author: MOÜRSÜND, J.

text:
    JOHNSON et al. v. SCOTT.
    (No. 6119.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1919.
    Rehearing Denied Feb. 5, 1919.)
    1. Husband and Wins @=>152 — Relation of Principal and Surety — Evidence.
    Where, after vendee had defaulted and judgment had been obtained against him, he and his wife conveyed property to a trustee who in turn conveyed to the wife, stipulation in deed to wife that she agreed to pay judgment had the effect to bind her as primary obligor and make her husband surety, if she had capacity to make such contract.
    2. Husband and Wins @=>152 — Powee to Assume Obligations of Husband.
    Where judgment had been obtained against vendee after his default and property was subject to liens in excess of its value, vendee’s wife could not. under statutes as they existed prior to the Married Woman’s Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624), in consideration of conveyance to her, bind herself to pay a large consideration to her husband or become personally liable on a contract assuming said judgment.
    3. Husband and Wine @=>116 — Conveyance to Wife of Equity in Land — Validity.
    While a husband may give to his wife an equity in land, and a conveyance by him directly or through a trustee would vest such equity in her as her separate estate, where equity is worthless, there can be no gift.
    4. Husband and Wife @=>162 — Conveyance to 'Wife — Legal Title.
    Where equity in land conveyed by husband to wife through a trustee was worthless, the wife should be considered as holding legal title in trust for her husband, at least as to all persons having notice that she took no beneficial interest.
    5. Husband and Wife @=>162 — Contract for Benefit of Separate Estate.
    Going through the forms of law appropriate to vest in the wife a right to acquire land of her husband at a cost in excess of its market value gave wife no beneficial interest in property and the purchase by her of a judgment against the land in consideration of her note would not be for the benefit of her separate estate.
    6. Husband and Wife @=>162 — Husband’s Obligation — Note of Wife — Validity.
    Where wife through a trustee purchased property of her husband subject to liens in excess of its value, Held, that note given by her for judgment, which husband’s vendor had against him, created no personal liability against the wife, either under the Married Woman’s Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624) or prior statutes.
    7. Husband and Wife @=>162 — Contract for Benefit of Separate Estate.
    A married woman, after buying property of her husband subject to liens for sums in excess of its value, cannot make valid contracts binding herself personally to pay such sums on the theory that such contracts are for the benefit of her separate property.
    8.Husband and Wife @=>162 — Note of W ife — Estoppel.
    In suit on wife’s note given in consideration of assignment by her husband’s vendor to her of judgment against husband after land had been conveyed to her pursuant to request of vendor, held that vendor, who knew that there were liens against the property in excess of its value, could not plead that wife was estopped to set up that note was not for the benefit of her separate estate.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge. '
    Suit by John C. Scott against Annie Johnson and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered in part and affirmed in part.
    E. P. Scott, of Corpus Christi, R. J. McMillan, of San Antonio, and Pope & Sutherland, of Corpus Christi, for appellants.
    W. L. Dawson, of Mission, and Jas. H. Anderson and Kleberg, Stayton & North, all of Corpus Christi, for appellee.

      Writ qi error denied by Supreme Court March 26, 1919.

   MOÜRSÜND, J.

We adopt appellants’ statement of the nature of the case:

“This is a suit by appellee, John C. Scott, against appellant Mrs. Annie Johnson, on a promissory note for the sum of $9,920, principal and interest due thereon, alleged by appel-lee in his petition to be due appellee by appellant Annie Johnson, and that said note was executed for the benefit of the separate estate of said appellant Annie Johnson, who is, and was at the time of the execution of said note, a married woman, and that the payment of said note is secured by a deed of trust executed by the said Annie Johnson, joined by her husband, B. O. Johnson, conveying to A. D. Evans, trustee, in trust, all of the eastern portion or part of lot 12, in block 6, on the beach portion of the city of Corpus Christi, Nueces county, Tex., a part of the separate property and estate of appellant, Annie Johnson.
“Appellant Annie Johnson, specially denied that the note described in plaintiff’s petition was executed by appellant Annie Johnson, joined by her husband, B. O. Johnson, for the benefit of her separate property and estate, and alleged the fact to be that the note sued upon was executed by appellant to secure the payment of a previous debt due from her husband, B. O. Johnson, and that at the time of the execution of said note appellant was a married woman, and still is a married woman, and that at the time of the execution and delivery of said note and deed of trust, appellee, John C. Scott, knew that appellant Annie Johnson was a married woman, and that the note sued on was executed by appellant Annie Johnson for the purpose of securing a debt due from her husband, B. O. Johnson, and well knew that said note was not executed for the benefit of the separate property and estate of the defendant Annie Johnson, or for necessaries furnished to her or her children, and denied that any valid lien was created on the real estate described in plaintiff’s original petition by virtue of the execution of the note and deed of trust described in appellee’s first amended original petition, and prayed that the note and deed of trust sued on be canceled and held for naught.”

Judgment was entered for appellee, pursuant to an instructed verdict, for $13,150.34, and for foreclosure of the lien as prayed for in the petition.

Appellee, on February 7, 1913, conveyed to B. O’. Johnson the property in Corpus Christi, known as the Seaside Hotel, for a consideration of $6,000 cash, notes aggregating $13,000, and the assumption of four notes for $6,250 each to W. H. Bullard, and a note for $6,000 to Mrs. S. J. Rogerson. The next year Johnson married Mrs. Annie Uehlinger, appellant, and the property became their homestead. Johnson having defaulted in the payment of two of the notes given by him to appellee, the latter, on March 11, 1¾15, obtained a judgment against him upon said notes for $11,-558.75, with 8 per cent, interest from date of judgment, and for foi’eelosure of the vendor’s lien retained in the deed from him to Johnson.

On March 18,1915, B. O. Johnson and wife, Annie Johnson, conveyed said property to Grover C. Keeton, reciting in the deed that it was conveyed in trust for the sole purpose of conveying such property to said Annie Johnson. On the same day Keeton and. his wife conveyed said property to Annie Johnson, in consideration of a note by her to her husband, B. O. Johnson, for $10,000, payable on or before January 11, 1920, without interest until after maturity, the deed containing a stipulation that said note “shall not become a personal obligation against said Annie Johnson, or her estate, unless and until the following indebtedness shall have been paid off and discharged in full,” the indebtedness referred to being the Bullard notes and the Rogerson note. The deed contains the further statement that the said $10,000 note expressly provides that if the property is lost by foreclosure of either of said liens, meaning those securing the Bullard and Rogerson notes, then Annie Johnson shall not be personally liable to B. O. Johnson for tire amount of said note, and that said note is to be secured only by vendor’s lien on the property until said liens are satisfied, and then it shall become a legal irorsonal obligation of said Annie Johnson. The deed contains a stipulation that the conveyance is made subject to the Bullard indebtedness, the Rogerson indebtedness, and the judgment in favor of appellee against B. O. Johnson, hereinbefore described, and con-tjains the statement that Annie Johnson agrees to pay off and satisfy said judgment. A lien is retained until the “above-described notos and all interest thereon are fully paid.”

On the same day, March 18, 1915, ap-pellee assigned to Annie Johnson, as her separate property, his judgment against B. O. Johnson, in consideration of the note herein sued on, and the execution of the deed of trust described in plaintiff’s petition. The note contains the recital that it is made for the benefit of Annie Johnson’s separate estate, and that her husband joins her pro forma.

Johnson and Mrs. Uehlinger entered into' an antenuptial agreement, whereby it was agreed that she should, after marriage, have all the rights and authority over her separate estate that a single woman would have. This instrument was not filed for record until April 1, 1915.

On March 18, 1915, Mrs. Johnson, joined by her husband, entered into an extension agreement with Bullard, wherein it is stipulated that the notes evidencing the indebtedness to him are extended for two years after date of the agreement, that the property is the separate property of Mrs. Johnson, and that she assumes the indebtedness, but that she is not to be personally liable to Bullard on the notes or under the agreement.

On August 4, 1917, Bullard secured a judgment against Annie Johnson, B. O. Johnson, and others, foreclosing his lien on the property to pay his indebtedness, interest, and attorney’s fees, aggregating $35,624.10. The property was sold under this judgment.

Appellee testified that Mrs. Johnson came in to see him several times, accompanied by Mr. Allison, an attorney; that she was anxious to get the Seaside Hotel property; that he told Allison, “I have got to have assurance and know that this property has been transferred to her as her separate property before 1 close this trade with her;” that they went on then and made those deads, transferred it to the trustee and the trustee back to her; that after that was done Allison came in and assured appellee that the whole thing was closed; that the property had been transferred to her and was her separate estate. He testified further that after that was all done, and after Allison’s representation that it was her separate property, and acting on the faith thereof, and on her statement in the note that it was her separate property, he assigned the judgment to her and took her note and the deed of trust, both of which instruments were dictated by him. He testified:

“She acquired it as her separate property through a trustee, which in Texas law makes it her separate property. Allison and X agreed on that. That was before she made this note and mortgage to me.”

He also testified:

“The judgment against Johnson was worthless; it was secured by a lien on her separate property. The judgment that I conveyed her was worth 200 per cent.; that the Seaside Hotel property was one of the most valuable properties in Southwest Texas.”

The trade between Johnson and his wife was to the effect that if she succeeded in paying off the $25,000 lien and the $6,000 lien, as well as appellee’s judgment of $11,-558.75, then she would have to pay her husband $10,000, making an investment of about $52,000 for the property. On the other hand, if she was unable to pay the $25,000 and the $6,000 and therefore lost the property, she would not have to pay her husband the $10,000, but would suffer a clear loss of whatever amount she had to pay on appellee’s judgment. In this case appellee, instead of selling the property under his foreclosure, preferred to transfer his judgment for $11,-558.75, bearing 8 per cent, interest, to Mrs. Johnson for her note for $9,920, bearing 7 per cent, interest, payable on or before five years after date, and secured by a mortgage on property owned by her. This transaction raises a decided inference that the Seaside Hotel property was not worth in the market the amount of the first two liens and appel-lee’s judgment debt. It is true appellee testified his judgment was worth 200 per cent., but at another time he stated it was worthless, and it appears to us that when he said it was worthless he meant so far as its col-lectibility from Johnson was concerned, and when he said it was worth 200 per cent, he did not mean it was worth double its face value, but that it was a valid judgment. He did not testify that the property at that time had a market value in excess of $40,000, nor did any one else. The evidence wholly fails to show that Mrs. Johnson could derive any benefit from paying $9,920 out of her separate estate in order to satisfy the third lien on the Seaside Hotel property. Such a transaction could not be beneficial unless she had a substantial equity to protect.

The legal effect of the agreement of Annie Johnson, stipulated in the deed to her, to pay off the judgment of appellee, would be to bind her for the payment of the judgment as a primary obligor, and the relation of her husband would become that of surety, if she had the capacity to make such a contract. Brannin v. Richardson, 108 Tex. 112, 185 S. W. 562.

But it is clear that under our statutes as they existed prior to the act of 1913 she .had no capacity to bind herself to pay the $10,000 to her husband nor to make herself personally liable on a contract assuming the payment of the judgment of appellee. Still, as a vendor’s lien was retained by Keeton, to secure the payment of the note to her husband, and other notes, it appears that by taking proper steps Johnson could recover the land if she failed to pay. Speer’s Law of Marital Bights in Texas, § 172. In the opinion of the Supreme Court, in the case of Red River National Bank v. Ferguson, 206 S. W. 923, not yet officially published, it is held that the act of 1913 (Acts 33d Leg. c. 32 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624]) does not confer upon married women the general power to make contracts, and that the power to make contracts for the benefit of her separate estate must be deduced by implication, if it exists at all, since the language expressly conferring such power, formerly in the statute, was omitted in the amending the article in which it had been contained.

The husband can give to the wife an equity-he owns in land and a conveyance by him, directly or through a trusee, would vest such equity in her as her separate estate, but we have found no case in which it has been held that a transaction, such as was made between Johnson and his wife, could be given effect. There was no gift, for, as far as the record shows, his equity of redemption was worthless.' She took no beneficial interest, so far as the evidence discloses, and at least as to all persons having notice of that fact, it appears to us, she should be considered as holding the legal title in trust for her husband. Payment by her out of her separate estate would to the extent thereof give her a beneficial interest in the property, but at the time she gave her note to appellee, which was on the same day and immediately after the transaction by which the legal title was vested in her, she had no beneficial interest in the property, so far as the record discloses. But after she had gone through the forms of law appropriate to vest in her the right to acquire the land at a cost in excess of its market value, appellee felt that he could safely contract with her, on the theory that the contract would be for the benefit of her separate estate. His view is disclosed by his testimony:

“That note was executed to save her separate property; her separate property was going to be sold under an execution in this court, and in order to save her separate estate she executed that note and got away with the judgment.”

The law looks to the substance of a transaction, and not to the form. In the Ferguson Case, hereinbefore referred to, Chief Justice Phillips, speaking of the power of married women to make contracts, said:

“The limitations upon her authority are but the expression of a scrupulous concern for the preservation of her estate, and were imposed to that end. In that interest her authority to contract debts at all was confined to those essentially to her advantage, that is, for necessaries for herself or her children and the benefit of her estate, with a court, in all suits against her for such debts, charged with the duty of seeing that they were actually incurred for those purposes and were reasonable and proper.”

Chief Justice Hemphill, in the case of Lynch v. Elkes, 21 Tex. 229, said:

“There was no proof that the land purchased was to be her separate property, and, if there had been, courts would not allow .the whole, perhaps, of her separate estate to be sacrificed in attempts to make additional purchases without proof of benefit or advantage, and with the certainty in fact of detriment and loss. I shall not enter into the discussion of the liabilities of married women. It is manifest at a glance that if obligations of this character were enforced against the property generally of a feme covert, she might be suddenly reduced to penury, and the shield of her disability be rendered wholly worthless, if not converted into an instrument for her destruction.”

The views above quoted cannot be harmonized with any theory that a married woman, after buying property subject to liens for sums in excess of its value, can then make valid contracts binding herself personally to pay such sums on the theory that such contracts are for the benefit of her separate property. Such contracts would be for the purchase of property instead of expenses for the benefit of her separate property. The construction of the omitted statute, with reference to expenses incurred for the benefit of separate property, announced by Judge Speer in section 157 of his Law of Marital Rights in Texas, appeals to us as undoubtedly correct. That statute was never intended to grant power to married women to bind themselves- personally for purchase money of property, whether at the instant of acquiring an equity, or after the acquisition thereof. And such power, existing by implication as an incident of ownership, to which appellee is relegated in view of the omission of the provision above discussed, is of course very limited, and could not possibly authorize her to bind herself personally for purchase money of property.

Appellee also relies upon estoppel. Any one who contracts with a married woman is of course chargeable with knowledge of the law relating to such contracts, and knows that he must be prepared to prove the existence of such a state of facts as will support her power to bind herself. Appellee, who is an attorney, knew what liens were against the property, and what instruments were relied on to place the title in Mrs. Johnson, for they were drawn after discussion with him, and after he had insisted that he would not close the trade with her unless 'the property was transferred to her as her separate property. He did not read the instruments, but relied on the statement by her attorney that the property had been transferred to her and was her separate estate, and also relied on the statement to that effect contained in the note he dictated.

The representation was coupled with such information as apprised appellee that it involved only a legal opinion based upon the transfers. To permit him to rely on estop-pel in such a case would be “to ignore the plain requirements of the law in a particular of which the person complaining was chargeable with notice.” Appellee was chargeable with notice of every fact he would have ascertained had he read the instruments on which the legal opinions were based. There is no merit in the plea of estoppel.

The record sufficiently discloses that objections to the peremptory instruction were presented before it was read to the jury.

The judgment is reversed in so far as Mrs. Johnson fe held personally liable, and judgment rendered that plaintiff take nothing in so far as he prays for-that character of judgment. In all other respects it will be affirmed.

Reversed and rendered in part, and affirmed in part.
      <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    WEST et al. v. McMAHON.
    (No. 6153.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1919.)
    Justices or the Peace <g=»174(12) — Appeal to County Court — Incbeasing Amount or Cross-Action.
    Where defendant filed cross-action in justice court for $200, he could not, on appeal to county court, increase amount of his cross-action to $500, as appellate jurisdiction cannot exceed in amount jurisdiction of justice court.
    Appeal from Live Oak County Court; W. W. Caves, Judge.
    Suit by Duval West and another, receivers of the San Antonio, Uvalde & Gulf Railroad Company, against O. McMahon, wherein defendant filed a cross-action. From a judgment for plaintiffs, and against defendant on his cross-action, defendant appealed to the county court; and from a judgment there for defendant against plaintiffs on the cross-action, and against plaintiffs and for defendant on plaintiffs’ cause of action, plaintiffs appeal.
    Reversed, and cause remanded.
    John D. Hartman and Mason Williams, both of San Antonio, for appellants.
   SWEARINGEN, J.

This suit was original- ’ ly filed in the justice court, precinct No. 1, Live Oak county, Tex., by the appellants against the appellee, to recover $71.25, representing an undercharge on a shipment of 8,000 feet of lumber, and an immigrant’s outfit, from Lamarque, Tex., a station on the Missouri, Kansas & Texas Railway Company’s line, to Kittie, Tex., a station on the line of the appellants; and at the same time the appellants sued out a writ of sequestration, and took into possession certain property belonging to the appellee, whicn was then in possession of the appellants, and asked that a lien be established upon the same, and the same, be sold to satisfy said undercharge. The appellee filed a cross-action in the justice court, ashing damages in the sum of $127.50, $2.50 damages to lire stock, and $195 damages for suing out the writ of sequestration.

A judgment was obtained hy the appellants, for thq full amount sued, for, in the justice court, and judgment was rendered against the appellee on his cross-action. The appellee then filed in the justice court a pauper’s oath, giving notice of appeal to the county court, and the transcript of the justice of the peace court was sent up to the county court. In the county court the appellee filed a cross-action for the sum of $500, $25 of which was for damages to live stock, and $475 for wrongful sequestration. The appellee, in his second amended original answer and cross-action, prayed for judgment against the appellants, as receivers of the San Antonio, Uvalde & Gulf Railroad Company, in the full sum of $500, and that any judgment he might recover be certified hy the clerk of the court to the clerk of the federal court, located at San Antonio, Tex.

The appellants excepted to appellee’s cross-action, for the reason that it was appealed from the justice court, and in said justice court the appellee set up< a cross-action for the sum of $200, and upon appeal to the county court increased his demand to $500, which 'amount was beyond the jurisdiction of the justice court, and that said cross-action deprived the county court of jurisdiction.

The appellants’ exception _ was overruled, and the court proceeded to the trial of the case, which resulted in a judgment in favor of appellee against the appellants, in the sum of $24 damages to live stock, and a judgment against appellants and in favor of appellee upon the appellants’ cause of action for undercharge, to which action of the court the appellants excepted and gave notice of appeal.

The only assignment is:

“The court erred in entertaining the defendant’s cross-action in the county court, for the reason that the defendant filed a cross-action in the justice court for the sum of $200 and in the county court, upon appeal, increased the amount of his cross-action to $500; that by virtue of the defendant’s increasing his demand on Ms cross-action in the county court, in a sum exceeding the jurisdiction of the justice court, the county court lost jurisdiction.”
“The rule in cases appealed from justice court to the county court is that the appellate jurisdiction of the county court cannot exceed in amount the jurisdiction of the justice court. Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478 [119 S. W. 294]; St. Louis S. W. Ry. Co. of Texas v. Berry & Slaughter, 177 S. W. 1187.” Houston & Tex. C. Ry. Co. v. Lewis, 185 S. W. 593. The opinion by Mr. Justice Jenkins in Hegman v. Roberts, 201 S. W. 268, expresses disfavor with the rule above announced. The assignment is sustained.

The judgment is reversed, and the cause remanded.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BUNN v. CITY OF LAREDO.
    (No. 6131.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 15, 1919.
    Rehearing Denied Feb. 12, 1919.)
    1. Constitutional Law <§=>171,191 — Limitation of Actions <§=3(2) — Statutes Shortening Period — 'Validity. .
    Const, art. 1, § 16, forbidding retroactive laws, or laws impairing obligation of contracts, contemplates only that a statute shortening the period within which an action may be brought shall allow a reasonable time within which to assert rights.
    2. Trespass to Try Title <§=>6(1) — Plaintiff’s Title — Sufficiency.
    In trespass to try title, plaintiff must recover, if at all, upon the strength of his own title, and not upon the infirmity of defendant’s title.
    3. Trespass to Try Title <§=>9 — Plaintiff’s Title — Sufficiency.
    Plaintiff, whose title depended upon deed from defendant city, could not maintain trespass to try title, deed upon its face showing superior title in defendant.
    4. Adverse Possession <§=>111 — Title by Limitations — Pleading.
    Title by limitation cannot be maintained unless specially pleaded.
    5. Appeal and Error <§=>1178(8) — Remand-Grounds.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1616, court on appeal is not authorized to reverse and remand to enable a party to amend his pleading.
    6. Vendor and Purchaser <§=>100 — Forfeiture for Nonpayment — Limitations.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5694, 5695, have no application to contracts giving power to forfeit for nonpayment, but only bar enforcement of a superior title, or the foreclosure of vendor’s lien.
    7. Contracts <§=>318 — Validity of Provisions for Forfeiture.
    A clear stipulation for a forfeiture will be enforced.
    8. Contracts <§=>318 — Compliance with Provisions.
    The manner provided for exercising the right of forfeiture must be strictly complied with.
    9. Limitation of Actions <§=>167(3) — Acquiring Title.
    Even if plaintiff had pleaded title by limitations, and even if defendant’s right to enforce superior title or foreclose its vendor’s lien was barred by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5694, 5695, where plaintiff’s deed showed that he held t,itle in subordination to the right of defendant city he could not recover without proving that debt) had been paid.
    10. Vendor and Purchaser <S=»278 — Reme-diad Statutes.
    Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 5694, 5695, as to when rights under vendor’s lien are barred, should be construed as remedial.
    Appeal from District Court, Webb County; J. P. Mullally, Judge.
    Trespass to try title by T. A. Bunn against thé City of Laredo. Judgment against plaintiff, and he appeals.
    Affirmed.
    T. C. Mann, of Laredo, for appellant.
    A.. Winslow, of Laredo, for appellee.

      Writ of error granted by Supreme Court March. 26, 1919.

   SWEARINGEN, J.

T. A. Bunn, the appellant, brought this suit against the city of Laredo to recover four blocks of land in the city of Laredo of the alleged value of $1,000. The suit brought was in the usual statutory form of trespass to try title, wherein it was alleged that Bunn was the owner in fee simple of said land on the 1st day of July, 1917, and was lawfully seized and possessed of same, and that the city of Laredo on said date unlawfully entered upon said premises' and ejected said Bunn and still unlawfully withholds from him said land.

The city of Laredo entered a plea of not guilty, and specially answered that it owned the property sued for on September 14, 1889, on which date it executed a deed in which was expressly reserved the vendor’s lien to secure payment of purchase-money notes received by it as part of the consideration; that said purchase-money notes were never paid. The answer further averred that the city of Laredo sold the property in pursuance of an ordinance previously adopted, which ordinance required that a right of forfeit be expressly reserved in the deed and notes. The deed and notes executed in September 14, 1889, for the land in controversy, did expressly reserve the right in the city to forfeit the land in the event default was made in the payment of the notes according to their face.

The ánswer averred that default was made, and that the city did forfeit the land as provided in the ordinance and the deed made in pursuance thereof.

It was further averred in the answer that the city -jvas, at and long prior to the institution of this suit, in the actual possession of the said property, having built a hospital on a part of same winch hospital was being operated for the public welfare.

The cause was submitted to the court without a jury. Judgment was rendered against the appellant, Bunn.

The trial court filed its findings of fact and conclusions of law, wherein it was found that the city of Laredo did make the deed herein involved by virtue of an ordinance requiring vendor’s lien notes and the stipulation of forfeiture for nonpayment of notes; that the deed and notes both contained appropriate notice of the right of forfeiture. The ordinance was passed in 1888. The deed was executed September 14,.1889. The notes bore the same date of the deed, and were made payable 20 years after their date, or September 14, 1909. The notes were never paid nor any part thereof. The city of Laredo exercised its right to forfeit the land in the manner provided therefor, and took actual possession of the property, and was in such possession when this suit was filed. Appellant nor any of his grantors, other than the city, had ever been in actual possession of the said property.

Appellant submits 11 assignments, wherein it is clearly and concisely contended that the court committed material errors. But as all the alleged errors grew out of the trial court’s refusal to give such construction to articles 5694 and 5695 of the statutes as would vest title to the land in appellant, when the deed under which appellant claimed showed the superior title in appellee, we feel that a detailed treatment of the assignments is unnecessary.

It must be admitted that, if the city of Laredo had brought this suit to foreclose its vendor’s lien or recover the land by virtue of its superior title, such suit would have been barred by articles 5694 and 5695 of the statutes, as shown by the following facts: Date of deed and notes, September 14, 18S9 — ■ “prior to July 14, 1905”; maturity of notes, September 14, 1909. Add three days grace (Tullos v. Mayfield, 198 S. W. 1073); September 17,1909, is date of maturity of the notes. These notes were not barred by any statute until four years after maturity, or until September 17, 1913. When article 5694 became effective there remained more than a month during which appellee could have brought its suit on the deed or notes. The last amendment of article 5695 extended the time until November 19, 1914.

This reasonable time allowed the city in which to assert its rights was all the Constitution required. Constitution of Texas, art. 1, § 16; Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249; Cathey v. Weaver, 193 S. W. 490; Laredo v. Salinas, 191 S. W. 190; McCutcheon & Church v. Smith, 194 S. W. 831; Clark v. Mussman, 203 S. W. 380; Godley v. Slaughter, 202 S. W. 802; Henson v. Slaughter, 206 S. W. 375.

But the city of Laredo did not bring this suit to either foreclose its vendor’s lien or to recover the land on its superior title.

Appellant brought the suit against the defendant city. The form of the suit was trespass to try title. The city claimed to have exercised its contract right of forfeiture. To a layman this may seem like a distinction without a difference; but very well established rules of law are invoked, with contrary results. ‘

In the first place, in his trespass to try title suit the appellant must recover, if at all, upon the strength of his own title.

Appellant’s title depended upon the original deed from the appellee oity. That deed, upon its face, showed the superior title to be in the city of Laredo; and appellant could not maintain trespass to try title against appellee city, in possession of the land. Masterson v. Cohen, 46 Tex. 523.

It appears, however, from appellant’s brief, to be insisted that the deed, aided by the statutes (sections 5694, 5695), vested in appellant the title. It being admitted that the deed on its face shows superior title in ap-pellee, it is urged that sections 5694 and 5695 vest the,title in appellant; in other words, that appellant has title by limitation.

Title by limitation cannot be maintained unless specially pleaded. The petition by appellant does not specially plead title by limitation, but is that prescribed 'by the statute in trespass to try title. Erp v. Tillman, 103 Tex. 584, 131 S. W. 1057; Molino v. Benavides, 94 Tex. 413, 60 S. W. 875; Miller v. Gist, 91 Tex. 335, 43 S. W. 263; Mayers v. Paxton, 78 Tex. 198, 14 S. W. 568; Tillman v. Erp, 121 S. W. 547; Cook v. Houston Oil Co., 154 S. W. 282.

This failure to specially plead title by limitation requires us to affirm the present judgment, for this court is not authorized to reverse and remand a cause to enable a party to amend his pleading. Y. S. R. Civ. St. § 1616; Tillman v. Erp, 121 S. W. 547.

One of the reasons upon which the trial court based its judgment was that the statutes of limitations (articles 5694 and 51695) had no application to contracts giving the power to forfeit for nonpayment. The court held that the said articles only barred the enforcement of the superior title or th'e foreclosure of the vendor’s lien; that article 5693 barred the right to exercise a power of sale given in,deed of trust or mortgage; that the contract right to forfeit for nonpayment is not barred by either of the said articles. In this view of the trial court we concur. Bailey v. Burkitt, 201 S. W. 725; City of Ft. Worth v. Rosen, 203 S. W. 84.

A clear stipulation for a forfeiture will be enforced. ■ 13 C. J. 608, § 642; Security L. Ins. Co. v. Underwood, 150 S. W. 298.

The manner provided for exercising the right of forfeiture must be strictly complied with. Chambers v. Robison, 107 Tex. 315, 179 S. W. 123.

Then again, even if appellant had specially pleaded title by limitation, and even if the appellee had not exercised its right of forfeiture, still we are of the* opinion that ■appellant could not prevail in the present suit, because articles 5694 and 5695 are limitations upon the remedy, and not upon the substantive rights. By these articles the right to use the courts for enforcement of the contracts ceased at a specified time. The conclusive presumption of payment also goes to the right of procedure in the courts. The statutes do not destroy the actual rights of the parties, though in many cases the bar of the remedy, either by taking away the right to maintain a suit or the right to introduce evidence upon a trial, reaches the precise result-that would be reached had the statute actually destroyed the right itself, and not the remedy only; but not in all cases. The principle involved is clear, and is too well understood for further comment. S. A. & A. P. Ry. v. Gurley, 92 Tex. 233, 47 S. W. 513; White v. Cole, 87 Tex. 500, 29 S. W. 759; Cooley on Const. Law, pp. 522-524 (7th Ed.); 17 R. C. L. p. 681, § 25; 12 C. J. 389; Erp v. Tillman, 103 Tex. 584, 131 S. W. 1057; Cathey v. Weaver, 193 S. W. 490; De Cordova v. City of Galveston, 4 Tex. 474; Gautier v. Franklin, 1 Tex. 736.

Applying the rule to the facts here, it appears that, when appellant introduced this deed in evidence, that instrument showed that appellant held the land in subordination to the right of the appellee. Hardy v. Wright, 168 S. W. 463; Gilbough v. Runge, 99 Tex. 539, 91 S. W. 566, 122 Am. St. Rep. 659; Buckley v. Runge, 136 S. W. 533.

Before appellant could demand a recovery by virtue of the deed, he must prove the debt was paid. That appellee could not enforce the debt by suit, or in suit could not establish it by evidence, does not relieve appellant, who claims the equitable right, and invokes the equity powers of the court, from the obligation to pay the notes as promised before he can have the legal title. White v. Cole, 87 Tex. 500, 29 S. W. 759; S. A. & A. P. Ry. Co. v. Gurley, 92 Tex. 233, 47 S. W. 513.

We do not mean to say that all statutes of limitation reach only the remedy. We mean that articles 5694 and 5695 should be construed as remedial statutes only.

In the case before us the appellee was in actual possession of the land in controversy, claiming and using it as its own. Under the facts of this case, articles 5694 and 5695 did not vest title in appellant, and did not divest title out of-'appellee. Articles 5694 and 5695 were never intended to be controlled by article 5679 nor to have the effect of the adverse possession limitation statutes. The said articles 9694 and 5695 bar the appellee from maintaining a suit, but do not furnish appellant a title upon which to maintain a suit brought by him. Goldfrank, Frank & Co. v. Young, 64 Tex. 435; White v. Cole, 87 Tex. 500, 29 S. W. 759; S. A. & A. P. Ry. v. Gurley, 92 Tex. 229, 47 S. W. 513; 17 R. C. L. 681, § 25; Buty v. Goldfinch, 74 Wash. 532, 133 Pac. 1057, 46 L. R. A. (N. S.) 1070, Ann. Oas. 1915A, 604.

None of the assignments present error that would require a reversal of the judgment here assailed.

We overrule all the assignments.

The judgment is affirmed. .
      <§z=>For otter eases see same topic and KEY-NUMBER in all Key-Numbere4 Digests and Indexes

      <§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    WHEELER v. MOORE.
    (No. 5987.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1919.)
    1. Trial <§=3333 — Verdict — Eailtjre to Find Value of Property.
    In suit of debt and for foreclosure, wherein sequestration was sued out and levied on cotton claimed by third person, verdict for plaintiff held not to support judgment for him because failing to find value of property, or to specify any sum he was entitled to recover; case not having been submitted on special issues to render applicable Rev. St. 1911, art. 1985.
    2. Trial <§=3339(3) — Rendition of Incomplete and Irresponsive Verdict — Further Deliberation by Jury — Statute.
    Where verdict was incomplete and not responsive to charge, jury should have been sent back for further deliberation, as required by Rev. St. 1911, art. 1981.
    Appeal from Bell County Court; M. B. Blair, Judge.
    Suit by T. T. Moore against S. H. Camp, wherein writ of sequestration was sued out, J. W. Wheeler claiming the property levied upon. From a judgment for plaintiff, claimant Wheeler appeals.
    Reversed, and cause remanded.
    Jno. B. Daniel, of Temple, for appellant.
    A. D. Gibson, of Temple, for appellee.
   KEY, C. J.

Appellee instituted a suit of debt against S. H. Camp, and for foreclosure of a chattel mortgage upon certain personal property, including three bales of cotton. He also sued out a writ of sequestration, and had it levied upon the three bales of cotton in controversy in this case. Appellant, J. W. Wheeler, claiming that the three bales of cotton belonged to him, took the necessary steps for the trial of the rights of property, including the filing of a replevy bond. Appellee’s affidavit, wherein he set up his claim to the property, and the bond referred to were returned by the sheriff to the county court, where the case was docketed in the name of T. T. Moore, as plaintiff, and J. W. Wheeler, as defendant, and in which proceeding a jury trial was had, and judgment rendered in favor of the plaintiff, Moore; and the defendant, Wheeler, has appealed.

The case was not submitted to the jury upon special issues, but upon a general charge, one paragraph of which reads as follows:

.“Now if you believe from a preponderance of the evidence adduced in this cause that the three bales of cotton described in plaintiff’s petition are the same as were raised by S. H. Gamp on the farm of Mrs. Adams about 12 miles northeast from Rogers, and on which the mortgage lien existed at the time of the sale .to the said J. W. Wheeler, then and in that event you will find for the plaintiff for the return of said three bales of cotton, if they can be returned, if not, then you will find for the plaintiff his. damages, which in this case is the reasonable" market value of said property at the time the same was sold, together with interest thereon from the date said property was purchased by the defendant, if same was so purchased, at 6 per cent, rate of interest per annum.”

The verdict of the jury reads as follows:

“We, the jury, find in favor of plaintiff. Z. W. Nance, Foreman.”

The judgment of the court recites the fact that the parties appeared, announced ready, that a jury was impaneled and returned the verdict heretofore copied in favor of plaintiff. Following those recitals, the judgment shows that the court made certain findings of fact, one of which was that the three bales of cotton referred to were of the value of $169.79 at the date of execution of the^ claimant’s bond by appellant, Wheeler, and that appellee’s claim against S. H. Camp was in excess of that sum; and therefore judgment was rendered for the plaintiff and against the defendant, Wheeler, and the sureties upon his claimant’s bond for $169.79, with interest thereon at the rate of 6 per cent, per annum from the 1st day of December, 1915, together with $16.97 as damages and costs of the suit; and the defendant has appealed.

We sustain appellant’s contention that the verdict does not support the judgment, because it failed to find the value of the property, or to specify any sum of money that the plaintiff was entitled to recover. As far back as Tinnen v. Matthews, Dall. Dig. 492, and continuously since then, our Supreme Court has held that in jury cases the judgment must conform to the verdict, and cannot be based upon facts, though established by un-controverted testimony, that are not found" by the verdict. Phillips v. Hill, 3 Tex. 399; Claiborne v. Tanner, 18 Tex. 78; Bledsoe v. Wills, 22 Tex. 651; Kuhlman v. Medlinka, 29 Tex. 390; Stafford v. King, 30 Tex. 277, 94 Am. Dec. 304; Handel v. Elliott, 60 Tex. 147; Akin v. Jefferson, 65 Tex. 141; Silliman v. Gano, 90 Tex. 650, 39 S.W. 559, 40 S. W. 391.

In Akin v. Jefferson, supra, our Supreme Court said:

“The verdict must constitute the basis of the judgment, and the court must look to it alone.”

It cannot in rendering judgment consider a fact not found, although, supported by un-contradicted evidence.

In 1897, the rule referred to was modified by the Legislature in reference to cases submitted upon special issues. Article 1985, R. S. 1911. That statute prescribes in cases submitted upon special issues, upon appeal or writ of error an issue not submitted and not requested shall be deemed as found by the court in such manner as to support the judgment, if there be evidence to sustain such finding. However, as this case was not submitted to the jury upon special issues, that statute has no application, and the rule referred to in the cases cited, and in any others which have not been cited, has application. In the present case the testimony was not such as would have justified the court in directing the jury to make the finding that the court made in reference to the value of the property; and therefore it is not necessary to go to the extent to which the Supreme Court has gone in some cases, wherein it has been held that it is immaterial that the fact not found by the jury was established by un-controverted testimony. It may also be conceded that the rule referred to does not apply where the adverse party has admitted the fact not found by the verdict, bu£ this case does not fall within that class. In fact the verdict under consideration is incomplete, and not responsive to the charge of the court; and therefore it should not have been 'received, and the jury should have been sent back for further deliberation, as required by article 1981 of the Revised Statutes.

Appellant has also assigned error upon the action of the court in admitting certain testimony, which, in our judgment was not admissible. Counsel for appellee contends that the case should not be reversed upon that ground, because appellant first drew from the witnesses part of the testimony referred to, thereby entitling appellee to all of it. The record seems to disclose some excuse for that contention; and with this intimation, we take it for granted that upon another trial appellant will do nothing that will subject him to the charge of inviting the testimony, and if he pursues that course, and appellee offers the testimony complained of and appellant objects to it, we think the objection should be sustained.

On account of the error heretofore pointed out, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    MEYER v. SHEFFIELD et al.
    (No. 8071.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 11, 1919.)
    1. Vendor and Pukchaseb <§=>239(1) — Innocent Purchaser for Value.
    If purchaser of land did not know prior to purchase that deed to his grantor was a mortgage, he was in law an innocent purchaser for value as against heirs of mortgagor.
    2. Vendor and Purchaser <§=>244 — Purchase with Notice oe Equity — Sufficiency of Evidence.
    In statutory trespass to try title, defendants, heirs of widow from whom plaintiff’s grantor acquired title, setting up that widow’s deed was mortgage and known to have been such by plaintiff when he purchased,, evidence tending to prove defense held insufficient to sustain verdict for defendants.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Suit by Joe Meyer against Lemon Sheffield and others. From the judgment, plaintiff appeals.
    Reversed and remanded.
    E. P. Miller, of Athens, and Simpson, Las-seter & Gentry, of Tyler, for appellant.
    Justice & Justice and W. R. Bishop, all of Athens, for appellees.
   RASBURY, J.

Appellant sued certain of the appellees in statutory trespass to try title. Others who were not original defendants intervened in the suit. Appellees, with one exception, were heirs of George and Laura Wilson, the common source of title to the land in controversy. There was jury trial resulting-in verdict that appellees were entitled to the land, and appellant to judgment for $297.29, the balance due on certain purchase money notes hereinafter referred to, with interest thereon from February 24, 1895, at 6 per cent, and foreclosure of the vendor’s lien followed -by judgment for $697.95 and such foreclosure of lien on the land, etc., from which this appeal is taken.

The evidence discloses the following chain of record title culminating in appellant: S. M. Ansley et ux., conveyed the land in controversy to Robert Wilson December 14, 1889, in consideration of three notes due, respectively, November 15, 1890, 1891, 1892. All the notes were payable in lint cotton, two each by delivery of five bales weighing 500 pounds and one by six similar bales. Robert Wilson, who was married at the time of the conveyance, died August 23, 1894, intestate, survived by his wife, Laura, and appellees. Thereafter on February 24, 1895, Laura conveyed the land to A. Harris, reciting the consideration to be a balance of $297 due on the Ansley notes just described, which had been acquired by Harris, and which, was declared to be a community debt. On March 18, 1912, Harris, in consideration of $800, conveyed the land to Pitluck & Meyer, a firm composed of M. Pit-luck and Joe Meyer, by special warranty deed. In January, 1917, Pitluck conveyed his interest in the land to Meyer. January 12, 1917, this suit was commenced. In opposition to the title asserted by appellant just detailed, appellees alleged that, while the conveyance from Laura Wilson to A. Harris was in form a warranty deed, it was in fact a mortgage given to secure payment of the balance due on the Ansley notes then held by A. Harris of which appellant had knowledge at the time he acquired the land. Appellant in replication of such claim averred, among other matters, that he paid a valuable consideration for the land without notice of any equitable interest of appellees in the land. On the issue so raised the jury found in favor of appellees.

Appellant’s first assignment of error, in substance, asserts that such finding is without support in the evidence. The issue requires, of course, a Review of the evidence. The facts dedueible therefrom, all conflicts being resolved in favor of the verdict, are, stated in our language, substantially these: At the time Robert Wilson acquired the land from Ansley, it was of the value of $750 or $1,000, and the improvements thereon consisted of two small log houses. Robert Wilson after his purchase of the land reduced his indebtedness in money to $270. Upon this debt he had five bales of cotton to apply of the probable value at that time of $200. At the suggestion of Ansley, Harris, to whom Wilson was largely" indebted on store account, purchased the unpaid notes and took over the five bales of cotton and credited their value on the store account. Subsequently, and after the death of Robert Wilson, as we have shown, Laura, his surviving wife, conveyed the land to A. Harris; the recited consideration being an unpaid balance of $297 on the Ansley notes. At the time the case was tried, both Robert and Laura Wilson were dead, and the evidence supporting the claim that the deed to Harris was in fact a mortgage consists of the following facts and circumstances: Por four years after conveying the land to Harris, Laura Wilson assessed it and paid the taxes thereon. In the fall of the year in which Laura conveyed the land to Harris, or the subsequent year, Lipsitz, Harris’ agent, advised Laura Wilson that she owed on the land only $192. On another occasion, placed at three, years after the conveyance Harris, on an occasion when he presented Laura with a calico dress and a half dollar, told her the home was hers. Prom the time Robert Wilson acquired the land and up to the period Harris conveyed to Pitluck & Meyer, Robert, his wife Laura, or the ap-pellees, their heirs, remained in continuous possession of same using and cultivating it without adverse claim by Harris. They similarly occupied and used it after Harris conveyed to Pitluck & Meyer, without adverse claim by latter until 1915, when for the first time appellant demanded rent, which appel-lees refused to pay and denied appellant had any interest in the land. Subsequent to the time Harris deeded the land to Pitluck & Meyer, Laura Wilson died, and appellees, from money received on insurance on her life, constructed a new five-room residence on the place without objection by appellant. They also, after their mother’s death, built new wire fences on the place, purchasing part of the wire for that purpose from appellant. Prior to and at the time Harris conveyed the land to Pitluck & Meyer, and subsequently, Laura Wilson, while living, and some of the appellees, “traded” with appellant and had for several years; but after the conveyance to appellant he made no claim to the land until the occasion in 1915 just enumerated. When appellees, while trading with appellant, asked appellant about paying the taxes, appellant would tell them to bring him the cotton and he would pay the taxes. During the year 1915, after Harris conveyed the land to Pitluck & Meyer, appellant agreed with some of the appellees to exchange a farm of his for the one in controversy, which was not consummated because other of the appellees receded from the agreement or refused to join in it. Appellees never paid any rent to appellant for Harris. A witness testified that appellant in 1912 or 1913, when the witness was marketing his cotton, admitted that Laura Wilson owned the land.

The facts dedueible from the evidence tendered by appellant are in radical conflict with those just detailed and tend with much probative force and sequence and corroborative circumstances to show that the land was purchased outright by Harris from Laura Wilson, survivor of the community, in consideration of the unpaid purchase-money notes and the settlement of a store account of considerable proportions, which was also a community debt, followed by regular payment of rental thereafter coupled with failure to assert any adverse title.

In Joske v. Irvine, 91 Tex. 575, 44 S. W. 1059, it was said in effect that it is the duty of the trial court to instruct verdict, and by analogy the duty of this court, when the issue is presented, to reverse a cause, though there be slight evidence in support of the verdict, if its probative force be so weak as to raise only a mere surmise or suspicion of the fact sought to be established, since in legal contemplation such testimony falls short of being “any evidence.” The question for our determination then is: Do the facts detailed raise only a mere surmise or suspicion that the conveyance to- Harris by Laura Wilson was intended as a mortgage and that Meyer was cognizant oí that fact? Restated in a general way, the facts as to Harris disclose that, in order to secure the cotton due Ansley upon the purchase-price notes and apply same upon payment of Robert Wilson’s store account, Harris purchased the notes and took over the cotton and so applied it. Shortly after Robert’s death, his wife, Laura, deeded the land to Harris, the recited consideration being a balance of $297, on the Ansley notes, which was much less than the value of the land. Subsequent to this deed, both Harris and Lip-sitz, his agent, made admissions indicating a reduction of the debt and that the deed was, but a mortgage. From the time of the conveyance to Harris until he conveyed it to Pit-luck •& Meyer, a period of 17 years, Laura Wilson and her children remained in possession of the premises, paying no rental according to appellees, but paying, according to appellant, a rental of one bale of cotton per annum. Harris conveyed the land to Pitluck & Meyer March 18, 1912, and it does not appear from the evidence that any of the facts and circumstances just related were brought to .their notice at that time. It is true that, after the conveyance to Pitluck & Meyer up to the time spit was filed, a period of five years, Laura Wilson, until her death, and after her death, her children, the appel-.lees, remained in possession of the land, paying no rental therefor according to the evidence of appellees, and that appellant without protest permitted appellees to build a' five-room house upon the place and never made any claim to the land to appellees until 1915, -when an agent of appellant introduced the question of rent, which appellees declined to pay. On the contrary, appellant contracted with appellees to exchange the land in controversy for another tract belonging to appellant,' which failed of consummation; and also admitted to a witness that the land belonged to Laura Wilson, but all of which transpired after they acquired the land.

The facts, which we have stated in the most favorable light for appellees,,speak for themselves. From them, in deference to the finding of the jury, we have fairly endeavored to -find some support for the finding that appellant knew, when he acquired the land from Harris, that the deed to Harris was in fact a mortgage; for, if appellant did not know pri- or to his purchase that the deed to Harris was a mortgage, he was in law an innocent purchaser for value of the land. If we concede that the evidence is sufficient to sustain the finding of the jury that as between Harris and appellees the deed was in fact a mortgage, nevertheless there is in the record no fact or circumstance tending to show that appellant had notice of that fact when he purchased the land. What he did and said or permitted subsequent to his purchase as we have-related it, if connected with some knowledge of the facts prior to his purchase, would obviously furnish strong corroboration, but, standing alone and without other connection with the main issue, presents a case largely of surmise and suspicion and one we do not feel at liberty to approve.

The case is, accordingly, reversed and remanded, without considering the other issues presented, save to say, in reference to the refusal of the special charge intended to present affirmatively appellant’s defense^ that such presentation is the settled right of a defendant, which can be preserved on another trial without the necessity of discussing the issue here presented.

Reversed and remanded.
      dfcaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes