text:
    CROW v. CHILDRESS et al.
    (No. 7171.)
    (Court of Civil Appeals of Texas. Dallas.
    June 20, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Appeal and Error (§ 501) — Presentation oe Grounds op Review in Court Below— Exceptions — Sufeicienct.
    Under Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, providing that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to, the appellate court will not review the denial of an instruction, where the record contains no bill of exception showing that the refusal was duly excepted to.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    2. Deeds (§ 211) — Actions to Set Aside-Want of Capacity.
    In a suit to set aside a deed on the ground that the grantor was not possessed of sufficient understanding to comprehend the nature of the transaction, a verdict for plaintiffs, held contrary to the great weight and preponderance of the evidence, and to be set aside.
    [Ed. Note. — Eor other cases, .see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.]
    3. Deeds (§ 68) — Validity— Capacity.
    Neither old age, sickness, nor distress in mind or body incapacitates a grantor, who has possession of his mental faculties and understands the transaction in which he is engaged, from disposing of his property.
    TEd. Note. — For other cases, see Deeds, Cent. Dig. §§ 149-155; Dec. Dig. § 68.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by A. W. Childress and others against George W. Crow. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.

      Collins & Cummings and Morrow & Morrow, all of Hillsboro, for appellant. Dean, Humphrey & Powell, of Huntsville, and Wear & Frazier, of Hillsboro, for appellees.

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

   TALBOT, J.

A. W. Childress and others, as relatives and heirs at law of John S. Chil-dress, deceased, brought this suit against the appellant, Geo. W. Crow, to set aside a deed executed by the said John S. Childress on the 25th day of July, 1912, conveying to the appellant all of the undivided interest which the said John S. Childress owned in certain real estate situated in 1-Iill county, Tex., as an heir of Elizabeth Batson, deceased. The grounds upon which the appellees seek to set aside the deed to appellant are want of mental capacity in the said John S. Childress and the exercise of undue influence to secure the execution of said deed. A jury trial resulted in a verdict and judgment in favor of the ap-pellees, and the appellant appealed.

The issue tendered by the pleadings of the appellees, to the effect that undue influence had been exerted over John S. Childress to procure.the execution of the deed sought to be annulled, was not raised by the evidence, and was not submitted to the jury.

The first assignment of error complains of the court’s refusal to charge the jury, at appellant’s request, as follows:

“Gentlemen of the Jury: J. S. Childress had the right to convey his property or deed part of it as he wished to George Crow, and the only question for you to decide is whether, at the time J. S. Childress made the deed to George Crow, he was of sound mind; that is to say, whether at the very time he signed the deed he had sufficient understanding to know the effect of the deed, and in this connection you are instructed that neither old age, sickness, nor extreme distress of mind or body will render a oerson incapable of disposing of his property, provided he is possessed of his mental capacity and understands the nature of the business in which he is engaged, at the time of the translation in controversy.”

The action of the court in refusing this -iharge cannot be reviewed by this court. Article 1974 of the Revised Statute of 1911, is amended by the Acts of the 33d Legislature, page 113, provides that when instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he has refused, and shall subscribe his name thereto, and such instructions shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error; and article 2061 of said statute, as amended by said act of the Thirty-Third Legislature, is as follows:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

Now, there is no bill of exception in the record showing that the refusal of the trial court to give the special charge in question was excepted to by appellant, and in the absence of such bill the action of the court must be regarded as having been approved, or the error, if any, in refusing the charge waived. Mutual Life Ins. Ass’n v. Rhoderick, 164 S. W. 1067; Roberts v. Laney, 165 S. W. 114; Railway Company v. Galloway, 165 S. W. 546; Railway Co. v. Crutchfield, 165 S. W. 551; Railway Company v. Wadsack, 166 S. W. 42; Railway Co. v. Love, 170 S. W. _, decided by this court, not yet officially reported.

Appellant’s next assignment of error, which is submitted as a proposition, is that:

“The verdict of the jury should be set aside, because the evidence failed to show that, at the very time the deed to George Crow was made by J. S. Childress, he was not possessed of sufficient understanding to comprehend the nature and effect of said transaction, but, on the contrary, it affirmatively appeared from the evidence of the witnesses who were present at the time the deed was made that said J. S. Childress fully understood its effect and nature, and that at the time he was of sound mind.”

It is further contended that the court erred in failing to grant a new trial, because the verdict of the jury is against the great weight and preponderance of the evidence. After a careful consideration of the evidence as a whole, we have reached the conclusion that, if it can be said that it was of sufficient force to take the case to the jury, yet the verdict rendered is, as contended by appellant, against the great weight and preponderance of the evidence, and the court should have granted a new trial. The substance of the pertinent testimony relied on by the ap-pellees is that John S. Childress, the grantor in the deed sought to be set aside, was, at the time of the execution of said deed, an old man 87 or 88 years of age, badly diseased, and had been for 3 or 4 weeks immediately preceding his death confined to his bed; that during this time he had to be helped around something like a person who had no use of himself at all; that his sister, Mrs. Batson,' from whom he inherited the property conveyed to the appellant by the deed in question, died a few months prior to his death, and that at the time of her death he seemed to be worse than he had ever been, and that he got weaker thereafter all the time; that the said John S. Childress, and his sister, Mrs. Batson, had been living in the same house for a number of years, were closely associated, and thought a great deal of each other; that the news of his sister’s death did not seem to have any effect upon him.

The witness H. W. Grissom, a nephew of the deceased John S. Childress, said that the latter did not comment on Mrs. Batson’s death, and that if he ever shed a tear on'account of her death the witness did not see it; that sometimes, when he would go into the presence of the said Childress after his sister’s death, he would not be recognized; that sometimes the said Childress would in conversation “start out all right on a subject, and would stop maybe and start out on a different subject; that a niece of the said Childress died a few years prior to his death, and that he took her death very hard, but that his sister’s death “did not seem to bother him at all"; that witness’ mother, Mrs. Susan Grissom, one of the appellees, was a sister of the said Childress and a woman of very moderate means; that the relation between the witness’ mother and Mr. Childress during his lifetime had been very friendly; that the appellant was an unmarried man, and had lived with Mr. Childress before the latter’s death. The conclusion of this witness was that the said Childress was of unsound mind. When on cross-examination he was reminded that he had sworn that in his opinion his uncle was of unsound mind, he stated:

“I didn’t say he was crazy; the old man was absent-minded.”

A. W. Childress, a brother of the said John S. Childress, and who had been living in Arizona since about the year 1887, testified that in the month of August, just preceding the death of John S. Childress, he was at his house in Hill county, and that John S. Childress at that time “was pretty low down and sick”; that he could not tell what was the matter with him; that he just seemed drowsy all the time; that he did not recognize the witness the first day he arrived at his house; that he did recognize him on the second' day after his arrival, but did not, he thought, recognize him the third day; that his brother was weak and could not sit up long; that he stayed at his brother’s house in August three or four days, and that he did not think his mind was as good as it had been. He further said:

“I don’t think, in his condition at the time that I saw him, that his mind was sound to what it had been heretofore to a certainty.”

Mrs. Susan Grissom testified that her sister, Mrs. Batson, died July 16, 1912; that at the time of her sister’s death she was living about 200 yards from John S. Childress’ home; that the relations between her brother, John S. Childress, and herself, were friendly, and that he had cared for her ever since her husband’s death; that John S. Childress’ health was “mighty bad” for a long time before he died, and “grew worse all the time”; that at the time of Mrs. Bat-son’s death he was in a helpless condition; that she saw him often after Mrs. Batson’s death, and that she did not think he had a sound mind before her death, and that his mind grew weaker all the time; that she was “there at the place at the time that Capt. McKinnon came out there to write this deed” ; that she was in the room at the time he wrote it; that she did not stay in there, because they did not tell her anything about what they were doing, and that her brother did not look to her like he knew there was anything going on; that while Capt. McKin-non was writing the appellant, Crow, was standing by him; that at this time her brother, John Childress, wanted to get up, and called for Levi, and that she walked out in the hall, and Capt. McKinnon came out and told her that George Crow (the appellant) came after him the day before to do some writing for John, and that that was all she knew about it; that when she first went into the room where her brother was she spoke to him, and he said he was “mighty poorly”; that this was all the conversation she heard him engage in while she was there. This witness further testified on redirect examination that her brother, John Childress, had an affliction on the back of his ear a long' time ago; that the place was always tender, and he called it “king’s evil”; that in his last illness he told witness that he had never had this affliction, and that in her opinion he was of unsound mind.

Practically to the same effect as the foregoing is the testimony of several other witnesses, and in addition thereto, Gregg Campbell, a negro, testified that he had known John S. Childress all his life; that Mr. Chil-dress in his lifetime seldom went to Whitney that he did not call to see him and talk to him; that it was possibly a year before his death that he was at his house, but that he would often meet him uptown; .that he went to see Mr. Childress at his house about two days after Mrs. Batson’s death; that he did not talk with him much then, because he did not seem to want to talk; that he was then in bed, and did not know him when he went in, but after awhile recognized him; that the mother of witness died about seven years before Mr. Childress died; that Mr. Childress knew her well and knew she was dead; that one time after his mother’s death Mr. Childress was talking,-and as he (witness) was leaving to go home, Mr. Childress said: “Well, take care of Liza” (witness’ mother) ; that he remembered well that one time he bought some peanuts, and that Mr. Childress said, “When we get ready to start, you take them and give them to your children, and give some of them to Liza,” and that witness said, “Marse John, don’t you remember that my mother has been dead some time?” and that Mr. Chil-dress “just seemed to study, and never said anything, didn’t even grunt”; that they talked a few minutes longer and Mr. Childress brought up his mother’s name, and that witness said, “Marse John, don’t you recollect I told you that she was dead?” and that Mr. Childress just said, “Uh-huh;” that when he saw Mr. Childress after Mrs. Batson’s death his mind seemed to be weaker than it was when the incident related occurred; that judging from what he knew of Mr. Childress before, and his conduct and character, and from what he had seen of him after the death of Mrs. Batson, and judging from his conduct when he visited him at his home, he was of opinion that Mr. Childress was of unsound mind. This witness further testified:

“I don’t want to be understood to say that bis mind was bad at all times; it was seemingly bad to me sometimes. I don’t want to be understood to say that be was crazy. It seemed that sometimes his mind wandered. I don’t mean to tell the jury that it was that way all the time, but just sometimes.” That Mr. Chil-dress was hard of hearing and could not see well. That when he went into Mr. Childress’ room some one said that that “was- Gregg, and then he spoke up and recognized me, and seemed to kind of know me, and seemed to be glad to see me.” That they then talked about different things, about the time he had lived there, and “a right smart little bit about a Mr. Dollar, a man that used to live there, a white man, who had moved to Whitney.”

Capt. A. P. McKinnon, a witness tendered by the appellant, testified:

“I have examined the copy of the deed attached to these interrogatories, it being a deed from J. S. Childress to George W. Crow, bearing-date the 25th day of July, 1912, and I am the same A. P. McKinnon who took the acknowledgment to the original deed, to which that hereto attached is a copy. I wrote the deed inquired about. The circumstances under which I wrote it are substantially as follows: Some time prior to the date when I wrote said deed Mr. John Weich, a neighbor of Mr. J. S. Chil-dress, came to me in Hillsboro, Tex., and stated to me that Mr. J. S. Childress wanted me to come out to his house and draw up some papers for him. I told him to tell Mr. Childress that I would come any day that he would send for me. Some time after that, the number of days I do not remember, George Crow came in for me to go out to J. S. Childress’ home. I left town after dinner with George Crow, and went out to Mr. Childress’ home. We reached there some time late in the evening. I went in the house, and Mr. Childress stated to me that he was glad to see me; that he wanted to draw up some deeds. I told him that if it was agreeable to him I would defer doing it until the next morning. I spent the night at his house, and the next morning I wrote the deed in question. I wrote it at the direction of J. S. Childress, and Mr. John Weich was present a part of the time, and George Crow was present a part of the time. Prior to the date said deed was written I was acquainted with the grantor therein,_ J. S. Childress. I had been acquainted with said J. S. Childress since shortly after locating in Hill county in 1873. At the time said deed was executed the said J. S. Childress was an old man and feeble in health. After supper on the evening when I arrived at the home of J. S. Childress we talked quite a good deal. He got up and sat in a chair. I offered him a cigar, which he accepted and smoked. I cannot state in detail the conversation I had with him, but it was in reference to mutual acquaintances and past events which had occurred during each of our experiences in Hill county. The next morning, just before writing the deed, he told me that he wanted to deed to George Crow some land, and wanted to know whether he could make the deed to take effect at his death. I told him that he could. In this connection he stated that George Crow had been very kind to him during his illness, and had made sacrifices on his account, or something to this effect, and that he wanted him to have the land at his death. He also directed where the deed could be found which would enable me to get a description of the land. It is my opinion that at the time said deed was executed J. S. Childress, .the grantor, was of sound mind. I knew nothing as to George Crow having exerted any undue influence over J. S. Childress in order to procure said deed. There was nothing occurred at any time prior to the execution of said deed or afterwards which indicated to my mind that the making of said deed was not the act of.the' said J. S. Childress. If he was under the influence of the said George W. Crow, or any one else, I knew nothing about it. No occurrence happened which indicated any such thing to my mind. I located in Hill county in January, 1873, and became acquainted with J. S. Chil-dress some time after that, but I can’t say exactly when. I do not think it was later than 1874. I was not intimately acquainted with J. S. Childress, but from what I knew of him I took him to be a man of decided character. He was regarded as a splendid citizen. Further than this I cannot say.”

Counsel for defendant also offered in evidence the answers of said witness to the cross-interrogatories propounded by counsel for the plaintiffs as follows:

“Mr. John Weich first told me that Mr. Chil-dress wanted me to draw up some papers, and I went out to his home afterwards and wrote the deed under the circumstances already explained. George Crow paid the money for the services I rendered. I was at Mr. Childress’ home in the back yard when George Crow in person paid me. I do not remember that any one was present when I met J. S. Childress on the evening I went to his home when he told me he wanted me to draw up some deeds. I think George Crow remained outside putting up the horse, and I went into the house where Mr. Childress was lying down, and I do not remember that any person came in while we were talking at that time. At the time Mr. J. S. Childress signed the deed, Mr. John Weich was present, and my best recollection is that George Crow was present. I am not sure that Mr. Childress’ sister, who was living there at the time, was present or not. I do not know what Mr. J. S. Childress’ age was at the time that he signed the deed. I think he told me what his age.was the night previous, when we were talking; but I. do not remember it. It is a fact that he appeared to be an old man and he was feeble in health. It is my opinion, judging from the appearance of J. S. Childress at the time in question, that he was somewhere between 70 and 75 years old, at least he looked to be that old. I cannot remember how long it had been since I had seen J. S. Childress before writing the deed in question, but the best I can remember it had been 10 or 15 years. I do not know anything about the influence that George Crow had attempted to use with Mr. Childress to induce him to sign the deed inquired about. I was engaged in the practice of law, and I wrote the deed under the circumstances heretofore stated. After having talked with J. S. Childress, and observed the manner in which he expressed himself with reference to the execution of the deed, his ability with which he could refer to data by which the deed could be written, his inquiry as to whether it could be made to take effect at his death, it never occurred to me that any one had exercised any undue influence over him. He talked as intelligently and as correctly about things past and present as could be expected of any one not having better educational advantages. His mind seemed to be perfectly clear about the business which he contemplated transacting. There was nothing connected with the whole business which suggested or indicated to me that undue influence was being brought to bear upon him to procure the conveyance.”

Miss Savilla Childress testified:

“My name is Savilla Childress. I am 65 years of age, and reside in Hill county, Texas. I am aware of the fact that J. S. Childress executed a deed to George W. Crow about the 25th day of July, 1912. I am acquainted with J. S. Childress. I saw the deed wrote and signed. I did not have any conversation with J. S. Childress before or about the time of the execution of said deed. I did not observe anything peculiar about J. S. Childress or his conduct. In my opinion J. S. Childress’ mind was as sound at this date as it ever was. J. S. Chil-dress was 87 years old, and lived on the old home place for about 42 years. When in need of special care, G. W. Crow and L. Y. Crow were in attendance on him up to the time of his death. J. S, Childress was my brother. George W. Crow is my nephew. I was present at the time the deed inquired about was executed. There was no plan adopted, and to my knowledge there was no influence exerted, by G. W. Crow upon J. S. Childress about executing the deed in question. It is a fact that J. S. Chil-dress was very old, feeble, and decrepit on the 25th day of July, 1912. At that time he was in his eighty-seventh year, but was worse for about 5 months previous to his death. He was afflicted with old age and rheumatism. He was very feeble, but able to sit up and eat his meals regular. It is not a fact that J. S. Chil-dress was very childish on or about the 25th day of July, 1912. It is a fact that for a part of the time before his death he had to be waited upon like a child. On the 25th day of July, 1912, I lived on the old home place, where J. S. Childress lived, and was constantly associated with him. He lived with me and my sister, Elizabeth Batson, up to the time of her death, and also George W. Crow, who was living with us, for about 8 years. He died at his home place. I and G. W. Crow and L. Y. Crow took care of him during his last illness.”

Mrs. C. J. Crow testified:

“I am 63 years old and live in Hill county, Texas. I was acquainted with J. S. Childress. I was not aware of the fact that a deed had -been executed by J. S. Childress to George W. Crow about the 25th day of July, 1912, until the day of its execution. I did not have any conversation with J. 8. Childress before or about the time the execution of said deed. I did not notice anything peculiar about the conduct of J. S. Childress, either before or after the deed was executed. In my opinion his mind was sound at the time he executed the deed, and was so up to the time of his death. He was about 87 years of age, and lived on the Childress farm for about 42 years, and was looked after at the last by his sister Savilla Childress, and G. W. Crow and L. Y. Crow. I was a sister to J. S. Childress. 1 am George W. Crow’s mother. I was present at the time the deed inquired about was executed. To my knowledge there was no plan or undue influence exercised by George W. Crow upon J. S. Childress to get him to execute the deed in question. It is a fact that J. S. Childress, on the 25th day of July, 1912, was old, and feeble in consequence thereof. On that date he was about 87 years old, and his health was bad. He had been in bad health for several years from old age and rheumatism. He did not have much strength, but was able to sit up for hours at a time. It was not a fact that J. S. Childress, on or about the 25th day of July, 1912, was very childish. On account of rheumatism he had to be helped for several weeks previous to his death. On the 25th day of July, 1912, I lived on our farm about 12 miles west of Hillsboro, and about a half mile from J. S. Childress’ residence., I Wiui J. IS. Chiluress trequentiy. He lived with his two sisters at his own home. He died at his own home. His sister Elizabeth Batson took care of him before his death, and Savilla Childress and G. W. Crow and L. Y. Crow, his nephews, took care of him during his.last illness.”

C. F. Wood, a witness who was not related to the parties, testified that he saw John Childress during his last illness at his home; that they discussed the dry weather and drouth principally; that he recalled one thing that Mr. Childress mentioned, something that he had never forgot, that he said, “I am trying to learn the boys to be saving of their corn when they first gather, not to wait until it is all gone, and then commence to be saving of it;” that then they talked about other things, just the general topics of the day; that he never thought about such a thing as his mind being in bad shape, any more than he did 40 years ago; that he could not say that his mind was just as good as it ever was, but that he believed that he was a man of good sound mind.

John Weich testified:

“I was acquainted with J. S. Childress during his lifetime. I first got acquainted with him in June or July of 1873. I am not related to him. I live something between 2 or 3 miles from where he lived. I have lived a neighbor of bis ever since I have been in Hill county, .and I was well acquainted with him. I know about his making a deed to George Crow. I am acquainted with Capt. A. P. McKinnon, and have known him I expect for about 40 years. I carried a message from Mr. Childress to Capt. McKinnon. Mr. John Childress requested me to see Capt. McKinnon and find out if he would come out there and execute some papers. John Childress told me that on the Sunday before Capt. McKinnon came out there. That conversation between me and John Childress took place at his house. He was sitting up, and I was talking to him. I don’t know exactly how long we talked, maybe 15 or 20 minutes. I know that Capt. McKinnon went out there. He told me to come there the next morning and witness the papers, and I went. Capt. McKin-non was there the next morning when I went there. I did not hear any conversation between Capt. McKinnon and Mr. Childress. I saw the papers there. When I got there the paper had already been written, and when I got there Capt. McKinnon read the paper over to Mr. Childress for him to sign it. When Capt. Mc-Kinnon read the paper, I understood it to be a deed to what he had inherited out of Mrs. Bat-son’s estate to George Crow, to be in effect after his death. I read the paper over there that morning, and I heard Capt. McKinnon read it. Before Mr. Childress signed it, he said that ‘was all right’; I saw him sign it. I think Miss Savilla Childress, Mr. Childress’ sister, was present, and Capt. McKinnon and me. I could not recall whether Mr. Crow was there or not; there was more or less going through the room; they had to go through there into the dining room. George Crow was working there on the shares, and had been working there for 7 or 8 years. I know that Mr. Childress’ .feelings were friendly and kindly toward George Crow. I have heard Mr. Childress say that he did not know how he could ever repay George Crow for what he had done for him. At the time that this deed was executed and delivered, and at the time that Mr. Childress sent me after Capt. McKinnon, in my opinion Mr. Childress’ mind was as sound as it had ever been since I had known him. Of course, he was feeble, bodily; but then I don’t believe that that affected his mind a particle. I bad known Mr. Childress a little over 40 years. To my mind and to my knowing, his mind at 88, suffering with disease, was just as good as it ever was. He sufferea with rheumatism, and I believe he said he had a bowel complaint. He grew to be very feeble.”

Dr. W. R. Dean testified:

“I have been practicing medicine since ’82. I knew J. S. Childress during his lifetime. I attended him professionally during the latter part of his life. He died along the latter part of November, 1912. I was not attending Mm during the latter part of July of that year; nothing more than prescribing for him. I saw him in July, I believe. I was going to see his sister who died, I think, in July, and I usually went in and talked with him every day I was there. In my conversations with him at that time, his manner and conduct was about as usual, as far as I could see. There was nothing peculiar .or unusual about him, more than he was weak and helpless. I do not remember the space of my conversations with him, but I usually just went and talked with him, usually about his own condition and such as that. My opinion is that his mind at that time was good. I remember having a talk with Mr. Manley about tbe condition of Mr. Childress’ mind in Whitney some three months ago. I did tell him in that conversation, when he inquired of me as to what I thought about the condition of the old man’s mind, that he was just like a baby before he died. I did not tell him that his mind was off at that time in any way, I did not tell him that his mind was just like a baby’s in July. Mr. Childress had a chronic bowel trouble, and had rheumatism, and his hands would swell. Rheumatism is very wearing on the constitution of a man, especially an old man. That bowel trouble is especially wearing on a man’s constitution.”

. The record contains the testimony of several other witnesses,' apparently unbiased and disinterested in this controversy, tending to show that John S. Childress’ mind at the date of the execution of the deed in question was sound; but the length of this opinion forbids its ' quotation. Enough has been stated, we think, to show that at least the great weight and preponderance of the téstimony offered on the trial is against the verdict of the jury, and that the judgment of the trial court should be reversed. It is true that the disposition of our appellate courts is to uphold the verdicts of juries, and not to disturb them, if supported by any evidence; but, notwithstanding the uniformity of the decisions manifesting this disposition and tendency, we think that where, in the opinion of the appellate court, the great weight and preponderance of the testimony is against the finding of the jury, and is of such a character as to carry conviction that to uphold their verdict would be clearly wrong, the court should not hesitate to set it aside. That the courts not only have the right, but that it is their duty in such a case, to award a new trial, can hardly be denied. No witness who attacked by their testimony the mental capacity of John S. Childress seemed' to be willing to declare that he was insane. They said that in their opinion he was of unsound mind at times; but they were not present at the time the deed was executed, and do not speak of his mental condition at that particular time. An’analysis of their testimony discloses that their opinions were based very. largely, if not almost wholly, upon the old age and bodily infirmities of the said Childress, from which they infer that at the very time the deed was executed he was of unsound mind. The rule, as we understand it, is that neither old age, sickness, nor distress in jnind or body incapacitates, provided the testator or grantor has possession of his mental capacities, and understands the business in which he is engaged; that the test is integrity of the mind, and not the body..

Believing that the exercise of the right and the performance of the duty on the part of an appellate court, as above declared, is demanded in this case, the judgment of the court below is reversed, and cause remanded.

Reversed and remanded.

       Rehearing pending.


source: Caselaw Access Project

author: MOTJRSUND, J.

license: Public Domain

text:
    WOODS et al. v. EBERLING et al.
    (No. 5297.)
    (Court of Civil Appeals of Texas. San Antonio.
    July 1, 1914.
    On Motion for Rehearing, Oct. 21, 1914.)
    1. Schools and School Districts (§ 37)— Enlargement — Survey—Field Notes — Entry.
    Rev. St. 1911, art. 2276, provides that the commissioners’ court shall cause to be kept in the clerk’s office suitable books in which shall be recorded the proceedings of each term of the court which record shall be read over and signed by the county judge, or the member of the court presiding, at the end of each term and attested by the clerk. Held,, that where it was desired to enlarge ,a school district, and after the the survey thereof, the field notes of the enlarged district were filed and adopted by the court, and a vote taken in the enlarged district, the proceedings were not void because the order adopting the field notes and enlarging the district was not formally entered bn the court’s minutes as provided by such section.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 60-65, 67; Dec. Dig. § 37.]
    2. Schools and School Districts (§ 37)— Enlargement — Commissioners’ Action — Nunc Pro Tunc Order.
    Where an order of county commissioners adopting the field notes of a survey of an enlarged school district and creating the district in accordance therewith was inadvertently omitted from the court’s minutes, the defect could be cured by a nunc pro tunc order.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 60-65, 67; Dee. Dig. § 37.]
    3. Schools and School Districts (§ 97)— Enlargement — Bond Issue — Petition for Election.
    Where a petition for an election to determine whether bonds should be issued by an enlarged school district was not presented to the county judge, whose duty it was to call the election, until after the new district had been created, it was immaterial that it was signed prior to that time.
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. §§ 224-232; Dec. Dig. § 97.]
    4. Appeal and Error (§ 692) — Rulings on Evidence — Exclusion — Bill of Exceptions.
    A bill of exceptions to the exclusion of evidence must show what the witness would have testified if permitted to do so.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.

      Suit by Adolph L. Eberling and others against J. M. Woods and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    J. M. Woods and H. M. Wurzbaeh, both of Seguin, for appellants. Dibrell & Mos-heim, of Seguin, for appellees.

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

   MOTJRSUND, J.

The appellees, Adolph Eberling, Perd Weyel, Jr., Gustav Weyel, Herman Weyel, Louis Uhr, Jacob Yoight, and Otto Ikels, as contestants, filed this suit on August 6, 1913, against J. M. Woods, county judge of Guadalupe county, and Otto Matt-feld, Benno du Menil, Alfred Hartman, and W. M. McGee, county commissioners of said county, as contestees, questioning the validity of an election held July 1, 1913, in common school district No. 31 to determine whether bonds should be issued for the purpose of constructing and equipping a school building. Various grounds were alleged upon which the election was sought to be set aside, but it will only be necessary to state the two most important: (1) Because there was never any order made by the commissioners’‘court, in compliance with law, changing or enlarging common school district No. 31 as to embrace parts and portions of the six adjacent districts in which appellees resided and in which their property, subject to taxation, was located, and that therefore the election was illegal and void; (2) because the petition asking the county judge to order the election was not made and presented by the requisite number of legally qualifie'd property tax voters of district No. 31 as attempted to be altered and enlarged by the court on May 31, 1913, or at any time prior thereto and subsequent to December 10, 1901, the date when said district was established, but on the contrary the petition was made, signed, and presented before any attempted alteration or enlargement of district No. 31 had been made by the commissioners’ court, and that therefore the order for the election was void. Contestants alleged that they and 22 other legally qualified property tax paying voters, residing in the new territory attempted to be taken from the districts adjacent to No. 31 as established December 10, 1901, would have been entitled to vote at said election had the district been legally established 'containing such added territory, and would have voted against such bond issue, and the result of the election would have been that the bond issue would have been defeated. It was further alleged that the notices of the election did not apprise appellees that they were authorized to vote at said election, or that they had been placed in said district No. 31. As no contention is made as to the sufficiency of the pleadings, we will not state plaintiffs’ allegations in detail. The answer of contestees consisted of a general denial of contestants’ petition, and a recitation of all the proceedings relied upon to show a legal election. The court instructed a verdict in' favor of contestants, upon the ground' that the commissioners’ court had never adopted an order enlarging district No. 31 before the order was made for an election therein to determine whether bonds should be issued. Judgment was entered in accordance with the instructed verdict.

By appropriate assignments appellants contend that the evidence was not sufficient to show the election invalid. On December 10, 1901, the commissioners’ court of Guadalupe county entered an order upon its minutes transferring such county from the community system to the district system for school purposes, and dividing said county into districts. One of these districts was No. 31, to be known as the Marion district. On May 16, 1901, the commissioners’ court of said county passed and entered on its minutes the following order:

“May 16, 1913. Ordered that the Marion' school district No. 31 be surveyed and expenses paid out of the general fund.”

At the term of court beginning May 26, 1913, and ending May 31, 1913, new field notes of district No. 31, prepared by Surveyor Stein, were recorded in the minutes of the court, Book E, beginning with page 137. No order accompanied these field notes in the minutes. Such field notes included lands which had theretofore been embraced in districts Nos. 25, 26, 27, 28, 29, and 30. The county clerk testified there was no file mark on said field notes, and his recollection was that they were recorded about May 31, 1913. He recorded the field notes at the request and order of the commissioners’ court. No order was entered upon the minutes at said term with reference to districts. 25, 26, 27, 28, 29, and 30. Hartman, county commissioner of the precinct in which district 31 was situated, testified that he made a motion that the court enlarge district No. 31 and have it surveyed; that he did not, at the time, state the field notes because Mr. Stein had to survey it first; that as soon as Stein got ready the members of the court, or at least a majority, went out with him and showed him where to start, and showed him where the lines were, and a couple of days after-wards the witness went out with him and told him; that the court was not in session out in the woods; that when Stein got through with the survey he made his report, which was read over in court and adopted. On June 7, 1913, J. M. Woods, county judge of Guadalupe county, made an order for an election to determine whether bonds should be issued in district No. 31, reciting that such order was made in response to a petition presented to him on May 31, 1913, and that the district was established on May 31, 1913, The only petition on file was signed only by residents of the old district No. 31, and bears the file mark June 7, 1913.

County Commissioner Hartman testified that under his direction and instructions the petition jipon which the election was ordered was gotten up by residents’of old district No. 31, and that such petition was signed and presented to the county judge before the attempted change in district No. 31 was made. J. B.- Williams, county superintendent, testified that two petitions for an election in district No. 31 were 'delivered to him to be presented to the court, but he had no recollection of the first one being presented to the court; that the second one, the one upon which the election was ordered, was prepared by him some time between May 31st and June 7th. Notices were issued and posted in the old district and the election held at Marion on July 1, 1913. Said notices provided for an election to be held in “common school district No. 31 as established by the commissioners’ court, on May 31, 1913, recorded in Book E, pages 137-139, of the minutes of said court,” and further recited “that said election was ordered by the county judge of this county by order made June 7, 1913, and notice is given in pursuance of said order.” The election resulted in favor of the issuance of the bonds by a majority of nine votes, the order declaring the result being passed and entered on July 7, 1913. There were 29 or 30 legally qualified property taxpaying voters, including contestants, who resided in the territory which was added to district 31 according to Stein’s field notes. Five or six of these voted at said election, but none of the contestants voted. On July 17, 1913, the bonds were ordered issued and printed, and a tax levy made.

On August 23, 1913, and after this suit was instituted, the commissioners’ court passed a nunc pro tunc order, reciting that at the May term, 1913, it was duly ordered by the court that school district No. 31 be redistricted; that the territory in districts 25, 26, 27, 28, 29, and 30 which was adjacent to No. 31 be added thereto; that Wm. Stein be employed to survey, under the direction of the court, said district 31, with such added territory from said other districts and to return to the court a plat and field notes of the enlarged district No. 31, including such additions to the same as were ordered and directed by the court; that afterwards Stein surveyed said district as ordered and returned plat and field notes to the court, which were inspected, approved, and regularly adopted by the court, and all of said districts were redistricted by the court so as to create said district 31, as it is described upon pages 137 to 139 of the minutes of said court, but the order redistricting the territory covered by said districts was inadvertently abbreviated and not entered in full upon the minutes. Said order, after such recitals, provided that the districts should be as had been ordered at said May term of court, and that district No. 31 should be established as shown by said field notes and plat prepared by Stein, and that the order to that effect be entered nunc pro tunc.

In taking up the questions of law we shall first consider the ground upon which the court based his peremptory instruction.

Article 2276, Revised Statutes 1911; reads as follows:

“The court shall cause to be procured and kept in the clerk’s office suitable books in which shall be recorded the proceedings of each term of the court;' which record shall be read over and signed by the county judge, or the member of the court presiding, at the end of each term and attested by the clerk.”

This article is construed not to render void an order made by the commissioners’ court, but not entered upon the minutes. Marshall v. Simmons, 159 S. W. 91, and cases therein cited. In this case, therefore, if the recording of the field notes of the enlarged district No. 31 in the minutes of the court, ' which presumably were read over and approved as provided by the statute, did not constitute the adoption of such field notes and rhe creation of a district in accordance therewith, still, by the nunc pro tunc order entered on August 23, 1913, it is established that an order adopting said field notes and creating the district in accordance therewith was actually passed by the commissioners’ court. We conclude that there was a valid order made by the commissioners’ court enlarging school district No. 31, making same correspond to the Stein field notes recorded in the minutes of the court.

The argument advanced by .appellee for requiring valid orders to be on record creating districts before bond elections are ordered therein is very convincing, and probably the statute should so provide, but we are merely following the statute as construed by our Supreme Court in holding that the order is valid, though not entered upon the minutes. In this case there was sufficient upon the minutes to put any one examining the same upon inquiry, if not satisfied from an examination of the order for the survey and the field notes entered in the minutes that the district was changed so as to correspond with said field notes.

We will next consider appellees’ contention that the judgment of the court should be sustained on the ground that the petition for the election was not sufficient in law. Unless the recital in the county judge’s order for the election is conclusive as to the date when the petition was presented to him, it cannot be said, as a matter of law, that the petition was presented to him upon May 31, 1913, because it shows to have been filed on June 7, 1913, and there is a conflict in the testimony of Hartman and Williams-upon the question whether the petition was signed before or after the creation of the new district. If it was presented to the judge on May 31, 1913, it is apparent from the testimony, as to how the signatures were procured that some of the names were signed prior to the time the new district was created, if it in fact was created on May 31, 1913, as the testimony of the clerk and the recitals in the order for the election and the notice of election indicate. But we do not think the mere fact that the petition was signed prior to the creation of the district would invalidate the petition if the same was signed for the purpose of procuring an election to he held in the enlarged district. It could be signed in advance with the understanding that it would be presented as soon as the district should be legally created. The petition does not state whether the election was sought to be held in the old district or the new one, and if the new district was created on May 31, 1913, and the petition presented the same day as is indicated by the county judge’s recital in the order for the election, still it does not follow that the petition was presented prior to the adoption and creation of the new district. Hartman testified:

“We had this petition in our possession before we ever passed the order changing the district.”

He denied that more than one petition was presented to the commissioners’ court, and said:

“The district as enlarged has never presented a petition to the commissioners’ court for a bond election.”

According to his testimony he received the petition by mail after it had been signed by the other petitioners, and then signed it himself. He does not say when it was. presented by him to the county judge, but we think the natural inference is that after he had the petition before the court and the district was created, he turned it over to the county judge. At least, there is no testimony to the contrary. The law does not require the petition to be presented to the commissioners’ court, and if there was a second petition, it was not necessary that it should be presented to the court, but merely to the county judge. Surely Hartman did not mean that the petition he signed was intended for the purpose of calling an election in a precinct which he was actively engaged in abolishing. The fact that he told Bolton to have it signed only by residents of the old district, because they could not take any one from the new district on account of it not being adopted and surveyed, does not prove that he did not intend the petition for the new district, but merely that he thought it would be safer to get signatures of those residing in the old district, because there was some uncertainty as to the extent of the territory which would be added thereto. There is nothing in the record showing that the signers of the petition did not fully understand the situation, or that Hartman was not authorized to act for them in presenting the petition to the judge at the time he did so; and, as it is not shown that it was presented to the judge during the existence of the old district, it was not necessary for contestees to show that the signers intended it as a petition for an election in the new district. If presented after the creation of the new district by a person cognizant of the facts, the judge could assume that such person was authorized by the other signers to so present it. We conclude that we cannot sustain the second contention urged by appellees as a ground for sustaining the judgment of the court.

Appellees’ contention that the court should have made an express finding that a necessity existed for changing district No. 31 is without merit.

The eighth assignment is overruled, because the bill of exceptions fails to show what the witnesses would have testified.

The burden of showing the invalidity of the election rested upon contestants. This burden has not been discharged, and a verdict should have been instructed in favor of the contestees. The first seven assignments of error are sustained, the judgment is reversed, and judgment here rendered in favor of appellants.

Reversed and rendered.

On Motion for Rehearing.

Appellees contend that the nunc pro tunc order was only admitted in evidence for the purpose of showing the date of its passage, and that it cannot be given any probative value as against them because entered after this suit was filed and without notice to them. The statement of facts shows the introduction of this order by appellees, and we find no statement that it was admitted only for the purpose of showing the date of its entry. Appellees are in error in saying it was not offered in evidence by appellants, for the statement of facts contains the following statement just before the conclusion of Hartman’s testimony: “The order nunc pro tunc was here admitted.” No objection appears to have been -made to its admission, but even without such order, we think the evidente establishes the fact that the court adopted the Stein field notes as those of district No. 31. The fact that they were formally adopted as the field notes of said district was probably sufficiently shown by their appearance upon the minutes, which we must presume were read over and found correct and signed as required by law. But if anything more is needed than such entry, Hartman’s testimony establishes the fact that Stein’s report was adopted by the court; in other words that the field notes appear upon the minutes pursuant to their formal adoption by the court A This is equivalent to saying that the court passed an order adopting the field notes as the boundaries of district No. 31. Appellees contend that the first order entered by the court was one to have a survey made, and not to redistrict, and that such order cannot be varied or contradicted by Hartman's testimony to the effect that he made the motion, and that it was really a motion to enlarge the district and have it surveyed. They also contend that the motion as described by Hartman was too indefinite to base an election upon. The first order is not important in view of the fact that after the survey was made the court adopted the field notes as those of district No. 31. Such act established the district according to the field notes, regardless of all previous orders, and regardless of whether other districts were properly described or not.

The motion for rehearing is overruled.


author: TALBOT, J.

text:
    POWELL v. MARCH et al.
    (No. 7184.)
    (Court of Civil Appeals of Texas. Dallas.
    June 20, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Limitation of Actions (§ 100) — Running ojt Statute — Action Based on Fkaud.
    Where the grantor fraudulently misrepresented the number of acres conveyed, neither the two nor the four years statute of limitations will begin to run against an action for damages for shortage, until the fraud is discovered, or until by the use of reasonable diligence it could have been discovered.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. ’Dig. § 100.]
    2. Limitation of Actions .(§ 177) — Pleading — Avoidance of Limitations.
    Where one seeks to avoid the bar of limitations, on the ground of fraud, he must allege the facts upon which he relies, so that the court may determine from the pleadings whether the statute has been tolled.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 663-666; Dec. Dig. § 177.]
    3. Limitation of Actions (§ 199) — Pleading— Question for Court.
    Where a plaintiff seeks to avoid the bar of limitations on the ground of defendant’s fraud, and his petition shows a failure to avail himself of means of information, the question whether the statute was tolled is one for law of the court.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 727-730; Dec. Dig. § 199.]
    4. Limitation off Actions (§ 100) — Running Off Statute — Fraud.
    .Where a grantor fraudulently misrepresented the number of acres conveyed, a purchaser from his grantee cannot toll the running of limitations against his action for deficiency by claiming that he relied upon the representations of the original grantor that the property had been surveyed and contained the number of acres claimed, there being no such peculiar relation of confidence and trust between the parties as would bring them within the rule that where a seller possesses information concerning the property, and fails to disclose it to the buyer, the failure to disclose his exclusive knowledge affords ground for relief.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.]
    5. Limitation of Actions (§ 182) — Pleading —Necessity.
    In an action by the ultimate purchaser of land against his immediate grantor and the original grantor for damages for shortage, the immediate grantor, who did not plead limitations and admitted the truth of the allegations of the petition, seeking by cross-action judgment agajnst the original grantor, cannot take advantage of the bar of limitations relied upon by the original grantor.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705; Dec. Dig. § 182.]
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Action by C. H. Powell against John Abe March, Jr., and others, and Ed. Coston. From a judgment for defendants, plaintiff appeals.
    Affirmed in part, and in part reversed and remanded.
    Wright & Patrick, of Paris, for appellant. Newman Phillips, of Cooper, and A. H. Dashiell, of Terrell, for appellees.

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

   TALBOT, J.

Appellant brought this suit August 29, 1911, against the appellees to recover the sum of $1,936, with interest thereon at the rate of six per cent, per an-num from the 23 d day of March, 1907, the value of an alleged shortage of 35V10 acres in the quantity of certain lands sold him. The petition alleges: That on the 2d day of February, 1907, the appellee E. D. Coston,. who resided in Delta county, Tex., sold and conveyed to John Abe March, who resided in Tom Green county, Tex., certain lands situated in Delta county, Tex. That said lands were purchased by the said John A. March by the acre for the sum of $50.77 per acre, and that the said appellee Coston represented to the said March that the lands conveyed to him consisted of 498Vio acres, being 260.-6 acres in the N. Petty survey and 237.7 acres in the H. Petty survey, and promised, before making the deed, to have same surveyed by the county surveyor, and to incorporate the field notes prepared by said surveyor into said deed of conveyance. That Coston had the lands surveyed by the county surveyor, who correctly surveyed the same and returned to said Coston true and correct field notes for said two tracts of land. That by reason of his being a resident of Tom Green county and being such a distance from the land in question, said John Abe March could not personally supervise said surveying, but, reposing special confidence in the honesty, integrity, and fairness of defendant Cos-ton, said March permitted said survey to be made under his direction, and said Coston reported to defendant March that said survey had been made, and that the deed made by Coston to March contained the correct field notes of said two tracts of land, and that the total acreage of same amounted to 498Vio acres as stated in said deed. That said statements and representations so made by Coston were believed by said March to be true, and were relied and acted on by him, but that said statements were false and untrue, and were knowingly, fraudulently, and deceitfully made by said Coston for the purpose of inducing said March to consummate said trade or sale, be, the said Coston, knowing that said March would not consummate said sale if said tracts did not contain 498Vio acres as stated in said deed, and knowing that said March believed in his integrity and honesty, and that by reason of his residence in Tom Green county and distance from said land could not question the statements of said Coston as to acreage after having a survey made of said land. That said Coston, for the purpose of defrauding said March, fraudulently and deceitfully changed and altered the field notes prepared by the surveyor, increasing some of the calls in same, changing the two calls on the northern boundary as follows: The -first from S3 poles to 49% poles; the second from 41 poles to 51% poles, the east and west boundary line being 209% poles, which falsely showed the acreage of said land to be 352Ao acres in excess of the true acreage of same, and thereafter said Coston falsely and fraudulently incorporated said field notes as changed by him into the deed to said March, and falsely and fraudulently represented to said March that said deed contained the true and correct field notes of said land and said tracts, an acreage of 498Vio acres, when in fact it only contained 4632Ao acres. That said March accepted and paid for 352/io acres of land, the sum of $50.77 in money, or its equivalent, which he did not receive, believing same to be conveyed by said deed, when if he had known the real facts, he would not have consummated said sale.

It is further alleged that the said John Abe March exercised reasonable diligence and care in having said land surveyed as aforesaid, but that by reason of his confidence in the honesty and integrity of said Coston he did not discover said fraud; that on the 23d day of March, 1907, by a warranty deed of same date, the said John Abe March conveyed the same land conveyed to him by Coston to C. H. Powell and W. T. Cawley, of Tom Green county, Tex.; that the said land deeded to said Powell and Cawley by said March was represented by him to contain 498V10 acres, being 260<yiO acres in the N. Petty survey and 237Vio acres in the H. Petty survey, and is so stated in said deed, and the field notes given in said deed show said two tracts to contain the respective amounts above set out; that at the time said March made the representations above set out, which were wholly false, he also represented to said Powell and Cawley that it would be a useless and unnecessary expense on their part to have said land surveyed; that prior to his purchase, he had the county surveyor of Delta county survey both tracts of land and that the field notes contained in his (March’s) deed from E. D. Coston and the acreage shown therein, were the actual field notes of said land made from survey of same, and the acreage computed by the surveyor therefrom, all of which representations and statements as set out were false and untrue, but were believed and relied on by said C. H. Powell and W. T. Cawley, and, so believing and relying on same and on the honesty and integrity of said March, they refrained from having said land surveyed, and paid said March therefor according to the acreage represented by him and shown by said deed; that said land was purchased by said C. H. Powell and W. T. Cawley by the acre for the sum of $55 per acre, or its cash equivalent in the value of certain lands deeded said March by Powell and Cawley; that the representations made by March to Powell and Cawley, as to the acreage contained in said tracts and as to the correctness of the survey made thereof by him, were false and wholly untrue, but that said E. D. Coston, as heretofore alleged, had falsely and fraudulently and deceitfully increased the length of the two calls on the northern boundary of said survey, and changed the true field notes of the surveyor as heretofore alleged, so as to show in said deed and by said field notes that said survey contained 352Ao acres more than it did actually contain, and said Powell and Cawley, believing and relying and acting on the representations and statements heretofore made, paid said March therefor the sum of $55 per acre cash or its equivalent in the actual value of said lands deeded said March in consideration of said conveyance, when if they had known the real facts, and that said tracts did not contain the 352Ao acres, they would not have consummated said sale; that on the 10th day of November, 1908, the plaintiff, C. H. Powell, who was a partner of W. T. Cawley in the purchase of the lands heretofore described, without the knowledge of the fraud that had been perpetrated by said E. D. Coston, add still believing that said tracts contained the acreage shown by said deeds and field notes, and relying upon the correctness of the survey heretofore made for March and upon the integrity and honesty of said Coston and March, purchased from W. T. Cawley by warranty deed of said date, for the sum of $55 per acre in cash or its equivalent in partnership lands deeded said W. T. Cawley, his undivided one-half interest in the two tracts of land heretofore described; that at the time of said last-named purchase, both said C. H. Powell, and the defendant, W. T. Cawley, were mutually mistaken as to the acreage of said land, and, relying on representations heretofore set out as to the acreage of said tracts and as to the correctness of surveys of same and correctness of field notes in the deeds, believed said acreage to be as stated in said deeds and to avoid useless expense of survey did not have said land surveyed; that the said fraud perpetrated by defendant Coston and March as aforesaid upon this plaintiff was not discovered until the 15th day of July, 1911, when, desiring to sell a portion on the east side of said survey to F. D. Shelton, lie bad the same surveyed, and it fell short, whereupon the plaintiff then had another survey made of the entire tracts, and discovered the shortage as heretofore set out. Plaintiff avers that he would not have purchased same if he had known of the shortage; that by reason of the fraud and deceit of the defendant E. D. Coston as heretofore set out, and the false representations and fraud of the said John Abe March and of the mutual mistake of W. T. Cawley and plaintiff as heretofore set out, this plaintiff has been deprived of the sum of $1,936, with interest on said amount from the 23d day of March, 1907, at the rate of 6 per cent, per annum; that all of said land contained in said two tracts is of like kind, character and value, and that all of the fraudulent acts, representations, and statements heretofore referred to were done and made in Delta county, Tex., on to wit, the-day of-, 1907, and the-day of-, 1908; that since the matters heretofore set out, the said John Abe March has died; that John Abe March, Jr., Lueile March, and Lela Neill (nSe March) and husband, Robert T. Neill, are the sole heirs at law of said John Abe March, deceased, and are the present owners of all of the estate of the said John Abe March and of the' lands and moneys paid him by plaintiff for said land, and as such are responsible to plaintiff for said land, and as such are responsible to plaintiff for said fraud and deception of the said John Abe March, deceased. That plaintiff made inquiries as to the character of E. D. Coston and of his reputation for truth and veracity before purchasing said property, and was advised that same was good, that he personally knew the reputation of John Abe March to be good, and that he exercised all possible diligence to discover any fraud, but same was not discovered by him until the date heretofore alleged; that the original fraud practiced by the said E. D. Coston on John Abe March proximately caused plaintiff to be deprived of his money as set out, in that it caused the fraud and deceit of John Abe March, plaintiff’s immediate grantor, and rendered possible the mutual mistake of plaintiff and W. T. Cawley.

The defendant Coston pleaded a general and special demurrer to plaintiff’s petition, and a special answer, which it is unnecessary to state. The other defendants answered, admitting that the allegations of plaintiff’s petition were true, but charged that whatever representations or warranties the said John A. March, deceased, had made, in reference to the quantity of the land sold—

“were made by him innocently and in reliance upon and belief in the statements and representations made to him by his immediate grantor, E. D. Coston, that the fraud, if any, with reference to the amount of land obtained in the II. Petty headright survey conveyed by John Abe March to C. H. Powell and W. T. Cawley was caused wholly by the false and fraudulent representations made to the said John Abe March by the defendant E. D. Coston, said representations being both verbally and by-his written deed.”

The prayer of the answer of these defendants is for judgment against E. D. Coston for the sum of $1,936, as same is prayed for in plaintiff’s petition. When the case was called for trial the defendant Coston presented his demurrer to plaintiff’s petition, asserting that it showed upon its face that the cause of action alleged was barred by the statutes of limitation of two and four years. This demurrer was sustained, and, the plaintiff declining to amend, the case was dismissed and he appealed.

Appellant presents two assignments of error but a disposition of the first will dispose of the second. The first is as follows:

“The court erred in sustaining defendants’ special exceptions and demurrer setting up the statute of limitations of two and four years to plaintiff’s petition and in rendering judgment dismissing plaintiff’s suit, for the reason that the facts set out in plaintiff’s petition show that plaintiff’s cause of action was not barred by either the two or four years statute.”

The proposition contended for is that:

“The cause of action was not barred either by the statute of limitations of two years or four years, for the reason that the petition showed on its face that plaintiff was prevented from discovering the shortage by fraud and mutual mistake and did not discover the same until the 15th day of July, 1911, a short time before filing suit, although plaintiff used due diligence.”

It is the settled law of this state that fraud prevents the running of the statute of limitations only until the fraud is discovered, or until by the use of reasonable diligence it could have been discovered. Smith v. Fly, 24 Tex. 350, 76 Am. Dec. 109; Munson v. Hallowell, 26 Tex. 475, 84 Am. Dec. 582; Anding v. Perkins, 29 Tex. 348; Bremond v. McLean, 45 Tex. 10; Kuhlman v. Baker, 50 Tex. 636; Alston v. Richardson, 51 Tex. 6; Bass v. James, 83 Tex. 110, 18 S. W. 336; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48. So that “the right of action will be deemed to have accrued when the fraud was, or by the use of reasonable diligence could have been discovered, and limitation is put in motion from such date.”

The acts ' constituting the fraud charged are fully set out in plaintiff’s petition, but it is only alleged that March “exercised reasonable diligence and care in having said land surveyed,” and that “by reason of his confidence in the honesty and integrity of said Coston did not discover said fraud,” and “that plaintiff made inquiries as to character of E. D. Coston and reputation for truth and veracity before purchasing said property, and was advised that same was good; that he personally knew the reputation of John Abe March to be good, and that he exercised all possible diligence to discover any fraud.” Thus in the most general terms does the plaintiff allege the diligence exercised by him to discover the fraud charged to have been practiced by the defendant Coston, and it seems useless to discuss the proposition that such allegations are insufficient to meet the requirements of the rule of pleading in such case adopted in this state. The rule, where one seeks to avoid the bar of the statute on the ground of fraud, is that he must allege the facts upon which he relies, -so the court may determine from the pleadings whether he is entitled to the relief sought, assuming, as must be done on demurrer, such allegations to be true. If, as has been well said, it •appears from the complainant’s own allegations that the means were at hand to readily discover the fraud complained of, and such means of information would have been used by a person of ordinary care and prudence in the transaction of his own business, then he will be held to have had notice of everything which a proper use of such means would disclose; and, a ifailure to avail himself of such means or avenues of information appearing, the issue presented is one of law for the decision of the court, and not a question of fact for the determination of the jury. Boren v. Boren, supra. The plaintiff alleged that the representations made by the defendant Coston and the. fraud practiced by him occurred on or before the 2d day of February, 1907, and that the fraud was not discovered by him until July 15, 1911, when, desiring to sell a portion of the land in question, he had it surveyed and discovered the shortage of the land, and the excuse offered for not sooner discovering it, and hence the fraud, is that he relied upon the special confidence reposed by John A. March, Sr., one of the grantors, “in the integrity, honesty, and fairness of defendant Coston,” whereby the said Coston was permitted to have the land surveyed, etc., and therefore failed to resort to that method himself to ascertain the quantity of the land he was buying. This we think was insufficient. No such'peculiar relation of confidence and trust is shown as would bring the case within the rule that where one of the parties possess information concerning the rights of the other to property contracted for and fails to disclose his exclusive knowledge, such failure affords grounds for relief. The ease made here by the pleading in this respect is that the plaintiff relied upon his, or March’s, confidence in the integrity, honesty, and veracity of Coston to have the land surveyed and correct field notes incorporated into the deed, and for that reason did not resort to the very simple and usual means at hand of surveying the land to find out the number of acres in the tract. That such reliance is not a sufficient excuse, especially after the elapse of so long a time, for the failure to use the means at hand to discover fraud of the character charged against Cos-ton is affirmed by the case of Bass v. James, cited above, in which the facts were quite similar to the facts in the ease at bar. In that ease it appears that Bass relied upon his confidence in the integrity and veracity of James “as an excuse in failing to resort to the usual methods to ascertain the quantity of land he was buying,” and there, as here, it did not appear that during the time that intervened between the making of the alleged fraudulent representations and the filing of the suit appellee “made any representation or did anything that was calculated to keep alive the effect produced by the representations made when he sold the land, or that was calculated to induce appellant not to use reasonable diligence to discover and ascertain the quantity of land contained in the calls of his deed,” and it was held that limitation ran from the date of sale, and that two years would bar the action. In this connection the Supreme Court quoted with approval the following remarks made in the case of Kuhlman v. Baker, 50 Tex. 636:

“If the alleged fraud constituted a sufficient reason why appellant did not, at the time the sale was made, discover that the quantity was not as represented, his subsequent failure to inform himself of such an important matter as the quantity of land contained in the tract purchased was attributable to his neglect and want of ordinary precaution. It does not appear that after the sale any intervening representations were made by appellee as to the quantity of land that would induce appellant to relax the diligence required of him as an ordinary prudent man to ascertain the quantity of land he actually purchased.”

Following this quotation, the Supreme Court, speaking through Judge Fisher, said:

“If the existence of confidence in the integrity and veracity of the vendor is a sufficient excuse to relieve the vendee from the use of ordinary diligence to discover so important a matter as the quantity of land sold, then this excuse would be effective so long as the confidence continued, and limitation would commence to run, not from the time that the quantity of land could have been discovered by the exercise of ordinary diligence, but from the time the confidence ceased to exist. We do not believe it is the policy of the law that this operation of the statute should depend upon such an uncertain contingency, the happening of which is dependent upon a ‘chapter of accidents.’ The presumption is that if the party affected by the fraudulent transaction might with ordinary care have seasonably detected it, he seasonably had actual knowledge of it. If three years after the transaction the appellant by methods then used successfully detected the fraud, we see no reason why a resort to such methods before then could not have accomplished the same purpose. We think the court rightfully held the action barred.”

These remarks are peculiarly applicable to the ease before us as made between the plaintiff and the defendant Coston, and we conclude that the judgment as to them should be affirmed.

A different disposition of the appeal, however, must be made as to the appellees, Lela Neill, Robert Neill, John March, Lucile March, and W. T. Cawley. These parties submitted to the jurisdiction of the court, and did not plead the statute of limitation in bar of plaintiff’s action against them, but, on the contrary, admitted the truth of his allegations, and sought by cross-action judgment against Coston.

Appellant’s assignments of error complain without qualification of the court’s action in dismissing his case, and as the whole case, that is, the case made against the above-named appellees, as well as the case made against the appellee Coston, was dismissed, the judgment as to them must be reversed and cause rémanded; and it is so ordered.

Affirmed in part, reversed and remanded in part. 1


author: RICE, J.

text:
    MISSOURI, K. & T. RY. CO. et al. v. WARD et al.
    (No. 5282.)
    (Court of Civil Appeals of Texas. Austin.
    June 24, 1914.
    Rehearing Denied Oct. 28, 1914.)
    CARRIERS (§ 180) — Interstate Shipment — Contract Exemption prom Liability.
    Where a contract for the transportation of an interstate shipment was made with the initial carrier, stipulations of a contract, made by an intermediate carrier while the shipment was in the course of transportation, purporting to exempt the carriers from liability unless the shippers should file a claim for damages within 30 days after the happening of the injuries complained of, being violative of Interstate Commerce Act Feb. 4, 1887, c. 104. § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by Act June 29. 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307), restricting a carrier’s right to exempt itself from liability, were not enforceable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.]
    Appeal from District Court, Llano County; Clarence Martin, Judge.
    Action by J. H. Ward and another against the Missouri, Kansas & Texas Railway Company and others. From judgment for plaintiffs, defendants appeal.
    Affirmed.
    Fiset, McClendon & Shelley, of Austin, for appellants. F. J. Johnson, of Llano, for ap-pellees.

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

   RICE, J.

This suit was brought by ap-pellees against the Houston & Texas Central Railroad Company, the Missouri, Kansas & Texas Railway Company of Texas and the Missouri, Kansas & Texas Railway Company, to recover damages sustained to a shipment of cattle over the lines of said companies from Llano, Tex., to Winona, Okl., alleging that said companies owned lines of railroad, which together formed a connecting, through, and continuous line from Lláno, via Elgin and Denison, to Wi-nona, over which they were engaged in transporting passengers, live stock, and freight, and that the two last-named companies were partners; that on the 23d day of August, 1912, they delivered in good condition seven car loads of cattle, consisting of 245 steer yearlings and 51 cows, at Llano, Tex., to the first-named company at its shipping pens, to be transported by it and said connecting lines to Winona, where they were to be put upon pasture and fattened, and which were received by said first-named company, which routed same, giving through rate, over the several lines of said companies, via Elgin and Denison, to Winona, which rate was paid to said first-named company by appel-lees at the time of shipment, whereby it became the duty of said railway companies to safely transport with reasonable dispatch said cattle to said point, but by reason of their negligent rough handling and delay said cattle were seriously injured to plaintiffs’ damage. The Houston & Texas Central answered denying liability on the ground that said cattle were shipped by it under special contract, wherein it was stipulated that they were only to transport same from Llano to Elgin, and there deliver same to appellees, or under their direction to its connecting carriers; that it was not required to transport the same in any definite time; that said cattle were carried with ordinary care and reasonable dispatch, and were delivered to appellants in good condition; and that it was guilty of no act or omission which in any way contributed to the injury of sai’d cattle. The other two companies, after general demurrers, general denial, and denial of partnership under oath, pleaded specially that they received and shipped said cattle over their lines of railway from Elgin to Winona by virtue of a bill of lading, which, among other things, required as a condition precedent to appellees’ right to recover that they should present to and file with some agent of the company sought to be held a verified claim in writing, stating the amount thereof, and that no such claim for damages was ever filed by appellees with either of said companies, which clause in said bill of lading was pleaded in bar of plaintiffs’ right to recover herein. There was a nonjury trial, resulting in a judgment in favor of the Houston & Texas Central Railroad Company, but appellees recovered in different amounts against each of the last-named companies, from which judgment they have prosecuted this appeal.

The evidence shows that this shipment left Llano about noon of the 23d of August, and arrived at Winona at about 9 o’clock at night on the 26th of said month. The cattle were damaged en route by delay and rough handling on the part of appellants and defective condition of the cars. If the cattle had been shipped with ordinary dispatch, they ought to have arrived at their destination within from 36 to 45 hours; whereas, they were over 81 hours on the road. It is shown that the ordinary speed of such trains was from ■15 to 20 miles per hour; that this train only made from 7 to 8 miles per hour. The cattle, on account of this delay and the rough handling and jerking, were skinned up, badly injured, many horns knocked off, seven of them died en route, and the rest of the shipment were in very bad condition upon their arrival and could not be driven from the vicinity of the station for seven or eight days thereafter. No injury is shown, however, to have occurred on the line of the first-named company; hence the finding in its favor. What is known as the 28-hour law was waived by the plaintiffs. Notwithstanding this, however, the cattle were delayed for feed and water at Ft. Worth more than five hours, and subsequently were delayed for the same purpose at another place en route for 22 hours. There is no allegation and proof that the stipulation set up by appellants in their answer is contained in the contract executed by the initial carrier, the Houston & Texas Central Railroad Company, and in fact said contract does not contain any such stipulation. The undisputed testimony establishes the fact that this was an interstate shipment; that appellees made the contract with the Houston & Texas Central Railroad Company .to transport this shipment from Llano, Tex., to Winona, Okl., over its line and those of its connecting companies; that appellees paid all the freight charges to said first-named company, which was a through rate to be participated 'in by it and the other two carriers, and received from it a receipt or bill of lading for such through shipment. The undisputed testimony likewise shows that in this shipment, the appellants were the intermediate or connecting carriers, and that the contract containing the stipulations pleaded and set up ' by appellants was made and executed while said shipment was in course of transportation. Appellees failed to comply with said stipulation, and in fact rely for recovery entirely upon their contract with the Houston & Texas Central Railroad Company. So that the principal question raised by this appeal is that urged in the first assignment, to the effect that the court erred in rendering judgment against appellants, because under the pleadings and uncontradicted evidence, whatever claim plaintiffs had, if any, against said appellants or either of them, was barred and not enforceable, for the reason that plaintiffs had failed to comply with the stipulation in the bill of lading providing that they should file within 30 days after the happening of the injuries or delays complained of, with some freight or station agent of appellants, their written and duly verified claim therefor, giving the amount, which provision of said bill of lading was valid and enforceable under the laws of the United States governing and regulating interstate commerce.

Appellees, however, contend, by their counter proposition thereto that, this being an interstate shipment, the contract of the initial carrier fixes the liability of the parties executing the contract, as well as that of the intermediate and connecting carriers, ■and under the law such connecting carriers become the agents of the initial carrier, and are charged with the duty of carrying out the contract of their principal, with no right or power to ingraft new conditions or stipulations on the contract already lawfully made and executed, binding them to fully perform their part of the contract of carriers under the terms of said contract; and the trial court did not commit any error in holding that the appellants were bound by such initial contract, and that the contract and stipulations executed and set up by appellants as a defense in this case was an act and attempt to exempt and avoid carrier liability, and was in direct violation of section 20 of the Interstate Commerce Act, generally referred to as the Carmack Amendment, citing in support of such contention the following cases: Atlantic C. L. R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7; Kansas City S. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway Co. v. Latta, 226 U. S. 519, 33 Sup. Ct. 155, 57 L. Ed. 328; Railway Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323; Railway Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Atchison, T. & S. F. Ry. Co. v. Word, 159 S. W. 375; Mo. Pac. Ry. Co. v. Cheek et al., 159 S. W. 427; Pecos & N. T. Ry. Co. v. Meyer, 155 S. W. 309; Chicago, R. I. & G. Ry. Co. v. Scott, 156 S. W. 294.

A careful reading of the above authorities, convinces us of the correctness of appellees’ contention. The original Interstate Commerce Act of February 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154) was amended by the Act of June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1911, p. 1288). The amendment to the twentieth section of said act, known as the Carmack. Amendment, reads as follows:

“That any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state, shall issue a receipt or bill of' lading therefor, and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it, or by any common carrier, railroad or transportation company to which such property may be delivered, or over whose line or lines such property may pass; and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the-common carrier, railroad or transportation company on whose line the loss, damage or injury shall have been sustained, the amount of such loss, damage or injury as it may be required-to pay to the owners of such property as may be evidenced by any receipt, judgment or transcript thereof.”

Mr. Justice Lurton, in Adams Express Co. v. Croninger, supra, in passing upon a phase-of said case involving this amendment, says:

“The significant and dominating features of the amendment are these : First. It affirmatively requires the initial carrier to issue ‘a receipt or bill of lading therefor,’ when it receives ‘property for transportation from a point, in one state to a point in. another.’ Second. Such initial carrier is made ‘liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it.’ Third. It is also made liable for any loss, damage, or-injury to such property caused by ‘any common carrier, railroad or transportation company to-which such property may be delivered or over whose line or lines such property may pass.’" Fourth. It affirmatively declares that ‘no contract, receipt, rule or regulation shall exempt such common -carrier, railroad, or transportation company from the liability hereby imposed.’ ”

In construing this act the same learned Justice in Atlantic C. L. R. Co. v. Riverside Mills, supra, 219 U. S. at page 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7, says:

“The indisputable effect of the Carmack Amendment is to hold the initial carrier engaged in interstate commerce and ‘receiving property for transportation from a point in one state to a point in another state’ as having contracted for a through carriage to the point of destination, using the lines of the connecting carriers as its agents.”

Again, on page 199 of 219 U. S., page 167 of 31 Sup. Ct., 55 L. Ed. 167, 31 L. R. A. (N. S.) 7, of the above report, the court said:

“Along with this singleness of rate and continuity of carriage, there grew up the practice by receiving carriers, illustrated in this case, of refusing to make a specific agreement to transport to points beyond its own line, whereby the connecting carrier for the purpose of carriage would become the agent of the primary carrier. The common form of receipt, as the court may judicially know, is one by which the shipper is compelled to make with each carrier in the route over which his package must go a separate agreement limiting the carrier liability of each separate company to its own part of the through route. As a result the shipper could look only to the initial carrier for recompense for loss, damage, or delay occurring on its part of the route. If such primary carrier was able to show a delivery to the rails of the next succeeding- carrier, although the packages might and usually did continue the journey in the same car in which they had been originally loaded, the shipper must fail in his suit. He might, it is true, then bring his action against the carrier so shown to have next received the shipment. But here, in turn, he might be met by proof of safe delivery to a third separate carrier. In short, as the shipper was not himself in possession of the information as to when and where his property had been lost or damaged and had no access to the records of the common carriers who in turn had participated in some part of the transportation, he was compelled in many instances to make such settlement as should be proposed. This burdensome situation of the shipping public * * * over routes including separate lines of carriers was the matter which Congress undertook to regulate.”

This court further says, on page 205 of 219 U. S., page 169 of 31 Sup. Ct., 55 L. Ed. 157, 31 L. R. A. (N. S.) 7:

“Beduced to the final results, the Congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it receives property in one state to be transported to a point in another involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route, with the right to reimbursement for a loss not due to his own negligence.”

In Atchison, Topeka & Santa Fé Railway Co. v. Word, supra, where a similar question to the one here presented was involved, Mr. Justice Huff of the Amarillo Court of Civil Appeals said:

“If the Ft. Worth & Denver railway company was a principal in making the contract for the through shipment and 'received the consideration therefor, the act of the Santa Fé procuring a contract for such shipment over the same route was, as we think, without consideration and contrary to law. It was but the agent of the Denver road, and under the law was charged with the duty of carrying out the contract of its principal, with no right or power to in-graft new conditions and stipulations on the contract already lawfully executed, binding it fully to perform its part of the contract of carriage under the terms of said contract. Stipulations in the contract of the initial carrier were ineffectual in so far as not authorized by the interstate commerce act, whether for its benefit or that of the intermediate carrier. Any provision valid in the initial carrier’s contract for its own benefit will therefore enure to the benefit of the connecting carrier”-citing Kansas City S. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683.

In that case it is said:

“The liability of any carrier in the route * * * for loss or damage, is that imposed by the act as measured by the original contract of shipment so far as it is valid under the act,” citing Adams Express Co. v. Croninger, supra, and the other cases relied upon by appellees.

Concluding, he says:

“It will be seen from the above authorities that the contract of the initial carrier is one fixing the liability of the parties executing the contract, as well as that of the connecting carrier. It follows that any contract made, or attempted to be made, by the intermediate carrier, has no binding effect with reference to the shipment while in the course of transportation. The case of Railway v. Carl, supra, appears to be authority for the shipper to sue the intermediate carrier direct. Ry. Co. v. Ray, 127 S. W. 281. And we hold that he may sue the initial carrier, together with the connecting carriers, over whose lines of road the shipment is routed, and the respective liabilities of the parties fixed in that suit.”

In this case writ of error was denied by the Supreme Court; and, as the doctrine therein announced is applicable to the instant case, we think it decisive of the question here presented, and overrule the first assignment.

The remaining two assignments complain of the insufficiency of the evidence to support the judgment as against'the Missouri, Kansas & Texas Railway Co. of Texas. We think the evidence is ample to support the judgment, for which reason these assignments are overruled.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.