text:
    SUPREME RULING OF FRATERNAL MYSTIC CIRCLE v. HANSEN.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 30, 1913.
    Rehearing Denied Nov. 13, 1913.)
    1. Insurance (§ 761) — Mutual Benefit Association-Reinstatement of Member — Application — Wabeanties .
    An application for reinstatement in a fraternal mutual benefit association having provided that the original application, under which the benefit certificate was issued, should be binding “as of the date of the application for reinstatement,” and the original application having warrantied that the member had not had certain diseases, the reinstatement was on a warranty that he had had none of those diseases after the certificate was issued and before the reinstatement.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1924; Dec. Dig. § 761.]
    2. Insurance (§ 761) — Warranties — Breach.
    In the absence of a statute limiting the effect of a breach of warranty, on which one is reinstated to membership in a fraternal mutual benefit association which has issued a benefit certificate on his life, that he has not had certain diseases, the breach works a forfeiture of the contract.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1924; Dec. Dig. § 761.]
    3. Insurance (§ 745) — Fraternal Associations— Misrepresentations in Application-Statutes.
    Acts 31st Leg. (1st Extra Sess.) c. 36, declaring untrue statements in an application for membership in a fraternal beneficiary association shall not prevent recovery on the benefit certificate unless shown to be material to risk, does not govern .a certificate on a member reinstated before the act took effect.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1890; Dec. Dig. § 745.]
    4. Insurance (§ 723) — Fraternal Associations — Application—Statements Material to the Risk.
    False statements that one had never had dysentery or any disease of the genital organs or undergone a surgical operation are material to the risk, within Acts 31st Leg. (1st Extra Sess.) c. 36, declaring untrue statements in an application for membership in a fraternal beneficiary association shall not prevent recovery on the benefit certificate unless shown to be material to the risk.
    [Ed. Note. — For other cases, see Insurance, Cent/Dig. §§ 1859-1865; Dec. Dig. § 723.]
    Appeal from Fayette County Court; George Willrieh, Judge.
    Action by Ella Hansen against the Supreme Ruling of the Fraternal Mystic Circle. Judgment for plaintiff. Defendant appeals.
    Reversed and rendered.
    Meador & Davis, of Dallas, for appellant. John T. Duncan, of La Grange, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee to recover upon a benefit certificate for $1,000 issued by the appellant, a fraternal mutual benefit association, on the life of Julius Hansen, her deceased husband. In answer to plaintiff’s suit the defendant pleaded that the contract of insurance was void because of false statements, representations, and warranties made by the insured in his application for insurance and his application for reinstatement after the lapse of the certificate for nonpayment of dues. The cause was tried in the court below without a jury, and judgment was rendered in favor of plaintiff for $1,000.

The following facts are established by the evidence: In the original application for insurance, which was made on October 19, 1896, and upon which the certificate herein sued on was issued, the deceased, Julius Hansen, made the following warranties“Í do hereby warrant the truthfulness of the statements in this petition, and consent and agree that any untrue or fraudulent statement made therein, or to the worthy medical examiner, or any concealment of facts by me in this petition, or any suspension or expulsion from, or voluntarily severing my connection with, this order, shall forfeit the rights of myself, my beneficiaries, and my family, or dependents, to all benefits and privileges therein.”

The certificate of insurance, sued on herein, contains the following provisions: “This certificate of membership is issued to Julius Hansen * * * in consideration of the application for this membership, and of the statements and agreements herein contained, and of the warranty of the said member that all answers to the medical examiner in original petition for membership are full, correct, and true, and upon the further conditions that said member complies with the constitution, laws, rules, and requirements of the Supreme Ruling of the Fraternal Mystic Circle now in force, or as the same may be hereafter altered or amended, and that the said application for membership, the medical examination, the constitution and laws, and the benefit certificate are made a part of the contract, as fully as if herein set forth at length. Upon these conditions the Supreme Ruling of the Fraternal Mystic Circle hereby promises and binds itself to pay out of the mortuary fund of said order to his wife, Ella Hansen, upon satisfactory proof of death of said member, while in good standing upon the books of the said the Supreme Ruling of the Fraternal Mystic Circle, the sum of two thousand dollars. * * * I hereby accept this certificate on the terms and conditions named therein, this 18th day of November, 1908. [Signed] Julius Hansen.”

In. the “Statement of the Medical Examiner” made by Julius Hansen, appears the following :

“(7) Have you ever been subject to or had any of the following disorders or diseases? [Answer‘Yes’or‘No’to. each.) * * * Bilious, renal, or hepatic colic? No. Cancer or any tumor? No. Catarrh? No. Chronic diarrhea? No. Disease of the liver? No. Disease of the stomach? No. Dysentery? No. Dyspepsia? No. Ulcers or open sores? No. Any disease of the genital or urinary organs? No.”
“(16) Have you undergone any surgical operation? No.”

The laws of the defendant order provide that, in the event any member shall obtain admission or. reinstatement into the order by false or untrue answers in application of medical examination, regarding personal or family history or present condition of health, the certificate shall be void, and no right of recovery against the defendant order shall exist.

Deceased remained a member- in 'good standihg of appellant association until December SI, 1908, when he was suspended for nonpayment of dues, and remained suspended until June 24, 1909, when he was reinstated upon his application for reinstatement, which was made on May 31, 1909. This application contains the following warranties and agreements: “I hereby warrant and declare that I am now [May 31, 1909] in sound health; that there is no cause in connection with my physical condition that would be a bar to my securing life insurance or in any way shorten my life; that I am not afflicted with any physical or mental defect or infirmity; that I have never suffered, nor am I now suffering, from tuberculosis, consumption, spitting of blood, habitual cough, * * * diseases of the liver or kidneys, or cancer. * * *, I expressly agree that the original application for membership under which said certificate was issued shall be effective and binding, the 'same as if made to said Fraternal Mystic Circle at this date. Now, in consideration of the foregoing statements and warranties * * * I hereby request that I may be reinstated, and I agree that * * . * my reinstatement shall be valid and binding only in consideration that such statements and warranties herein and in said petition are full, complete, and true, and the only statements and warranties . in consideration of which I am reinstated, and, if any of them are untrue, my said membership shall be null and void, and I further agree that the receipt of future payments by said Fraternal Mystic Circle shall not estop the order from defense on account of any false statement herein or in said petition.”

At the time this application was made the deceased also presented to appellant a petition for reinstatement signed ,by him. This petition contains the following statements and agreements: “I, Julius Hansen, * * * do hereby certify that I am, on the day and year above written [May 31, 1909] of * * * sound constitution, in good health, and free from all diseases and infirmities, and I hereby repeat all statements and warranties contained in my petition for membership, and warrant the same and statement herein, or to the worthy medical examiner, and each of -them, to be full, complete, and true.' I further certify that there has been no change in my family history, and that I have had no severe illness, local disease, or personal injury since the date of my original petition, and examination for membership in this order. * * * Now, in consideration of the foregoing statements ' and warranties, ' * * * I hereby request that I may be reinstated in said ruling under said benefit fund certificate, and I agree that * * * my reinstatement shall be valid and binding only in consideration that such statements and warranties herein and in said petition are full,- com-píete, and true, and the only statements and warranties in consideration of which I am reinstated, and, if any of them are untrue, said membership shall be null and void, and I further agree that the receipt of further payments by said ruling shall not estop this order from defense on account of any false statements herein or in said petition.”

The undisputed evidence shows that the deceased was operated on for hydrocele in November, 1908, and again in April, 1909. He had an attack of dysentery in April, 1909, and at that time was sick for several days. The physician who operated on him for hy-drocele testified that at the last operation he advised deceased to consult another physician, because he had reached the conclusion that deceased had cancer of the testicle, or that such disease was developing, as he was then annoyed with pains in the testicle. In March, 1910, the year after his reinstatement, his testicle was removed. He died in August, 1910, from cancer of the intestines.

There is evidence sufficient to sustain the finding of the trial court that at the time the deceased made his application for reinstatement in May, 1909, he was in good health, and was not then suffering from, and had never had, any of the diseases mentioned in said application. The only disease mentioned in this application which the evidence tends to show he had before the application was made is cancer, and, while it seems to us that the preponderance of the evidence shows that he had this disease before his application for reinstatement was made, there is evidence to sustain the finding of the court that said disease did not develop until several months after thfe deceased was reinstated.

We do not, however, agree with the learned trial judge and counsel for appellee in the proposition that appellee’s right to recover in this case depends upon the condition of deceased’s health at the time his application for reinstatement was made, and the truth or falsity of his warranty in said application that he had never had any of the diseases therein mentioned. In addition to the warranty that he had never had any of the diseases named in the application, he agreed that the original application, under which the certificate was made, should be binding as of the date of the application for reinstatement, and in his petition for reinstatement, which accompanies his application, he says: “I hereby repeat all statements and warranties contained in 'my petition for membership, and warrant the same and statements herein as to the worthy medical examiner, and each of them, to be full, complete, and true.” In his application for reinstatement he makes the following agreement: “I agree that my reinstatement shall be valid and binding only in consideration that such statements and warranties herein and in said petition are full, complete, and true, and the only statements and warranties in consideration of which I am reinstated, and, if any of them are untrue, my membership shall be null and void, and I further agree that the receipt of future payments by the Fraternal Mystic Circle shall not estop the order from defense on account of any false statements herein or in said petition.”

By the explicit terms of the instruments before set out which, together, evidence the contract between the parties, the validity of the certificate depends upon the truth of the statements made to the medical examiner. It is shown by the undisputed evidence that at least three of these statements were false, namely, that the deceased had never had dysentery, had never had any disease of the genital organs, and had never undergone a surgical operation. As before stated, the undisputed evidence shows that he suffered from hydrocele, a disease of the testicle, in 1908 and 1909, before his application for reinstatement was made, that he had been operated on twice to obtain relief from said disease, and that he had dysentery in April, 1909.

In the absence of any statute limiting the effect of a breach of warranties in contracts of this kind, it is well settled that such breach works a forfeiture of the contract. Insurance Co. v. Pinson, 94 Tex. 553, 63 S. W. 531; Supreme Lodge v. Payne, 101 Tex. 449, 108 S. W. 1160, 15 L. R. A. (N. S.) 1277.

In the ease of Modern Order of Prætorians v. Hollmig, 100 Tex. 623, 103 S. W. 476, it was decided that the act of 1903 (article 4947, Revised Statutes 1911), which declares “that any provision in any contract 'or policy of insurance issued or contracted for in this state which provides that the answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false shall render the contract or policy void or voidable shall be of no effect and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which the policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be’ determined by the court or jury trying such case,” does not apply to fraternal beneficiary associations. To meet the defect in the statute pointed out in this decision, the Legislature in 1909 passed an act relating to certificates issued by fraternal beneficiary associations similar to the act above quoted. Acts 31st Legislature, 1st Extra Sess., p. 359. This act did not take effect until July 31, 1909, which was two months after the application of Hansen for reinstatement was made and more than a month after said application had been granted. The contract sued on in this case, having been made before the act referred to was passed, is not governed thereby.

If, however, the act could be held to apply, we think the false statements were clearly material to the risk. In a case between the parties to this appeal involving a certificate issued at the time the certificate herein sued on was issued, and which was forfeited- and reinstated upon application made by the deceased at the same time, and identical in all respects with the application in this case, the Court of Civil Appeals for the Fourth District held that the warranties breached in that ease, which were the same shown to be breached in this, were as a matter of law material to the risk. Supreme Ruling v. Hansen, 153< S. W. 351. A writ of error was refused in this case. While we do not think it necessary to decide the question in determining this appeal, we agree with the conclusion expressed in the case cited.

It follows from what we have said that the judgment of the court below should be reversed, and judgment here rendered for appellant, and it has been so ordered.

Reversed and rendered.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. McFARLANE.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 15, 1913.
    Rehearing Denied Dec. 11, 1913.)
    1. Telegraphs and Telephones (§ 39) — Messages — Negligence in Transmission.
    The substitution of “Dallas” for “Galveston,” Tex., as the sender’s address in a telegram, was negligence entitling the sender to damages if no answer was received because of such mistake.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. §§ 30, 34; Dec. Dig. § 39.]
    2. Telegraphs and Telephones (§ 68) — Messages — Damages—Proximate Cause.
    A mistake in substituting “Dallas” for “Galveston” as the sender’s address, by reason of which no answer was received to a telegram wiring for money, and stating that the sender’s wife had just died, was the proximate cause of mental anguish to the sender, resulting from inability to properly bury his wife because of lack of money.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    3. Telegraphs and Telephones (§ 74) — Messages — Action por Damages — Instructions.
    In an action for damages for mental anguish, etc., caused by inability to properly bury plaintiff's wife through failure to receive an answer to a telegram wiring for money and stating that plaintiff’s wife had just died, the court instructed that if plaintiff, when the message was handed in at the sending point, notified defendant that the addressee was indebted to plaintiff, and that plaintiff was without money and his wife had just died, and it was necessary for him to secure immediate funds for embalming his wife and funeral expenses, and further charged that if the sendee failed to send the money, and if the message had been transmitted correctly, the sendee would have sent sufficient money to enable “defendant” to embalm his wife and give her a more elaborate burial than he did, and that plaintiff would have embalmed his wife and buried her differently but for the mistake in the message and failure to receive money, and if the sendee would have sent the money in time to enable plaintiff to do so, and as a direct and natural result of the mistake plaintiff was prevented from having the body embalmed, etc., and was compelled to have her buried without embalming, and as a proximate result thereof plaintiff suffered mental anguish, the jury should find for plaintiff such sum over the actual damages as it might believe from the evidence would reasonably compensate him for such mental anguish. Held, that the instruction was not affirmatively erroneous or misleading.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.]
    4. Telegraphs and Telephones (§ 68) — Messages — Damages — Anticipation by Company.
    Though a telegraph company was not told when a message was sent, requesting that money be wired immediately and stating that plaintiff’s wife had just died, that plaintiff desired the money for embalming his wife, if it was' informed that he was without funds and that the money was wanted for burial expenses, the company could have reasonably anticipated that its failure to properly transmit would probably cause plaintiff mental anguish from inability to properly embalm his wife on the nonre-ceipt of the money.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    5. Telegraphs and Telephones (§ 71) — Messages — Action for Damages — Sufficiency of Evidence.
    Evidence, in an action for damages for mental anguish, etc., through failure to deliver a telegram requesting money, held not to show that a verdict for plaintiff for $1,500 was excessive.
    [Ed. Note — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. § 71.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by J. E. MeFarlane against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Hume & Hume, of Houston, and Geo. H. Fearons, of New York City, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant to recover damages alleged to have been caused by the negligence of appellant in transmitting a telegraphic message sent by appellee from Galveston to Walter Scott at Ft. Worth, Tex. The telegram' was as follows: “Galveston, Texas, March 20, 19Í2. Walter Scott, Fort Worth, Texas. Please wire me money immediately. My wife has just died. Answer. J. E. MeFarlane.” The telegram was transmitted by appellant from Galveston to its Dallas office and repeated there to Ft. Worth. When it was repeated from Dallas, the word “Dallas” was inserted in lieu of the word “Galveston,” and the addressee, supposing that it had been originally sent from Dallas, and that appellee was at that place, tried to communicate with him there; and •because of this error in the transmission of the message received no answer thereto.

The petition upon which the case was tried contains the following allegations:

“And plaintiff further alleges that the negligence of the defendant in failing in all said particulars to correctly transmit, telegraph, and deliver to said Walter Scott in said city of Ft. Worth the telegram delivered to defendant in the said city of Galveston,. as aforesaid, was the proximate cause of the injuries and damages sustained by plaintiff as hereinafter fully pleaded, set out, and described. And plaintiff further alleges that, at the time of the delivery of said telegram to the defendant in said city of Galveston, the defendant was informed that the person to whom the said telegram was addressed was indebted to this plaintiff, that this plaintiff was without money, and that his wife had just died, and that it was necessary for this plaintiff to have and to secure immediately funds for the embalming and care of the body of his said wife and for the necessary funeral and burial expenses of said body; and that this was the reason why this plaintiff was sending this telegram. And plaintiff further alleges that the defendant then and there promised and agreed to safely and correctly and immediately transmit said telegram and cause the same to be delivered within one hour, all of which agreements and contracts were breached by this defendant as aforesaid. And plaintiff further alleges that he was, as the defendant well knew and was at said time informed by plaintiff, wholly without funds, and that his wife had suddenly died, and that he was unable to secure money necessary to have her body embalmed and cared for and to secure burial grounds and other necessaries for her funeral, all of which facts plaintiff informed defendant at the time of sending said telegram; that in the afternoon of said day he called at defendant’s office and.was by defendant’s agents informed that said telegram had been traced, and that said telegram had been safely delivered to the person to whom it was addressed in said city of Ft. Worth, and that by reason of the failure of the defendant to correctly transmit and deliver said telegram the plaintiff was unable to secure funds with which to pay necessary embalmer’s fees, to pay for burial fees, and to pay the other funeral expenses necessary for the burial of his wife until late in the morning of the second day after her death, when, and at which time, the plaintiff discovered that his wife’s body was mortifying and decaying, and, not receiving any reply to his said telegram, the plaintiff borrowed a small sum of money wholly inadequate to properly and respectfully care for arid bury his said wife and cause her body to be interred in an appropriate manner in his family burying ground in a distant county where plaintiff intended to have his wife’s body shipped, of all of which last-named facts the defendant was informed at the time of the reception of plaintiff’s telegram as aforesaid.
“And plaintiff further alleges that on the date of the death of his wife, as aforesaid, he was destitute and without money, as defendant was by said telegram and by plaintiff informed; that by reason of defendant’s negligence in failing to correctly transmit and deliver said telegram to said Walter Scott, plaintiff suffered such mental agony and distress and such mental pain and anguish, for this, that plaintiff was unable on said day to secure funds to properly care for the body of his said dead wife and to prepare same for burial; that late in the afternoon of said day plaintiff suffered much mental agony, humiliation, and distress of mind, for this, he was forced by reason of 'defendant’s negligence, as aforesaid, to solicit money from his friends and to borrow such sums as he could to protect and save his wife’s body from being buried in charity, and to save same from burial in the pauper burying ground in said city. And plaintiff further alleges that while he made every possible effort to secure sufficient funds by loan from his friends and otherwise to give his wife a decent and respectable burial and funeral, as he would have been able to do if his said, telegram to said Walter Scott had been properly transmitted and delivered by defendant, as said Walter Scótt was indebted to plaintiff in the sum of $300 at said time and could and would have telegraphed all of said money to this plaintiff, and that, by reason of all of said negligence of the defendant, plaintiff was unable to have the body'- of his said wife embalmed, and was unable to secure a proper burial casket for her body, and was unable to obtain proper conveyances for his relatives and friends to and from the funeral of his said wife, and was unable to ser cure and obtain a decent burial place for the body of his said wife, all of which caused this plaintiff to suffer much shame, humiliation, and mental pain and anguish. And plaintiff - further alleges that defendant’s negligence in failing to' carry out its contract with plaintiff and in failing to correctly transmit and deliver said telegram was the proximate cause of the injuries, damages, humiliation, and mental pain and anguish suffered and sustained by plaintiff at said time. And plaintiff further alleges that he has sustained actual damages by reason of the shame, humiliation, and mental pain and anguish suffered by plaintiff at said time in the sum of $2,999, and that he has lost the value of the said 45 cents paid to defendant for correctly transmitting said telegram, and that on account of all of said matters, and by reason of thei negligence of the defendant, as hereinbe-fore pleaded, he is entitled to recover of and from the defendant his said total damages in the total sum of $2,999.45.”

The defendant answered by general demurrer to the petition as a whole, and by general exceptions to the allegations of damages caused by mental anguish, on the ground that said allegations were insufficient to entitle plaintiff to recover such damages, and that the only cause of action shown by the petition was for recovery of the 45 cents charges paid by plaintiff, which was a cause of action of which the court had no jurisdiction. The answer further denied generally all of the allegations of the petition.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $1,500.45.

, The evidence shows that plaintiff’s wife died in Galveston on the morning of March 20, 1912. Plaintiff was without funds with which to pay expenses necessary to prepare the body for burial and procure a coffin and lot in the cemetery, and, for the purpose of obtaining the money to bury his wife, sent the telegram before set out. At the time the message was sent the defendant was informed that plaintiff w'as without funds and was ashed to hurry the message. The ■charges for transmission, 45 cents, were paid by plaintiff. The message was changed in the Dallas office, as before stated, and because of this change the addressee, Walter Scott, failed to respond to plaintiff’s request. If the message had been properly transmitted, Mr. Scott would have at once wired plaintiff $140 which he owed him, and if plaintiff had so requested would have sent as much as $150. When plaintiff failed to receive any reply from his telegram, he made every effort to borrow money with which to provide for his wife’s burial, and finally succeeded in obtaining $120. With this amount he bought a cheap coffin and a cheap lot in a cemetery and procured the services of an undertaker. His wife was buried on the evening of the 21st of March. Shortly after death the body began to decompose and before the burial could be had it became very offensive and wras buried in a very decayed condition. This condition of his wife’s body caused plaintiff to suffer much mental anguish and distress of mind. If he had received the $150 from Mr. Scott, he could and would have had the body embalmed shortly after death and would not have suffered the anguish and distress of mind caused by its condition. It is not shown that if plaintiff had received the money from Mr. Scott he would or could have borrowed the $120. The body could have been embalmed at a cost less than $30, the difference between the amount-plaintiff was able to borrow and the amount he would have had if the telegram had been properly transmitted.

The failure of the defendant to properly transmit the telegram was negligence, and such negligence was the proximate cause of the anguish and distress of mind suffered by plaintiff.

The first assignment of error complains of the following paragraph of the charge: “And that such negligence, if any, proximately caused plaintiff to suffer mental anguish in the respects alleged by plaintiff. And if you further believe from the evidence that the plaintiff or his agent, at the time such message was delivered to the defendant company at Galveston, Tex., notified such defendant that the person to whom said telegram was addressed was indebted to the plaintiff, and that plaintiff was without money, and that his wife had just died and it was necessary for plaintiff to have and secure immediate funds for the embalming and care of the body of his said wife, and for the necessary funeral and burial expenses of said body, and to secure necessary burial grounds, as more fully alleged by plaintiff, and if you further believe from the evidence that the sendee of such telegram failed to send money, and that had such message been transmitted correctly as sent the sendee of such message would have sent in response thereto sufficient money to have enabled defendant to have embalmed his wife and to have given his wife a more elaborate and different character of burial than that actually given her, and if you further believe from the evidence that plaintiff intended to and would have had the body of his wife embalmed and given his wife a more elaborate and different burial, but for such mistake in the message and failure to receive such money, ánd if you further believe that the sendee of such message would have sent such money, if any, in time to have admitted of plaintiff having his wife’s body embalmed and giving his wife a more elaborate and different burial, and if you further believe from the evidence as a direct and natural result of the mistake in sending such telegram plaintiff was prevented from and it became impossible for him to have the said, body .embalmed, and giving his wife a more elaborate and different burial, and that he was compelled to have her buried without such embalming and a less elaborate and different burial than what he would otherwise have given her, and that as a proximate result thereof plaintiff suffered mental anguish, then you are instructed to further find for plaintiff such additional sum over and above 55 cents as you may believe from the evidence would reasonably compensate plaintiff for such mental anguish, if any; unless you so believe, you must find in favor of the defendant upon the issue of mental anguish.”

We shall not undertake to discuss in detail the various objections to this charge presented in the 25 propositions submitted under this assignment. The charge is probably objectionable on some of the grounds upon which it is assailed, hut it contains no affirmative misstatements oí the law applicable to the facts shown by the evidence and did not probably mislead or confuse the jury. The assignment is overruled.

Under appropriate assignments complaining of the refusal of the court to instruct the jury to return a verdict for the defendant on plaintiff’s claim for damages for mental anguish and the action of the court in overruling defendant’s motion for a .new trial, the verdict for such damages is assailed on the ground that under the pleading and evidence in this case the negligence of the defendant in transmitting the telegram was not the proximate cause of such damages, and they are too remote to entitle plaintiff to recover therefor. The main contention under these assignments is made in the following proposition: “Mental anguish is not to be presumed as a matter of law to be a necessary consequence of mere failure to embalm remains, and failure to embalm is not to be presumed to be necessary to a decent and respectable burial as such, and where the allegation and proof shows that the embalming was contemplated and intended for specific purpose of burial elsewhere than at Galveston, and where .the proof shows no notice of such purpose, and whore the proof shows that plaintiff could have embalmed the body had he so chosen, and where the proof showed that failure to embalm in itself did not cause plaintiff mental anguish, and the embalming constituting a mere elaboration of funeral and burial at Galveston, and plaintiff not having been able with $140 to have had the remains embalmed and in addition thereto have held a more decent and respectable burial at Galveston than he did provide, and defendant having had no notice of mental anguish as a probable result of failure to embalm for burial at Galveston, the charge should have been given.”

We do not think the proposition should be sustained. It is true that appellant was not told when the telegram was sent that plaintiff desired the money for the express purpose of embalming his wife’s body, but was informed that plaintiff was without funds and the money was wanted for the purpose of providing for the burial expenses of his wife who had just died. Proper preparation of the body was a necessary part of its decent burial, and the evidence shows that embalming was necessary to prevent the rapid decay of the body. That this is generally true in this climate is a matter .of such common knowledge that we hardly think proof of the fact was necessary. The evidence shows that plaintiff could not procure the necessary funds to embalm the body, and that if the telegram had been properly transmitted he could and would have had it embalmed. We think under the pleadings and evidence the appellant at the time it undertook to transmit the message could have reasonably anticipated that a failure on its part to properly transmit it would probably cause plaintiff to suffer the mental anguish for which he seeks recovery in this case, and, this being so, appellant’s negligence in transmitting the telegram was the proximate cause of the damages to plaintiff by reason of his mental anguish and appellant should be held liable therefor. Telegraph Co. v. Carter, 2 Tex. Civ. App. 624, 21 S. W. 688; Cumberland Tel. & Tel. Co. v. Quigley, 129 Ky. 788, 112 S. W. 897, 19 L. R. A. (N. S.) 57S.

We cannot say under the evidence in this ease that the verdict is excessive. The evidence as to the condition of the body is revolting, and the mental anguish of a husband who was compelled to keep and bury his wife’s body in this condition must have been acute.

We are of opinion that the judgment should be affirmed, and it is so ordered.

Affirmed.


author: REESE, J.

text:
    LE BLANC et al. v. JACKSON.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 23, 1913.
    Rehearing Denied Nov. 13, 1913.)
    1. Appeal and Error (§ 719) —Trial by Court — 'Voluntary Findings — Effect.
    Whep conclusions of fact are voluntarily filed by the trial court, neither party is required to take notice, and no exception to the conclusions and no assignments of error therein are required of parties against whom such findings are made, to entitle them to attack the judgment on the ground that it is unsupported by the evidence; but, whqre the facts are complicated, it is not improper for the court to look to them in making its own conclusions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    2. Adverse Possession (§ 104) — Presumption — Execution and Existence.
    The execution .of a deed may be established by circumstances, or by the presumption arising from circumstances of the existence of such muniments of title as are necessary to give lawful origin to a title long openly asserted on one side, with acquiescence in such claim on the other.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 695-602; Dec. Dig. § 104.]
    3. Adverse Possession (§ 114) — Presumption — Execution and Existence.
    Where it appears from the facts and circumstances to be more probable that a deed or other muniment of title in question had been executed than that it had not been, the jury would be authorized to presume that it had been so executed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dec. Dig. § 114.]
    4. Adverse Possession (§ 14) — Presumption — Execution and Existence — Actual Possession.
    Ac.tual possession is not essential to the presumption of the existence of a deed, that being only evidence of a claim of title tending to fix notice upon the holder of the adversary title and tending also to show acquiescence. It is essential that there be a claim of ownership openly, and notoriously asserted, and which can only be reasonably explained by the existence of the muniments of title necessary to support such claim. It is also essential that such assertion of ownership b.e acquiesced in by the owner of the adversary title, although such acquiescence is of greater weight than the assertion of ownership, and, to constitute such acquiescence, knowledge, which may be shown by circumstances, is essential.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 77-81; Dee. Dig. § 14.]
    5. Adverse Possession (§ 104) — Presumption op Existence — Acquiescence.
    The execution of a deed or the existence of other muniment of title may be presumed from mere silence or failure to object to another’s known assertion of title without any corroborating act evidencing such acquiescence.
    [Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 595-602; Dec. Dig. § 104.]
    6. Adverse Possession (§ 104) — Nature op Presumption op Execution.
    The presumption of the execution or existence of a deed from the facts and circumstances shown is a presumption of fact.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 595-602; Dec. Dig. § 104.]
    7. Trespass to Try Title (§ 41) — Supfi-ciency op Evidence — Existence and Execution.
    In trespass to try title, evidence held sufficient to support a conclusion that defendant’s grantor by deed or settlement had acquired the title of two of his brothers to their interest in the land.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    8. Trespass to Try Title ■(§ 41) — Admissibility op Evidence — Claim op Title.
    In trespass to try title, evidence that the talk in the family was that a brother of defendant’s grantor had sold his interest to such grantor, contemporary with and explanatory of the grantor’s claim of title, was admissible as bearing on the knowledge of such claim by the heirs of the grantor’s brother.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    9. Adverse Possession (§ 104) — Parol Evidence-Application op Rule.
    The rule that parol testimony cannot be offered over objection to prove a sale of land in this state has no application to a case where circumstances are relied on to support a presumption of a deed.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig-. §§ 595-602; Dec. Dig. § 104.]
    10. Guardian and Ward (§ .111) — Conveyance op Ward’s Property — Expect.
    In trespass to try title, a deed to defendant’s grantor signed C. B. per S. Le B., “curator,” in the absence of any authority shown for his execution of the deed, was not binding upon C. B. and was insufficient to pass her title.
    [Ed. Note. — For other eases, see Guardian and Ward, Cent Dig. §§ 180-185; Dec. Dig. § 111.]
    11. Appeal and Error (§ 173) — Necessity op Objection — Admission op Evidence. '
    In trespass to try title, the contention, that failure to object to the introduction of a deed by the heirs of the grantor claiming her title barred them from objecting to its validity on appeal, was not sound, where the latter objection was as to the legal effect of the deed as conveying the grantor’s interest.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.]
    12. Husband and Wipe (§ 273) — Presumption — Separate Property op Husband.
    Where a wife died before the execution of a deed by which the surviving husband acquired title, the presumption was that the property was his separate estate, to overcome which it was necessary to show that title had in effect been acquired by purchase prior to the death of the wife and had been paid for with community funds.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.]
    13. Vendor and Purchaser (§ 242) — Purchaser por Value — Burden op Proop.
    Parties asserting an equitable title as against a purchaser for value have the burden of showing that he had notice of all the facts constituting their title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.]
    14. Vendor and Purchaser (§ 239) — Purchaser por Value — Title.
    The legal title of the purchaser for value, not shown to have notice of an outstanding equitable title, was superior to the equity.
    [Ed. Note. — For other case,' see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. § 239.]
    15. Appeal and Error (§ 395) — Dismissal-Failure to File Appeal Bond.
    Where an appeal bond was not filed within the time required by law, the appeal is properly dismissed on motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 2064-2070, 2085, 2086, 3127; Dec. Dig. § 395.]
    16. Deeds (§ 31) — Signature—Effect.
    A deed is not binding upon one who signs it but who is not named in the body of the deed as one of the grantors.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 60-63; Dec. Dig. § 31.]
    17. Vendor and Purchaser (§ 229) — Bona Fide Purchaser — Presumption.
    Where a purchaser was affected with notice that his grantor acquired title during the life of his wife, he was charged with notice that the property was community property.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. § 229.]
    18. Vendor and Purchaser (§ 229) — Bona Fide Purchaser — Notice.
    Where a purchaser knew that his grantor had been married, as several of his children joined in the deed, he was bound to take notice of other children of the grantor’s wife entitled to an interest in their mother’s half of community land.
    [Ed. Note. — For other cases, see Vendpr and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. § 229.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.

      Trespass to ■ try title by Ellen Oraigen and others against K. S. Jackson, in which Elodie Le Blanc and others intervenéd, claiming the entire tract, with amended petition, making defendant Jackson and the interveners defendants, and with cross-action by inter-veners against Jackson. Prom the, judgment, plaintiffs and part of the interveners appeal.
    Reformed and affirmed.
    Thos. J. Baten and E. E. Easterling, both of Beaumont, for Le Blanc and others. Blain & Howth, of Beaumont, for Oraigen and others. Lipscomb & Lipscomb, of Beaumont, for appellee.

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

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

   REESE, J.

As originally instituted, this was an action in trespass to try title by Ellen Oraigen and Odelia Carouthers, joined by her husband, against R. S. Jackson to recover an undivided one-eighth interest in a certain 666 acres of land out of the W. H. Smith league in Jefferson county. After the institution of the suit, Elodie Le Blanc and several others intervened, setting up claim, according to the face of their plea, to the entire tract. The original plaintiffs filed an amended petition in which interveners and the defendant Jackson were made defendants, setting up title in the usual form of an action of trespass to try title against all of these to the said undivided one-eighth interest in the tract. 'Interveners answered this amended petition by a plea of not guilty and a cross-action against plaintiffs and defendant Jackson for the entire tract. ■ Defendant Jackson by amended answer pleaded, as against all the parties, not guilty and the statute of limitation of three, five, and ten years. This constituted the pleadings in the case. The case was tried without a jury and resulted in a. judgment for the plaintiffs for one-eighth of the two-eighths- interest inherited by Theophile and Emile Broussard from their father, P. O. Broussard, also one-fourth of the one-eighth interest inherited from her father, P. O. Broussard, by Victoire Hebert, and conveyed by her to Phillip Gallier. Some of the interveners recovered small interests in the land and some failed of recovery. The defendant Jackson recovered the one-eighth interest inherited by Derneuville Broussard from P. O. Broussard, also the two-eighths of Theophile and Emile Broussard inherited from P. O. Broussard, their father, less a small interest therein awarded to plaintiffs, also three-fourths of the one-eighth interest of Yictoire Hebert sold by her to Phillip Gallier, also the interests of some of the other children of P. O. Broussard and their descendants not necessary to particularize here. • From this judgment the plaintiffs and interveners (except the heirs of Emerante Broussard, who recovered the one-eighth interest inherited by their mother from P. O. Broussard) have appealed. The defendant Jackson also filed an appeal bond and, as appellant; seeks separately a reversal of the-judgment in favor of the heirs of Emerante; Broussard, which appeal they seek by motion to have dismissed for reasons hereafter stated in passing on this motion.

The' trial court filed and had incorporated in the record conclusions of fact and law, but there was no request by any party therefor, so far as is shown by the record. The exact status of such findings has not been, so far as we have been able to find, fixed by the courts. It was held by this court-in City of Houston v. Kapner, 43 Tex. Civ. App. 507, 95 S. W. 1103, in considering an objection to the consideration of such conclusions, on the ground that, “when such conclusions are voluntarily filed by the judge, neither party is required to take notice of them, and no exception to the conclusions nor assignments predicating error on the findings of fact therein contained are required of the parties against whom such findings are'made to entitle him to attack the judgment on the ground that it is unsupported by the evidence. * * * The question of whether .such conclusions can be considered by the appellate court is not presented, and we do not feel called upon to decide.”' The conclusions are ignored by the briefs;: but, as the facts are quite complicated in some particulars, we have deemed it not improper to look to them in making our own conclusions.

So far as is material and necessary to a decision of the questions involved in this appeal, the facts are as .follows: P. O. Brous-sard is the common source of title He died in 1877 in the state of Louisiana where he resided. He owned at the time of his death a considerable estate in lands and cattle, etc., in that state, which seems to have been located about Johnson’s bayou in the southwestern corner of the state. No mention is made of a will, so we assume that he died intestate. He left surviving him seven children — three sons, Derneuville, Emile, and Theophile, arid four daughters,. Delzinde, Ezilda, Victoire, and Emerante — and the descendants of another daughter Azema (her children and grandchildren). At his death P. O. Broussard was possessed of two tracts-of land in the Smith league in Jefferson county, containing approximately 1,000 acres. One of these tracts, containing 667 acres, is involved in this action.

Derneuville Broussard married . a widow with two children, Ellen Oraigen and Odelia Carouthers, the plaintiffs herein. By her he had six children. Mrs. Broussard died in April, 1893, as testified positively by Edgar Carouthers, husband of Odelia Carouthers, and one of the plaintiffs, although her daughter testified that she died in 1893 or 1894. On the 7th of October, 1907, Derneuville Broussard and his daughters aforesaid conveyed to the defendant, R. S. Jackson, under general warranty deed, for a recited consideration of $1,332, all their interest in the tract of land here involved.

On September 3,1891, Ezilda Broussard and Delzinde Broussard and a number of others, including the children of Emerante Brous-sard, and some if not all the children or descendants of the other daughter, Azema, executed to Derneuville Broussard a deed to what purports to be an undivided five-ninths, amounting to about 354 acres of the land involved herein, and being the interest inherited from P. 'O. Broussard. With regard to this deed there are certain facts which will be set out in discussing certain of the questions presented by the appeal, but the foregoing general statement is sufficient here. Yictoire, one of the daughters, married Sarazine Hebert. Her interest in the land was conveyed by her to Phillip Gallier, who died, and part of his estate was inherited by his sister, Mrs. Derneuville Broussard, and through her by her two daughters, the plaintiffs Graigen and Carouthers, and her children by Derneuville Broussard. The interest of the latter passed to Jackson by the deed of Derneuville and his daughters aforesaid, and the interest of plaintiffs in this portion was awarded to them by the judgment. Derneuville Broussard did not himself claim any interest in that part inherited by Victoire and conveyed by her to Gallier.

Emile Broussard died in 1904, and Theo-phile in 1881. There was no deed or' other written evidence of title in Derneuville Broussard of their respective interests from Theophile or Emile. To support his title to their interest defendant Jackson relied upon certain circumstances, as affording a presumption that Derneuville had acquired these interests from them prior to the death of Theophile. The court found these circumstances sufficient to authorize such presumption and that Derneuville had lawfully acquired title to the interest of Emile and Theophile. By appropriate assignments of error appellants interveners have attacked this finding on the ground that there is no evidence to support this presumption. This presents the most troublesome question in the case, and one about which we have had much difficulty.

The facts and circumstances found by the trial court, and upon which it bases the conclusion of fact that Emile and Theophile had conveyed their interest to Derneuville, are stated in his findings of fact as follows:

“That in addition to the land in Texas, the said P. O. Broussard was the owner of stock running on the range in Jefferson county, Tex. The son Derneuville Broussard, at the time of his father’s death, lived in Texas, and resided on the 667-acre tract, and up to and including the year 1907 had fenced and under cultivation about 20 acres of said tract of land. After the death of P. O. Broussard, the son Emile Broussard principally looked after the business of the estate in Jefferson county, Tex. Under the direction and at the solicitation of Emile Broussard, Mr. J. Bur-rell, an old citizen of, this county, for a number of years and up' to and including the year 1881, rendered the land for taxation in-the name of P. O. Broussard, and paid the taxes on said land out of the sale of stock belonging to the estate of P. O. Broussard, rendering an account of the balance of such sales to the said Emile Broussard. That about the year 1881, Emile Broussard and Theophile Broussard were both in Jefferson county, Tex., and in the Hamshire settlement, where Derneuville Broussard, J. Bur-rell, and L. Hamshire lived. Some time about this period, Theo. Broussard tried to sell his interest in his father’s estate to L. Hamshire, who refused to buy. That also, about this period, there was some adjustment or settlement between the brothers Theo. Broussard, Emile Broussard, and Derneuville-Broussard as to their interest in their father’s estate in Texas. That thereafter Emile Broussard ceased to act as the head of and to look after the estate, and that Derneuville Broussard thereafter instructed Mr. J. Bur-rell to render the lands for taxes in his name, that is, D. Broussard instead of P. O. Brous-sard, which was done from the year 1883 to the year 1907. That Mr. J. Burrell, upon, the solicitation and instruction of Derneu-ville Broussard, continued to pay the taxes-on said lands out of the proceeds froih the sale of cattle on the range, which said land' and cattle D. Broussard was claiming as his own, and accounted to him for the balance-of the proceeds of the sale of the cattle. That this continued for a great number of years. That after the settlement between the brothers it was common talk, or rumor, in the neighborhood, that Derneuville Broussard had bought the interest of Theo. Broussard in the land, and that he had also in some manner acquired the interest of Emile Brous-sard. Emile Broussard died about the year 1903, and after such settlement and up to-the time of his death had made no assertion of title or ownership to any interest in the lands in Texas. Theo. Broussard died December 15,1881, and after the settlement and' up to the time of his death made no assertion of title or ownership to any interest in said lands, and in no manner interfered with nor denied the claim of ownership and possession of Derneuville Broussard to the entire tract of land, although they were in and out of the neighborhood at frequent intervals.
Shortly after the death of the wife of' Derneuville Broussard in 1892-1893, he (Der-neuville Broussard) undertook to qualify as survivor in community over the estate of himself and deceased spouse, and in an affidavit filed in the probate court of Jefferson county, set out that the wife’s community interest consisted of 125 acres of land in the Smith league. Derneuville Broussard was married some time prior to 1880, but the exact date-is not shown. In the filing of the above affidavit in his effort to qualify as survivor in community, it is apparent that he undertook to and did treat as community interest the two-eighths of 1,000 acres, or 250 acres, which he had acquired from his two brothers, Emile and Theo. Broussard. The community interest of the wife in the same would equal 125 acres, the amount specified in the affidavit. About this time Derneuville Broussard employed Albert Broussard, an attórney of this bar, to make a search of the records of this county to ascertain if he could find of record any instrument from any of his brothers and sisters covering a transfer of their shares in his father’s estate to him, saying he had purchased some such interests. The search was made and no such instruments were found registered in this county. It was also family history that Derneuville Broussard had acquired some of the interests of his brothers or sisters in the early 80’s.”

. To which we add that, after the death of Theophile in 1881 and of Emile in 1903, none of their heirs ever asserted any claim or disputed the claim set up by Derneuville aforesaid. Mrs. I-Iayes, a daughter of Der-neuville, testified that her father had bought the interests of some of his brothers and sisters prior to the death of her mother.

The doctrine of the proof of the execution of a deed by circumstances, or the presumption arising from certain circumstances of the existence of such muniments of title as are necessary to give lawful origin to a title long openly asserted on one side, with acquiescence in such claim on the other, is not new, but has been long established. So far as the general principle is concerned, it is established by a uniform course of decision in this state. Difficulty only arises in the application of the general principle to the facts of the particular case. The doctrine is nowhere more strongly asserted than by Justice Field, speaking for the Supreme Court of the United States in the case of Fletcher v. Fuller, 120 U., S. 534, 7 Sup. Ct. 667, 30 L. Ed. 759. In Dailey V. Starr, 26 Tex. 567, the court says that “it would be difficult to lay down, so as to answer any beneficial purposes, the circumstances under which deeds will be presumed to have existed,” and in Beincourt v. Parker, 27 Tex. 564, “although1 to some extent every case must stand upon its own peculiar facts, the principles upon which the courts are to be guided in the presumption of grants may be said to be now well established,” citing Taylor v. Watkins, 26 Tex. 688, and Yancey v. Norris, 27 Tex. 40. The facts of various cases vary, from those which lead so irresistibly to the conclusion that the claimed deed or muniment of title existed, that a verdict of a jury against such conclusion would hardly be allowed to stand, to those where they are held sufficient for that purpose only in deference to the conclusion of the jury, or the court trying the facts as a jury, upon the issue of fact thus presented.

A charge to the jury has been many times approved by this court (and by the Supreme Court by refusal of writs of error) wherein the jury was instructed, in substance,that, if from the facts and circumstances in evidence it appeared to be more probable that the deed or other muniment of title in question had been executed than that it had not been, the jury would be authorized to presume that it had been so executed. In some cases it has been held that the facts were insufficient to support such finding by the jury, as in Beincourt v. Parker, supra,Walker v. Caradine, 78 Tex. 489, 15 S. W. 31, and probably other cases which might be cited, which only signify that each must stand upon its own facts; regard being had to the general principle stated.

Actual possession, in this state, is not essential. Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033. This is only evidence of a claim of title tending to fix notice upon the holder of the adversary title of such claim and tending also to show acquiescence. But it is essential that there should be claim of ownership openly and notoriously asserted, and which can only be reasonably explained by the existence of the muniments of title necessary to support such claim, and it is essential that such assertion of ownership be acquiesced in by the holder of the adversary title. By the courts it is held that acquiescence on the one side is of more importance than assertion of ownership on the other, and logically so, for it is not unusual for men to claim what does not belong to them, but it is contrary to human experience that such adversary claim, if known, should be allowed to go undisputed if it has no basis in fact Knowledge is essential to such acquiescence, for one cannot be supposed to acquiesce in a claim hostile to his own interest unless he has knowledge of it. Walker v. Caradine, supra. But this knowledge may also be shown by circumstances.

It is earnestly contended by appellant that mere silence or failure in any way to make any objection to this assertion of title, even when known, is never sufficient evidence of acquiescence, but that some corroborating act must v be shown evidencing such acquiescence before the execution of a deed, or the existence of other muniment of title will be presumed. We can find no support for this doctrine except in the opinion of the Court of Civil Appeals of the Fourth District in Kimball v. Houston Oil Co., 114 S. W. 662. The doctrine as there stated is not supported by the authorities cited. For instance, it is stated in the opinion that “it is stated in Herndon v. Yick, 89 Tex. 475 [35 S. W. 141] that nonelaim alone is not enough, but that to entitle such a matter to be submitted to a jury for determination requires that there be corroborating circumstances.” We do not so understand the opinion in that case. What was really said Is: “The ground of this contention is that the proof of the long and continued possession, use, and an enjoyment of the land in controversy, under a claim of title by defendant in error and those under whom he claims, together with the evidence that no claim had ever been asserted on behalf of the plaintiff in error until the bringing of this suit, is so conclusive in its nature and tendency as to impel the court to presume a sale or conveyance from Cole back to the original grantee, should it be found that Cole ever possessed the title. It has doubtless been held in other jurisdictions that the inference arising from long possession and enjoyment of real estate, together with corroborating circumstances, may be so cogent as to make it the duty of the court to instruct the jury to presume a grant. Such is not the rule in this state. With us the presumption is one of fact, and it is for the jury to determine the effect of the evidence in support of that presumption. Taylor v. Watkins, 26 Tex. 688; Walker v. Caradine, 78 Tex. 489 [15 S. W. 31]; Dailey v. Starr, 26 Tex. 562.” The court also cites Boone v. Miller, 73 Tex. 557, 11 S. W. 551, and Walker v. Caradine, 78 Tex. 492, 15 S. W. 31, as cases which practically settle the question in this state. Neither of these cases afford any support to the doctrine stated in the opinion referred to.

The court seems to have not been mindful of the distinction between a presumption of law declared by the court, and a presumption of fact to be found by the jury. The presumption here, as relating to deeds from Emile and Theophile Broussard to Derneuville Broussard, is one of fact found by the court sitting as a jury.

Applying these general principles to the evidence in the present case, we are of the opinion that the evidence on the whole is sufficient to support the conclusion of the trial court, sitting as a jury, that about the year 1881, either in a general settlement of the estate of P. O. Broussard or by direct purchase, Derneuville Broussard acquired the title of Emile and Theophile Broussard to their respective interests in this land. All the parties to the transaction are dead. So far as concerns the mere possession of Derneuville, that can well be attributed to the fact that he unquestionably owned, as one of the heirs, a one-eighth interest, amounting to about 80 acres, and his actual possession never at any time embraced more than 20 acres. But the evidence strongly supports the conclusion that he claimed, about 1881, to have acquired the interest of his two brothers, and that this must have been known to them. After the death of P. O. Broussard, and indeed before that, Emile actually looked after the Texas property, and the land was rendered for taxes in the name of P. O. Broussard up to 1883, and taxes were paid by the estate. Beginning with 1883, by direction of Derneuville, it was rendered in his name, and so continued up to his sale to Jackson in 1907, and he paid what taxes were paid. It is true that Theophile died in 1881, but he left a widow who is still living and eleven children, all of whom are still living. Some of them are sons and the others married daughters. Theophile lived a part of the time at least in Jefferson county, and it is beyond belief that none of these children had any knowledge of this Texas land, and of Theo-phile’s ownership of an interest in it (unless he had parted with his title), and of Derneu-ville’s'claim that he had acquired Theophile’s interest, which, as one witness testified, was “generally talked in the family.” Emile lived until 1904, returning to Louisiana, where he died, and from the position of general manager of the property, about 1881, he ceased to have anything to do with it. He must have known of Derneuville’s claim. The absolute silence of Emile, of his five children, still living, and of all of Theophile’s children during all of these years, in the face of Derneuville’^ assertion of title, consistent with his acquisition of the interests of, Emile and Theophile, and inconsistent with any other hypothesis, strongly supports the presumption of a deed from them or the lawful acquisition of their title. Other facts and circumstances are shown in the court’s findings herein quoted, all of which are consistent with Derneuville’s claim and difficult of explanation on any other hypotheses. We are of the opinion that the evidence sufficiently supports the court’s conclusion, and the first, second, sixth, and eighth assignments of error of appellants presenting this question, with the several propositions thereunder, should be overruled.

The ease was tried without a jury. There was no reversible error in the admission in evidence, over the objection of appellants, of the testimony of the witness Ham-shire that the “talk in the family,” meaning the Broussard family, was that Theophile had sold his interest to Derneuville Broussard. This evidence was contemporary with, and explanatory of, Derneuville’s claim of title, and served also as a circumstance to show knowledge of such claim on the part of Theophile’s heirs. The point is presented by the third assignment, which is overruled.

The proposition under the fourth assignment of error- that parol testimony, when objected to, cannot be offered to prove a sale of land in this state, has no application’ to a ease of this kind, where circumstances are relied on to support a presumption of a deed. The question referred to in the fifth assignment was not leading, nor does it call for conclusions of the witness. The testimony objected to is of the same character as that referred to in the third assignment, and there was no error in admitting it.

Azema Broussard was one of the daughters of P. O. Broussard. She was dead at tie time of tie execution of tie deed by tie otier ciüdren and grandeiildren, to Derneuville Broussard in 1897. Sie left four ciüdren, one of wiom died witiout issue, and one of wiom died leaving issue, two children living, all parties interveners. One of such children was Oelema Broussard, who was deaf, dumb, and blind but of sound mind, and about 45 years of age at tie time of tie execution of tie deed to Derneuville in 1897. She died unmarried in 1899, and tie otier descendants of Azema Broussard are her heirs. This deed is signed “Oelema Brous-sard per Savenne Le Blanc, curator.” It was Rot shown that Oelema Broussard was present at the execution of this deed or had any knowledge of it. No explanation was offered as to why Savenne Le Blanc signed tie deed as her curator. By proper assignment of error tie heirs of Azema Broussard complain of tie action of tie court in holding that this deed passed the title to Celema’s interest in this land. Tie parties all lived in Louisiana, where tie deed was executed. Under tie civil law which largely prevails in that state, tie office of curator is largely tie same as guardian in this state. It is defined as “a guardian, one appointed to take charge of tie estate of a minor, a lunatic, a spendthrift, or otier person not regarded by law as competent to administer it himself.” Black’s Law Dictionary. No authority was shown for tie execution of tie deed by Savenne Le Blanc as curator or guardian of Oelema. No evidence was offered at all on this point except tie production of tie deed so signed. Tie deed was not binding upon her and was insufficient to pass her title. Terrell v. Martin, 64 Tex. 121; Tucker v. Murphy, 66 Tex. 855, 1 S. W. 76. Tie fact that it was signed by her curator contradicts any presumption that he merely acted as her amanuensis in signing her name, at her request, even if such presumption could be indulged in tie absence of any evidence that sie was present and knew of tie execution of tie deed. Tie case does not come within tie rule announced in tie cases cited by ap-pellee in answering this assignment. Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Lewis v. Watson, 98 Ala. 479, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82; Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740; Reinhart v. Miller, 22 Ga. 402, 68 Am. Dec. 506.

Appellee’s contention that tie failure to object to the introduction of this deed by tie heirs of Oelema Broussard claiming her title bars them from making tie objection here made is not sound. Tie objection is as to tie legal effect of tie deed, as conveying Oelema’s interest. Witiout otier evidence than tie mere naked deed, it was insufficient to convey her title, and tie court erred in holding otherwise. Her interest appears to be Ys of ya, or V24, of which tie intervenors, Elodie Le Blanc, tie sister of Oelema, is en-tled to recover one-half, and Aurelia and Adam Thibaudeauz, children of Celeste Brous-sard, another sister, deceased, would be entitled, Between them, to one-half. Tie judgment will be reformed accordingly.

By separate brief tie plaintiffs Ellen Oraigen and Odelia Carouthers, who claim only part of tie interest of their mother in tie community estate of herself and Derneu-ville Broussard, complained of tie conclusion of tie court that tie interests acquired by Derneuville by tie deed of 1894 from Del-zinde Broussard and others was his separate property. Tie court held that tie interests of Theophile and Emile acquired by Derneu-ville was community property of Derneuville and tie mother of plaintiffs and gave them judgment for their share, but tie otier interests acquired by Derneuville from his sisters and their descendants by tie deed of September 3,1894, did not belong to such community estate. Mrs. Broussard died in April, 1893. There is direct evidence to support this as tie date of her death, though one of her daughters testified that it was in 1893 or 1894, sie did not know which. In either case sie died before tie execution of this deed by which Derneuville acquired title. Tie presumption would be that thet property was his separate estate. In order to overcome this presumption, appellants were required to show that tie title had, in effect, been acquired by purchase prior to tie death of their mother, and had been paid for with community funds. There was some testimony that it had been acquired by some sort of an agreement or understanding before tie death of Mrs. Brous-sard ; but it was not conclusive nor clear, and tie court’s conclusion is supported by tie evidence.

If this was not so, appellants under their own contention had only an equitable title resting upon tie fact that tie land was paid for with community funds. Tie deed conveyed tie legal title to Derneuville and was executed some time after tie death of tie mother of appellants. Jackson was a purchaser for value, and tie burden rested upon appellants to show that he had notice of all tie facts constituting their equitable title.

This was not attempted to be shown, and, if their contention be true, Jackson’s legal title would be superior to their equity. Biggerstaff v. Murphy, 3 Tex. Civ. App. 363, 22 S. W. 769; Johnson v. Newman, 43 Tex. 628.

Tie assignment,of error of plaintiffs appellants as to tie taxation of costs is witi-out merit and is overruled.

The deed of 1897 in tie body of tie deed names Emerante Broussard as one of tie grantors. Sie was dead at the time of its execution. It is signed by certain of her heirs who are not named in tie body of tie deed. Tie court held that tie deed was not' binding on tie heirs of Emerante and gave them judgment for their mother’s one-eighth Interest. They do not appeal. Defendant Jackson attempted to prosecute an appeal against them by excepting to the judgment and giving notice of appeal; but his appeal bond, which was necessary to bring the heirs of Emerante Broussard into this court, they not having appealed from the judgment, was not filed within the time required by law, and the said heirs have filed a motion to dismiss said appeal as to them, on this ground. This motion must be sustained. If, however, the question had been properly presented, the contention of defendant Jackson could not be sustained. The fact that Emerante Brous-sard is named as one of the grantors in the body of the deed and that her interest is to be conveyed, she being dead, would not distinguish this ease from the general doctrine, which is well settled in this state, that a deed is not binding upon one who signs it but who is not named in the body of the deed as one of the grantors. Stone v. Sledge, 87 Tex. 49, 26 S. W. 1068, 47 Am. St. Rep. 65; Thompson v. Johnson, 24 Tex. Civ. App. 250, 58 S. W. 1080. The rule is different in some of the states. Sterling v. Park, 129 Ga. 309, 58 S. E. 828,‘reported also in 13 E. R. A. (N. S.) 298, 121 Am. St. Rep. 224, 12 Ann. Cas. 201. An extensive note to this report collates the authorities showing that the weight of authority is in favor of the rule stated in the Texas eases cited. However, the appeal having been dismissed, the question is not before us for decision.

It remains only to dispose of the contention of defendant Jackson that he was an innocent purchaser for value and without notice that the interests of Emile and Théophile Broussard, conveyed .to him by Derneuville, were community property of Derneuville and his then deceased wife, and that the court erred in rendering judgment in favor of the plaintiffs Craigen and Carouthers for their mother’s interest therein. We think this contention cannot be sustained. Derneuville had no deed to these interests. Jackson was affected with notice that he acquired them during the life of his wife, who did not die until 1897. The presumption would then be that the property was community. Jackson knew that Derneuville had been married, as several of his children joined in the deed to him. He was then bound to take notice of the fact that the plaintiffs were children of Mrs. Broussard and entitled to an interest in their mother’s half of the land. Hill v. Moore, 85 Tex. 335, 19 S. W. 162. The court did not err in the matter complained of.

It follows that the judgment should be reformed as indicated as to the interest of Celema Broussard, and as so reformed it should be affirmed, and it is so ordered. The costs of the appeal will be taxed against appellants, the interveners, except the heirs of Celema Broussard as herein named.

Reformed and affirmed.


author: REESE, 3.

text:
    COCHRAN et al. v. KENNON et al.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1913.)
    1. Schools and School Districts (§ 107)— School Taxes — Enjoining Collection.
    Under Acts 31st Leg. c. 12, § 1, amending Acts 29th Leg. c. 124, g 58, providing that when 20 or more, or a majority of the property taxpaying voters of a district, wish to tax themselves for the purpose of supplementing the state school fund, they shall make application to the county judge, who shall issue an order for an election to determine whether such tax shall be levied, and that he shall order the sheriff to give notice of such election by posting three notices in the district, and that the sheriff shall obey such order, the validity of such an election can be attacked on the ground that notice was not given, as required by the statute, in a suit to enjoin collection of the tax, as the taxpayers have no other remedy, by quo warranto or otherwise.
    [Ed. Note. — For other cases, see Schools and School Districts, Gent. Dig. §§ 253-256; Dec. Dig. § 107.*]
    2. Taxation (§ 301) — Levy and Assessment —Compliance with Statute.
    Where the burden of taxation is authorized to be laid upon the property of citizens under certain conditions, a compliance with all such conditions is essential to the validity of the tax.
    [Ed. Note. — Eor other cases, see Taxation. CentDig. §'§483-495,499-508; Dec.Dig. § 301.]
    3. Schools and School Districts (§ 103)— School Taxes — Submission op Question to Voters — Statutory Provisions.
    Acts 31st Leg. c. 12, amending Acts 29th Leg. c. 124, § 58, requiring notice of an election to determine whether a tax shall be levied to supplement the state school fund, to be given by the sheriff by posting three notices in the district, was neither strictly nor substantially complied with by posting two notices within the district and a third notice outside the district.
    [Ed. Note. — For other cases, see Schools and School Districts, Gent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.]
    4. Schools and School Districts (§ 103)— School Taxes — Submission op Question to Voters — Statutory Provisions.
    Under such section, where one of the three notices required was posted outside the district, the notice was not rendered sufficient by the act of the commissioner’s court in thereafter and before the election annexing to such district certain territory, including the place where such notice was posted.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.]
    5. Schools and School Districts (§ 107)— School Taxes — Submission op Question to Voters — Statutory Provisions.
    In a suit to enjoin the collection of a tax on the ground that the notices were not posted as required by such section, the burden was on defendants to show that all or a substantial majority of theN qualified voters had actual knowledge of the election, and that the failure to give the statutory notice did not affect the result.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 253-256; Dec. Dig. § 107.]
    Appeal from District Court, Ft. Bend County; S. J. Stiles, Judge.
    Action by W. B. Cochran and others against
      3. D. Kennon and others. From an order dissolving in part a temporary injunction, plaintiffs appeal.
    Reversed and injunction reinstated.
    W. 3. Howard, of Houston, for appellants. D. R. Peareson, of Richmond, for appellees.

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

   REESE, 3.

This is an appeal from an order of the district judge, in vacation, dissolving, in part, a temporary injunction theretofore ordered by him. On the hearing of the motion to dissolve the judge found that all of the allegations of the plaintiff’s petition were true. The petition was sworn to, and in defendants’ answer, on which is based their motion to dissolve, and which is not sworn to, there is only a general denial of these allegations. So the only question presented is whether on the allegations of the petition it was error to dissolve the injunction as was done.

The plaintiffs sued to enjoin the collection of a special tax for the support of the public school in school district No. 19, ordered to be levied and collected for the year 1912, and succeeding years, by the commissioners’ court, by order made in pursuance of an election which had been held on September 3, 1912. In addition to injunction against the levy and collection of such taxes generally, plaintiffs sought specially to have the tax collector restrained from collecting the taxes for the year 1912, on the ground that at the time the tax was ordered the tax rolls had been made up by the assessor and delivered to the collector, and that the assessor had no lawful right to afterwards enter upon such tax rolls the additional school tax so ordered. This part of the temporary injunction was not disturbed by the judge, but was continued on the motion to dissolve, and no question as to this part of the order is presented on this appeal.

The material allegations of the petition accepted as true, as a basis of this appeal, are as follows: Plaintiffs are all property taxpayers in school district No. 19 of Ft. Bend county, as now constituted, and some of them are residents of said school district. Some of them own property subject to taxation, and also reside, in that portion of district 20 which was added to district 19 on August 22, 1912. On August 10, 1912, upon proper petition, the commissioners’ court of Ft. Bend county ordered an election to be held on September 3, 1912, in said school district 19, then, and for some time prior thereto, a duly created and organized school district of said county, to enable the qualified voters therein to determine whether an annual tax of 15 cents on the $100 of taxable property in the district should be levied and collected for the support of public schools in the district. Notices of such election were ordered to be posted by the sheriff at three public, places in the county, as required by subdivision 3, § 58, Acts 29th Leg., c. 124, as amended by chapter 12, Acts 31st Leg. Such notices were so posted by the sheriff, two of them at two public places in said district 19, as it then existed, and one at a public place outside of said district, but at a public place then in district 20, and in the territory which was afterwards (as will be hereinafter shown) taken from district 20 and added to district 19. All of the notices were posted for three weeks before the election. After these notices had been posted the commissioners’ court, on August 22, 1912, undertook to change the boundaries of district 19, and by order duly made did so change said boundaries by adding to district 19 certain territory theretofore lying in district 20, and also by such changed boundaries took certain territory from district 19. The territory taken from district 20 and added to district 19 included Sibley’s store, where the third notice referred to had been posted. In pursuance of the order aforesaid and the notices referred to, an election was held at Dow Bros.’ store in the district on September 3, 1912, at which 22 votes were cast, all of which were in favor of the tax. In due time return was made, the votes canvassed by the commissioners’ court, result declared, and in pursuance of this authority, a tax of 15 cents on the $100 valuation was ordered to be levied and collected each year, on all taxable property in the district. It is alleged in the petition; and must be taken as true, that the 22 voters voting at said election were less than a majority of the taxpaying voters of the district, and that none of the plaintiffs, 12 in number, had any notice or knowledge that such election was to be held. None of the plaintiffs who resided, or owned taxable property, in that part of district 20 which was, on August 22, 1912, added to district 19 had any knowledge or notice that' this change had been made, whereby their property was placed in district 19. The petition further charges that there were many resident citizens of said district who were taxpayers and property owners, and qualified to vote at said election, who did not participate therein, and who had no notice that said election was to be held, and that if another and different election is held upon the question, a majority of the qualified voters in such district will vote against said tax.

After finding that the allegations of the petition were true, the judge found as a conclusion of law “that the manner of giving notice of such election was irregular, but the manner of holding and giving notice of such election cannot be inquired into in this suit, which is a collateral attack on same,” and upon this conclusion of law the court dissolved the temporary injunction, except as stated as to the tax for the year 1912. Appellees in their brief do not attempt to sustain the order of the judge upon any other ground than that upon which it is based in the law conclusion above stated (citing in support of such conclusion El Paso. v. Ruckman, 92 Tex. 86, 46 S. W. 26; Parker v. Drainage District, 148 S. W. 861; Drainage District v. Higbee, 149 S. W. 388; Boesch v. Byrom, 37 Tex. Civ. App. 36, 83 S. W. 18; Coffman v. Goree, 141 S. W. 132; Troutman v. McClesky, 7 Tex. Civ. App. 561, 27 S. W. 173; Wilbern v. Cone, 148 S. W. 818; Crabb v. Celeste School District, 132 S. W. 890; City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440). The learned district judge seems to have misapprehended the effect of these decisions, and learned counsel for appellees seems to have fallen into like error. El Paso v. Ruckman, supra, affords a fair example of the question presented and decided in each of the eases cited above. In that case the question involved was the validity of the independent school district of the city of El Paso. The power to levy and collect taxes by the municipality was involved, but the right to levy such taxes was denied on the ground that the independent school district had no legal existence. The city of El Paso had been acting since 1882 as such school district, but it was contended by the plaintiff Ruckman that the provisions of the law in the creation of the same had not been complied with. The question was certified to the Supreme Court. In answering certified questions the court said: “The rule is well established that when the creation of a public corporation, municipal or quasi municipal, is authorized by statute and a corporation has been organized under color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The -validity of the incorporation- can only be determined in a suit brought for that purpose in the name of the state, or by some individual under the authority of the state, who has a special interest which is affected by the- existence of the corporation.” The question involved and decided in the cited cases was of precisely similar import, the validity of some character of municipal or quasi municipal corporation being presented. In the present case no question is made of the validity of school district 19, as originally organized, nor is any question made of the validity of the action of the commissioners’ court in adding new territory to said district. The sole attack upon the tax levy is based upon the illegality of the election on account of the failure to comply with the provisions of the statute with regard to notice. It is a matter which could not be reached or remedied by a proceeding in quo war-ranto. The law only authorizes such taxes as are. here complained of after an election ordered and held under certain conditions. One of these conditions is that notices of the election be posted by the sheriff at three public places in the district. This was not done, and for this reason plaintiffs say the levy and collection of the tax is unauthorized, and they seek relief therefrom. They have no other remedy than the one they are here seeking. The judge was in error in holding that the only remedy was by quo warranto, and in dissolving the injunction on this ground.

The judge concluded that the manner of holding and giving notice of the election was irregular. Where the burden of taxation is authorized to be laid upon the property of a body of citizens, under certain conditions, a compliance with all of such conditions is essential to the validity of the tax. This is the general rule. 37 Cyc. 971; Swenson v. McLaren, 2 Tex. Civ. App. 331, 21 S. W. 302 (citing authorities). In the case cited the tax was declared invalid on the ground that the notices posted were signed by the county judge instead of the sheriff. Whether a strict or a substantial compliance be required, in the present case there was neither. The statute required in positive terms that notice to the voters be given by posting notices at three public places in the district by the sheriff. Such notices were posted only in two such places in the district. The third notice, posted at Sibley’s store, outside of the district, may have just as well not have been posted at all, and the subsequent addition of territory to district 19, which included the place where it was posted, did not validate it. If it be sought to apply the rule that such failure to comply with the provisions of the statute will not invalidate such election, if in fact all, or a substantial majority, of such qualified voters had actual knowledge of such election, and the failure to give the notices prescribed did not affect the result (Norman v. Thompson, 30 Tex. Civ. App. 537, 72 S. W. 64; Buchanan v. Graham, 36 Tex. Civ. App. 468, 81 S. W. 1237; Wallis v. Williams, 50 Tex. Civ. App. 623, 110 S. W. 785), the burden was upon defendants to show by pleadings and proof that such was the case, as to this election (Norman v. Thompson, 30 Tex. Civ. App. 537, 72 S. W. 64-68). But not only was there no pleading or proof on the part of defendant that all or a substantial number of the voters, outside of those who actually voted, had any notice of such election, but the allegations of the petition, found to be true, expressly negatived this fact. So the action of the judge in dissolving the injunction cannot be sanctioned on this ground. It is fairly to be presumed that the learned judge would have so found but for the mistaken view of the law upon which his action was based.

Other questions presented by the assignments of error need not be considered. It would seem, however, that under the decision of the Supreme Court in Hill v. Howth, 101 Tex. 620, 111 S. W. 649, after the election was ordered in district 19, the commissioners had no right to change the boundaries of the district so as to affect the election previously ordered, and that such subsequent change could not do so. Hill v. Howtli, 101 Tex. 620, 111 S. W. 649. This question is not presented, however, and what we have said is merely by way of suggestion.

Our conclusion is that the order of the district judge, in so far as it dissolves the temporary injunction, should be set aside, and the temporary injunction reinstated and continued, as though no such order of dissolution had been made; and it has been so ordered.