99 Tex. 356, 90 S. W. 160; Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153; Insurance Co. v. Clancey, supra; Wandelohr v. Bank, 90 S. W. 180; Railway Co. v. Ray, 19 Tex. Civ. App. 416, 47 S. W. 477; Filhol v. Land Co., 19 Tex. Civ. App. 688, 49 S. W. 669.

The motion to affirm the original appeal upon certificate came too late, and there is nothing, to prevent Chambers from pursuing an appeal by writ of error, under the authorities above cited. It is therefore ordered: First. The order of affirmance entered herein on February 19, 1913, is revoked and set aside, and the motion to affirm the appeal, filed herein on January 27, 1913, is overruled. Second. The motion of the defendants in error, Grisham and wife, to affirm the proceedings upon writ of error, is overruled, for the reason that such transcript was tendered for filing within the time prescribed by law. Third. The motion of plaintiff in error to require the clerk of this court to file the transcript of the proceedings upon writ of error is granted, and the clerk is directed to file the same as of the date of its tender, March 1, 1913.


text:
    JACKSON et al. v. STONE et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 19, 1913.
    Rehearing Denied April 10, 1913.)
    1. Husband and Wife (§ 273) — Community Pboperty — Conveyances by Surviving Spouse.
    A conveyance by a surviving spouse of community property in payment of a debt not shown to be a community debt does not pass title to the one-half' interest inherited by the children of the deceased spouse.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.]
    2. Limitation of Actions (§ 145)' — New Promise — Consideration — Discharge of Barred Debt.
    The discharge of a barred .debt is a sufficient consideration for a new promise or a contract of any kind, because the bar against the enforcement of the debt is not a discharge of the debt, and the - debtor may recognize his moral obligation and make a contract in consideration therepf. _• N
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 584^588, 590-592; Dec. Dig. § 145.]
    3. Husband and Wife (§ 273) — Community Property — Conveyances by Surviving Spouse — Validity.
    The authority of the surviving spouse, undertaking the administration of the community estate without the aid'of the probate court, to sell the interest of the deceased spouse in the community property to pay community debts is restricted to the payment of enforceable community debts.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.]
    4. Executors and Administrators (§ 213) —Claims—Defenses—Limitations.
    A regular administrator must plead the statute of limitations against any barred claim, and he may not pay a claim that is barred by limitations.
    lEd. Note. — For other cases, see Executors and Administrator's, Cent. Dig'. §§ 749-753; Dec. Dig. § 213.]
    5. Husband and Wife (§ 273) — Limitation of Actions (§ 175) — Waiver of Limitations.
    The right to plead the statute of limitations is a legal right, and can only be waived by the person for whose protection it is given; and a surviving husband, administering, community estate without the aid of the probate court, may not waive the right for the heirs of the deceased wife.
    [Ed. Note. — For other cases, see Plusband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273; Limitation of Actions, Cent. Dig. §§ 584-588, 590-592; Dec. Dig. § 175.]
    6. Husband and Wife (§ 273) — Community Property — Conveyances by Surviving Spouse.
    The release of a debt barred by limitations is a sufficient consideration for the conveyance by a surviving husband of his interest in the community property, but passes no title to the half interest in the land inherited by the children of the deceased wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Action by T. H. Stone and another against W. J. Jackson and another. From a judgment for plaintiffs, defendants appeal.
    Reversed and rendered in part, and affirmed in part.
    V. A. Collins, of Beaumont, for appellants.

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

   PLEASANTS, C. J.

This is an action of trespass to try title, brought by appellees against the appellants to recover two tracts of land in Jasper county described in plaintiffs’ petition; one tract containing 75 acres and the other 225 acres.

The trial in the court below, without a jury, resulted in a judgment in favor of plaintiffs for one-half of the 75-acre tract and all of the tract of 225 acres, and in favor of defendants for the remainder of said 75-acre tract. ■

The land in controversy was community property of Cleyton Jackson and his wife, Maria Jackson, who died in 1883. Cleyton Jackson married a second time in 1885. After his second' marriage, and some time in the year 1885, he and his second wife conveyed to Dr. T. M. Stone the tract of 75 acres described in plaintiffs’ petition. This conveyance was made in settlement of an account for $75 due Dr. Stone by the .said Cley-ton Jackson. There is no evidence that the amount due on this account was a community indebtedness of Cleyton Jackson and his first wife, the mother of defendants. Cley-ton Jackson and his second wife lived on the 225-acre tract until 1888, when they moved to the town of Colmesneil, in Tyler county, and never again occupied their old home, though they never acquired any other homestead. The second wife died in 1895. In 1888, after he had moved to Colmesneil, he conveyed the 225 acres to Dr. T. M. Stone. The consideration for this conveyance was $100 in cash, paid to Cleyton Jackson, and the payment by Dr. Stone of a note for $50, which was executed by Jackson in part payment for the land when it was sold to him. This note was due January 1, 1880, and was therefore nearly nine years past due at the time the land was conveyed to Dr. Stone. No lien was retained, on the land to secure the payment of this note.

The trial court found that at the time he bought the land in controversy “Dr. Stone knew, or was in possession of such facts as should have induced inquiry that would have informed him, of defendants’ interest in the land.”

On November 9, 1906, Cleyton Jackson conveyed the 225 acres to the defendant W. J. Jackson.

The plaintiffs are the heirs at law of Dr. T. M. Stone, and hold the title to the land in controversy acquired by him by the conveyances before mentioned.

The trial judge’s conclusions of law upon these facts were:

First That plaintiffs having failed to show that the debt of- $75 due by Cleyton Jackson to Dr. Stone, in payment of which the 75 acres of land in controversy was conveyed by said Jackson to Dr. Stone, was a community debt of said Jackson and his first wife, defendants’ mother, said conveyance did not pass title to the one-half interest in said land inherited by defendants from their mother.

Second. That Cleyton Jackson having abandoned his home upon the 225-acre tract prior to his sale to Dr. Stone, 'the “question of homestead is not in the case.”

Third. That, though the note paid by Dr. Stone as part consideration of the conveyance to him of said 225-acre tract by Cley-ton Jackson on December 22, 1888, '“was barred by the statute of limitation, yet the said Cleyton Jackson had the right to make it a charge against the community interest of his deceased wife in said land.”

We cannot agree with the learned trial judge in the last of these conclusions. The discharge of a barred debt is a sufficient consideration for a new promise, or a contract of any kind, because the bar against the enforcement of the debt after the time fixed by the statute is not a discharge of the debt, and if the debtor, recognizing his moral obligation to pay, makes a contract in consideration of this obligation, such consideration is sufficient to support his contract.

But the authority of the surviving husband or wife to sell the interest of the deceased partner in the community property for the purpose of paying community debts is, we think, restricted to the payment of enforceable community debts. A survivor, who undertakes the administration of the community estate without the aid of the probate court, would have no authority to pay a debt which he would not be allowed to pay if he were administering the estate in the probate court under the provision of the statute regulating the administration of estates of deceased persons.

It is the duty of a regular administrator to plead the statute of limitation against any barred claim that may be presented to him for allowance, and he is not authorized to pay a claim that is barred by limitation. Moore v. Hardison, 10 Tex. 467; Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118; Cone v. Crum, 52 Tex. 348; Howard v. Johnson, 69 Tex. 655, 7 S. W. 522.

In upholding sales made by the survivor of the community for the purpose of paying community debts, unless this restriction upon the right to sue is preserved, the right of the heirs of the-deceased spouse to plead the statute of limitation against the debt of their ancestor is denied. However praiseworthy it may be to refuse to take advantage of the statute of limitation, the right to plead the statute is a legal right, and can only be waived by the person for whose protection it is given; and the surviving husband cannot not waive such right for the heirs of his deceased wife.

This view of the question presented by the appeal requires a reversal of a portion of the judgment of the court below.

In so far as the interest of Cleyton Jackson in the 225-acre tract was concerned, the discharge of the barred note was a sufficient consideration for his conveyance, and in addition to that he received a cash consideration of $100. The evidence is sufficient to sustain the finding of the-trial court that the homestead in the 225 acres was abandoned when Cleyton Jackson moved therefrom to the town of Colmesneil. There is no evidence that he or his wife ever claimed any homestead rights in the property after they moved therefrom, or ever intended to return thereto. It follows from these eonclu-sions that the judgment of the court below awarding plaintiffs the whole of the 225-acre tract should be reversed, and judgment here rendered in favor of defendants for one-half of said tract; and it has been so ordered. In all other respects the judgment of the court below is affirmed.

Affirmed in part. Reversed and rendered in part.