text:
    MELLVILLE et al. v. WICKHAM et al.
    (No. 6703.)
    (Court of Civil Appeals of Texas. Galveston.
    July 2, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Pleading (§ 183) — “Supplemental Plea” —Eight to File.
    A supplemental pleading, strictly, may be filed only as a reply to aífirmative matter alleged in the pleading of the adverse party in response to the original pleading filed by the party offering to file the supplemental pleading, and when there was no answer filed to an original plea of privilege, a “supplemental plea” could not be filed.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 389-396; Dec. Dig. § 183.]
    2. Pleading (§ 111) — Plea of Privilege— Amended Plea.
    Where a supplemental plea of privilege was filed, regardless of the fact that no answer had been filed to the original plea, but such alleged supplemental plea was sufficient in itself as a plea of privilege, considered in connection with the allegations of the petition, the supplemental plea could be properly considered as an amended plea, and was therefore not subject to the objection that a supplemental plea was unauthorized.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.]
    3. Insurance (§ 771) — Mutual Benefit Societies — Beneficiaries— “Adopted Children.” »
    Where the laws of a mutual benefit society provided that the beneficiaries of a member might be his “adopted children,” such term included a foster mother of the insured, whom he had legally adopted, though an adult, as his heir.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1935, 1937; Dec. Dig. § 771. For other definitions, see Words and Phrases, First and Second Series, Child (In Insurance).]
    4. Insurance (§ 770) — Mutual Benefit Societies — Beneficiaries—“Children.”
    Rev. St. 1911, art. 4832, provides that payment of death benefits on certificates issued by benefit associations to its members shall be confined to wife, husband, relatives by blood to the fourth degree ascending and descending, a stepfather, stepmother, children, children by legal adoption, or a person or persons dependent on the member. Held, that the word “children” was used to designate the relationship, and not the age of the beneficiary, and hence included the foster mother of the insured, whom he had legally adopted, while an adult, as his heir.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1933, 1937; Dec. Dig. § 770.

    For other definitions, see Words and Phrases, First and Second Series, Child (In Statutes).]
    5. Adoption (§ 5) — Persons Subject to Adoption — Adults.
    An adult may be legally adopted as the heir of another, and when so adopted has the full right of inheritance as the child of the adopter, if he has no child or children the fruit of lawful wedlock, and in case he has such natural child the adopted heir takes one-fourth of the estate of the adopter, as provided by Kev. St. 1911, arts. 1, 2.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. § 4; Dec. Dig. § 5.]
    6. Insurance (§ 793) — Mutual Benefit Certificate — Beneficiary—Change.
    Insured had a benefit certificate payable to M., who was represented in the application to be his aunt, but who in fact was his foster mother. Insured, having legally adopted M; as his heir, attempted to have a new certificate issued payable to her as such; but this being refused, and the society having notified him of its refusal to pay the benefit to her on his death under the original certificate, insured procured a new certificate, payable to W., a minor, on her agreement that, in case of insured’s death, she would collect the benefit and pay it over to M. Held that, since M., having been adopted by insured, was thereby qualified to take as a beneficiary as insured’s child, both under the society’s by-laws and Kev. St. 1911, art. 4832, providing the persons who may become beneficiaries, the agreement that a certificate should be made payable to W. for M.’s benefit was not an evasion of the statute or laws of the order, and was therefore enforceable.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1967-1972, 1980; Dec. Dig. § 793.]
    7. Infants (§ 47) — Contracts — Enforcement.
    Where a minor was named as the beneficiary in a mutual benefit certificate, on her agreement that she would collect the certificate in case of insured’s death and pay the proceeds over to another, her minority could not prevent the latter from enforcing the agreement, under the rule that a minor cannot take advantage of his minority to perpetrate a fraud.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 99, 101-108, 110; Dec. Dig. § 47.]
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Suit by Mrs. Fredonia Mellville and another against Della M. T. Wickham and another. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    Gregg & Brown, of Palestine, for appellants. W. R. Petty, of Palestine, and Spann & Spann, of Temple, for appellees.

       For other oases 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 appellant, Mrs. Fredonia Mellville, joined by her' husband, against appellees, Della Wickham and the Sovereign Camp of the Woodmen of the World, to recover $2,000 the amount of a benefit certificate issued by said Sovereign Camp of Woodmen of the World. The petition alleges, in substance:

That on or about August 10, 1910, the Sovereign Camp of Woodmen of the World, through its subordinate camp, known as Sycamore Camp No. 26, and located at Palestine, in Anderson county, issued a certificate to John W. Pace for $2,000, payable to Mrs. Fredonia Mellville, who was represented in the application for the certificate to be the aunt of said Pace, but who was in fact the foster mother of said Pace, and was not otherwise related to him. That on or about June 17, 1913, John W. Pace legally adopted Mrs. Mellville as his heir, in accordance with the statute of this state providing for the adoption of an heir, and on June 30, 1913, through said local camp, forwarded said certificate to the Sovereign Camp, with the request that a new certificate be issued in lieu thereof, payable to Mrs., Mellville as the adopted heir of said John W. Pace; that said Sovereign Camp refused said request, on fide ground that the certificate must he payable to a blood relative, and stated that no certificate would be issued to Mrs. Mellville, and she could not collect the amount of the original certificate in event of the death of said Pace. That all premiums and assessments due upon said certificate have been paid, and that the Sovereign Camp received payment of assessments upon said certificate after it had notice of the fact that Mrs. Mellville was not related to John W. Pace otherwise than as foster mother.

“That said Sovereign Camp, in refusing to issue a new certificate payable to Mrs. Fredonia Mellville as adopted heir of John W. Pace, and advising her that she could not legally be the beneficiary in either the original certificate, in which she was designated as the aunt of said Pace, nor in a new certificate designating her as adopted heir, misconstrued the constitution of the Woodmen of the World and the statutes of Texas, both of which provide that an adopted heir may be named as' beneficiary in said certificate.
“Said John W. Pace and Mrs. Mellville, on or about August 1, 1913, acting on the advice of Sovereign Camp and the promise of Della M. T. Wickham that the money should be paid to Mrs. Mellville, acting through its agents, and being in error as to their rights under the original certificate, and the efforts that they had made to obtain a new certificate payable to Mrs. Mellville, as adopted heir of John W. Pace, caused an application for the issuance of a new certificate, to issue payable to defendant Della M. T. Wickham, which application was granted, and a new certificate issued by Sovereign Camp on or about August 6, 1913, payable to said Della M. T. Wickham.
“That before said application for the-certificate payable to said Della M. T. Wickham was prepared and forwarded to said Sovereign Camp, said Della M. T. Wickham requested that said certificate be made payable to her on the express promise and condition that the money should be paid over to said Mrs. Mellville when it was collected, which promise was known to the Head Camp and was concurred •in by John T. Wickham, who represented to Mrs. Mellville and John W. Pace that he wps the guardian of Della; but said Della M. T. Wickham now declines to comply with that promise.
“That said John W. Pace died at his residence in Anderson county, Texas, on or about August 5, 1913.
“The constitution and laws of said Sovereign Camp Woodmen of the World requires the clerk of the camp of which the deceased is a member to notify the Sovereign Clerk of the death of such member. The clerk of Sycamore Camp No 26, immediately after the death of said John W. Pace, notified the Sovereign Clerk of said death.
“That said Della M. T. Wickham declines to make out and furnish to said Sovereign Camp proper proof of the death of said John W. Pace.
“Wherefore, premises considered, plaintiffs pray that the defendants be cited to answer this petition, and that on final trial of this cause that they have their judgment against said Sovereign Camp Woodmen, of the World for said two thousand dollars, and that the certificate issued to Della M. T. Wickham be canceled. But, should plaintiffs be mistaken as to their right to recover from said Sovereign Camp, then they pray that said Sovereign Camp be held liable on the certificate payable to Della M. T. Wickham, and that said Della M. T. Wickham be adjudged a trustee for the benefit of Mrs. Mellville, and that the plaintiffs recover judgment against said Della M. T. Wickham for said two thousand dollars. Plaintiffs further pray for costs and general relief.”

The appellee Della Wickham, by her legally appointed guardian, J. D. Wickham, appeared and filed in the court below on November 25, 1913, a plea of personal privilege to be sued in Bell county, the county of her residence. This plea, omitting formal portions, is as follows:

“That his said ward is not now, and was not at the time of the institution of this suit, nor at the time of the service of process herein, nor at the time of the filing of this plea, a resident of the county of Anderson, state of Texas, the county in which this suit was instituted, and is now pending, but that he and his said ward are now, and were at the time of the institution of this suit, and at the time of the service of process herein, and at the time of the execution and the filing of this plea, both residents of the county of Bell and state of Texas, and that he is duly acting as guardian of his said ward under the orders and authority and jurisdiction of the county court of Bell county, Texas, where he and his said ward then and now resides and that none of the exceptions to the exclusive venue ini the county of one’s residence, mentioned in article 1830, or article 2308, of the Revised Statutes of the state of Texas, exist in- this cause, and that this suit does not come within any of the exceptions provided by law in such cases, authorizing this suit to be brought or maintained in the county of Anderson and state of Texas, or elsewhere outside of said county of Bell, in state of Texas.”

No answer appears to have been filed by the defendant Sovereign Camp, and no pleading was filed by appellants in answer to the plea of privilege.

On January 28, 1914, appellee Wickham, by leave of the court, filed a supplemental plea of privilege. This pleading, which is lengthy, consists of a recital of facts in regard to the issuance of the certificate which are, in substance, the same as alleged in plaintiff’s petition. It then avers that upon the facts stated plaintiff has no cause of action against the Sovereign Camp of Woodmen of the World, because under the constitution and by-laws of said association and under the statutes of this state Mrs. Mellville could not become a beneficiary in a certificate issued by said association. It further avers:

“That the Sovereign Camp Woodmen of the World is ready and willing to pay to the proper beneficiary the sum named in the policy of insurance as provided in said policy when the proper proofs of the death of said John W. Pace are made and forwarded to the Sovereign Camp Woodmen of the World as provided and required by the constitution and laws of said fraternal benefit association, and as required and provided in said policy of insurance, and that it, the Sovereign Camp Woodmen of the World, is in no way contesting the payment of said sum named in said policy to the proper beneficiary.
“That the reason for joining the Sovereign Camp Woodmen of the World as a defendant with Della M. Turner, known and sued herein as Della M. T. Wickham, was for the purpose of trying to evade the laws of this state relative to venue of suits and for the purpose of requiring the defendant Della M. Turner to try this cause in Anderson county district court, instead of the district court of Bell county, where the venue of this cause is properly laid and belongs. That plaintiffs have no cause of action which can be brought or maintained against the Sovereign Camp Woodmen of the World, and no cause of action which can be brought or maintained in Anderson county and in the district court of Anderson county against the defendant Della M. Turner.
“Wherefore, premises considered, the defendant Della M. Turner prays that this cause, so far as the same affects her, be dismissed, and, if not dismissed, that it be transferred to the district court of Bell county, Texas, and for such further orders as may be necessary herein.”

The plea of privilege was' sustained by the trial court, and the case was ordered transferred to the district court of Bell county.

Appellants’ first assignment of error complains of the ruling of the trial court permitting appellee Wickham to file the supplemental plea of privilege. The proposition under the assignment is that:

“There is no authority of law for the filing of a supplemental plea of privilege. The purpose and object of a supplemental pleading is in reply to affirmative matter alleged in the pleading filed by the adversary party in response to the original pleading filed by the party offering to file the supplemental pleading, and when there is no answer filed, as in this case, to an original plea of privilege, a supplemental plea cannot be filed.”

This is a sound proposition, and if the plea be regarded as only a supplemental plea, it should not have been allowed. Fink v. San Augustine Grocery Co., 167 S. W. 35; Townes on Pleading (1st Ed.) p. 300; Id. (2d Ed.) p. 447.

We think, however, that the plea, while designated a supplemental plea, may be considered as an amended plea, it being sufficient in itself as a plea of privilege, considered in connection with, the allegations of the petition that the defendant Wickham is a resident of Bell county, and we shall so consider it. We cannot, however, agree with the trial court in holding that the plea of privilege should be sustained. We think the petition shows a good cause of action against both defendants, and the venue of the suit against ’ the association being in Anderson county, the defendant Wickham can. be required to answer in that county.

Mrs. Mellville, as the adopted heir of John W. Pace, could receive the benefits of the certificate issued to him for her Benefit. The laws of the Woodmen of the World provide that the beneficiaries of a member shall be “his wife, children, adopted children, parents, brothers and sisters, or other blood relative, or persons dependent upon the member.” Article 4832 of the Revised Statutes (1911) provides that payment of death benefits upon certificates issued by benefit associations to their members shall be confined to “wife, husband, relative by blood to the fourth degree ascending and descending, a stepfather, stepmother, stepchildren, children by legal adoption, or a person or persons dependent upon the member.” We think it clear that the word “children,” as used in both the laws of the association and the statute, is used to designate the relationship and not the age of the beneficiary. To construe the law otherwise would exclude a member’s child who was over 21 years of age, and this would certainly not be a proper construction.

There is nothing in our adoption statute which prevents one from adopting an adult person as his legal heir, and the adopted person has the full right of inheritance of a child of the adopter if the adopter has no child, the fruit of lawful- wedlock; and in case he has such natural child the adopted heir can take one-fourth of the estate of the adopter. Articles 1 and 2, Revised Statutes (1911). We think the term “adopted children,” as used in the statute and laws of the association, was used to designate those who bear to the member the legal relation of children or heirs who would inherit as children, irrespective of the age of such adopted children or heirs.

Mrs. Mellville not being disqualified to receive the benefit of the certificate, the agreement that a certificate could issue payable to appellee Della Wickham, and that she would collect the benefit thereunder and turn it over to Mrs. Mellville, was not an evasion of the statute confining the benefits of the association to the class of persons named in the statute, and said agreement can be enforced against both defendants.

The minority of the defendant Della Wickham cannot prevent appellants from enforcing their rights under the agreement A minor cannot take advantage of his minority for the purpose of perpetrating a fraud. Mrs. Mellville being entitled to recover the benefit under this certificate, her agreement- that the certificate should be made payable to Della Wickham upon the promise of the latter to collect the proceeds and turn them over to her did not give said Della Wickham any right to the proceeds, and she cannot defeat Mrs. Mellville’s right theffeto on the ground that she is a minor and therefore not bound by her contract.

The case of Peek v. Peek, 101 Ky. 423, 41 S. W. 434, is one in which an agreement almost identical with the one in this ease was sought to be enforced. In upholding the right of the plaintiff in that ease to enforce the agreement against the .executor of the person who had agreed to collect the certificate and'turn the proceeds over to the plaintiff, the Court of Appeals of Kentucky says:

“All the rights of Mary Peek arise by virtue of the contract with David C. Peek, because by means of that contract she procured herself to be named as beneficiary in the certificate. If she had failed to carry out her contract, or her executor fails to carry out the agreement, a court of equity would cancel the certificate before it would allow the trustee to benefit herself or her estate in violation of her solemn contract.”

This language is as applicable to the instant case as to the case in which it was written. It follows from the views above expressed that the judgment of the court below should be reversed, and the cause remanded; and it is so ordered.

Reversed and remanded.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    LINDSEY et al. v. CITY OF NACOGDOCHES et al.
    (No. 6684.)
    (Court of Civil Appeals of Texas. Galveston.
    June 19, 1914.
    Rehearing Denied Oct. 8, 1914.)
    Municipal Corpoeations (§ 266) — Public Improvements — Statutes.
    Acts 31st Leg. (2d Called Sess.) c. 14, empowering towns, cities, and villages to improve streets, alleys, etc., provides in section 11 that the benefits thereof shall apply to any city when the governing body thereof shall submit the question of its adoption or rejection to a vote of’ the. resident property taxpayers who are qualified voters at a special election called for that purpose. This act was carried into Rev. Stat. 1911, arts. 1006-1017; the only changes being the use of the words “chapter” and “article” in place of the words “act” and “section,” as used in the act. Held, that such act was in full force and effect after the Revised Statutes became effective, and the submission to the voters of a city of the question of adopting its provisions was not invalid, though all the proceedings were had thereunder and referred to that act instead of to the Revised Statutes, and though the Revised Statutes took effect before the petition for the election was presented to the city council, especially in view of section 16 of the final title of the Revised Statutes, which provides that the provisions of the Revised Statutes, so far as they are substantially the same as statutes in force when the Revised Statutes shall go into effect, shall be construed as continuations .thereof, and not as .new enactments.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 712; Dec. Dig. § 266.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by Robert Lindsey and others against the City of Nacogdoches and others. From a judgment for the City, plaintiffs appeal.
    Affirmed.
    Geo. F. Ingraham and June C. Harris, both of Nacogdoches, for appellants. C. A. Hodges, of Nacogdoches, for appellees.

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

   McMEANS, J.

In 1909 the Thirty-First Legislature at its second called session adopted an act designated chapter 14, which provided that: .

“Towns, cities and villages incorporated under either general or special law, which shall accept the benefits of this act as herein provided, shall have power to improve any street, avenue, alley, highway, public place or square, or any portion' thereof within their limits, by filling grading, raising paving or repaving the same in a permanent manner or. by the construction or reconstruction of sidewalks, curbs and gutters or by widening, narrowing or straightening the same and to construct ’ necessary appurtenances thereto, including sewers and drains.”

Section 11 of the act provides that:

“The benefits of this act shall apply to any city and the terms thereof extend to the same, when the governing body thereof shall submit the question of the adoption or rejection hereof, to a vote of the resident property tax payers who are qualified voters of said city at a special election called for the purpose by said city. And said election shall be held as nearly as possible in compliance with the law with reference' to regular city elections in said city; but said governing body is hereby empowered by resolution to order said election and prescribe the time and manner of holding the same. Said body shall canvass and determine the results of such election and if a majority of the voters voting upon the question-of the adoption of this act at such election shall vote to adopt the same, the result of the election shall by said governing body be entered upon their minutes, and thereupon' all of the terms hereof shall be applicable to and govern such city adopting the same. A certified copy of • said minutes shall De prima tacie evidence ol the result of such election and the regularity thereof, and the facts therein recited shall in all courts be accepted as true. Whenever this act has been adopted by any city the governing body thereof shall have full power to pass qll ordinances or resolutions necessary or proper to give full force and effect thereto and to every part thereof. • Whenever one hundred qualified voters in any city shall in writing petition for an election to determine the adoption of this act, it shall be the.duty of its governing body to order such election.”

The act was carried into the Revised Statutes of 1911, and is therein designated chapter 11, tit. 22.

The city of Nacogdoches is a municipal corporation chartered under the general laws. After the adoption of the Revised Statutes of 1911, which went into effect September 1, 1911, a requisite number of qualified voters, in writing, petitioned the city council of the city of Nacogdoches, the governing body, to order an election to determine whether the city of Nacogdoches should adopt the benefits and terms of chapter 14, acts of the second called session of -the Thirty-First Legislature. Thereafter, on September 12, 1912, the city council adopted a resolution ordering an election in said city for the adoption or rejection of the benefits and terms of “chapter 14, Acts of the Second Called Session of the Legislature of the state of Texas, Laws 1909, with reference to the construction of permanent street improvements in said city.” A notice of the election was duly given, which prescribed the form of ballot as follows:

“Official Ballot. — For the adoption of chapter 14, Acts of the 2nd Called Session of the 31st Legislature of Texas, Laws 1909, with reference to the construction . of permanent street improvements. Against the adoption of chapter 14, Acts of the 2nd Called Session of the 31st Legislature of Texas, Laws 1909, with reference to the construction of permanent street improvements.”

The election was held on October 29, 1912, and resulted in favor of the proposition submitted. On November 5, 1912, the city council adopted an ordinance or resolution declaring the result of the election, which resolution, with its preamble, is as follows:

“Resolution declaring the result of an election of the resident property taxpayers who are qualified voters of the city of Nacogdoches, adopting the benefits of chapter 14, Acts of the 31st Legislature of Texas, Second Galled Session, and being title 22, chapter 11, of the Revised Civil Statutes of 1911, and is article 1006 to 1017, inclusive.
“Be it ordained and resolved by the city council of the city, óf Nacogdoches:
“Whereas, heretofore, to wit, on the 29th day of October-, A. D. 1912, an election was held by the resident property taxpayers who are qualified voters of the city of Nacogdoches in the said city, for the purpose of the acceptance or rejection of the terms and benefits of chapter 14 of the Laws of the 31st Legislature, Second Called Session, and approved May 10, 1909, and being also title 22, chapter 11, of the Revised Civil Statutes of the state of Texas, 1911, said acts passed in 1909 entitled:
“ ‘An act to authorize incorporated towns, cities and villages in the state of Texas to construct permanent street improvements, and assessed part of the cost thereof against the owners of property abutting upon such improvements and their property, * * * occupying streets or highways improved and their property, and to provide for the enforcement and collection of such assessments, and to provide for the submission hereof to a vote of'the resident property taxpayers who are qualified voters of such towns, cities, and villages and declaring an emergency.’
“And whereas, said election was, in all things, held in accordance to law and with proceedings had with reference thereto by said council; and
“Whereas, after the said election the vote cast was canvassed in open meeting of said city council in accordance to law and said vote was by said city council found and determined to' have resulted as follows, to wit:
“For the acceptance of the terms and benefits of said act being title 22, chapter 11, in the Revised Civil Statutes of 1911, 168 votes for the acceptance of same, and
“Against the adoption of the terms and benefits of said act and being chapter 11, title 22, of the Revised Civil Statutes of 1911, 148 votes; and
“Whereas, it was found and determined that said election resulted in the acceptance of same and in favor of the adoption of the terms and benefits of said acts, being chapter 11 of title 22 of the Revised Civil Statutes of 1911.
“Section 1. That the said act above entitled and described, and being chapter 11, title 22, of the Revised Civil Statutes of the state of Texas of 1911, and being articles 1006 to 1017, inclusive, thereof, be, and the same is, hereby declared to have been adopted within the said city of Nacogdoches by the said election and that the same is from and after this date in full force and effect in the said city of Nacog-doches, that this resolution and ordinance shall be entered upon the minutes of the city council.
“Section 2. That this ordinance and resolution shall take effect and be in force from and after ifcs passage.”

On June 23, 1913, the appellant Robert Lindsey and several others, plaintiffs, brought this suit against the city of Nacog-doches to restrain it from claiming and exercising the powers prescribed by chapter 11,-tit 22, of the Revised Civil Statute's of 1911, alleging that the election before mentioned was not one submitting to the voters the question of determining whether the benefits and terms of chapter 11, tit. 22, of the Revised Statutes, should be adopted or rejected. They also alleged in effect that they were property owners in the city of Nacog-doches, and that their property would be. affected with liens, and the title thereof clouded by the enforcement or attempted enforcement of the ordinances of the city, adopted for the purpose of carrying out the powers conferred by the act. No question is made as to the sufficiency of the petition to state a cause of action, if the city was without lawful authority to enforce the powers claimed under the act

The case was tried before the court without a jury, and resulted in a judgment for the city, and, from that judgment, the plaintiffs have appealed.

The contention of the appellants is well stated in .the first proposition under their first assignment of error, which we quote:

“Chapter 14 of the Acts of the Thirty-First Legislature, Second Called Session 1909, was a legislative enactment and was the law until the Revised Statutes went into effect on September 1, 1911. The Revised Statutes, being also a legislative enactment, became the law, and as the Revised Statutes of 1911 have embodied in them the act of 1909, with the exception that until September 1, 1911, a town desiring to adopt the benefits of the law of 1909 could adopt it by submitting to the qualified voters the question of whether or not they would adopt chapter 14, Acts of the Thirty-First Legislature,- Second Called Session 1909, and, if a majority favored it, the city would have the powers mentioned therein; but after September 1, 1911, the question to be submitted would be whether or not the city would adopt the provisions of chapter 11, tit. 22, of the Revised Civil Statutes of 1911; and an election held on October 12, 1912, to adopt the provisions of chapter 14, Acts of the Second Called Session of the Thirty-First Legislature 1909, would not confer upon the city the powers- mentioned in chapter 11, tit. 22, Revised Civil Statutes of 1911, and the judgment of the court should have been for the plaintiffs, and is therefore contrary to the evidence.”

We are of the opinioh that appellants’ contention cannot be sustained. The Acts of the Thirty-First Legislature, c. 14, Second Called Session, was in full force and effect at the time the petition for the election was presented to the city council, and when the election was ordered and held and the result declared, notwithstanding that between the time of the passage of the act and the holding of the election the -Revised Civil Statutes of 1911 had been adopted. In carrying the act into the Revised Statutes, no changes whatever in the body of the law were made-; the only difference between the two being that, where, in the act, the words “act” and “section” are used, the words “chapter” and “article” are used in the Revised Statutes. In revising the statute, the commissioners of revision were not authorized to make changes in the substance of the statute laws of the state, but simply to arrange them in convenient form. To make sure -that such laws were not materially changed by such revision,- the Legislature which adopted the Code, as revised, enacted a chapter of general provisions to govern in the construction and application of the laws embraced in the Revised. Statutes, of which general provisions section 1© is in these words:

“That the provisions of the Revised Statutes, so far as they are substantially the same as the statutes of this state in force at the time when the Revised Statutes shall go into effect, or of the common law in force in this state at said time, shall be construed as continuations thereof, and not as new enactments of the same.”

Therefore the question here presented is to be determined just as if the Revised Statutes of 1911 had never been adopted by the Legislature. Fischer v. Simon, 95 Tex. 240, 66 S. W. 447, 882. Looked at from this viewpoint, then, we conclude that the proceedings assailed were not invalid merely because they were had under the authority of the act of 1909 instead of under chapter 11, tit. 22, of the Revised Statutes of 1911, and, in adopting the provisions of the act mentioned, the voters in fact adopted all the provisions and benefits of chapter 11, tit. 22, of the Revised Statutes. This view leads to an affirmance of the judgment of the court below, and renders it unnecessary to discuss the cross-assignments urged by ap-pellee, or the other assignments of error presented by appellants, which have been carefully examined by us and found to point out no reversible error. The judgment of the court below is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    DAVIS et al. v. COLLINS et al.
    (No. 6652.)
    (Court of Civil Appeals of Texas. Galveston.
    June 24, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Pleading (§ 236) — Amendment of Petition-Discretion of Trial Court.
    In trespass to try title to a specific tract of 160 acres, described by metes and bounds, part of a larger survej', the allowance of.a trial amendment to the petition, so as to claim 160 acres of the survey, including plaintiffs’ improvements, if found to be a fair and equitable partition, in the absence of any showing of surprise, or of any request to have the case continued, or any showing of injury to defendant, was not an abuse of the trial court’s discretion.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. § 236.]
    2. Appeal and Error (§ 742) — Assignments of Error — Grouping Exceptions.
    Assignments of error, grouped and presented together, hut raising different questions, will not he considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 742.]
    3. Adverse Possession (§ 110*) — Setting off Part of Survey Adversely Held-Equitable Partition.
    In trespass to try title, where each of plaintiffs had held actual possession of parts of a league, claiming 160 acres thereof for more than 10 years before their action was brought, they were each entitled to 160 acres, and, where they failed to show that they had claimed the identical 160-acre tracts described in their petition, hut showed under their alternative pleading that the tracts described were of no greater value than the remainder of the league, they were each entitled to 160 acres and to allotment of the tracts described in their petitions.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 636-645; Dec. Dig. § 110.] •
    4. Adverse Possession (§ 35) — Requisites —Distinct and Exclusive Possession.
    The actual possession by each of two plaintiffs in trespass to try title for the time prescribed by statute, coupled with their separate and distinct claims of 160 acres each out of a larger survey and their agreement upon a boundary between them, entitled each of them to an undivided 160 acres in the survey, and the fact that, if the location of 160 acres for one was made without regard to the claim of the other, but, with regard to the shape of the survey and a fair partition between one plaintiff and the defendants, it would cover a part of the "land claimed by the other plaintiff, did not destroy the right of each plaintiff to a title under the statute to 160 acres of the league; their actual occupancy being notice to the owners of- the league that it would entitle each to 160 acres, and precluding any presumption that they were claiming the same land.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 137, 138; Dec. Dig. § 35.]
    5. Appeal and Error (§ 877) — Parties Entitled to Allege Error — Parties Injured.
    In trespass to try title, where each of the plaintiffs was entitled to 160 acres out of a larger survey, the fact that the land awarded to them jointly was less than 320 acres, and was located with due regard to the defendants’ right to. a fair and equitable partition, in no way injured defendants, and hence they could not complain of the judgment on that ground.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dee. Dig. § 877.]
    Appeal from Special District Court, Polk County; J. Llewellyn, Judge.
    Trespass to try title by E. C. Collins and another against Mrs. C. G. Davis and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Holshousen & German, of Livingston, for appellants. V. A. Collins, of Beaumont, for appellees.

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

   PLEASANTS, C. J.

Appellee E. C. Collins brought suit of trespass to try title in the district court of Polk county against the appellants to recover a tract of 160 acres of land, a part of the J. S. Morgandeague in said county, and appellee S. J. Collins brought a similar suit at the same term of court against appellants to recover another tract of 160 acves on said league. These suits were consolidated and tried in the court below as one suit, and this appeal is from the judgment rendered in said consolidated cases..

Each of the appellees sued to recover a specific tract of 160 acres, which he described by metes and bounds in his petition, and to which he claimed title by adverse claim and possession for 10 years. The allegations of title by limitation in each of said petitions are as follows:

“(4) Plaintiff says that the defendants nor either of them ought to recover of and from him the land above described, for he says that he and those whose estate he has and holds, claiming to have good and perfect right and title to same, have had and held peaceable and adverse possession thereof, cultivating, using and enjoying the same for more than ten years since defendants’ cause of action, if any, accrued, and before the filing of this suit, and this plaintiff is ready to verify.
“Wherefore plaintiff prays that citation issue to defendants in terms of law, and upon hearing hereof he have a judgment of the court awarding him title and possession of the 160 acres of land above described, for his writ of possession; but should the court find upon hearing that.the land herein specifically described and claimed by •plaintiff herein is of greater value than the average of the tract claimed by defendants upon which plaintiff’s land is located, then in that event plaintiff prays the court to set aside to him 160 acres out of said larger survey, being of average value with the entire tract, and including his improvements, for all costs in this behalf expended, and for any other or further relief to which he may show himself entitled will he in duty hound ever pray.”

After the evidence and argument of counsel had been heard, each of the plaintiffs with leave of the court filed the following trial amendment:

“First. If plaintiff is mistaken in his plea in said amended petition to the effect that he has claimed a specific 160 acres of land described therein, then he alleges that, claiming to have good and perfect right and title to 160 acres of land of the James Morgan league in Polk county, Texas, said 160 acres including plaintiff’s improvements, he has had and held peaceable and adverse possession thereof, cultivating, using and enjoying the same for a period of more' than ten years since defendants’ cause of action accrued, if any they have, and before the filing of this suit; and this he is ready to verify.
“Wherefore he prays the court, all parties now being before the court, that upon hearing hereof he have judgment of the court awarding him title and possession of said 160 acres described in his first amended original petition and for his writ of possession; or should the court find that plaintiff has not been claiming the specific 160 acres described in his said plea for ten years before the filing of this suit, but should find that he has been claiming 160 acres and in possession of same in such manner as to entitle him in law to recover from the defendants herein, and further finds that the land specifically claimed by plaintiff is a fair and equitable partition, of same between plaintiff and defendants, then plaintiff prays judgment of the court awarding him title and possession of 160 acres, with his writ of possession.
“But should the court find that plaintiff is entitled to recover 160 acres of said survey, but should find that he is not entitled to recover the specific 160 acres sued for under either of the above theories, then in that event plaintiff prays the court for judgment awarding him title and possession to 160 acres of said James Morgan league to be surveyed under the direction of the court, so as to include plaintiff’s improvements on said Morgan survey; and for his writ of possession, and for judgment for all costs of this suit, and such other relief, either legal or equitable, to which the facts may show plaintiff entitled, will plaintiff in duty bound ever pray.”

Each of the defendants filed an answer in each of said suits, containing general demurrer, general denial, and plea of not guilty, and plea alleging title to the land described in plaintiff’s petition, and praying judgment therefor. The cause was tried in the court below with a jury, and under peremptory instructions of the court the following verdict was returned:

“We, the jury, find for the plaintiffs, E. O. and S. J. Collins, for the land described in two petitions and answers filed herein.”

Upon this verdict judgment was rendered in favor of the plaintiffs for the two tracts of land described in their petitions, and which are described in said judgment as one tract, and an undivided one-half interest therein awarded to each of the plaintiffs.

The facts disclosed by the record, there being no conflict in the evidence, are as follows:

The plaintiff S. J. Collins established his home on the J. S. Morgan league survey in 1892, and has lived there continuously since that time, cultivating a small portion of said land, and claiming 160 acres thereof. In 1895 or 1896 E. C. Collins settled on said league. His home and improvements were situated 300 or 400 yards north of the home of S. J. Collins. He has claimed 160 acres of said league continuously since his settlement thereon, and has had actual possession in person or by tenants of the land upon which his improvements are situated, culti-' vating, using, and enjoying same continuously since his settlement thereon. Defendants’ answers, in which they claim title and pray for recovery of the land, were filed in December, 1911. When E. C. Collins made his settlement on the land, it was understood and agreed between biimself and S. J. Collins that their respective claims of 160 acres each would not conflict, and the location of the boundary line between them was agreed upon. The survey of the respective tracts claimed by plaintiffs was made in 1904. Prior to this survey the boundaries of the two tracts were not designated and were not definitely known by plaintiffs. The land claimed by plaintiffs is of no greater value than the remainder of the land in the Morgan league, and awarding them said land is not an inequitable partition as between them and defendants, who are the owners of the balance of the survey. While the field notes of each of the tracts described in plaintiffs’ petitions call for 160 acres, according to the courses and distances called for in said field notes the E. C. Collins tract contains 144 acres and the S. J. Collins tract 172 acres.

Appellants’ first assignment of error complains of the ruling of the trial court permitting plaintiffs to file the trial amendments of their petitions before set out, after the evidence had been closed and arguments of counsel heard upon the law of the case. Defendants excepted to this ruling of the court at the time and preserved their exceptions by a proper bill. The exceptions to the ruling which are submitted as propositions under the assignment are:

First: “An amendment to a petition which in effect sets up a new cause of action should not be permitted after the trial has begun.”
Second: “A trial amendment is only allowable when it becomes necessary in the progress of a trial to meet .a ruling of the court to sustain an exception to the pleading sought to be amended, and cannot be allowed to meet the evidence produced on the trial.”

There is no rule more firmly established. by our decisions than that the allowance or refusal of a trial amendment rests in the discretion of the trial judge, and unless an abuse of discretion is shown the ruling of the trial judge will not be disturbed on appeal. Telegraph Co. v. Bowen, 84 Tex. 477, 19 S. W. 554; Dublin v. Railway Co., 49 S. W. 667; Fields v. Rye, 24 Tex. Civ. App. 272, 59 S. W. 306; White v. Bank, 27 Tex. Civ. App. 487, 65 S. W. 498; American Warehouse Co. v. Ray, 150 S. W. 763; Railway Co. v. Hengst, 36 Tex. Civ. App. 217, 81 S. W. 832. It cannot be said that there was an abuse of discretion on the part of the trial judge in permitting the amendment in this case. Appellants do not claim that any new facts were alleged by the amendment which they were not prepared to meet. They did not claim surprise, nor ask to have the case continued, and there is an entire absence of any showing that injustice or injury was done them by the ruling permitting the filing of the amendment. The assignment cannot be sustained.

The second, third, fourth, and fifth assignments are grouped and presented together. The assignments raise different questions, and as presented do not require our consideration. But, waiving this objection to considering the assignments, there is no merit in appellants’ contention thereunder that appellees, having failed to prove possession and claim for 10 years of the specific tracts of land described in their petition, -were only entitled to recover to the extent of their actual possession. Under the undisputed evidence each of appellees had held actual possession of a portion of the Morgan league, claiming 160 acres thereon, for more than 10 years before this suit was brought. These facts entitle each of them to 160 acres of said league. Having failed to show that they had been claiming for 10 years the identical 160-acre tracts described in their petition, they failed to show title to said tracts; but under their alternative pleading and the undisputed evidence, showing that the tracts described were o¿ no greater value than the remainder of the league and that to .allot said tracts to them would be a fair and equitable partition, the court was authorized to instruct the jury to return a verdict for each plaintiff for 160 acres and allot to them the land described in their petitions. La. & Tex. Lbr. Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; La. & Tex. Lbr. Co. v. Stewart, 130 S. W. 199.

Under their sixth and seventh assignments of error appellants contend that, because the shape of that end of the Morgan' league on which appellees made their settlements is such that, if either of appellees were given a tract of 160 acres to include his improvements, such .tract, if located in its reasonable and natural position on said league, could include a portion of the i60-acre tract claimed by the other appellee, appellees have been claiming the same land, and neither of-them could recover any portion of the land not actually occupied by him. The answer to this contention is that the undisputed evidence shows that appellees have not been claiming the same land. Appellants were not in possession of any part of the Morgan league, and the actual possession of each of plaintiffs for the time prescribed by the statj ute, coupled with the claim of 160 acres, would, under the statute, give each of them title to an undivided 160 on said league. The fact that, if the location of 160 acres for one of them should be made without regard to the claim of the other, such location and designation, if made with due regard to the shape of the league and what would be a fair partition between one plaintiff and the defendants, would cover a portion of the land claimed by the other plaintiff, does not destroy the right of each plaintiff to acquire a title under the statute to 160 acres of the league. Their claims were separate and distinct, and they had agreed upon a boundary between them. The actual possession and occupancy of each gave notice to the owners of the league that such occupancy would entitle each to 160 acres, and the owners could not presume that they were claiming the same land.

In the case of Morris v. Jacks, 96 S. W. 637, cited by appellants, the defendants were in actual possession of different portions of a tract of land, and each of them were claiming the entire tract of 100 acres. Neither of them had any title to the land, and it was held that neither of them had constructive possession of the unoccupied portion of the tract against the other. The case of Wiley v. Bargman, 90 S. W. 1116, also cited by appellants, holds that when two persons are in actual possession of the same tract of land, and there is nothing to show the boundaries of the portion actually occupied and claimed by either, the possession of neither is exclusive, and neither is entitled by such possession to recover against the owner any portion of the land.' Neither of these cases sustain appellants’ contention that under the facts in this case plaintiffs’ possession and claim were not such as to entitle each of them to 160 acres of the Morgan league.

The remaining assignment complains of the judgment of the court in favor of appellees jointly for the two tracts of land described in their petition.

As we have before said, under the undisputed evidence plaintiffs were each entitled to have the court award him 160 acres of the Morgan league. The land adjudged to them jointly is less than 320 acres and is located with due regard to appellants’ right to a fair and equitable partition as between them and appellees. If appellees are content to have their land set apart to them jointly, appellants are in no way injured thereby, and we do not think they can complain of the judgment on this ground.

We are of opinion that the jhdgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


text:
    SCHEFFEL v. SMITH.
    (No. 6705.)
    (Court of Civil Appeals of Texas. Galveston.
    June 25, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Bills and Notes (§ 106) — Validity—Consideration — Commissions yob Sale of Corporate Stock.
    Where a corporation had sold all its stock to S. & Co., who employed salesmen, including R., to resell the stock, and It. made a sale to defendant, receiving a note for $3,750 payable to S. & Co. for the stock and a note for $1,250 payable to defendant’s order and indorsed by him at the time of delivery, to cover R.’s commissions for making the sale, such note was not illegal as in violation of the statute providing that no corporation shall issue its stock except for money paid, labor done, or property actually received.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 219, 225-232; Dec. Dig. § 106.]
    2. Bills and Notes (§ 343) — Transfer—Notice.
    Where R. had received the note in controversy from defendant as part of the price of corporate stock sold to him, representing R.’s commissions on the sale, the fact that R. informed plaintiff, when transferring the note to him, that he had sold stock to defendant did not put plaintiff on inquiry as to the terms of the sale or charge him with notice that the par value of the stock had not boon paid for .in some of the ways required by law.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 853-855, 864, 865; Dec. Dig. § 343.]
    3. Bills and Notes (§ 375) — Validity — Consideration — Transfer — Bona Fide Purchaser.
    A note given for commissions on a sale of corporate stock is not void ab initio, and hence such nóte is within the doctrine of bona fide purchaser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. § 375.]
    Appeal from District Court, Burleson County; Ed. R. Sipks, Judge.
    Action by George L. Smith against John A. Scheffel.. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Jesse Garrett, of Caldwell, for appellant. C. S. Williams, of Caldwell, and Searcy & Botts, of Brenham, for appellee.

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

   McMEANS, J.

Appellee, George L. Smith, brought this suit against appellant, John A. Scheffel, upon a promissory note for $1,250, executed by appellant, and of which appel-lee alleged that he was the owner and holder.

Appellant answered, setting up: (1) That •the note was procured from him by one J. H. Reeve, by-certain fraudulent statements and misrepresentations made to him by said Reeve; (2) that the note sued upon was executed in part payment for certain stock to be issued to him by the Republic Trust Company, a corporation incorporated under the laws of Arizona and with the authority to do business in Texas, and that said note, having been issued in part payment for stock in said corporation, was in violation of the Constitution and laws of Texas, and therefore void; and (3) that appellee, at the time he purchased and became the owner of the note, had full knowledge of the terms and conditions upon which the same was procured by the said Reeve from the defendant, and the purpose for which it was executed, and that he could not recover upon the same.

Appellee by supplemental petition denied: (1) That he knew of any false or fraudulent representations- made to appellant by Reeve at the time he purchased the note; (2) he denied that said note was executed for stock to be issued to appellant by the Republic Trust Company, but, on the contrary, set up that said note was made by appellant to Reeve for Reeve’s commission in a sale of stock made by Reeve to appellant; (3) he alleged that he did not know that the appellant had executed his note to Reeve in payment, or in part payment, for any stock in the Republic Trust Company, or any other corporation; and (4) that he purchased the note from Reeve in good faith, without any knowledge of the imperfections against the same set up by the appellant in his answer,, before the same was due, and that he was an innocent purchaser in law, and entitled to recover.

A trial of the case before the court without a jury resulted in a judgment for appellee for the amount of the note sued on, interest and attorney’s fees, aggregating $1,452.80. From this judgment appellant has prosecuted this appeal.

Appellant by his first assignment of error complains that the court erred in finding and holding that the note executed by appellant to Reeve, to cover the amount of his commissions for the sale of stock in the Republic Trust Company, was a valid and enforceable obligation. In his propositions under this assignment he asserts: (1) That the note for $1,250 and the one for $3,750, having been given for the purchase money of 333% shares of the Republic Trust Company stock, could not in law be a valid and enforceable obligation against appellant; (2) that the fact that Reeve, as agent of the Republic Trust Company, sold 333% shares of stock to appellant, taking in payment for same appellant’s promissory notes for $1,-250 and $3,750, the fact that by the contract between the Republic Trust Company and Reeve the latter was entitled to $1,250 as commissions, did not relieve the transaction of being illegal and in violation of the Constitution and laws of this state, which provide that no corporation shall issue its stock, except for money paid, labor done or property actually received; and (3) that the appellee, as the purchaser of said note for $1,250, cannot be deemed in law an innocent purchaser in good faith, for value, before maturity, when the Constitution and laws of this state expressly declare the transaction illegal and void ab initio. The court filed its written findings of fact, which we here insert:

“I find that the defendant, John A. Scheffel, purchased through J. H. Reeve a block of stock of the Republic Trust Company, of Dallas, Tex., and that he executed a note for $3,750, payable, to the order of A. Silvers & Co., of Dallas, Tex., who, it seems, had the stock for sale; and that he also executed the note sued on in this case, which was payable to himself or order, and indorsed by him, which said last note being for $1,250, and providing for 10 per cent, attorney’s fees, as set out in the pleadings in the case, represented the commission of said J. H. Reeve; that the said J. PI. Reeve, who was the owner of said note sued on, sold the same to the plaintiff, Georg;e L. Smith, for a valuable consideration, to wit, the sum of $1,-0.00 in cash, which he received; that, at the time of the purchase of said note by the plaintiff, he was told by the said Reeve that he had sold to the defendant a block of stock, not naming the company in which the stock was to be issued, and that the note which he offered to sell to Smith, and which he did sell to Smith, represented his commission for making the sale; that Smith did not know, at the time he purchased said note, what the terms for the sale of the stock had been to the defendant, but only knew that this note sued on represented the commission that the said Reeve received for selling the same, and thought that the note was all right, and knew of no defénses to it, and bought it in good faith for a valuable consideration long before the maturity of the same. I find that said note provides for 10 per cent, attorney’s fees, and that plaintiff agreed with ■his attorneys to pay them the 10 per cent, provided for in said note as their attorney’s fees for bringing the suit; that the defendant failed to pay the same; and that the suit was brought thereon. I find that the amount due upon said note on the day of trial, principal, interest, and attorney’s fees, amounts to the sum of $1,452.-80.”

The court’s findings of fact are in all respects amply sustained by the record and are adopted in part as our findings. In addition thereto we find the following facts which are warranted by the evidence: Prior to the transaction giving rise to this suit, the Republic Trust Company had sold all its stock to A. Silvers & Co., of Dallas, Tex., and had nothing to do with the salesmen engaged in selling the stock, and knew nothing about the salesman’s commission or how he secured it. Silvers & Co. employed the salesmen to sell the stock to individual buyers, and Reeve was their agent in making the sale to appellant, and not the agent of the Republic Trust Company, and the note for $3,750 was made payable to Silvers & Co. and not to the Republic Trust Company. The note for $1,250 was made payable to the order of the appellant, the maker, and indorsed by him at the time of its delivery to Reeve. The par value of each share of stock of the Republic Trust Company was $10. The stock was sold to appellant at $15 per share, divided as follows: Par value, $10, surplus fund, $1.50, and promotion expenses, $3.75. The 333% shares sold to appellant at $10 per share, plus $1.50 per share to be carried into-the surplus fund made the sum of the note for $3,750, and the sum of $3.75 per share-for promotion expenses made the sum for which the $1,250 note was executed. There is nothing in the record to show that Silvers & Co. did not pay for the stock of the Republic Trust Company in cash or property, or to show the terms or conditions under which they purchased.

Under the foregoing facts, the principle invoked by appellant in his first assignment of error and the propositions thereunder has no application. If, as the evidence shows, Silvers & Co. had bought all the stock of the Republic Trust Company, then they had the right to sell it on any terms they saw fit. The inhibition is against the corporation to-sell its stock, except for money paid, labor done, or property actually received, and not against a purchaser from the corporation who offers the stock owned by him for sale.

But, even if the transaction had been a. sale of the stock to the áppellant by the cor-' póration, we do not think the defenses set up-by appellant to the note in question were-available, in view of the fact that the evidence shows appellee to have been an innocent purchaser, before maturity, for value.. It is true that his testimony discloses that before he purchased he was informed by Reeve that he had sold stock to appellant;, but there was nothing to show that he was' apprised that the par value of the stock was-not paid for. in some one of the ways required by law. The evidence discloses without dispute, however, that the note in suit was given by appellant, not for the stock itself, but for Reeve’s commissions for making the sale; and appellee, having this assurance at the time he purchased, was not put upon inquiry thereby as to the terms of the sale. In State Bank of Chicago v. Holland, 126 S. W. 565, 103 Tex. 266, the Supreme Court of this state quotes with approval from Thompson v. Samuels, 14 S. W. 143, as follows:

“In Thompson v. Samuels the court quoted: with approval from 1 Daniel on Negotiable Instruments, par. 197, as follows: The bona fide-holder for value, who has received the paper-in the usual course of business, is unaffected by the fact that it originated in an illegal consideration without any distinction between, cases of illegality founded in moral crime or turpitude, which are termed ‘mala in se,’ and those found in positive statutory prohibition,, which are termed ‘mala prohibita.’ The law extends this' peculiar protection to negotiable-instruments because it would seriously embarrass mercantile transactions to expose the trader to. the consequences of having the bill or note-passed to him impeached for some covert defect. There is, however, one exception to this, rule: That, when a statute expressly or by nec-. essary implication declares the instrument absolutely void, it gathers no vitality by its circulation in respect to the parties executing it, though even upon such instruments an' indorser may * * * be held liable."

Further on in the opinion the court announces the rule as follows:

“Illegality is not, as a rule, a defense to commercial .paper, in an action thereon by a bona. fide holder thereof, to whom it was transferred for value before maturity without notice. 8 Cyc. 45B; Campbell v. Jones, 2 Tex. Civ. App. 263, 21 S. W. 723; Bank v. Pick, 13 N. D. 74, 99 N. W. 63; Bank v. Press Co. (C. C.) 56 Fed. 260; Williams v. Cheney, 3 Gray (Mass.) 215; Alleghany Co. v. Allen, 69 N. J. Law, 270, 55 Atl. 724. If the instrument is void ab initio, the defense of illegality is available even against an innocent purchaser for value before maturity and without notice. 8 Cyc. 46; Gilder v. Hearne, 79 Tex. 120, 14 S. W. 1031.”

The laws of this state do not expressly or by necessary implication declare void a note given for commissions ,on a sale of the stock of a corporation, and such a note is not void ab initio; therefore, under the rule quoted in State Bank of Chicago v. Holland, the protection of the law is extended to the instrument here sued upon and to the appellee as the purchaser thereof for value before maturity and without notice of any infirmity in its execution. Marshall National Bank v. O’Neal, 11 Tex. Civ. App. 640, 34 S. W. 344; Merchants, etc., Oil Co. v. Lufkin National Bank, 34 Tex. Civ. App. 551, 79 S. W. 651; Buchanan v. Wren, 10 Tex. Civ. 560, 30 S. W. 1077.

We are of the opinion that the grounds interposed as a defense by appellant are unavailable; that no material error has been assigned; and that the judgment of the court below should be affirmed, and it is so ordered.

Affirmed.


text:
    FISHER et al. v. SCHERER.
    (No. 6649.)
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Husband and Wife (§ 85) — Married Woman — Liability on Note.
    Prior to the amendment by the Act of the 33d Leg. c. 32, of Rev. St. 1911, art. 4624, providing when a married woman may contract debts,- a married woman was not liable on a note executed by her where there was no allegation or proof that the note was created for necessaries furnished her or her children or for the benefit of her Separate estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 333, 336-341; Dec. Dig. § 85.]
    2. Attachment (§ 357) — Recovery for Wrongful Attachment — Defense.
    It is no defense to a claim for actual damages from wrongful attachment that the plaintiff in attachment had probable cause to believe that ground for attachment existed; the question of probable cause being pertinent only to a claim for exemplary damages.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1307, 1309, 1310; Dec. Dig. § 357.]
    3. Attachment (§ 375) — Wrongful Attachment-Measure of Damages.
    The measure of damages for wrongful attachment is ordinarily the value of the goods attached, with interest from the date of seizure.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385, 1387,1393,1394, 1398, 1399; Dec. Dig. § 375.]
    4. Trial (§ 25) — Argument—Right to Open and Close.
    Where, in an attachment suit, defendant filed an admission of plaintiff’s right to recover the amount of the note sued on, but filed a plea in reconvention asking damages for wrongful attachment, he was entitled to open and close the argument.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.] ■
    Appeal from Chambers County Court; R. J. McMurrey, Judge.
    Action by S. S. Scherer against W. H. Fisher and others. From judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Greer, Nall & Bowers, of Beaumont, for appellants.

       For other oases 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, appellant W. H. Fisher and his wife, W. D. Fisher, to recover on a promissory note for the sum of $230, with interest and attorney’s fees, and to procure a lien on a building described in plaintiff’s petition. At the time of filing his suit plaintiff sued out a writ of attachment against defendants and caused said writ to be levied upon merchandise belonging to the defendant W. H. Fisher. Defendants answered by general denial, and especially excepted to the petition on .the ground that it appeared therefrom that W. D. Fisher was a married woman at the time the note was executed, and that there are no allegations of facts in the petition upon which she could be held liable for the debt evidenced by said note. The answer also contained a general denial, a -plea of coverture of W. D. Fisher, and a plea in reconvention by which W. H. Fisher sought to recover actual and exemplary damages against the plaintiff in the aggregate sum of $1,000 for wrongfully suing out the attachment. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff against both defendants for .the amount of the principal, interest and attorney’s fees due upon the note and for foreclosure of plaintiff’s lien upon' the building and the attachment lien upon the merchandise, and against the defendant W. H. Fisher on his plea of recon-vention.

We shall not discuss the assignments in error in detail, but will state our reasons for holding that the. judgment of the trial court should be reversed and the cause remanded for a new .trial.

There is neither pleading nor evidence to support the judgment against W. D. Fisher. She was the wife of W. H. Fisher at the time she executed the note. There is neither allegation nor evidence .that the indebtedness evidenced by the note sued on was created for necessaries furnished Mrs. Fisher or her children or for the benefit of her separate estate, and under article 4624, Revised Statutes 1911, she was not liable for the note which w¿s executed in June 1912, before the passage of the act of .the 33d Legislature (chapter 32) amending said article. Wallace v. Finberg, 46 Tex. 35; Stroter v. Brackenridge, 51 Tex. Civ. App. 170, 118 S. W. 632.

The evidence sustains the finding, if it does not conclusively show, that .the ground upon which the. attachment was sued out—viz., “that defendants were about to dispose of their property with intent to defraud their creditors”—was not true. Under the attachment goods of'the defendant W. H. Fisher, valued by the officer who levied the writ -at $320.42, were taken from the possession of said defendant.

Upon the issue of defendants’ right to recover damages for the wrongful suing out of the attachment the court gave the jury the following charge:

“Now, if you believe from the preponderance of the evidence that the attachment herein issued was wrongfully caused to be issued, and if you believe that the defendant W. PI. Fisher was not about to dispose of his property as alleged by plaintiff, and that plaintiff had no probable cause for such belief, and by reason of the wrongful issuance and levy of said attachment the defendant W. H. Fisher has suffered any injury as alleged by him, then you will find for the defendant W. PI. Fisher; but, it you believe from the evidence that at the time of making said affidavit for attachment the defendant W. H. Fisher was about to dispose of his property for the purpose of defrauding his creditors, or if you believe that said plaintiff had a probable cause for having said attachment issued, or if you believe that the defendant W. I-I. Fisher has suffered no damage as alleged by him then you will find for the plaintiff on this issue.”

It is no defense .to a claim for actual damages caused by the wrongful suing out of an attachment that the • plaintiff in attachment had probable cause for the belief that ground for .the attachment existed. If the alleged ground for attachment is not true, the attachment is wrongfully sued out, and plaintiff is liable for the actual damages caused thereby. As said by Judge Stay ton in .the case of Bear Bros. v. Marx & Kempner, 63 Tex. 303:

“It was the legal rights of appellants to continue in the peaceable possession and enjoyment of their property, and, unless facts existed which authorized their property to be taken from their possession for the security of creditors, the taking was a legal wrong which good intentions and pure motive? could not make legally right.”

The question of probable cause is pertinent only to the claim for exemplary damages, and cannot affect the claim for the actual damages caused by the wrongful use of the harsh remedy of attachment. Walcott v. Hendrick, 6 Tex. 406; Culbertson v. Cabeen, 29 Tex. 247; Kaufman v. Armstrong, 74 Tex. 65, 11 S. W. 1048; Woods v. Huffman, 64 Tex. 98.

The charge above quoted contained an affirmative misstatement of the law, and was reasonably calculated to cause, and propably did cause, the rendition of an improper verdict and judgment.

The general rule for the measure of damages for the wrongful seizure of goods under a writ of attachment is the value of the goods with interest from the date of the seizure. Gilmour v. Heinze, 85 Tex. 76, 19 S. W. 1075. Of course, if the defendant should recover .this value, the proceeds of the goods when sold would belong to the plaintiff.

The defendant W. I-I. Fisher having filed an admission of plaintiff’s right to recover against him the amount due upon the note, he had the right to open and conclude the argument before the jury, and the trial court erred in not granting him such privilege. District Court Rule 31, 94 Tex. 673; Ney v. Rothe, 61 Tex. 376.

What has been said disposes of the material questions presented by the appeal and sufficiently indicates .the rules of law which should govern upon another trial.

For the reasons above stated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


text:
    INGRAHAM v. CITY OF NACOGDOCHES.
    (No. 6678.)
    (Court of Civil Appeals of Texas. Galveston.
    June 29, 1914.
    Rehearing Denied Oct. 8, 1914.)
    Courts (§ 155)—Texas—District Courts— Jurisdiction.
    Under Const, art. 5, § 8, giving the district court jurisdiction of suits for the trial of title to land and for the enforcement of liens thereon, the district court has jurisdiction of a suit to set aside a void assessment upon land, claimed to be a cloud on plaintiff’s title, even though the amount of the assessment was not sufficient in itself to give the district court jurisdiction.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 378, 402% ; Dec. Dig. § 155.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by George F. Ingraham against the City of Nacogdoches. From a judgment dismissing the petition, plaintiff appeals.
    Reversed and remanded.
    June C. Harris and Géo. F. Ingraham, both of Nacogdoches, for appellant. C. A. Hodges, of Nacogdoches, for appellee.

       For other eases 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 appellant against the appellee to set aside an assessment upon real estate owned by appellant in the city of Nacogdoches for street improvements under the provisions of chapter 11, tit. 22, of the Revised Statutes (1911). The petition alleges, in substance, that the assessment was unauthorized and illegal because the city of Nacogdoches had never adopted the provisions of chapter 11, tit. 22, of the Revised Statutes, and therefore the city council of said city had no power or authority to make said assessment. The petition further alleges that under the ordinance of said city making the assessment appellee is claiming and attempting to fix a lien upon plaintiff’s property which it intends to foreclose. The concluding allegations and prayer of the petition are as follows:

“Plaintiff alleges that by the publication of the ordinances thereinbefore described and the levying of said assessment with the purpose and the intent by said board of aldermen to create and fix a lien upon plaintiff’s property, under the terms and provisions of article 1011 of chapter 11, title 22, Revised Statutes of Texas, a cloud has been cast upon the title of plaintiff’s land against which such assessment was made. Plaintiff alleges and would show to the court that the pretended assessment, even if legally made, is an excessive assessment, that his property has not been enhanced in its value by reason of the proposed improvement and will not be enhanced in its value by reason of such proposed improvement after the same has been made, that plaintiff is the owner and is in possession of said land and premises, that said assessment is against the following described property and is intended and claimed to be a lien described as follows, to wit: Lot No. 3, in block No. 23, assessed at $162.90. One-half interest in lot 10, block 13, assessed at $171.25, and his one-half interest is $85.63%. Lot No. 2 in block -, assessed at .$134.03, making in the aggregate a total of $382.64, and asserting a lien against said property. Wherefore plaintiff prays the court, citation having theretofore issued to the defendant named herein, that upon a hearing hereof plaintiff have judgment against said defendant declaring said assessment to be null and void and removing the said cloud from, his title, a!nd that he be quieted in his title to said land, for cost of suit, and for general and special relief in law and equity as he may be entitled to.”

Upon exceptions to the petition presented by defendant the trial court dismissed plaintiff’s suit upon the ground that, the amount in controversy being less than $500, the district court was without jurisdiction to hear and determine the suit.

Prom the foregoing statement of the allegations of the petition it is clear that one of the purposes of the suit is to clear plaintiff’s title to the property described in the petition from the cloud cast thereon by the claim and threatened enforcement by defendant of the lien given by the statute to secure the payment of the assessment, and, if the district court has jurisdiction of a suit to remove such cloud, the fact that the amount of the assessment against which plaintiff seeks relief is less than $500 does not defeat its jurisdiction. The case of Bank v. Knight, 126 S. W. 893, cited by appellee, was a suit to enjoin the collection of a tax of less than $500, and the court in holding that the county court had jurisdiction of the suit construed the petition as not seeking to remove cloud from the title to plaintiff’s land; the allegations as to cloud upon the title being only incidentally made, and there being no specific prayer that the cloud east by the alleged illegal tax levy be removed. The fair inference from this decision is that, if the petition had sought to remove the cloud from the title to the land, the suit should have been brought in the district court. The provisions of the statute under which the assessment was made fixes a lien upon plaintiff’s land to secure the payment of the assessment, and the passage and publication of the ordinance making the assessment and the assertion by defendant of a lien upon plaintiff’s property by reason of said assessment cast a cloud upon plaintiff’s title, and if the district court has jurisdiction of a suit to remove such cloud plaintiff’s suit should not have been dismissed.

Section 8 of article 5 of the Constitution of this state confers upon the district court jurisdiction of “suits for trial of title to land and for the enforcement of liens thereon:” The term “suits for the trial of title to land” has been construed to include all suits, of whatever form in which the title to land is directly involved, and it seems to us that when the purpose of the suit is to determine the question of the validity of a lien upon land, as the judgment rendered in such suit would necessarily affect the title to the land, the title is directly involved in the suit.

In the case of Dauenhauer v. Devine, 51 Tex. 480, 32 Am. Rep. 627, which was a suit by a lot owner to prevent the owner of an adjoining lot from making an opening in a parity wall, and in which no amount of damages was alleged, our Supreme Court says:

“In regard to the question of the jurisdiction of the district court, our opinion is that the nature of the suit, the injury complained of, and the relief sought were such as to give the district court jurisdiction, independent of the amount of injury alleged. The title and possession of land were so far involved as to make the case one for the district court.”

If a suit to .prevent injury to a party wall is a suit involving the title to land, we think it must be held that a suit to prevent an illegal attempt to fix a lien upon land, or to remove the cloud upon the title caused by such attempt, is a suit involving the title to land.

Our conclusion is that the trial court erred in holding that it did not have jurisdiction of the cause of action and in dismissing the suit on that ground. It follows from this conclusion that the judgment should be reversed and the cause remanded, and it has been so ordered.

Reversed and remanded.