text:
    HALL v. RAY.
    (No. 7321.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 6, 1915.)
    1.Appeal and Eeros <§=>499 — Presentation for Review — Exclusion op Evidence — Bills op Exceptions.
    Where bills of exceptions to the exclusion of evidence do not disclose the objections made to the evidence excluded, the ruling cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]
    2.Appeal and Error <§=>569 — Bill op Exceptions — Signature op Judge — Necessity.
    Bills of exceptions taken to the exclusion of evidence could not be considered on appeal, where they were not signed by the presiding judge.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. <§=> 569.]
    3. Evidence <§=>471 — Conclusion op Witness.
    A question inquiring of defendant whether he had any agreement with plaintiff whatever or gave him any right to the property in controversy was not objectionable as calling for a conclusion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. <§=471: Witnesses, Cent. Dig. § 833.]
    4. Appeal and Error <@=>1050 — Harmless Error — Admission op Evidence.
    The admission of a witness’ testimony over an objection that it was a statement of a conclusion, if error, was harmless, where the witness had already given substantially the same testimony without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166.: Dee. Dig. <@=>1050.]
    5. Partnership <@=>336 — Existence op Partnership-Interest in Land — Evidence.
    In an action for a partnership accounting in respect to two tracts of land bought by defendant in his own name, wherein he denied the existence of partnership, the testimony of the attorney who had acted for plaintiff and defendant in connection with various transactions and was familiar with their dealings with each other that he did not know or hear of plaintiff’s ownership in the lands in controversy was properly admitted.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. <@=>336.]
    6. Appeal and Error <@=>1027 — Harmless Error — Admission op Evidence.
    The admission of such evidence, if error, was harmless where it appeared that the same verdict and judgment would have been rendered had the evidence been excluded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4033; Dec. Dig. <@=>1027; Trial, Cent. Dig. § 124.]
    7. Appeal and Error <§=>742 — Presentation por Review — Admission op Evidence.
    An assignment of error complaining of the admission of evidence could not be considered on appeal, where it was not followed by a statement from which it could be determined whether the court erred in admitting the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=3742.]
    8. Partnership <©=>336 — Accounting — Evidence.
    Where, in an action for an accounting in respect to a general partnership in land deals, defendant denied the existence of such partnership, but claimed that plaintiff had been interested with him in special land trade contracts, the defendant’s testimony that prior to the date on which the alleged general partnership was entered into he and plaintiff had made a number of trades together and divided the profits was properly admitted.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. <§=>336.]
    9. Appeal and Error <§=>1050 — Harmless Error — Admission op Evidence.
    The admission of defendant’s testimony that prior to the date of the general partnership the existence of which was in controversy he and plaintiff had made a number of land trades together and divided the profits on same, if error, was harmless, where plaintiff had testified to similar, if not the same, transactions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=>1050.]
    10. Appeal and Error <§=>742 — Assignment op Error — Proposition.
    An assignment of error under which no proposition is submitted will not be considered on appeal, where it does not sufficiently disclose the point insisted on to be a proposition within itself.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    11. Appeal and Error <§=>742 — Assignment op Error — Statement.
    An assignment of error will not be considered on appeal where the statement subjoined thereto is wholly insufficient to support same and enable the Supreme Court to determine without an examination of the record whether error was committed.
    [Ed. Note. — For other cases, See Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=>742.]
    12. Partnership <©=>336 — Accounting—Existence op Partnership — Burden op Proof.
    In an action for an accounting in respect to a general partnership, wherein defendant denied the existence of such partnership, the burden of proof was on plaintiff.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. <¿=336.]
    13. Trial <©=>255 — Instructions—Request-Burden of Proof.
    In an action for an accounting in respect to a general partnership in land, wherein defendant denied the existence of such partnership, but claimed that he and plaintiff had participated in several land trades in respect to which he asked an accounting, the court’s failure to charge that the burden was on defendant to establish the causes of action which he set up in his favor was not error, in the absence of a request for such an instruction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. <@=>255.]
    14. Trial <©=>339 — Verdict—Correction.
    Where, in an action for an accounting in respect to a general partnership, defendant denied the existence of such partnership, and set up special partnerships in respect to which he asked an accounting, and according to plaintiff’s admission and the uncontradicted evidence an item to which defendant was entitled had been overlooked by the jury, the court properly called the jury’s attention to same, and directed that they return to the jury room and correct the verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 791-794; Dec. Dig. <§=>339.]
    15. Appeal and Error <§=>743 — Presentation for Review — Verdict—Evidence.
    On appeal in such case plaintiff’s contention that. defendant admitted and that the undisputed evidence showed that he was entitled to an item not allowed by the verdict could not be considered, where the page or pages of the voluminous statement of facts containing such admission and evidence was not given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. <©=>
    16. Costs <©=>32 — Prevailing Party — Partnership Accounting.
    Where defendant in such case recovered on both phases of the case involved, he was entitled to recover all costs, though plaintiff recovered some items in controversy in the accounting.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dee. Dig. <§=>32.]
    Appeal from District Court, Navarro County: H. B. Daviss, Judge.
    Action by C. J. Hall against D. W. Ray. From judgment for defendant, plaintiff appeals.
    Affirmed.
    McClellan & 'Prince and J. S. Callicutt, all of Corsicana, for appellant. Lawrence Treadwell and Richard Mays, both of Corsi-cana, for appellee.
   TALBOT, J.

The appellant, Hall, sued the appellee, Ray, in the district court of Navarro county, Tex., the substance and effect of his allegations being, so far as is necessary to state, that about the 1st of February, 1910, he entered into a verbal contract of general partnership with appellee by which they were to engage in the purchase and sale of lands as an investment, for speculation, and upon commission for others; that at the dissolution of the alleged partnership the firm owned an undivided half interest in the Noble tract of 150 acres of land and the Watson tract of 450 acres, and that he owned a one-fourth interest in the two tracts; that, by reason of other partnership transactions, an accounting, for which he prayed, would disclose that appellee was indebted to him in the'sum of several thousand dollars. Appellant alleged further that, while the deeds to the Noble tract and the Watson tract were made directly to appellee and vested the legal title in him alone, and that while the consideration and all obligations therefor had been paid and assumed entirely by appellee, yet that this was in pursuance of an agreement appellant had with appellee, by which, if appellee bought land for the firm and paid the consideration, then he was to take the title to the property in his own name, in trust, and as a security to secure said purchase money, with ten per cent, interest thereon. Appellant prayed for a dissolution of the alleged partnership, for an accounting of all partnership matters and distribution of the partnership assets, and for judgment fixing his interest in the lands aforesaid and establishing his interest therein, for costs, and for. general and special relief. Appellee, Ray, denied appellant’s claim of general partnership, as well as his claim of an agreement that the Noble and Watson tracts were bought for the firm, and the deeds were taken in his name, as security for the purchase money and obligations which he had paid and assumed in the purchase of said tracts of land. He also denied that appellant had any character of title, interest, or equity in said two tracts of land. Appellee charged that during the year 1910, as well as for several years prior to that time, both appellee and appellant, being engaged in land trading, would occasionally, from time to time, have special partnership transactions with reference to specific land trades, and that appellee and appellant had several of such special partnership transactions during the year 1910, and that upon an accounting thereof appellant would he found liable to appellee, and for which judgment was prayed. The case was tried in April, 1912, and submitted to a jury upon special issues. All of the questions submitted were answered, the result of which was that the jury found for appellee against appellant upon his contention of a general partnership, and against his contention that appellee was liable to him in any sum; also found that appellant had no interest whatever in the Noble and Watson tracts of land. They also found, as was admitted by appellee, that there were certain special partnership transactions between February 1, 1910, and January 31, 1911, and that after an accounting thereof appellant was indebted to appellee in the sum of $150.57. Judgment was entered in accordance with the findings of the jury, and appellant prosecuted this appeal. The appellant did not claim, but in effect denied, the existence of any special partnership transaction with ap-pellee during the year of the alleged partnership. He did not claim that either the Noble or Watson tract was acquired under any special partnership agreement, hut rested his claim of interest in said tracts on his alleged general partnership agreement with the ap-pellee.

There is no assignment of error presented in appellant’s brief which charges that the findings of the jury are unsupported by the evidence. The questions raised relate solely to the admission aud exclusions of certain testimony and supposed errors in the submission of certain issues to the jury, charges upon the burden of proof, the excessiveness of the amount found in favor of appellee upon the accounting, and in adjudging all costs of the suit against appellant.

The first, second, fifth, seventh, eighth, thirteenth, and fourteenth assignments of error complain of the action of the trial court in excluding certain testimony offered by the appellant. The bills of exceptions taken to the exclusion of the testimony are insufficient under the rales and decisions of our appellate courts to authorize a review of the court’s rulings. The bills fail to show the ground of objection made to the evidence offered or the ground or grounds upon which it was excluded. It is settled by numerous decisions of the appellate courts of this state that, when the bills of exceptions do not disclose the objections made to the evidence excluded, the ruling cannot he considered on appeal. Johnson v. Crawl, 55 Tex. 571; Texas Progressive Lumber Co. v. Railway Co. (Sup.) 155 S. W. 175; Brewing Co. v. Dickey, 20 Tex. Civ. App. 606, 49 S. W. 935; Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 58, 781; Railway Co. v. Jones (Civ. App.) 60 S. W. 978; Railway Co. v. Jarrell, 38 Tex. Civ. App.. 425, 86 S. W. 632; Porter v. Langley (Civ. App.) 155 S. W. 1042. The bills of exception reserved to the rulings of the court complained of by appellant do not purport to quote the language used by appel-lee’s counsel in objecting to the admission of the evidence excluded; nor does it appear what particular objection was made to its admission, or whether only a general objection was made thereto. They simply state that the appellee objected to the testimony or that appellee’s objections thereto were sustained, and hence the ruling of the Supreme Court in Waller v. Leonard, 89 Tex. 510, 35 S. W. 1045, is not applicable. Grinnan v. Rousseaux and Railway Co. v. Jarrell, supra.

The fourth and ninth assignments of error, which complain of the exclusion of testimony offered by appellant in the trial court, cannot he considered, because not supported by any bill of exception. We find in the transcript -ívhat purports to be hills of exception taken to the action of the court in excluding the testimony here in question, but neither of the bills is signed by the judge who presided at the trial of the case. It not appearing by the signature of the judge that the bills relied on were approved and allowed by him, they cannot be considered.

For similar reasons, the tenth assignment of error complaining of the action of the court in rejecting certain testimony of the witness T. D. Pierce, tendered by the appellant, cannot be considered, and the ruling reviewed. The bill of exception referred to in support of this assignment relates to the ruling of the court in admitting certain testimony of appellant’s witness IS. L. McCluney, over appellant’s objection, and in no way relates to any testimony tendered by his witness T. D. Pierce.

Appellee’s attorney asked the appellee while testifying in his own behalf the following question: “Did you have any agreement with him, Hall, whatever, or give him any right in the Noble and Watson tracts?” To which the witness replied: “No, sir.” This question and answer were objected to by appellant, and they are made the basis of his third assignment of error. The question was objected to because leading and called for the conclusion of the witness as to what right the appellant had in the Noble and Watson tracts of land, and the answer because it was but the conclusion of the witness upon a vital issue, which it was the province and duty of the jury to determine from all the evidence in the case. We are inclined to the opinion that the question was leading, but do not believe it called for the conclusion of the witness. Under the pleadings and pertinent testimony which had already been admitted, whether appellee had agreed verbally with appellant that he should have an interest in the two tracts of land referred to became a very material, if not the leading and controlling, issue in the case, and the statement of the witness to the effect that he had made no such agreement with the appellant was the statement of a fact, and not merely his conclusion.

But, conceding for the sake of the argument that the question was leading, and that it called for the conclusion and opinion of the witness, still the error must be regarded as harmless, and as furnishing no sufficient ground for a reversal of the case, for the reason that the witness Ray had already given substantially the same testimony as that elicited by the question without objection. Ray, among other things, testified, in substance, as follows:

“I paid $35 an acre for the Noble place. In paying for the Noble tract, Hall put in some bank stock, which he wanted to get rid of, and which Noble accepted, and I agreed that this could be done, and I paid Hall in money the value of said stock. We figured on the Noble tract while we were figuring on the Henderson county place [owned by Ray]. A few days before we traded Hall told me he had heard from Maske Bros., and that they would not give but $6,250 for the farm, and I refused to take it. Hall said, if I would take $6,250 for it, he would sell it for Maske Bros., and make a $500 profit, and then we would divide the profits. 1 told Hall I would take it, and would take the money I got from Maske Bros, and buy another place, and we [Hall and Ray] would look after both places and divide the profits, if we sold them that year [from January, 1910, to January, 1911]. I did not have any other contract or partnership with Hall at that time. I never did agree with Hall that he was to have a half interest in property purchased by me during that year. I did not have any agreement whatever with nail by which he was to have any right or interest in the Noble and Watson tracts. The Noble transaction did not happen after Hall and I went together. In answer to your question as to whether or not the Noble and Maske trades occurred after the inauguration of a partnership, I will say there was not any inauguration of a partnership. The morning of January 20, 1911, was the first time Hall ever claimed he had an interest in the Noble tract.”

Appellant’s sixth assignment of error is as follows:

“The court erred in allowing the defendant’s attorney to answer the following question: ‘Do you know or hear of Hall [plaintiff] having any ownership in this land, that is, the 150-acre tract and the 450-acre tract?’ To which question said counsel answered: ‘No sir, I didn’t know anything about him having an interest in it.’ This evidence of said counsel was permitted over appellant’s objection.”

The bill of exception taken to this ruling shows that appellant objected to the testimony admitted for the reason that it was not admissible to show by appellee’s attorney that he did not know or hear of appellant’s ownership of the lands in controversy; that the knowledge of the witness Treadwell, ap-. pellee’s attorney, as to appellant’s interest in said lands, could not and did not disprove such interest therein. We think, under the facts in evidence, this testimony was admissible as a circumstance to be considered by the jury, together with other evidence, in determining whether or not it had been agreed between appellant and appellee that appellant should have the interest in the lands as claimed by him. It seems, as contended by appellee’s attorney, that the witness Tread-well had been the attorney for the appellee, Ray, appellant, Hall, and Watson, from whom what is called by the witnesses the Watson tract was acquired, from time to time, and had procured loans for each of the parties, and was familiar with their transactions and title to and interest in various properties, including the lands in controversy. After appellee, Ray, had purchased the Noble place, and the deed had been executed to him alone, a trade was put on foot and negotiated between Ray, on the one hand, and Watson, on the other, whereby Ray was to convey to Watson a half interest in the Noble place, and Watson was to convey a half interest in an adjoining tract of 450 acres held by him. These negotiations w.ere pending for some period of time, and, in addition to making the trade, new loans had to be either made or assumed by the respective parties and adjusted. Appellant, Hall, had an entire and complete familiarity with this transaction from first to last, and testified that he was interested therein to the same extent as was appellee, Ray, and that said trade was brought about as a result of the joint efforts of Ray and himself, on the one hand, and Watson, on the other. In the entire transaction Treadwell was the attorney for Ray, or Ray and Hall, and Hall, as well as Ray, constantly conferred and consulted with Treadwell, who drew the deeds, with reference to the matter, and until its consummation. Treadwell was also attorney for Watson in the transaction, as was known to all the parties at interest. Appellee, Ray, was contending, and testified to that effect, that the appellant, Hall, on January 20, 1911, for the first time, claimed that he had an interest in the Watson and Noble tracts of land, or at least in the Noble tract, and the witness Treadwell, having been the attorney for appellant, appellee, and Watson, and familial with their transactions and the interest claimed by appellant and appellee in the different tracts of land, was clearly in position of haying known or heard of any claim asserted by appellant .to the lands in question, and if, under the facts and circumstances shown, no interest in said lands was claimed by him during the time the various transactions affecting said lands were occurring it was competent, it seems to us, to show that fact by the -witness Treadwell.

But if technically the testimony was inadmissible, we are not prepared to say that its admission was such a denial of the rights of the appellant as was reasonably calculated to cause, and did cause, the rendition of an improper verdict and judgment in the case Unless we can so say, the error furnishes no ground for a reversal of the case. Bule 62a (149 S. W. x). The testimony bearing upon appellant’s claim to and interest in the lands involved in his controversy with appellee was fully developed, and it is not claimed that the evidence, independently of that here complained of, was insufficient to warrant the findings of the jury and the judgment based thereon. Such a claim, if made, could not be sustained. We feel very sure from the record sent to this court that the same verdict and judgment as were rendered would have been rendered had the court excluded, instead of admitting, the testimony under consideration.

The eleventh assignment of error charges that the court erred in allowing the appellee, Bay, to testify that for five or six years prior to February 1, 1910, “the date this partnership between plaintiff and defendant was entered into,” he and the plaintiff had made a number of trades together and divided profits upon the same. This assignment is not followed by a statement from which we may determine whether or not the court erred in admitting this testimony, and hence, under the rules, is not entitled to consideration. However, from our knowledge of the testimony acquired in the investigation of other questions raised, there was no error in this action of the court. The appellant claims an interest in the property involved in the suit by reason of an alleged general partnership agreement entered into between himself and appellee. The appellee denied that any such agreement was ever made, but claimed that appellant, from time to time, had been interested with him in special contracts relating to land trades. The alleged contract of general partnership was not in writing, and, as bearing upon the issue raised, proof was admitted by the court as to the character and kind of dealings which had existed between the parties prior to the date of the alleged general partnership agreement. It occurs to us that this was pertinent testimony upon the issue to which it related, but whether it was or not appellant is in no position to insist upon a reversal because of its admission, for the reason that prior to the ruling admitting said testimony he himself had testified to similar, if not the same, transactions antedating his alleged agreement of general partnership.

The twelfth assignment of error is¿ not briefed as required by the rules, and will not be considered. There is no proposition submitted under it, and the assignment does not sufficiently disclose the point insisted upon to be considered a proposition within itself. But, if the assignment could be regarded as presenting the proposition insisted upon by appellant, still the statement subjoined thereto is wholly insufficient to explain and support the same, and enable us to determine whether or not error was committed in the ruling complained of without an examination of the record. Such manner or method of briefing a ease is clearly violative of the rules.

Assignments 15, 16, 17, and 21 assert that the court erred in submitting certain issues to the jury for their determination; the eighteenth that the court erred in placing the burden of proof upon the plaintiff; and the nineteenth that—

“the court erred in refusing to charge the jury that the burden of proof was upon the defendant, D. W. Kay, to establish any and all of the causes of action which he was setting up in his favor and against the plaintiff and as to any of the contentions he was making with regard to the property involved in this suit.”

A consideration of these assignments, as are all of the appellant’s assignments, is objected to because they are not briefed as required by the rules. The objections here urged are well taken. There is no proposition submitted under either of the assignments, they cannot properly be considered as presenting propositions within themselves, and there is no sufficient reference to or quotation of the evidence or proceedings in the case to explain and support said assignments or to enable us to determine whether or not error was committed by the court in either of the rulings complained of, without an examination of the statement of facts and other portions of the record sent to this court. This we are not required to do. But, if we were called upom or disposed to consider the assignments, we are not prepared to say there was error in any ruling of the court called in question by the assignments. On the contrary, we conclude from the investigation of the record we have made that the action of the court in the several particulars to which the assignments relate was correct. The issues submitted and of which complaint is made were controverted and pertinent issues for the determination of the jury, and no just complaint can be made of the manner and form of their submission. The burden of proof as placed by the court was properly laid upon the appellant.

Neither the assignment of error 19, complaining of the refusal of the court to “charge the jury the burden of proof was upon the defendant, I). W. Kay, to establish any and all of the causes of action which he was setting up in lais favor and against tRe plaintiff,” no-r the statement accompanying it, shows that a special charge to that effect was requested by appellant and refused, or points out any pleadings or evidence calling for such an instruction. At most, it only can be said that the error, if error, was one of omission, and cannot be made a ground for reversal unless a proper special charge supplying the omission was asked by appellant.

The twenty-second assignment of error is as follows:

“The court erred in submitting to the jury, under section 14, question 12, after the jury had returned a verdict into court, and same had been received by the court, instructing them that they had overlooked one item of $500 against the plaintiff in the McOluney-Borders deal, for which he had not accounted to the defendant, and instructed the jury to charge this amount .against plaintiff. This was done over the plaintiff’s objection after the verdict had been rendered and received, and, further, the plaintiff objected thereto because the uncontroverted evidence showed that there was an item of $25 received by the defendant from Moseley and Telly, which the defendant admitted he had received and had in his possession, and admitted that it was the partnership property of the plaintiff and defendant, and the court refused to instruct or charge this uncontroverted item of $25 against the defendant.”

It does not appear that there was any error in this action of the court. The statement in the assignment to the effect that the first verdict was “received” by the court is not correct. It does not appear that such verdict was received and filed. But this was regarded as unimportant. The court charged the jury thus:

“You are instructed that, in the matter of accounting between O. J. Hall and D. W. Ray, under the instructions of the court in (14) question twelfth, you have overlooked one item of $500 commission on the McClunoy-Borders deal, which O. J. Hall in his pleading admits, and which the evidence shows without dispute that C. J. Hall received, and for which he has not accounted to D. W. Ray. You will therefore return to your jury room and properly incorporate this item in your accounting, and reform your verdict in answer to said (14) question twelfth, accordingly.”

It is not denied by the appellant that this was an admitted item in his pleadings, nor does he deny that the uncontroverted evidence showed that the appellant had received the amount of said item and had failed to account to appellee therefor. The complaint is that the court should not, after the jury came into court with their verdict, and it was discovered that said item had been overlooked, and not considered by the jury in arriving at their verdict, have sent the jury back with the direction to consider and allow said item. There was no error in this action of the court The appellee’s right to have the item of $500 charged to appellant in the accounting prayed for by appellant not being disputed, it was entirely proper for the court to decline to receive the first verdict brought in by the jury, and direct them, as was done, to allow appellee said item. Had the item been overlooked until the court was called upon to enter judgment upon the jury’s findings, the item being an undisputed one to which appellee was entitled in arriving at the state of the accounts between himself and the appellant, it would have been the duty of the court then to take it into account and allow it in the judgment rendered. This being true, clearly there was no error in instructing the jury to correct their verdict in respect to said item.

It is further contended by appellant that the undisputed evidence shows that in arriving at the state of the accounts between himself and the appellee he should have been allowed an item of $25, which was not allowed, and therefore the judgment rendered is excessive in that amount. The appel-lee denies that appellant’s right to this item of $25 was shown by the undisputed evidence, and appellant in his brief fails to point out and show that such was the character of the evidence. We find it is stated in the statement made under the twenty-second assignment of error, just discussed, that:

“The evidence shows without conflict that Ray was indebted to the firm of O. J. Hall & Co. in the sum of $25 received by him from Moseley and Telly. He admits this himself.”

But the page or pages of the statement of facts where the evidence may be found showing without conflict that appellant was entitled to allowance of said item of $25 is not given, nor is the page of the statement of facts or record showing the admission claimed given. The statement of facts sent to this court contains 879 pages, and the testimony of the appellee, Ray, covers many pages, the exact number of which we have not ascertained, but to search the statement of facts or go over the testimony of Ray to ascertain whether or not appellant is correct in his statement to the effect that appellee admitted that he was entitled to be credited with the $25 in question, or that the evidence showed such right without conflict or dispute, would involve so much time and labor that it would be entirely unreasonable and out of the question to expect us to enter upon any such investigation.

The contention that the trial court erred in taxing the costs against appellant also will be overruled. The appellee recovered upon both phases of the case involved, and was entitled to recover all costs. The fact that appellant recovered some of the items in controversy in the accounting did not entitle him to recover any part of the costs.

The judgment of the court below is in all things affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    LUBBOCK STATE BANK et al. v. H. O. WOOTEN GROCERY CO. et al.
    (No. 8215.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 5, 1915.
    Rehearing Denied Oct. 16, 1915.)
    1. Vendor and Purchaser <&wkey;261 — Bona Fide Purchaser — Constructive Notice.
    Purchasers for value and without actual notice of previous transfers of vendor’s lien notes are, as against unrecorded transfers of such notes, bound only by their actual knowledge or notice appearing from the records.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. <S^>261.]
    2. Vendor and Purchaser <&wkey;261 — Validity — Issuance.
    Where a purchaser, who had given vendor’s lien notes in payment, retransferred the land on condition that she should be discharged from payment of such notes, and the vendor retained the notes, the notes are on reissue thereafter valid as against the vendor.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. &wkey;>261.]
    3. Vendor and Purchaser &wkey;>261 — Bona Fide Purchaser — Notice.
    A vendor of land, who received in payment 10 vendor’s lien notes, transferred notes 2, 3, and 4 without executing any instrument in writing, and no written evidence of such transfers was recorded. Thereafter the vendee, being unable to meet the notes, retransferred the land on consideration that the vendor should assume and become liable to pay all debts and obligations against it. Subsequently by written agreement duly recorded notes 1 and 5 of the vendor’s lien notes were disposed of to another. Thereafter the property was again sold, the vendor receiving 10 other vendor’s lien notes. By this conveyance, which was not recorded, the grantee assumed payment of all outstanding indebtedness. The husband of the vendor transferred the last series of notes to plaintiffs in error, assuring them that the land was subject to no other lien except that of notes 1 and 5: The conveyance of notes 1 and 5 recited that the last 5 of that series had been fully paid, and that the second, third, and fourth notes should be an inferior lien to 1 and 5. Held, that the holder of the last series of vendor’s lien notes had a lien superior to that of the holder of notes 2, 3, and 4 of the first series; there being nothing in the record to give constructive notice, and there being nothing to cast suspicion on the statement of the husband.
    [Ed. Note. — For other cases, see Vendor and •Purchaser, Cent.. Dig. §§ 674-686, 688-695; Dec. Dig. <&wkey;261.]
    4. Vendor and Purchaser <&wkey;>261 — Registration Statutes.
    As the purchase of a vendor’s lien note carries with it as an incident the lien, and the latter is within the registration statutes, one desirous of protecting his lien should secure a-written assignment and record it.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674^686, 688-695; Dec. Dig. <&wkey;>261.]
    Error from District Court, Taylor County; Thomas B. Blanton, Judge.
    Action between the Lubbock State Bank and others and the H. 0. Wooten Grocery Company and others. There was a judgment for the latter, and the former bring error.
    Affirmed in part, and in part reversed and rendered.
    Sayles, Sayles & Sayles, of Abilene, and Benson & Spencer, of Lubbock, for plaintiffs in error. Kirby, Scarborough & Davidson and H. A. Tillett, all of Abilene, for defendants in error.
   CONNER, C. J.

This contest involves the relative value of certain vendor’s lien notes, each party claiming priority of liens upon the N. W. % of section 14, Lunatic Asylum land situated in Taylor county, Tex. The contest arises out of the following state of facts, as shown by the trial court’s conclusions and by an agreed statement found in the record, viz.: On August 11, 1910, the quarter section of land mentioned was owned in the separate right of Mrs. May Braddy. She on that day, joined by her husband, M. T. Braddy, conveyed the land to Eliza Gregg, for which Mrs. Gregg executed her 10 promissory notes, numbered from 1 to 10, respectively, for $640 each and payable yearly after November 1, 1910. • The deed reserved the vendor’s lien to secure the payment of the notes, and it was recorded on the 27th day of August, 1910. In September following this conveyance, Mrs. Braddy transferred notes 2, 3, and 4 of the above series to certain of the defendants in error to secure certain indebtedness on the'part of Mrs. Braddy due them, respectively. These transfers were not evidenced by any instrument in writing, nor was any written evidence of these several transfers ever recorded. After this, to wit, on the 24th day of November, 1911, Eliza Gregg reconveyed the quarter section of land in question to May Braddy for a recited cash consideration of $100, and the further consideration that May Braddy “assume and become liable to pay all debts and obligations that may be held against” the land. This deed of reconveyance further recited that the land was reconveyed “because of grantor’s inability to pay the outstanding notes against the land.” This deed was duly recorded on November 25, 1911. Thereafter, to wit, on February 12, 1912, as we must find from the court’s specific finding and the agreed statement, M. T. and May Braddy executed a written transfer to Simmons College of notes 1 and 5 constituting a part of the series of notes executed by Mirs., Gregg. The transfer refers to the 10 notes executed by Mrs. Gregg as shown in the deed to her, recites that the last 5 of the series “have been fully paid,” and “are fully canceled and released,” and that “the second, third, and fourth * * * for full value in hand paid * * * are hereby made a second and inferior lien to the two notes * * * assigned, * * * and said second lien notes are so indorsed.” This written assignment was duly recorded on February 13, 1912. Thereafter, on January 15, 1913, May Braddy, joined by her husband, M. T. Braddy, conveyed tlie quarter section of land mentioned to W. E. Braddy, who gave therefor his 10 promissory notes, numbered from 1 to 10, respectively, for $350 each, and “assumed the payment of all outstanding indebtedness.” This deed was never recorded. The notes of this series which also reserved a lien on the land mentioned were made payable to M. T. Braddy, and he thereafter, before maturity and for a valuable consideration, conveyed all of the series to the respective plaintiffs in error. To each of plaintiffs in error to whom the series were so successively transferred, M. T. Braddy personally represented at the time of the transfer that the notes of the series “were the only liens against said land (the quarter section hereinbefore mentioned) except $1,300 due Simmons College.” It was further agreed, and the court so finds, that none of the holders of this series in fact examined the records of Taylor county, and that “except for such notice, if any, as may have been given by the records of Taylor county and deed to W. F. Braddy,” they are each “bona fide holders in good faith for value.”

On the above state of facts, the court concluded as a matter of law that the notes held by Simmons College constituted a first lien upon the quarter section of land in question, and that notes 2, 3, and 4 of the Gregg series of notes owned by defendants in error constituted a second lien, and that the notes given by W. F. Braddy as hereinbefore mentioned and owned by plaintiffs in error constituted the third lien. Judgment was rendered in accordance with the conclusion so stated, and the owners and holders of the second series of vendor's lien notes executed by W. F. Braddy have sued out this writ of error against the owners and holders of notes 1, 2, 3, and 4 of the first series executed by Mrs. Gregg.

All parties agreed that Simmons College is entitled to priority of lien, and that the judgment in favor of Simmons College to that effect is correct. The real contest is between the owners of notes 2, 8, and 4 of the Gregg series, and the owners of the second series of notes given by W. F. Braddy. As to these notes we think the court erred in his conclusion of law, and that the plaintiffs in error, as owners of the W. F. Braddy series of notes, are entitled to priority over the defendants in error, who are owners, as stated, of notes 2, 3, and 4 of the Gregg series.

It must be admitted, we think, that the plaintiffs in error, as purchasers of the W. F. Braddy notes before maturity and for value, are entitled to a priority of lien claimed by them as against the unrecorded lien of defendants in error, unless, as the court below evidently concluded, the records of Taylor county were sufficient to give plaintiffs in error notice of the liens claimed by defendants in error. See Henderson v. Pilgrim, 22 Tex. 464, and cases hereinafter cited. The doctrine of constructive notice, which is the reliance of defendants in error-in the present case, is said to be a harsh one arising out of motives of public policy in the enactment of our registration statutes. See Call v. Hastings, 3 Cal. 179, and Vizzard v. Taylor, 97 Ind. 90. By the application of thé doctrine of constructive notice it often, happens that great injury is brought about to a purchaser of lands, mortgages, or other property, whose actual good faith cannot be-questioned. No sympathy, however, is to be extended to a purchaser who is plainly notified by the proper record of an opposing claim. The law imposes upon him the duty of examining the records whether he actually does so or not, and a failure to examine the records, and to thus receive actual notice of the opposing claim or right, is his own fault, and it may be well said that he deservedly sustains any loss that results. Ordinarily, too, the doctrine has been so extended as that actual knowledge on the part of a subsequent purchaser of facts sufficient to put a prudent person on .inquiry will affect him with notice of all that the inquiry would have developed. But regardless of the question as to how far, if at all, the principle last mentioned can be made to apply in this case, it is apparent that no knowledge of any character other than as must be imputed to plaintiffs in error from the records of Taylor county was shown. On the contrary, plaintiffs in error were expressly assured by M. T. Braddy that the only prior lien was the one in favor of Simmons College. Nothing appears to cast suspicion upon this statement. He was husband and agent of the wife in the transfer of the notes and a grantor in the deed to the maker. We find nothing to suggest that plaintiffs in error were guilty of bad faith in failing to inquire of May -Braddy, the wife, or that an inquiry from her would have resulted in information conflicting with the husband’s statement. Mere carelessness in this respect will not amount to bad faith in the absence of cause for suspicion. Larzelere v. Starkweather, 38 Mich. 96.

Indeed, it is admitted, as well as expressly found by the court, that plaintiff's in error wer.e bona fide purchasers for value and without notice of the claims of the defendants in error, who own notes 2, 3, and 4 of the Gregg series, “except such notice, if any, as may have been given by the records of Taylor county and deed to W. F. Braddy.”' The only recitation in the W. F. Braddy deed relied upon, or that can be relied upon, to show notice that notes 2, 3, and 4 of the Gregg series were outstanding, is the recitation that W. F. Braddy “assumed the payment of all outstanding indebtedness.” This-would very naturally be referred by each several purchaser of the W. F. Braddy notes to notes 1 and 5 of the Gregg series held by Simmons College. This is especially true in view of M. T. Braddy’s assurance, to the ef-feet that these latter notes were the only ones that were outstanding. . The records of Taylor county exhibited but little, if anything, more forceful in the way of notice. There was no transfer of notes 2, 3, and 4 of record, and no recitation in any deed through which plaintiffs in error claimed requiring such conclusion.

It is insisted that May Braddy’s assumption of all outstanding indebtedness in the deed of reconveyance by Mrs. Gregg so requires. But not so. The deed does not declare that the Gregg notes have been conveyed. The notes were “outstanding” as to Mrs. Gregg. None of them, so far as the record shows, were then surrendered and delivered up to Mrs. Gregg, and the “assumption” was entirely consistent with the idea that Mrs. Gregg so required, in view of their nondelivery to her, as a protection to a subsequent circulation of her notes, or as formal assurance that they were yet in possession of May Braddy. It is insisted that it is unreasonable to infer that Mrs. Braddy would “assume” the payment of notes still held by her. But it is to be borne in mind that she did do so as to at least part of the notes, for it is not pretended that notes 6, 7, 8, 9, and 10 of the Gregg series ever passed out of Mrs. Braddy’s hands, and the argument based on the assumption of Mrs. Braddy applies to all notes of this series alike. Indeed, it is not an unreasonable inference that at the time of the reconveyance Mrs. Braddy held and retained all of the Gregg notes, with the knowledge or consent of Mrs. Gregg, either because they were not at the time readily obtainable for surrender or immediate destruction, or with a possible view on Mrs. Braddy’s part of a subsequent transfer in the nature of a reissuance of the notes which she could lawfully do and which would be effective in the hands of a purchaser as against the land and Mrs. Braddy at least. See 2 Daniel on Negotiable Instruments, § 1233. This appears in fact to have been done as to part of the notes, for the assignment of notes 1 and 5 to Simmons College was on February 12, 1912, following the reconveyance of Mrs. Gregg on November 24, 1911. In defendants in error’s brief before us it is argued that this transfer took place on February 5, 1911. While the written transfer to Simmons College as it appears in the statement of facts bears this date immediately above the signature of M. T. Braddy and May Braddy the acknowledgment bears the date of February 12, 1912, and its record was on February 13, 1912. The formal agreement of the parties hereto, as found in the record, is that:

“Thereafter (viz., after the reconveyance by Mrs. Gregg' on November 25, 1911) on the -5th clay of February, 1912, M. T. Bracldy and May Braddy executed the following instrument to Simmons College.”

The instrument is then set out. The court’s finding on this subject is “that on the 5th day of February, 1912, M. T. Braddy and wife, May Braddy, executed the following instrument to Simmons College,” and this finding is not questioned by any assignment of error. So that it must be held that the transfer to Simmons College did not precede, but was subsequent to, Mrs. Gregg’s reconveyance. But to close the subject we conclude that the inferences to he drawn from the mere assumption of Mrs. Braddy in the re-conveyance to her are far too inconclusive to amount to notice to the subsequent purchaser of the W. F. Braddy notes that notes 2, 3, and 4 of the Gregg series had been assigned, notwithstanding M. T. Braddy’s assurances of contrary effect.

The only other recitations relied upon as constituting the necessary notice are those found in the transfer to Simmons College. To repeat, this instrument contains no declaration that notes 2, 3, and 4 of the Gregg series* had been “conveyed,” at any time or to any person. It merely recited that the last five notes of the series had been “fully paid” and canceled, and that “the second, third, and fourth, for full value in hand paid, * * * are hereby made a second and inferior lien to the two notes * * * assigned, * * and said second lien notes are so indorsed.” None of these recitations are necessarily inconsistent with the conclusion that all of the series were actually held by and subject to the control of May Braddy. If so, she could, as an inducement to the sale of notes 1 and 5, cancel the last five of the series and postpone the lien of notes 2. 3, and 4 to that of Simmons College. The recitations favor, rather than otherwise, the conclusions that Mrs. Braddy held and controlled all of the notes at the time. She purported to deal with them all as the owner. She sold two. She in effect canceled five, and constituted three a second lien. This she certainly had no right to do if notes 2, 3, and 4 had been conveyed and held by others. It is significant, too, that the terms used relating to notes 2, 3, and 4 are used in the present tense. They are not that the notes had been made “second and inferior liens” and had been “so indorsed,” but that they “are hereby” so made, and that they “are so indorsed.” As if to render the view of the recitations here presented at least forceful, we find, as shown in the statement of facts and nowhere questioned, the following in-dorsement on note 4 of the Gregg series, viz., “This note is hereby made a second lien on the land herein described this February 5, 1912.” Signed at right angle with the in-dorsement is the name, “May Braddy.” Note No. 3 has the same signature and indorsement, except that the date is. given as “February 5, 1911,” the indorsement on note No. 2 is dated “February 5, 1912,” but the name of May Braddy does not appear to have been signed.

In the respects pointed out this case is to be distinguished from that of Waggoner v. Dodson, 96 Tex. 415, 73 S. W. 517, so urgently relied upon by defendants in error. In that case there was an unequivocal recitation that the grantor in the deed, under whom the defendant was claiming as an innocent purchaser without notice of an unrecorded deed to another, had theretofore conveyed the land, and the Supreme Court held that such recitation was distinct notice that the title was not in the grantor under consideration, and that he therefore could convey none. Here, there was no recitation of a conveyance of notes 2, 3, and 4 of the Gregg series; such conclusions can only be reached by inferences of uncertain, shifting character. The rule without doubt is that purchasers for value and without actual notice of previous transfer who have not examined the record are only affected by construction with notice of such facts as appear upon the record. As to them no duty of inquiry beyond this exists, unless the-recitations of the record are such as to plainly impose the duty. See Adams v. West Lumber Co., 162 S. W. 974, writ of error denied 165 S. W. xv; First Nat. Bank of Aubrey v. Chapman, 164 S. W. 900; Hassard v. May, 152 S. W. 665; Drumm Comm. Co. v. Core, 47 Tex. Civ. App. 216, 105 S. W. 843; Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54; Southern Bldg. & Loan Ass’n v. Brackett, 91 Tex. 44, 40 S. W. 719; Buchanan v. Wren, 10 Tex. Civ. App. 500, 30 S. W. 1077; Turner v. Grobe, 44 S. W. 898; Rotan v. Maedgen, 24 Tex. Civ. App. 558, 59 S. W. 585; Racouillat v. Rene, 32 Cal. 450. It was held by this court in Bank v. Chapman, supra, following Wilson v. Denton, 82 Tex. 535, 18 S. W. 620, 27 Am. St. Rep. 908, that the ordinary rule of constructive notice, such as putting a purchaser upon inquiry, has no application to a purchaser of negotiable paper for value before maturity. In such eases the‘question is one of bona or mala tifies only. If in such cases the purchaser is without notice of facts sufficient to show bad faith on his part, he takes the paper free from any and all undisclosed defenses arising subsequent to the notes’ execution. The right here insisted by defendants in error is to satisfy their notes out of the land in question to the entire exclusion of plaintiffs in error, if need be, thus, to that extent, seeking to strip the notes held by plaintiffs in error of all or a material part of their value. In this respect the effect and nature of the defense or right asserted is the same as if the attack was directly upon the notes given by W. F. Braddy and purchased by plaintiffs in error.

It was distinctly held in Henderson v. Pilgrim, 22 Tex. 404, and reaffirmed in Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54, that the purchase of a vendor’s note carries with it, as an incident, the lien, and that the latter is within our registration statutes. It was said of the note and parties under consideration in the latter case:

“It was within the power of the plaintiff to have taken a written assignment of the vendor’s lien, and to have placed it upon recoi'd as the law required, and thus to have secured himself against the acts of the original owner of the lien. The land and mortgage company had no such opportunity for guarding against the wrong; and it must be held that he who neglects the performance of a duty enjoined, or the exercise of a privilege granted for his security, must suffer the loss, rather than ono who was not in a position to secure that protection.”

These observations apply with very potent effect to the case now before us. Defendants in error had it in their power to require written transfers to them and to have had such transfers recorded. Had they done so, they would have given an unmistakable notice to all the world that they were the owners of and claiming the lien they now assert, and thus have rendered legally impossible any injury by reason of fraud on the part of May Braddy, or of her agent, M. T. Braddy, in representing that no such lien existed. But, not having done this as it was their legal duty to do, we cannot, on the one hand, in their behalf indulge mere inferences of unsatisfactory character to supply what should have been otherwise- plainly shown, and, on the other hand, require of plaintiffs in error the acceptance of doubtful warnings which should have formally and certainly appeared upon the public records.

AVe conclude that the judgment in favor of Simmons College should not be disturbed, but that, as to plaintiffs and defendants in error, the judgment should be reversed, and judgment here rendered for the plaintiffs in error establishing the priority of their liens over the lien of defendants in error. Judgment is rendered accordingly.
      <§s^For other cases see same topic and KEY-NUMBER, in all Key-Numbered 'Digests and Indexes


author: RAINEY, C. J.

text:
    ETHERIDGE et al. v. CAMPBELL.

    (No. 7370.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 16, 1915.
    Rehearing Denied Nov. 20, 1915.)
    1. Continuance <&wkey;26 — Gbounds—Absence of AAriTNEssES — Diligence.
    The denial of a continuance sought because of the absence of witnesses who were outside the state and the procurement of whose testimony would cost several hundred dollars was not erroneous, where no diligence was shown to procure the testimony of such witnesses, though applicants set up as their excuse for want of diligence the failure of the adverse party to comply, until the ease was called for trial, with an order requiring a bond for costs.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. &wkey;2(i.]
    2. Trespass to Try Title &wkey;>39 — Evidence of Title — Transfer of Notes.
    AAffiere, in an action of trespass to try title, the question of title depended on whether the former owners of the property in controversy had transferred vendor’s lien notes retained by them, it appeared that several years had elapsed, and that positive evidence relative to the details of such transfer was not ohtainable, it was not error to admit the testimony of a witness that he was in the employ of such former owner when it made an assignment for the benefit of creditors, and that he assisted in preparing a statement of its assets, which statement was intended to be accurate and complete, and that, to the best of his recollection and understanding, the notes were not among such assets, but had been transferred by indorsement to the person through whom plaintiff claimed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 54; Dec. Dig. <S&wkey;39.]
    3. Tbespass to Try Title <&wkey;41 — Title — Transfer oe Notes — Sueeiciency oe Evidence.
    Evidence in an action of trespass to try title, wherein the question of title depended on whether the former owners of the property had transferred, prior to making an assignment for the benefit of creditors, vendor’s lien notes retained by them, held to show that the notes had been transferred.
    [Ed. Note. — For other cases, see Trespass to Try [Title, Cent. Dig. §§ 62, 63; Dec. Dig. <&wkey;> 41.]
    4. Vendor and Purchaser <&wkey;261 — Lien— Assignment.
    Where a deed reserved a vendor’s lien securing- the purchase-money notes, and a trust deed authorizing appointment of trustee was executed as additional security, the action of the grantor’s successor in interest in the land in appointing a trustee and the sale of the property under the trust deed after the notes had been transferred to a third person was unauthorized and conveyed no title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674H586, 688-695; Dec. Dig. <&wkey;>261.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Trespass to try title by L. W. Campbell, Jr., against I. G. Etheridge and others. From judgment for plaintiff, defendants appeal.
    Affirmed.
    Etheridge, McCormick & Bromberg, of Dallas, for appellants. Gilbert H. Irish and L. W. Campbell, both of Dallas, for appellee.

      writ of error pending in Supreme Court.

   RAINEY, C. J.

This is an action of trespass to try title to recover lots 1 and 2 in block 168, Dallas Land & Loan Company’s addition No. 3 to Oak Cliff, now a part of the city of Dallas. The suit was instituted by appellee, and appellants filed a general denial and plea of not guilty. The cause was tried by the court without the intervention of a jury, and a judgment was rendered in favor of appellee, from which this appeal is taken.

Error is assigned to the action ’of the court in overruling appellants’ motion for continuance. The suit was filed in November, 1913. At the December term, 1913, an order was entered requiring appellee to give a bond for costs. No action to comply with this order by appellee was taken until the June term, 1914, when the case was called for trial, when the appellee announced ready. Whereupon the appellant moved to dismiss the case upon the ground that the rule for costs had not been complied with. Thereupon the appellee asked leave to be permitted to comply therewith, which was granted by the court, and a sufficient bond was then filed. The court declined to dismiss the case, and appellants then orally presented their motion for continuance for the want of the testimony of the two Hol-lingsworths, through whom appellee claims, by whom they could show that said lots had been purchased by them for a consideration in part of deferred payments, which contract they had abandoned; that it would cost several hundred dollars to procure the testimony of said parties, 'one of whom was in Toronto, Canada, and the other in Atlanta, Ga.; that appellants did not wish to incur the expense of procuring said testimony in view of the uncertainty of appellee making a cost bond. There was no diligence shown to procure said testimony, and the delay by appellee in complying with the rule requiring a bond for costs is not a sufficient excuse for want of diligence. Railway Co. v. Styron, 66 Tex. 421, 1 S. W. 161.

In the case just cited it was said by Mr. Stayton, J., that:

“The pendency of a contest ,as to the sufficiency of the affidavit in lieu of a cost bond was no excuse for the failure to use the necessary means to procure the evidence, and, besides, appellant knew that the appellee mig'ht comply with the rule for costs at any time by giving the proper cost bond.”

The trial court did not err in overruling the motion for continuance.

The evidence shows that the two lots in controversy were on September 22, 1890, deeded to the Hollingsworth Bros, by the Dallas Land & Loan Company, the then owners, the consideration being $150 cash, and four notes executed by said Hollingsworth Bros., one for $100, payable in six months, and three for $250 each, payable, respectively, September 22, 1892, September 22, 1893, and September 22, 1894, said deed containing a reservation of the vendor’s lien, and as additional security a deed of trust was executed to E. L. Snodgrass. The deed was signed by T. L. Marsalis, as president, and E. L. Snodgrass, as secretary, of said company, and the same was duly recorded in 1890. The Hollingsworth Bros, never paid said notes or either of them, but abandoned their contract and left the state. On June 9, 1891, the Dallas Land & Loan Company made to C. E. Bird, as assignee, a general assignment for the benefit of creditors. On July 21, 1892, C. E. Bird, assignee, deeded to T. L. Marsalis all of said property then held by him. On July 21, 1910, Marsalis deeded to David Scott the land in controversy. Scott on August 23, 1910, deeded to I. G. Etheridge. Marsalis and Scott on June 2, 1913, conveyed the lien and notes to Ether-idge. Snodgrass, as trustee under the Hol-lingsworth Bros, deed of trust, resigned, and Etheridge appointed J. H. Addison as substitute trustee; such substitution being authorized by said deed of trust. On July 1, 1913, Addison sold said lots at public sale, and on July 15, 1913, deeded same to I. G. Etheridge. On May 2, 1912, Hollingsworth. Bros, deeded said lots to J. R. Campbell, and on September 23, 1913, J. R. Campbell deeded to L. W. Campbell, Jr. Appellee also holds a release from George J. Bryan, to whom it is claimed the Hollingsworth Bros, notes were transferred.

As to who owns the better title in this controversy, we think, must be determined from the evidence in relation to what disposition was made of the Hollingsworth Bros, notes. There is nothing to show that they were ever paid or in any way settled by the Hol-lingsworths. The deed from the Dallas Land & Loan Company having reserved a lien on the two lots to secure the payment of the notes, the superior title remained in said company, subject to said notes being paid or settled by said company disposing of them to another party. There is evidence to the effect that these lots were included in another tract traded to one George J. Bryan by the Dallas Land & Loan Company, and in said transaction with Bryan the Hollings-worth notes were settled. James A. Mc-Aleer, who at that time was a bookkeeper, cashier, and general office man of the Dallas Land & Loan Company, testified as follows:

“I remember the occasion when the Dallas Land & Loan Company made an assignment for the benefit of its creditors. I was in its employ at that time. The schedule of the assets and liabilities of that company was prepared in its office by Mr. E. L. Snodgrass and myself. We prepared it with the intention of having it strictly accurate. E. L. Snodgrass was then the secretary of that company. He lives in Dallas now. He did the principal work of preparing this schedule. I assisted him. I had charge of the notes that belonged to the Dallas Land & Loan Company. I had charge of the cash and the books. X have seen the schedule of the assets and liabilities on one- or two occasions on record at the courthouse. I believe this schedule was accurate, and that it contained all the assets and liabilities of the company. Some seven or eight years ago I had an idea of buying those Hollingsworth notes if I could find the owner, but I c.ould not find the owner. I did not know where he was, and no one seemed to know where he was; and I went to the courthouse to see if these notes on the lots were listed in the schedule, and whether those notes were shown as standing against the property at the time. X found no record of those notes in the schedule.”

Being asked whether he was prepared to state whether he had any recollection on the subject or not as to why the notes were not listed, the witness responded:

“ ‘My recollection of the transaction was that that property where the Hollingsworth lots were situated was a part of the acreage conveyed to Geo. J. Bryan, and there was a settlement with Geo. J. Bryan in that sale or purchase with reference to the lots we had sold out of it, and in that settlement I believe that those notes and the cash received on those lots had been accounted for to him.’ ” “As to whether or not there was, in fact, the settlement I have just mentioned between Dallas Land & Ihoan Company and Geo. J. Bryan on his purchase of that part of the third addition, will say the settlement — I saw it being prepared, and it was prepared in writing or in figures. That was a statement made in figures. That statement was made upon the basis of the amount of money coming to the Dallas Land & Loan Company from Geo. J. Bryan. Being asked to state if he remembered just what that statement consisted of, and who prepared it as nearly as he could remember, the witness responded: ‘My recollection is that the instrument was prepared —the figures were prepared by Bryan T. Barry and T. L. Marsalis, and passed over to me for entry on the books.’ The statement was made showing the. amount of— to show the amount of the balance to be paid by Geo. J. Bryan after he had been given credit on the purchase money for the amount of money and notes on certain lots which had been sold prior to the acreage. As to what became of the Hollingsworth notes, my recollection and understanding was that they were turned over to Geo. J. Bryan by indorsement. As to what was done with the Hollings-worth notes, my memory at this time would not enable me to swear definitely what was done with them. I have merely stated my recollection as to what was done at the time, and which I believe to be true. That recollection is that the Hollingsworth notes were turned over to Geo. J. Bryan in a settlement of the account, coming from him to the Dallas Land & Loan Company, and giving him as a credit upon that amount. My recollection is that for six months prior to the time of the assignment made by the Dallas Land & Loan Company, on or about the 1st of January, 1891, that company was insolvent. I can give no reason for that, and it was that the officials of the Dallas Land & Loan Company, the president, had been considering about that time the advisability of making an assignment, and put it off as long as he could. At that time the company was struggling and borrowing money, but I would not say that it was insolvent at the time, but it was in a shaky condition. It was then borrowing money and struggling along. At that time attempts were made to sell land belonging to the company then known as the Midway addition, and now known as Rosemont, Winnetka, and the Annex. There were 300 acres, and a vigorous attempt was made to sell it in order to procure money for the upholding of the business of the Dallas Land & Loan Company. With reference to what the company was doing in the matter of its vendor’s lien notes along the same time, will say there was a constant attempt to keep up the sale of the vendor lien notes, which was generally fairly successful until the financial crisis, caused, I believe, by the failure of Baring Bros, about that time, which caused a stringency of money, and it became almost impossible to sell vendor lien notes then.”

This testimony was objected to by the appellants. Under the circumstances of this case, the length of time that had elapsed, etc., the court did not err in admitting the testimony. Taking said testimony as true, with the further testimony that they were not scheduled in the assignment made by the company for the benefit of creditors, and were not mentioned or specified in the deed by the assignee, Bird, conveying the property back to Marsalis, we conclude that said notes had passed out of the possession of said Land & Loan Company.

If said company had disposed of said notes, the most that can be said of title in them is that it was held in trust for the owners of said notes, and the transfer of the lien and notes by Marsalis and Scott to Eth-eridge conveyed no title to the land, or the notes, and the appointment by Etheridge of Addison as trustee and the sale under the trust deed was unauthorized and conveyed no title to the land. If the said notes had been transferred to Bryan, as the evidence indicates, under his release in favor of the Hollingsworth Bros, of his interest therein, as Hollingsworth Bros, deeded to Campbell the lots in controversy, Campbell has the better title, and the trial court did not err in so holding.

The judgment is affirmed.
      <^oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    FIRST NAT. BANK OF PLAINVIEW et al. v. McWHORTER et al.
    (No. 839.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1915.)
    1. Husband and Wife &wkey;>257 — Wife’s Separate Estate — Community Property.
    Rev. St. 1911, art. 4621, as amended in 1913 (Acts 33d Leg. c. 32, § 1 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4621]), providing that all property of either spouse acquired before marriage and afterwards by gift, devise, or descent, as also the increase of all lands so acquired shall be the separate property of the spouses, although the wife shall have the sole management, control, and disposition of her separate property during marriage, provided the husband joins in the manner prescribed by law in the conveyance of her separate real estate, and Rev. St. 1911, art. 4622 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4622) , providing that all property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of both, and during coverture be disposed of by the husband only, do not change the rule that property acquired during coverture from the use of the wife’s separate property becomes the property of the community.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 543-552; Dec. Dig. <&wkey;> 257.]
    2. Fraudulent Conveyances <&wkey;137 — Conveyance by Husband to Wife.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 396S, providing that no gift of any goods or chattels shall be valid unless by deed or will duly acknowledged, or unless actual possession shall have come to and remained with the donee, or some one claiming under Mm, grass seed raised by a wife upon her separate real estate will not be considered as against the husband’s creditors, to have been a gift to her by her husband, where actual possession thereof was not given to the wife.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 432-437; Dec. Dig. &wkey;137.]
    3. Trial <&wkey;140 — Questions of Fact — Credibility of Witnesses.
    A case wholly dependent upon uncorroborated testimony of a party interested in the litigation, though unopposed by other witnesses, is for the jury, and they have the right to weigh the credibility of the witness.
    [Ed. Note. — -For other cases, see Trial, Cent. Dig. §§ 334, 335; Dee. Dig. &wkey;140.]
    4. Evidence <&wkey;317 — Evidence Based on Hearsay.
    In trover by a wife for grass seed seized for her husband’s debts, evidence by plaintiff as to the value of such seed, based upon information received by her through others, was inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. &wkey;317.]
    5. Evidence <&wkey; 143 — Admissibility — Market Values.
    In trover, testimony as to market value of certain grass seed was inadmissible as being too weak to be considered, where the witness based his estimate on the value of seed which had passed inspection by a seed association, and the record showed that the seed in question had not gained that standard, and the witness admitted on cross-examination that he was not familiar with the situation at that time, had not known of any sales, and had been too busy to give the matter any thought.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 424, 426-428; Dec. Dig. &wkey;143.]
    Appeal from District Court, Lubbock County; W. R, Spencer, Judge.
    Action by Kate H. McWhorter and others against the First National Bank of Plain-view, Tex., and others, in trover and conversion for grass seed. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Mathes & Williams, of Plainview, and J. E. Vickers and Benson & Spencer, all of Lubbock, for appellants. Bean & Klett and W. H. Bledsoe, all of Lubbock, for appellees.
   HENDRICKS, J.

In 1913, B. O. McWhor-ter, the husband of Kate H. McWhorter, was indebted to the appellant the First National Bank of Plainview, as surety upon two promissory notes, in an amount between $9,-000 and $10,000. In September, 1914, the bank sued B. O. McWhorter upon the notes and caused the levy of a writ of attachment upon certain Sudan grass seed. This litigation is an independent suit of the husband, with the wife, Kate H. McWhorter, in trover and conversion for the value of the seed, alleging that it was the separate property of Mrs. McWhorter, and that the same was not liable for the debts of B. O. Mc-Whorter. The court peremptorily instructed the jury that the seed constituted the separate property of the wife, leaving the question of value only for the consideration of the jury, which they assessed at $9,380.25, afterwards reduced by remittitur in the sum of $1,810.

Both parties treat the real estate upon which the Sudan seed was raised as the separate property of the wife; and the understanding between the husband and wife, by virtue of which the latter claims she acquired the Sudan seed as her separate property, is testified to as follows, the substance of which we reproduce:

Mr. McWhorter had a little farm up there. I also had one. He said to me one day, “Mattie, I think I shall rent the farm this year.” I said, “No, that I did not want mine rented, that I might farm my own,” and that I wanted to plant it in Sudan seed. He agreed to finance it for me, and I told Mm that P would have the boys (meaning their children) properly, work the ground as much as possible, “and agreed to put it in cultivation for my own benefit.” He purchased the seed for planting and I had an agreement that later, when the seed were sold, “I would keep a memorandum of what he was out on the seed and the entire crop and when I sold it I would repay him.” I had a man to plow the land and get it in shape to plant, and my two sons cultivated it. I agreed to pay the older boy $20 per month and the smaller boy $10, to be paid to them when the seed Was sold. Mr. McWhorter showed the boys how to manage the crop, and a few times went to the field for that purpose, but never worked the same. When the seed was thrashed, I had it brought to the house, placed in a small garage upon the place; and, when the crop was growing, I had it looked after with a view of having it entered in the Sudan Seed Association, and also had the same inspected by the inspectors at the Experimental Earm, and instructed my son to join the association so that the seed could be sold by it; and after the seed was thrashed, and before I had put it into the association, it was levied upon before the association building was ready for the reception of the seed.

The husband did not testify in the case.

The appellant bank assigns that the court erred in peremptorily instructing the jury to find that the seed was the separate property of the wife, and under the assignments the following propositions are presented:

“The credibility of the witness is a question for the jury, and it was error for the court to assume the truthfulness of plaintiff Kate H. McWhorter’s unsupported testimony. * * *
“The undisputed evidence shows that the said seed were produced by the labors of the husband and wife, and their minor children, and the mere agreement between the husband and wife, before the seed was planted, could not have the effect of changing the law of marital property rights. * * * ”

At the threshold of the case appellee presents an exposition of the amended acts of 1913 to article 4621, with reference to the rights of married women, insisting that on account of the change of the law there is a change of the title of this character of property. Under this act, as formerly, all property, real and personal, of either spouse, acquired before marriage, and afterwards, by gift, devise, or descent, “as also the increase of all lands thus acquired,” shall be the separate property of the spouses. This amendment does say:

“During marriage * * * the wife shall have the sole management, control and disposition of her separate property, both real and personal,” provided the husband joins in the manner prescribed by law for the conveyance or incumbrance of her separate real estate; “and the joint signature of the husband and wife shall be necessary to a transfer of stocks and bonds belonging to her or of which she may be given control by this act.”

It further says:

“Neither the separate property of the wife, nor the rents from the wife’s separate real estate, nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings, shall be subject to the payment of debts contracted by the husband.”

Article 4622, following 4621, just quoted from, provides, as before, that:

“All property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only,” with the addition, “provided, however, the personal earnings of the wife, and rents from the wife’s real estate, the interest on bonds and notes belonging to her and dividends on stocks owned by her shall be under the control, management and disposition of the wife alone, subject to the provisions of article 4621, as hereinabove written.”

Of course, if you start with the assumption that this statute makes the products raised upon the wife’s real estate the separate property of the wife, instead of community property, this case is ended in favor of the wife; but we are unable to give the statute the interpetation suggested. If it were not for the settled channels of the law, dug deep by successive interpretations heretofore made, the question might at least become debatable. The statute does give the wife the management, control, and disposition of her real property, provided that the husband, when it comes to the disposition, joins in the conveyance; and, if he should refuse to join under article 4621, the district court, upon satisfactory proof that the conveyance would be advantageous to her interest, may grant her the permission to convey. To give the wife the management and control of the real estate, and not give her the real incidents and fruits of that control, might, in an ethical sense, appear contradictory; and though it has appeared to a great many in this state that the construction that, although the thing itself may be separate property, but that which grows out of it and is produced upon it and which makes property really beneficial is community, is an incongruous interpretation; but the Supreme Court of this state has placed the same upon what it has conceived a broader ground, as to the meaning of the old statute and the result of the community partnership, and the presumed labors of each between husband and wife. In the early case of De Blane v. Lynch, 23 Tex. 29, where it was held that crops grown upon the separate property of the wife, and by the labor of her slaves, were community property, the Supreme Court said:

“The principle which lies at the foundation of the whole system of community property is that whatever is acquired by the joint efforts of the husband and wife shall be their common property. * * * It is true that in a particular case satisfactory proof might be made that the wife contributed nothing to the acquisitions; or, on the other hand, that the acquisitions of property were owing wholly to the wife’s industry. But from the very nature of the marriage relation the law cannot permit inquiries into such matters. The law therefore conclusively presumes that whatever is acquired, except by gift, devise, or descent, or by the exchange of one kind of property for another kind, is acquired by their mutual industry. If a crop is made by the labor of the wife’s slaves, on the wife’s land, it is community property, because the law presumes that the husband’s skill or care contributed to its production; or that he, in some other way, contributed to the common acquisitions.”

It may be that on account of the wife’s management and control of her separate real estate the presumption that the husband’s labor or skill contributed to the production of the crops grown thereupon might not prevail, but the presumption that he still contributes to the common acquisitions and the community partnership, in a general sense, of course, prevails, article 4622, as amended by the Legislature of 1913, still says that all property acquired by the husband or wife during marriage shall be deemed the common property and during the coverture may be disposed of by the husband only; and article 4621, as amended, still prescribes that the property acquired only by gift, devise, or descent, constitutes the separate property of each. Hence the status of the title of the common property, and of the separate property by gift, devise, or descent, we think under this statute continues to remain the same. It would have been easy for the Legislature to have said that the “increase” of separate real estate shall include the products grown upon the same without leaving it to a strained construction by the courts to abrogate the settled rule imbedded in the law by many decades of interpretation. The court of the Second district has in effect given the amended statute the same interpretation as we give it. Tannehill v. Tannehill, 171 S. W. 1050; Scott v. Scott, 170 S. W. 273.

As to the issue whether the transaction constituted a gift, it is the law of this state that the question, whether particular property is separate, or community, must depend upon the existence or nonexistence of the facts, which by the rules of law give character to it, and not merely upon the stipulations of the parties that it shall belong to one class or the other. Kellett v. Trice, 95 Tex. 160, 66 S. W. 51. Justice Williams said in that case:

“It has been held in several cases that the husband and wife cannot, by their mere agreements, alter the character given to property by the law acting upon the facts under which it is acquired. Cox v. Miller, 54 Tex. 27; Green v. Ferguson, 62 Tex. 529.”

Ha also said:

“It is true that, in the acquisition or after-wards, the husband may give to the wife all Ms interest in property, and thus, by gift, make it hers; but at last this would be true only because the facts defined in the law exist and the separate right is derived through a gift, the husband having full power over the community estate.”

If the products of Mrs. McWhorter’s farm are prima facie community property, the acquisition of title of the husband’s half interest must have been a gift, otherwise the title remained in the community; and, if the record in this instance does not conclusively prove a gift, the trial court necessarily erred in his peremptory instruction.

“No gift of any goods or chattels shall be valid unless by deed or will, duly acknowledged or proven up and recorded, or unless actual possession shall have come to, and remained with, the donee or some one claiming under him.” Article 3968, Vernon’s Sayles’ Rev. Civil Statutes.

This statute precludes symbolical or constructive possession; actual possession must come to, and remain with, the donee or some one claiming under him. Love v. Hudson, 24 Tex. Civ. App. 377, 59 S. W. 1127; Eldridge v. McDow, 132 S. W. 518. We are not 'deciding that acts of control and manifestations of ownership over articles in heavy bulk would not constitute actual possession, if the other elements, intention to give, and relinquishment by the donor of dominion over the property to the donee, are shown. It is elementary that an unexecuted parol promise to give is void. It is the fact of delivery and relinquishment of dominion that converts the un-executed and revocable purpose to give into a complete gift. If the products of the farm, which are to be severed, constitute the community property, it cannot be doubted that at least, after severance, the husband had the management, control, and disposition of such products, and it is equally true that such products would be “chattels” within the statute quoted. Hence the intention of the husband to give, and the delivery by him into the actual possession of the wife, must be conclusively shown to take a case of this character from the jury.

In the case of Little v. Birdwell, 21 Tex. 609, 73 Am. Dec. 242, our Supreme Court, quoting from the Alabama Supreme Court, said:

“Verbal sales and gifts, between husband and wife, ought not to be admitted, unless on clear and satisfactory proof that the property was divested out of the vendor, and vested in the vendee.”

It may be that the true rule in such cases is that such proof is that character of evidence, which, in order to be conclusive, leaves no room for ordinary minds to debate as to the inference to be deduced. Lord v. Insurance Co., 95 Tex. 216, 66 S. W. 299, 56 L. R. A. 596, 93 Am. St. Rep. 827, where a brother gave his sister an insurance policy. The jury in this case would have had the right to weigh the relationship of the parties, the fact that the wife, vitally interested in the litigation, is testifying on the main issue in the cause, and that the husband’s testimony is neither offered nor its absence excused; and to further consider whether the arrangement or agreement testified to by her was merely an attempt to change the status of community into separate property, without including the idea of a gift, which would be void under the decisions cited and quoted from. When she informed her husband that if he would finance the crop and that she would superintend it, employ the boys to cultivate it, and reimburse him out of the crop, the crop to be hers, we are unable to say that such an agreement conclusively exhibits an intention to give — a pure benefaction upon the part of the husband— even, with the aid of the testimony that the increase of other separate property was considered her property; nor do we think that the testimony by her of her acts conclusively shows that the seed was actually delivered into the possession of the wife.

“A mere intention, or naked promise to give, without some act to pass the property, is not a gift. There exists the locus penitentise so long as the gift is incomplete and left imperfect in the mode and manner of making it. * * * The donor must part, not only with the possession, but with the dominion of the property.” Chevallier v. Wilson, 1 Tex. p. 161.

The courts of this state have established the principle that a case wholly dependent upon the uncorroborated testimony of a party interested in the litigation, though unopposed by other witnesses, is for the jury, and they have the right to weigh the credibility of the witness. Rayner v. Posey, 173 S. W. 249, and numerous cases cited, including one by the Supreme Court of the United States. There may be exceptions to this rule, but we believe the general rule would apply to the character of case manifested in this record.

The trial court erred in the peremptory instruction.

The appellant also assigns error to the action of the court in permitting the testimony of Mrs. McWhorter, on the market value of the Sudan seed. The bill of exceptions we find as the basis of this assignment is one which exhibits testimony, in effect, that she had endeavored to keep posted as to the value of Sudan seed, and had been making investigations and inquiries with reference to the value, and had heard the matter “discussed,” and believed that she knew as much about it as any lady could know. What the “discussions” were in regard to value — whether between parties offering to sell or purchase, witnessed by her first hand, or whether they were mere speculative opinions of others — is not shown on cross-examination. To pass upon a close question of qualification as presented by this bill is unnecessary, for the reason that a cross-examination of the witness (not shown in the bill) discloses that all she knew about the market value is what she heard other people say, which is the serious complaint of appellant, hut with no further objection to the testimony, or motion to strike, presented. If the witness had no personal knowledge of the value of the seed, but her opinion was based merely upon what others informed her as to the value of the same, the testimony is based upon the unaccredited statements of others, and is hearsay. Such testimony with such basis is improper. Railway v. Maddox, 75 Tex. 305, 12 S. W. 815; Railway v. Arnett, 40 Tex. Civ. App. 78, 88 S. W. 448; Railway v. Crowley (Civ. App.) 86 S. W. 342; Railway Co. v. Hughes, 44 Tex. Civ. App. 137, 98 S. W. 410; Wigmore on Evidence, vol. 1, § 719, pp. 915, 916.

The testimony of the witness Corey, on market value, assailed by appellant, was improper. We interpret his testimony of value as having been based upon the value of seed which had passed inspection and was entitled to admission in the Sudan Grass Seed Association, under the rules of that association, which he said was worth 60 cents per pound. This record does not show that this seed had gained that standard. He further said, on cross-examination, that he was not familiar with the situation at that time, and that he had not known of any sales, and had been too busy to give that matter any thought.

We are not holding the testimony improper because he had no personal knowledge of sales; a witness may acquire some knowledge of market value from competent sources of information without direct knowledge and without the charge of hearsay. Wig-more on Evidence, supra. But this testimony is too weak to be considered.

The solution of the questions in regard to the inadequacy of the pleadings and the burden of proof, as bearing upon the issue of the gift by the husband to the wife, in violation of the rights of creditors, probably becomes academic in view of the reversal, as the record upon another trial, and the case by its development, will probably be different.

The cause is reversed and remanded for a new trial.
      <g^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGASt, P. J.

text:
    AHEARN v. STATE.
    (No. 3691.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.
    On Motion for Rehearing, Nov. 24, 1915.)
    Homicide <&wkey;49 — MuEDEB—Manslaughter.
    That decedent called accused a bastardly son of a bitch did not raise the issue of manslaughter, on the theory that the language was insulting towards accused’s mother, though accused testified that he shot decedent because of the insulting remark.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 73; Dec. Dig. &wkey;349.]
    ¿Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Robert Ahearn was convicted of murder, and he appeals.
    Affirmed, and motion for rehearing overruled.
    W. W. Nelms, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGASt, P. J.

Appellant appeals from a conviction of the murder of Robert Burns, his punishment being assessed at 25 years in the penitentiary.

We have carefully read the statement of facts. We think the testimony, without any doubt, is ample to sustain the conviction. There is but one question .to be discussed. Appellant claims that the evidence raised, and the court should have submitted, manslaughter. We are clearly of the opinion that the appellant’s contention cannot be sustained.

Appellant was a waiter in an all-night restaurant. Just after .midnight the deceased, Bums, with a companion, went into the restaurant to get a meal. They sat down at the eating counter. One of the state’s witnesses, Mr. Conner, among other things, testified: That the head waiter directed appellant to wait on Burns and his companion. Appellant said, “Bet them sons of bitches get out of here; I am not going to give them two orders.” Burns said, “F-k them, Boband appellant replied, “You cannot f-k me, you son of a bitch; you haven’t got enough money — ” That appellant then went right in front of Burns, the narrow counter, about two feet wide, only separating them, and said to Burns: “God damn you, if you want to start something, crack down.” That other 'words passed between them, and appellant whipped out a sixshooter, and pointed it in the face of the deceased, when another one of his companion waiters told him to put up the gun and have no trouble. Very soon he snapped the pistol once in deceased’s face, and then immediately fired at him three times in succession ; one ball striking him in the temple, going into his head and brains, which resulted in his death very soon afterwards. It appears that each used epithets towards the other; each calling the other, with profane language, a son of a bitch.

Appellant himself testified that during the wordy profanity and indecent language, one towards the other, the deceased, Bums, said to him, “ ‘You G — —d d-n bastardly son of a bitch, if you will come outside, .1 will kill you;’ and I said, ‘Burns, there is no use for any argument or any trouble;’ and he said, ‘Yes, G-d d-n you, you bastard ;’ ” and that when Burns said that it made him mad, he lost control of himself, and shot and killed him. He says, “I shot him because he called me a bastardly son of a bitch.” Mr. Fox testified he asked appellant why he shot deceased, and he replied, “ T shot him because he said I was a son of a bitch;’ he didn’t say anything else.” The testimony of several other witnesses shows that appellant was very mad with Bums at the time.

Appellant claimed that this language was insulting towards his mother, which raised the issue of manslaughter. This court, in a ease very similar to this (Fitzpatrick v. State, 37 Tex. Cr. R. 33, 34, 38 S. W. 806), expressly held that, where the deceased in that instance said to the appellant, “You G-d d — r-n mother-f-g son of a bitch,” did not raise manslaughter; that “this was merely an insult to the defendant himself, and not in the nature of a slander or insult towards a female relation.” Also in Trevino v. State, 72 Tex. Cr. R. 91, 161 S. W. 108, this court expressly held that, where the deceased said to the appellant that he “was the son of a whore and disgraced,” this was no insult towards his mother, and did not raise manslaughter. This court has also repeatedly in a large number of cases held that to call another “a son of a bitch,” or “a G-d d-n son of a bitch,” is no insult to the appellant’s mother, and does not raise manslaughter.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant calls our attention to an inaccurate statement in the original opinion on one point. In stating Mr. Conner’s testimony, we stated he testified that the head waiter directed appellant to wait on Bums and his companion. This should have been on two negroes instead of deceased and his companion. What we quoted that appellant then said was directed to the head waiter about the negroes. To that statement deceased remarked as quoted in the opinion. However, we gladly make the correction to which appellant calls our attention.

Appellant next complains of this statement in the original opinion: “The testimony of several other witnesses shows that appellant was very mad with Burns at the time,” claiming that this is not in accordance with the statement of facts. We have again read the statement of facts, and on this point it shows that said witness Conner, who was the first introduced by the state, on this subject, testified: “He (appellant) seemed to be in an ill humor. • He looked more like a demon than anything else. He seemed to be very angry. He seemed to be excited then.” On cross-examination on this point this witness, among other things, said: “He (appellant) appeared to be enraged when I looked at him. When I looked at this man he appeared to be angry, enraged and terribly excited.” Mr. McKellar, the next witness for the state on this point, on cross-examination, testified: “I don’t know that Abeam appeared to be excited at the time the shots were fired, but- he was sorter angry looking.” Mr. Ruth, the state’s next witness, on re-direct examination testified: “Ahearn never seemed to become angry before that time when they used that language.” This testimony is all of the testimony on the subject of appellant being mad, except what appellant testified himself, which is stated in the original opinion.

The motion is overruled.
      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes