author: HENDRICKS, J.

text:
    LOVING et al. v. HAZELWOOD et al.

    (No. 932.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 23, 1916.
    Rehearing Denied March 22, 1916.)
    1. Juey <§=19(1) — Right to Juey Teial — Lunacy Pboceebings.
    A jury trial in lunacy proceedings either in the probate court or in the district court on appeal was part of the judicial system at the time of the adoption of the Constitution in 1876, and was guaranteed by article 1, section 15 thereof, providing that the right of trial by a jury should remain inviolate.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 104, 113, 120, 127-131, 133; Dec. Dig. <@==519(1).]
    2. Juey <@=33(1) — Lunacy Inquisition — Statute — “Juey” Teial.
    The commission for trial of charges of lunacy provided for by Acts 33d Leg. c. 163, which is to be appointed by the probate judge to consist of three members, as many of whom as possible shall be physicians, and each of whom shall have the power to administer oaths, compel attendance of witnesses and punish them for contempt, which commission need not remain together, but a majority of whom must be present at any hearing and each member must personally examine the respondent, and which must make a report agreed to by a majority of the members, is not a “jury,” and the law is therefore void as violating constitutional guarantee of jury trial.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 226, 227; Dec. Dig. <@=33(1).
    For other definitions, see Words and Phrases, First and Second Series, Jury.]
    3. Insane Peesons <@=51 — Bond eoe Custody-Validity.
    The bond given to secure the release of one adjudged a lunatic under the void act of 1913 (Acts 33d Leg. c. 163), the condition of which was that the obligors will restrain and take care of the lunatic and have him placed under treatment, and which by the terms of the statute renders the obligors liable for damage done by the lunatic, cannot be given effect as a common-law bond to render the obligors liable for such injuries.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 83; Dec. Dig. <@=51.]
    4. Insane Peesons <@=51 — Bond eoe Custody-Validity.
    Since the bondsmen who secured the release of an adjudged lunatic under the provision of the void act of 1913 (Acts 33d Leg. c. 163) cannot, because of the invalidity of the statute, surrender the lunatic to the sheriff or to an asylum, and thereby be released as provided by statute, part of the consideration for the bond is void, and since it cannot be separated from the good consideration, the whole bond is void.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 83; Dec. Dig. <§=51.]
    Appeal from District 'Court, Potter County; Hugh L. Umphres, Judge.
    Action by Mrs. Frances Loving and others against R. R. Hazelwood and others. Judgment for the defendants on demurrer to the petition, and plaintiffs appeal.
    Affirmed.
    C. E. Gustavus, of Amarillo, for appellants. Boyce & Davidson, Veale & Davidson, and Crudgington & Works, all of Amarillo, for appellees.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

The Acts of the Thirty-Third Legislature of 1913, c. 163, in regard to proceedings in lunacy, provide that, upon an affidavit, charging that a certain person is insane, the county judge shall issue a writ for the apprehension of such person and the cause is docketed as an ex parte proceeding on the probate docket of said court. The judge appoints a commission composed of six persons to inquire into the charge of lunacy and in counties of a population of !ass than 5,000, one of the members of the commission shall be a physician; the number of physicians appointed on the commission being increased in proportion to the population of the county in which the proceedings are pending, the statute directing, where the population is 50,000 or over, each member of said commission shall be a physician — the law also containing a general clause that in any county as many of the commissioners shall be physicians as the county judge can obtain, regardless of population. The county judge administers an oath to each commissioner to make due investigation into the allegations of the affidavit, and the commission is then organized by electing one of its members as the chairman thereof, empowering a majority of the commission to fix the time and place of hearing, with notification to the county attorney, who represents the person making the affidavit, and to the respondent’s attorney, selected by him, or in lieu thereof to be appointed by the county judge.

“The commission need not remain together at any time, but a majority of same must be present at the hearing of any testimony, * * * but each member of said commission shall personally examine the respondent.”

Each member has the power to administer oaths to witnesses, to have process issued by the clerk and to compel their attendance, and to punish said witnesses for contempt, “as is fully provided by law for the county court.” It is required to conclude its investigation within ten days, and, as' determined by a majority, shall file with the county clerk a report of its findings, which report, if insanity is found, is read to the respondent in the presence of a majority of the commission. The report shall state: (a) Whether or not the respondent is of unsound mind; and (b) if the respondent is of unsound mind, whether he should be placed under treatment for such mental condition; and (e) if he is of unsound mind, whether or not he should be placed under restraint.

If a majority of tlie commission find and report all three of the conditions mentioned above, the county judge pronounces judgment in the presence of the “respondent,” as he is termed, adjudging him a lunatic and ordering him to be conveyed to an asylum of the state for restraint and treatment. The execution of this writ is, however, held in abeyance until the county judge is notified by the superintendent of asylums of a vacancy, and that the patient can be accommodated in one of the asylums of the state:

“Provided further, however, that the person to whom such writ is directed shall not execute same. * * * If some persons execute and file with the county judge a bond to be fixed by the county judge, payable to the state of Texas, with two or more good and sufficient sureties, to be approved by the county judge, conditioned that the party giving such bond will restrain and take care of such lunatic and have such lunatic placed under the treatment for his mental condition so long, in all three instances, as his mental unsoundness continues, or until he is delivered back to the sheriff of the county of such adjudication for conveyance to a state lunatic asylum, or is delivered to the superintendent of one of the lunatic asylums of the state and writ obtained therefor, which bond shall be filed with and constitute a part of the l’ecox-ds of the proceedings, and may be sued and recovered upon by any person injured in his own name.”

The appellants allege that Robert Hazel-wood was adjudged a lunatic in the county court of Potter county, under the provisions of this law; that when he was under restraint, preliminary to his conveyance to an asylum, the appellees executed the • bond mentioned for the purpose of releasing him from such restraint and from the execution of the judgment (we assume, subject to the stipulations in the bond); that while at liberty he committed a murderous assault upon Mrs. Loving, one of the appellants herein, inflicting painful and permanent injuries and ensuing mental anguish — the appellants praying for a recovery upon the bond, for the sum of ?1,000, the full penalty therein.

The district judge of Potter county sustained a general demurrer to this petition, and appellees endeavor to vindicate this action, by asserting the unconstitutionality of said statute, upon two grounds: (1) That it is in violation of the Bill of Rights (article 1, § 15), providing that “the right of trial by a jury shall remain inviolate;” and (2) that it brooks the due process clauses of the state and federal Constitutions, in that the tribunal as constituted is not competent, within the meaning of the organic law, to deprive a person of his liberty, and neither does the statute provide for adequate notice.

We think the following analysis and résumé by appellees, upon investigation, is correct:

“Section 13, art. 4, Texas Constitution of 1836, provided that the Congress of the Republic should, as soon as practicable, put into effect the common law of England. By an act of the Congress of the Republic of December 20, 1S36 (Laws 1836-37, p. 148), the Chief Justice of the county court was authorized to hold a probate court and to appoint guardians for lunatics. That by section 26 of that act, an appeal was given from all decisions of the probate to the district court; and that by section 41 of the same act, the courts of Texas were required to follow the common law of England in reference to injuries and evidence when not in conflict with some other law enacted by Congress; that sections 31 to 33, the District Court Act of December 22, 1836 (Laws 1836-37, p. 207) provided for the drawing of juries and shows that the trial of cases by jury in the district court was considered as a matter of course. That the probate act of February 5, 1840 (Laws 1840, p. 110), contained a provision (section 43) giving the right of appeal from all probate decisions to the district court, and provided, in effect, that there should be a trial de novo in the district court; that this condition existed until the act of March 20, 1S4S, which gave the Chief Justice of the county court power to summon a jury in the first instance to try a lunacy case and so remained until February 5, 1858 (Acts 7th Leg. e. 93), when practically the identical provision was incorporated by section 8 in an act of that date, organizing an asylum, and that this continued in effect until the Constitution of 1876 was ratified.”

It may be there was no provision for a jury in a lunacy case in the county court in the first instance until the act of March 20, 1848, but there was a right of appeal to the district court, where a trial by jury could be had.

The case of Cockrill v. Cox, 65 Tex. 669, was one where the county judge, on account of his disqualification to try a contest over the probate of a will, transferred the cause to the district court. The contestants demanded a jury over the protest of the proponents. The Supreme Court said:

“All the' Constitutions of the Republic and state of Texas have reserved the right of trial by jury, in the same language. * * A provision preserving the right of trial by jury, expressed in substantially the same language, it is said, is to be found in all 'the state Constitutions, and it has been uniformly construed to perpetuate the right in the cases in which it exists, under the laws in force and practice prevailing at the date of the adoption of the particular Constitution. Cooley on Constitutional Limitations, 506. Thus, when the Constitution of Michigan was adopted, a party in possession of land was entitled to a jury trial of a suit against him, involving a title. It was held that the Legislature could not deprive him of this right by authorizing his adversary to proceed against him by will to remove cloud. Tabor v. Cook, 15 Mich. 322. In Indiana, at the date of her Constitution, a party was entitled to have a jury assess the damages in condemnation proceedings, and this right was held to be inviolable. * * * The provision in the Constitution of 1876, that the right of trial by jury shall remain inviolate, must be considered as perpetuating the right in the cases, in which, at the date of its adoption, it had been so universally recognized and firmly established, as in the contest arising over the proof of wills.”

If a jury trial in lunacy proceedings was a part of our judicial system at the time of the adoption of the Constitution of 1876, and if this act, providing for the appointment of a commission by the county judge (without the right of appeal to the district court where a jury could be had) in matters of lunacy, abridges this right, such act is unconstitutional.

Upon an analysis of this law, upon the question whether this commission constitutes a jury, and that its proceedings would constitute a jury trial, we observe that a quorum of the commission has the power to hold sittings, swear the witnesses, commit them for contempt, receive any evidence it desires, and thereupon its findings and report are final. When the judgment of the court is pronounced, based upon the findings and report, in the presence of the respondent, adjudging him a lunatic, and ordering him conveyed to an asylum, the mentality of the judge, as an act of discretion and judgment, has been as foreign to the proceedings as that of the clerk; of the court when he enters the judgment upon the docket of the court. The judge’s mission is a ministerial function without any participation in the proceedings, except as stated, and with no other alternative than to make the report of the commission the judgment of the court ordering the respondent to the asylum, without any judicial control whatever to vacate said judgment, and from which there is no appeal. While each member of the commission is required under the law to personally examine the respondent, any two members of said commission may absent themselves from any hearing or sitting, when testimony of the man’s sanity or insanity is adduced. There is no privilege granted in the statute for the presence, or compulsory attendance, of the • respondent required before the commission sitting as a board of inquiry, when in custody of the sheriff, unless you imply that such tribunals would always require such persons present as an orderly and proper presentation of his defense. If four constitute a quorum, it is easily discerned, .in analyzing this law, that, if a commission has successive sittings, the members of the same, as a whole, may not be the same at any one hearing.

It is entirely possible, and probable, in some cases, for such a commission to have a division of opinion on entirely different evidence — some of the members having heard certain evidence and others different testimony. If the whole personnel need not remain the same at successive sittings, if a majority, or even the entire number, conclude to report that a respondent is insane and should be treated and confined, they can agree, some upon a certain character of testimony, and others upon testimony of an entirely different nature.

Relatives, or friends, who are anxious to incarcerate the respondent, or zealous in preventing it (whichever way their inclinations or interests lead them), could testify, some before one quorum and some before another, and, some of which testimony a portion of the commissioners may have never heard, according to the change in quorums. Some may not have heard any and join in a majority report relying upon their sole personal examination of the respondent, while in custody of the sheriff, and what the others might tell them of the testimony at the hearing. The quorum, actually hearing the testimony, may divide in opinion as to the sanity of the respondent, and the other two, not sitting, can favor one side, or the other, as their judgment, based upon a personal examination, would dictate.

In fact, this commission does not have to have any sitting. Where is the power to command otherwise? The county judge, after its organization, has no connection with this body, except to pronounce a judgment upon a finding of the whole or a majority thereof. Each member of this commission may make a personal examination of the respondent, and the next day the commission, or a majority, may report him insane, upon which the county judge must order him to an asylum. There is no contrary interdiction, as a compulsory duty, to prevent it. While each member has to examine the respondent, however, any two, at any different hearings, may absent themselves from the same; hence it is clearly implied that this personal examination by each of the members is not, necessarily, at a hearing when the commission is sitting as a tribunal.

“By the English chancery practice the court had no inherent and general jurisdiction over idiots and lunatics as it did of infants. * * * This special jurisdiction of the chancellor was exercised as follows: Some friend of the lunatic would address a petition to the chancellor personally, setting forth the fact that such person was a lunatic, thereupon the chancellor would issue a special commission, directing a judicial inquisition of the alleged lunacy, which was always tried by a jury. Upon the return of the commission and inquisition, if the party was found to be a lunatic the chancellor appointed a committee, whose duty it was to take charge of the person and property of the lunatic.” Howard v. Howard, 87 Ky. 616, 9 S. W. 411, 1 L. R. A. 610; Buswell on Insanity, p. 35.
“At common law an insane person may be temporarily restrained without legal process, and if need be in an asylum, if his going at large would be dangerous to himself or to others, preliminary to the institution of judicial proceedings for the determination of his mental condition, and such a restraint does not violate any constitutional provision [citing authorities]. When, however, * * * the confinement is permanent in nature, the person thus confined is deprived of his liberty which, in order to be lawful, must be in pursuance of a judgment of a court of competent jurisdiction, after such person has had sufficient notice and an adequate opportunity to defend.” In re Allen, 82 Vt. 371, 73 Atl. 1080, 26 L. R. A. (N. S.) 238. Also In re Phillips, 158 Mich. 155, 122 N. W. 554.
“ ‘Trial by a jury,’ in the primary and usual sense of the term at common law and in the American Constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts (except on acquittal of a criminal charge]), to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion.” Capital Traction Co. v. Hof, 174 U. S. 13, 19 Sup. Ct. 585, 43 L. Ed. 877, 878.

The above opinion, in stating twelve men as constituting a jury, has reference of course to the common law on the subject where the number was not designated nor changed by law.

The El Paso court, in passing upon this question, and applying the case of Cockrill v. Cox, 65 Tex., supra, says:

“The right of trial by jury in lunacy inquisitions seems to have been one of ‘the cases in which the right existed and had been uniformly and universally recognized and firmly established’ by the statutes of the state at the time of the adoption of the present Constitution. * * * The Constitution does not in words guarantee the right of trial by jury in lunacy cases, and the right in such cases is one that comes in by interpretation and adoption, because by ‘statutory provision and practice it had become established.’ ” White v. White, 183 S. W. 369, opinion rendered January 14, 1916, not yet officially published.

It is probably the rule that it is competent to deny to parties the privilege of a trial before a jury in a court of first instance, provided the right is allowed on appeal. Cooley on Constitutional Limitations (7th Ed.) p. 591.

The same author, in referring to a constitutional right of this character, says:

“The constitutional provisions do not extend the right; they only secure it in the cases in which it was a, matter of right before.”

Where secured, he further says:

“The party is therefore entitled to examine into the qualifications and impartiality of the jurors, and to have the proceedings public; and no conditions can be imposed upon the exercise of the right that shall impair its value and usefulness.” Pages 590, 591.

There is no provision in this law, giving the right to respondent or his attorney, to challenge the qualifications of any commissioner, after having been appointed, on account of any interest, or of any bias, or prejudice, as to his propriety in serving upon the same.

It is clear that this body is not a jury, nor that the proceeding before it constitutes a jury trial, in accordance with a conception of the law of the land as applied to such subjects.

It is argued with some persuasiveness that, on account of the ministerial and perfunctory duty of the county judge, such a respondent is not tried by a court. Though the commission has some of the powers of a court, viz., the right to commit witnesses for contempt, which constitutes a judicial power inherent in all courts, and, in reality, its findings and report, stripped of form and looking to the substance, has a finality attached to it, with the county judge exercising only a ministerial function, in propounding the judgment thereupon; still, however, it lacks several essential elements, one of which particularly it had no jurisdiction to render, nor power to enforce, a judgment. Henderson v. .Beaton, 52 Tex. 29, wherein the Supreme Court held the old Commission of Appeals not a court; Accousi v. Stowers Furniture Co., 83 S. W. 1105.

The Supreme Court of Michigan held that, by the term “courts,” as used in the Constitution of Michigan (article 6, § 1), providing for the investiture of judicial power in the Supreme Court, in circuit, probate, and in justice courts, is meant a permanent organization for the administration of justice, and not those special tribunals occasionally called into existence by particular exigencies and that cease to exist with such exigencies. Bissell v. Heath, 98 Mich. 472, 57 N. W. 586.

If a person charged with insanity is entitled to a jury trial, and we think he is, and if such a commission, as constituted by the statute, is a mere appanage to the county court, whose proceedings are violative of that right, without the right of appeal to a court for a jury trial de novo, the law is unconstitutional. We think this law is void.

On the question of the validity of the bond, Chief Justice Phillips held, in the case of Watkins v. Minter (Sup.) 180 S. W. 229, that the bond in that proceeding, though not in accordance with the statute, was good as a common-law obligation, for the reason that it was not executed in relation to a right which the defendants were entitled to exercise without the giving of a bond, and also that it was a voluntary obligation, supported by a sufficient consideration — the discharge of Claude Minter from custody. In that cause the sureties, in their obligation, outside the statute then in vogue, agreed to faithfully protect all animal and human life, and become responsible for all damages that may hereafter arise by reason of the acts of Minter, and it was said:

“Under these terms it is plain that a suit could be maintained on the bond * * * for the use of any one injured” by the negligence of the bondsmen.

The plaintiff sounds his case entirely upon the judgment of insanity, the execution of the bond, the tortious acts of Robert Hazel-wood, and the failure to restrain him as a breach of the bond. This bond is merely payable to the state of Texas, conditioned that the parties will restrain the lunatic, take care of, and place him under treatment for his mental condition, so long as his mental unsoundness continues, “or until he is delivered back to the sheriff of the county * * * for conveyance to a state lunatic asylum, or is delivered to the superintendent of one of the lunatic asylums of the state and receipt obtained therefor.” It is perforce of the statute, and not in the bond, that it “may be sued, and recovered upon, by any person injured, in his own name.”

Justice Lipscomb said, in the case of Johnson v. Erskine, 9 Tex. p. 10:

“We believe that, if a bond, intended to be taken by the authority of a statute, cannot be sustained as a statutory bond, that it cannot be valid as a common law, voluntary bond, unless it will stand as such, without the aid of the statute by which it has been repudiated.”

See, also, Hillman v. Mayher, 38 Tex. Civ. App. 378, 85 S. W. 818, and cases cited.

Article 161, providing for the issuance of the writ, carrying into execution the judgment of lunacy, places the respondent in the custody of the sheriff for conveyance to a lunatic asylum — its execution suspended until a vacancy occurs. Such person is classed as a public patient, “adjudged insane, by a court of competent jurisdiction, * * * and ordered to be conveyed to the asylum.” Section 1, article 134.

The bond prescribed by article 161 is to prevent the execution of the judgment and the writ in pursuance thereof, with the added feature of recovery thereupon “by any person injured.”

If the judgment and the writ are void, there is no final adjudication of lunacy, and the sheriff, of course, could not convey to the asylum, nor could the superintendent receive the respondent; neither could the bondsmen redeliver the respondent to the sheriff or to the superintendent for that purpose. If the judgment and the writ are void we think the bond is also void; and if you eliminate the statute wholly from the bond, which gives the right to any person injured to sue upon the same, it is merely an obligation to the state of Texas that the bondsmen will restrain Hazelwood and treat him for his mental unsoundness until they return him to the sheriff for conveyance to the asylum, or deliver him to the superintendent of the same.

The rules are rather familiar as to the right of a third person in equity to enforce a contract made for his benefit, though not a party thereof. Page on Contracts, vol. 3, §§ 1318, 1319. The case of Watkins v. Minter, where the bondsmen specifically obligated themselves to protect all human life “and become responsible for all damages that may hereafter arise by reason of the acts of * * * Claude Minter,” falls into that class. The Supreme Court said:

“Being only a common-law obligation, the bond derives no aid from the statute. But its terms are such as to clearly render it enforceable without reference to the statute.”

There are cases, of course, where a bond is void as a statutory bond, by reason of being made payable to the wrong person. A replevy bond, void as a statutory delivery bond, on account of being payable to the officer instead of to the plaintiff in execution, is a valid common-law obligation, because the sureties become liable for the payment of the debt to the extent of the value of the property which has been surrendered; the proceedings show the beneficiary of the bond. Jones v. Hays, 27 Tex. 1; also see Bank v Lester, 73 Tex. 543, 11 S. W. 626.

In San Francisco Lumber Co. v. Bibb, 139 Cal. 192, 72 Pac. 964, it was held that a bond given to secure a building contract and executed in pursuance of a void section of a particular statute, which made the bond expressly inure to the benefit of all persons who perform labor for or furnish materials to the contractor, is wholly void and could not be sustained as a common-law bond.

It is said, however, in the case of Stevenson v. Morgan, 67 Neb. 207, 93 N. W. 180, 108 Am. St. Rep. 629, that if a bond is executed in pursuance of a statute declared unconstitutional, and rests upon a consideration independent of the statute, it may be enforced as a common-law obligation.

If an instrument rests partially upon a void consideration and partially upon a good consideration, if you are unable to sever the consideration as actuating the promisor, the whole instrument is void. Clark on Contracts, p. 473. The bondsmen in this instance would have the right and privilege, if the instrument and the writ were valid, to deliver Hazelwood to the superintendent of the asylum; if invalid, that right is destroyed. If this bond cannot be aided by the' statutory provision permitting some third person to sue and recover upon it, we- do-not think the instrument on the face of it, under the case made gives the right, nor can it be implied from its terms that any third person has any beneficial right of enforcement on account of its breach; hence we think the cause could not be maintained on the bond.
      ifc=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    HOOVEN-OWENS-RENTSCHLER CO. et al. v. T. SCHRIVER & CO. et al.
    (No. 5586.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1916.)
    1. Vendor and Purchaser <S=»283 — Vendor’s Lien — Foreclosure — Costs oe Receivership.
    Plaintiff owned real estate upon which was a sugar mill, parts of the machinery in which were mortgaged to different parties. It conveyed the property, reserving a vendor’s lien, and entered into an arrangement with the purchasers, under which a part of the cash payment and certain of the purchase money notes were deposited with a bank, the proceeds of collections thereof to be distributed among the mortgage creditors. The purchasers defaulted, and plaintiff brought suit to foreclose the vendor’s lien, and asked that-the mortgagees be required to set up. their respective claims. A receiver was appointed, and an interlocutory judgment rendered, establishing the claims of the mortgagees, and they were notified to intervene, and, pursuant to such notice, filed pleas of intervention, setting up the indebtedness to them and their liens, more than a year after the suit was filed, and more than nine months after the receiver was appointed. The property was sold, and the mortgagees made bids for the property covered by their mortgages of less than the mortgage indebtedness. Held, that the court erred in requiring . the mortgagees to make a payment on their bids for the purpose of paying the costs of the receivership in excess of what would have been the cost to them of collecting their debt by independent suits to foreclose, as their appearance had only the effect of determining the amounts due them and of fixing their liens, and they received no benefits from the suit that could not have been obtained in a separate suit.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. • Dig. § 795; Dec. Dig. 283.]
    2. Vendor and Purchaser <@=^283 — Vendor’s Lien — Foreclosure — Costs of Receivership — Liability.
    That the mortgagees received from the bank money, distributed under the agreement placing the notes with the bank, did not affect their rights under their mortgages any more than if such payment had been made by the plaintiff who owed the debt; the trust agreement and the notice to the mortgagees thereof having stated that the agreement would not affect mortgage liens.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 795; Dec. Dig. <@=> 283.]
    3. Vendor and Purchaser <S=^>283 — Vendor’s Lien — Foreclosure — Costs of Receivership-Liability.
    That a considerable portion of the costs adjudged by the court was for taxes due on the property did not affect the mortgage liens, where there were more than sufficient funds to pay the taxes after satisfying the mortgage liens.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 795; Dec. Dig. <©==> 283.]
    Appeal from District Court, Travis County ; Geo. Calhoun, Judge.
    Action by the San Benito Sugar Manufacturing Company against T. Schriver & Co. and others. From the final judgment, the defendants I-Iooven-Owens-Rentschler Company and others appeal.
    Reversed and remanded, with instructions.
    Frank C. Pierce and Ira Webster, both of Brownsville, for appellants. J. M. Mothers-head, of San Benito, for appellees.
   Findings of Fact.

JENKINS, J.

On April 24, 1913, the San Benito Sugar Manufacturing Company, a corporation duly incorporated under the laws of Texas, filed in the district court of Travis county its original petition, in which it alleged, among other things, that on or about the 12th day of April, 1912, plaintiff executed and delivered to W. C. Shaw a deed for three tracts of land, describing the same, situated in Cameron county, Tex., upon the first of which was situated a sugar mill and other improvements; that the consideration for the sale and conveyance of said property was, among other things, the execution by said Shaw and delivery to plaintiff of eight promissory notes, the second of which was for the sum of $110,000, due January 10, 1913; the third and fourth for the sum of $16,500 each, due March 12, 1913; the fifth, sixth, seventh, and eighth for the sum of $33,000 each, due, respectively, March 12, 1914, 1915, 1916, and 1917; that on January 17, 1913, there was paid on note No. 2, $18,000; that each of said notes, as well as the deed, retained a vendor’s lien on the land sold; that each provided that if the same was not paid at maturity, all of said notes might become due at the option of the holder thereof; that said note No. 2 was past due and unpaid, and that plaintiff had exercised its option to declare all of said notes due; that in the purchase of said property and the execution of said notes W. C. Shaw was acting for himself and Augustus Heinze; that on May 3, 1912, said Shaw entered into an agreement with plaintiff, by the terms of which it was agreed that $26,491.57 of the cash payment received by plaintiff, and a note for $40,000, being No. 1 of the series aforesaid, and a note for $110,-000, .being No. 2 of said notes, and said notes Nos. 3 and 4, should be deposited in the Farmers’ State Guaranty Bank of San Benito, Tex., to be collected by said bank and the proceeds thereof to be distributed among and paid to the creditors of said San Benito Manufacturing Company, according to a schedule attached to said contract and made a part thereof; that said schedule of creditors included each of the defendants herein set out, other than defendants Shaw, Heinze, and the Southern Irrigation Company. In said schedule 14 creditors were named, and the amounts due to each, respectively, were set out, including I-Iooven-Owens-Rentschler Co., $29,-420; Sugar Apparatus Company, $16,500; that contemporaneous with the purchase and conveyance of the property above referred to defendant Shaw, acting for himself and said I-Ieinze, purchased parcels of real estate and other property, situated in Cameron county, Tex., describing the same; that this property was purchased as part of a general plan by said Shaw and Heinze, to establish in the Rio Grande Valley a business of raising sugarcane and manufacturing sugar therefrom, the carrying out of said plan being one of the inducements to plaintiff to sell said property; that it was a part of the plan agreed on that said Shaw, acting for himself and I-Ieinze, should form a corporation to take over said property, and in accordance with said agreement the Southern Irrigation & Sugar Company was formed, and on the 15th day of March, 1913, said Shaw conveyed said property to said Irrigation & Sugar Company, which assumed all the debts owing by said Shaw to plaintiff, as above stated; that said Shaw and Heinze and the said Irrigation & Sugar Company have failed to pay the notes deposited with said bank, by reason of which ■plaintiff has been unable to meet its debts hereinbefore referred to; that the debts due by plaintiff and secured by the deposit with the Farmers’ State Guaranty Bank of the notes aforesaid, except a debt to the Peden Iron & Steel Company, August Erhardt, Farmers’ State Guaranty Bank, A. F. Delbert, and J. W. Blower, are secured by liens upon particular parts of the machinery of said sugar mill; that said debts are past due and unpaid, on account of the failure of said Shaw and Heinze and said Irrigation & Sugar Company to pay said notes; that if said liens be foreclosed separately, said mill will be destroyed and dismantled, and plaintiffs’ securities for the payment of the debts and notes mentioned will he impaired and destroyed, as the mill will be rendered incapable of operation; that such foreclosures are now threatened by said defendants; that said mill is in need of repair and of preparation for the milling season of 1913-1914: that it is necessary, in order that same may be operated, that contracts now be made with sugar planters for the furnishing and delivery of cane for grinding for said season; that the failure to use said mill for the season will cause great and irreparable deterioration of the mill and irreparable loss to the plaintiff; that neither the said Shaw and Heinze nor the said Irrigation & Sugar Company have any property in this state, except the property conveyed to Shaw and by Shaw to the Irrigation & Sugar Company, as stated; that the Irrigation & Sugar Company is taking steps to mortgage and incumber the lands conveyed to it by defendant Shaw other than the lands above referred to. Plaintiff prayed for judgment against defendants Shaw, Heinze, and the Southern Irrigation & Sugar Company on the notes herein sued on. with foreclosure of its vendor’s lien; that the said bank he discharged of its trust, and that the other parties mentioned in said petition be required to set up their respective claims against plaintiff and the property aforesaid, and that judgment be rendered adjudicating their several rights; that defendants Shaw, Heinze, and the Irrigation & Sugar Company be enjoined from selling or incumbering any of their property as described in - said petition pending the disposition of this causes and that a receiver be appointed to take charge of and operate said sugar mill.

On April 24, 1913, the court set May 10, 1913, to hear the application for injunction and receiver. On June 2, 1913, said hearing having been postponed, the court refused to grant an injunction or to appoint a receiver, subject, however, to further order of the court. On August 30, 1913, Shaw and the Irrigation •& Sugar Company filed their answers, and asked that a receiver be appointed, and on said day Samuel L. Dworman was appointed receiver, who accepted and qualified as such. On May 8, 1914, the court rendered an interlocutory judgment, establishing claims against plaintiff, among others, that of appellants herein, the said Hooven-Owens-Rentschler Company and the Deming Apparatus Company for the amounts due them as shown by the petition, and establishing their lien on specific machinery therein described; and all creditors, including these appellants, were notified to intervene in said cause on or before June 15, 1914. On said date appellants herein filed their plea of intervention, setting up the indebtedness to them and their said liens. On November 14, 1914, the interlocutory judgment above referred to was entered nunc pro tunc. Receiver’s certificates were issued under order of the court, and said sugar mill was leased pending this litigation. At the July term, 1914, of the district court the receiver was ordered to appraise the said sugar mill and the various parts thereof, and to report same to the October term, 1914; at which time, upon request of the receiver, he was granted until December 15, 1914, to make said report. On December 17, 1914, the receiver filed his report, from which, among other things, it appeared that the court had rendered judgment in favor of Hooven-Owens-Rentsehler Company for $36,661.89, and establishing its lien on one 30x40 Hamilton Corliss engine, No. 3412, and nine-roller mill and crusher plant, appraised at $37,500 and rendered judgment in favor of said Deming Sugar Apparatus Company for $19,978.66, establishing its lien upon a quadruple effect evaporator, with all fittings and necessary fixtures and engines, to operate its centrifugal pumps, with a capacity 'to concentrate 250,000 gallons of hot, clarified, cane juice per 24 hours, appraised at $16,500; also the amount adjudged to be owing to other creditors who had specific liens, and describing the property upon which they held such liens; and also the value of the land and the amount of debts owing to unsecured creditors. Said receiver was instructed to receive bids on said property in whole or in parts, and on November 20, 1914, he reported to the district court the several bids received, including a bid from the Hooven-Owens-Rentschler Company of $36,612.90 for the property upon which its lien had been established, and bid by the Sugar Apparatus Manufacturing Company of $14,00p for the machinery upon which it had been adjudged to have a specific lien. This report was received and approved by the court January 9, 1915, and the receiver was ordered to make conveyances to said bidders upon their paying in cash 23 per cent, of their bids, to be used in paying the court costs, including receiver’s certificates and attorneys’ fees and taxes on said property. This order was aft-erwards, on February 15, 1915, changed, requiring the bidders to pay only 15 per cent, of their respective bids in cash. The report included the sale of the entire property, and the judgment of the court established the claims of all creditors, secured and unsecured, and judgment was given in favor of the receiver for his services, attorneys’ fees, receiver’s certificates, taxes, and insurance, amounting to $6,011.87, to be taxed as costs in the case. The report of the receiver showed that he had received on cash bids $30,864.-74, and had paid the same into the registry of the court. We copy from the final judgment as follows;

“The defendant Hooven-Owens-Rentsehler Company, Deming Apparatus Company, and Bauerle & Morris acknowledge the correctness and reasonableness of the amount of costs, taxes, and other expenses hereinbefore adjudged to be paid, but insist that they should not be compelled to pay any of such costs, taxes, and expenses in excess of 3 per cent, of the amount of their respective bids; and they except to the ruling and judgment of the court to the effect that they should pay such costs, taxes, and expenses to the amount of 15 per cent, of their respective bids, and to so much of this order and decree as taxes and adjudges the costs, taxes, and expenses against the llooven-Owens-Rent-schler Company, Deming Apparatus Company, and Bauerle & Morris, in excess of 3 per cent, of the amounts of their respective bids they except, and in open court give notice of appeal to the Court of Civil Appeals of the Third Supreme Judicial District of Texas.”

Hooven-Owens-Rentschler Company and Deming Apparatus Company perfected their appeal and present their assignments of error herein.

Opinion.

It is the contention of appellants herein that, inasmuch as they had a prior lien, duly recorded, upon portions of the mill to secure their debt, which they could have foreclosed in any court having jurisdiction thereof at the ordinary and usual costs in such suits, and, inasmuch as they did not ask for a receiver to be appointed heroin, and did not need the services of such receiver, and did not receive any benefit from such services, that they ought not to be held to pay any of the costs of this suit in excess of what would have been the cost to them of collecting their debt by independent suit. To this appellees reply that appellants intervened in said suit and received the benefits of the receiver’s services, as well as all other proceedings herein, for which reason they should pay their full pro rata of the costs herein, including receiver’s certificates, compensation. for the receiver’s services and his attorney’s fees and taxes due on all of the property. '

It is true that the appellants intervened in this case, after being notified by the district court so to do, but their answer as such interveners and defendants herein was not filed until more than a year after the original suit had been filed, and until the court had. adjudged the amount of their claims and awarded them specific liens on the property upon which they held mortgages, .and not until 9 y2 months after the receiver had been appointed. The appearance of appellants- herein had only the effect of determining the amounts due them (if they had not been parties hereto they, would not have been bound by the judgment of the court in reference thereto) and of fixing their lien. All of the benefits that they received from the judgment in this case could have been obtained in a separate suit to collect their debt and foreclose their mortgage. It is made to appear from the record herein that 3 per cent, of the amount of their respective bids would be amply sufficient to cover such costs, including the commission to the receiver for making the sale, such as would have been allowed to a sheriff: under similar circumstances. In Houston Ice & Brewing Co. v. Clint, 159 S. W. 409, judgment by the Court of Civil Appeals for the Fourth District, which judgment was approved by the Supreme Court in Clint v. Houston Ice & Brewing Co. (Sup.) 169 S. W. 411, the court held, among other things, that the six different purposes to which moneys in the hands of the receiver should be applied, beginning with the payment of court epsts, did not apply to prior mortgages, and did not displace the same, and the Court of Civil Appeals in that case, among other things, said:

“The appointment of the receiver must be governed by the established rules in equity courts applicable to junior mortgages. One of those rules is that ‘when the first mortgagee has not taken possession of the property, equity may properly interfere in behalf of subsequent mortgagees or equitable incumbrancers and creditors, and may appoint a receiver for their protection, but without prejudice to the rights of the first mortgagee.’ High on Receivers, § 682. No rule, consistent with justice and equity, can be formulated that will contravene the terms of the rule stated. * * * go far as appellant was concerned, there was no necessity for a receivership.”

The court quotes from Bradford v. Cooledge, 103 Ga. 753, 30 S. E. 579, as follows:

“If we apply this proper and just principle to the facts in this case, it must be hold that so much of the fund in the hands of the receiver, realized from the sale of the mortgaged property, as was necessary to pay off the amount due on the mortgage cannot be diminished by the costs of the case and expenses of the receivership or any proportion thereof, and that? so much of such costs and expenses as could not be met by the general fund arising from the sale of the property of the debtor, in excess of the amount due on the mortgage or not covered by the mortgage lien, should properly have been taxed against the plaintiffs. As to the mortgaged creditor in this_ case, there was no necessity for the receivership; and in the preservation of her lien as required by law, she must be treated as having a superior right to an appropriation of the proceeds arising from the sale of the mortgaged property to the full extent of the amount due thereon; and it would, under the facts as they appear, be inequitable to charge her with any of the costs or expenses in this case.”

We quote further from the opinion' as follows:

“The concensus of opinions in the United States is opposed to destroying the mortgage lien of a person not a party to receivership, and to the consumption of the mortgaged property in paying the expenses of a receiver not desired by the mortgagee.”

Said opinion quotes from Houston Ice Co. v. Fuller, 26 Tex. Civ. App. 239, 63 S. W. 1048, as follows:

“ ‘We are of the opinion that the court erred in adjudging the expenses of the receivership to be a superior lien to the appellant’s mortgage. The receivership was not ordered at the suit of the appellant, and it would be inequitable to exhaust his security with the expenses of a receivership taken out at the instance of other parties. High on Receivership, § 796. Revised Statutes 1895, art. 1472, has application whether the receivership is at the instance or for the benefit of the lienholder.’ * * * It should be a question of costs alone, and appellant should be given the benefit of that method which will cost the least money.”

It is true, in Houston Ice & Brewing Co. v. Clint, the Ice & Brewing Company was not a party to the suit in which the receiver was appointed, but we think this can make no difference, where the receiver was not appointed at the instance of the party resisting the payment of receiver’s expenses, and where such receivership is not necessary to preserve for him the corpus of the property. We had a similar question before us in First State Bank of Hubbard v. Hubbard Farmers’ Oil & Gin Co. et al., and our opinion in that case in 178 S. W. 1015, as well as the opinion in full in Houston Ice & Brewing Co. v. Clint, supra, is here referred to as a fuller expression of our views upon the issue in this case.

As stated in the findings of fact, certain notes and cash were deposited with the Farmers' State Guaranty Bank in trust to be collected and distributed among the creditors. The bank received some cash from the plaintiff, and collected part on the second note, which was distributed in accordance with the agreement, and the appellants received a part of the same. This, however, did not affect their rights under their mortgages any more than if such payment had been made by the plaintiff herein, who owed the debt. Appellants were notified of this trust agreement, and made no objection thereto, but in the notice which they received, it was stated that this agreement would not affect mortgage liens, and it was so provided in the agreement.

A considerable portion of the costs adjudged by the court was for taxes due on the property, but it appears that there are more than sufficient funds to pay such taxes after satisfying the mortgage liens. We cannot see that the ease is any different than if the plaintiff had paid such taxes, in which event, of course, it would not have affected appellants’ debts or their mortgage lien.

For the reasons stated, the. judgment of the trial court is reversed and remanded, with instructions to the court below to ascertain the amount of costs due by appellants in accordance with this opinion.

Reversed and remanded, with instructions.
      <2=x>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HALL, J.

text:
    CREWS et al. v. POWERS et al.
    (No. 891.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 1, 1916.)
    1. Stipulations &wkey;>18(6) — Documentary Evidence — AGREEMENT TO ADMIT.
    A party agreeing to admit a field note book would preclude him from moving to strike it from the evidence after its recitals were found to be unfavorable to him.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 48-50; Dec. Dig. <&wkey;>18(6).]
    2. Appeal and Error <&wkey;548(4) — Review-Bills oe Exception.
    The action of the court upon motion to. strike out evidence should be presented by bills of exception in order to be reviewed by the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2489; Dee. Dig. <&wkey;548(4).]
    3. Trespass to Try Title &wkey;>40(6) — Evidence — Field Note Book.
    In trespass to try title, where the trial court’s findings showed that both parties agreed that a field note book' should go into the record in so far as it related to certain surveys in a certain block, the relevant entries contained therein should have been considered by the court in passing on the issues.
    [Ed. Note. — For other cases, see Trespass to 40(6) Jitl®’ ^ent- ^ig. § 60; Dec. Dig. t&wkey;>
    4. Appeal and Error <&wkey;1010(l) — Findings —Review.
    In trespass to try title involving a dispute as to boundaries, tried to the court without a jury, findings of fact, being peculiarly within the province of the trial court, supported by the evidence, would not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. &wkey; 1010(1).]
    Appeal from District Court, Childress County; J. A. Nabers, Judge.
    Trespass to try title by S. K. Powers and others against C. E. Crews and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Jos. H. Aynesworth and W. G. Gross, both of Childress, for appellants. M. J. Hathaway and W. B. Howard, both of Childress, for appellees.
   HALL, J.

This is a boundary suit. The allegations in the petition are in the form of trespass to try title to survey No. 2, in block No. E, in Childress county. The land is described in the petition as beginning at a point in the N. boundary line of survey No. 15, of the F. P. Knott surveys 400 varas S., 80° 30’ east from its N: W. corner; thence N. 80° 30’ W., 400 varas with the north boundary line of said survey No. 15, a cedar post marked “XI”; thence N. 76° W., 979 varas, with the N. boundary line of survey No. 16, F. P. Knott, original survey, to a point on top of a sand hill, from which a china berry tree 18 inches in diameter bears S. 50° E., 6 varas; thence S. 76° 30' W., 979 varas, with the N. B. line of survey No. 17, F. P. Knott, a pipe line, the N. E. corner of survey No. 18, F. P. Knott; thence S. 70° W., 1,011 varas, with the N. B. line of said survey No. 18, to a set stone in the E. B. line of survey No. 19, F. P. Knott, original surveys; thence N. 488 varas with the E. B. line of said survey No. 19, to a pipe N. E. corner of same; thence S. 78° 30' W., 970 varas, with the N. B. line of said survey No. 19, to a pipe set in the S. bank of Red river, the N. E. corner of survey No. 20, F. P. Knott original survey; thence N. 59° 52' E., 1,099 varas, with the meanders of said river, a point; thence N. 81° 19' E., 961 varas, with the meanders oí said river, a point; thence E. 950 varas with the meanders of said river, a point; thence S. 77° 39' E., 972.4 varas, with the meanders of said river, a point; thence S. 38° 29' E., 637 varas, with the meanders of said river to the place of beginning, containing 338.8 acres of land.

The land described lies immediately north of the E. P. Knott surveys in Childress county, and is bounded on the north by Red river. Appellees claim the land as original, unappropriated public domain, which had been surveyed and sold to them by the state as public school land. Appellants insist that the land in controversy is a part of the various F. P. Knott surveys described in the field notes; in other words,' that the F. P. ¿Knott surveys, by their original calls, extended north to the river bank, and that no vacancy exists north of said surveys, which the state could sell to appellees.

Defendants below answered by general denial: That the lands in controversy were included in the lands owned by them, and that the northern boundary of their surveys was the south bank of Red river. They deny that the cedar post alleged to be an original corner, as designated in the second call in the petition, was an original corner; that the northern boundary lines of the several Knott surveys are correct calls and that the original calls, marking, and corners, were on' the bank of the river; that said land was formerly public domain and was sold by the state to F. P. Knott, and surveyed in sections of 640 acres each, as required by law; that said surveys were made by the proper officers and field notes thereof duly returned to the land office and patents issued; that,' in the applications for the purchase of said land made by the said Knott, each survey was described to follow the meanders of the south bank of Red river, and the field notes thereof show that they were surveyed accordingly ; that the field notes in the patents call for the south bank of the river, and it was the intention of the said Knott, in making such application, to bound the same on the north by the south bank of the river; that it was likewise the intention of the officer making the survey to comply with the law and bound the same on the north by the south bank of the river; that it was also the intention of the state in approving the field notes, and in the issuance of the patents, to part with all its right, title, and interest therein, to the south bank of the river. They claim through mesne conveyances under the said Knott, alleging that they acquired the lands, relying upon the records of the surveyor’s office, of field notes returned to the General Hand Office and set out in the patents, and have been in quiet and peaceable possession thereof from the date of the original sale to F. P. Knott, up to this time.

A jury being waived, the court tried the case, rendering judgment for the plaintiffs below. The substance of the findings of facts and conclusions of law we state as follows: This case involves the title to some 338 acres of land on the south bank of Red river, in Childress county, being, if plaintiff’s contention is correct, state school land, sold to plaintiffs; and, if defendants’ contention could be sustained, it is a part of the north end of surveys 15, 16, 17, 18, and 19, of the F. P. Knott sections, to which defendants have title. The field notes of surveys 15 and 16, at their common north corner, call for a stake marked X with a cottonwood and a chittim bearing1 tree, giving course to said trees, but n'ot distance. These field notes are of a survey made by T. Windsor Robinson, in May, 1882. At a point in the valley at the southeast corner of the land in controversy, there is now to be found a cedar stake, marked X,, by the side of which there is an iron pipe put in by one Crews; that is, where Crews put in the iron pipe, reversing the call for course, and running from a cottonwood marked as it now shows, would miss this corner 38 varas to the east of it. No chittim can be found, but there is a chittim stump which will fit within a few feet the call for course to a chittim running in a westerly direction. In the course called for in the field notes of survey 16, from this stake, at the distance called for in said field notes for the northwest corner of said survey 16, there is found a china tree which fits within a few varas the call in the field notes at this point. This tree is mostly buried in a sand hill, and some of the witnesses have dug down about 16 feet into the sand and to the roots of the tree, in an effort to find marks on it, but discovered none which could be identified as surveyor’s marks. Continuing courses called for for the north line of 17 and 18, to the northwest corner 'of said survey 18, and thence north 488 varas to the northeast corner of 19, and south 78%° west along the north lines of surveys 19, 20, 21, and 22, to the northwest corner of 23, would pass south of a salt spring and along a rocky bluff, which is the south bank of Red river along the north lines of 20 and 21. Following the river bank about a mile and leaving it at about the northeast corner of 23, the course pursued throwing the line away from the river, and at the northwest corner of 23 as thus located is found the original corner, fully identified by bearings called for in the original field notes. The field notes of surveys 16, 17, 18, and 19 call for stakes on the bank of Red river, and to meander said river. But the line above described does not meander said river, but runs for the most part along the south line of the land in controversy, and nearly half a mile south of the river. I find, also, that in 1884 there was a stake, not marked, about 30 yards north and east of the cedar post, and iron stake, first above described. It is not there at this time and its exact position is not certain. By running course and distance north 76° west, 961 varas, as called for in the field notes of the north line of 16, will reach a basin in the sand hills and continuing will, on the north side of survey No. 19, follow a rocky bluff and pass over or close to a salt spring, passing into the river for about a mile and a half, reaching the bank again at the northeast corner of 23, or north of where it is now found and identified, about 300 varas, at which point there is some timber. I also find that it is conclusively shown by the evidence that Red river, along the north boundary of the land in controversy, has its banks in substantially the same place as when the original survey was made in May, 1882. I find from this evidence that following the footsteps of the original surveyor would be the lines first above described; that before he reached the northeast corner of 16 he had left the river bank and cut across the bend for some reason; and that he did not thenceforth meander the river, nor was his line a meander line, until he again reached the river at a point just before reaching the northwest corner of 19. I also find that this line is shown to be the line actually run on the ground by the original surveyor, by all the other evidence in the case, including the maps herein intro-dueed, showing the position of surveys throughout the block; that in theory it would locate these surveys, 16, 17, 18, and 19, on the river bank, would change the south line of said surveys, disturbing and pulling them apart from their surveys on the south, or would pull the whole block 'of surveys north into Red river, and north of the original comers. On the whole, I find that the line first described herein is the original line run by T. Windsor Robinson, the original surveyor.

The court then applies the Bertillon system, “to the face of nature instead of to the face of some human being,” and concludes that any “one finding a cedar stake marked X in the neighborhood of where a stake or post marked was called for in the field notes as a corner might have a suspicion that such was the corner; should he find in the neighborhood a cottonwood marked and which said mark might at one time have been a part of an X, and find that the same field notes call for such a cottonwood, and further find that the course called for in the field notes was reasonably close to the course actually found, the suspicion would likely become strengthened; then, examining the field notes, should he find that they also call for a chittim, a certain course from the said corner, he finds a chittim stump, the suspicion would begin to ripen into a belief; and then should he run from this stake the course and distance called for in the field notes, and there find a china tree reasonably corresponding to that called for in the field notes, the belief would naturally ripen into a conviction; then continuing should he afterward, passing along a rocky bluff on the bank of a river, where same is called for in the field notes, arrive at a point where there is a corner so well identified by marked trees that it is not questionable, then his conviction would become a certainty.” The court concludes as a matter of law that when a line can be identified by the footsteps of the original surveyor it is the correct line of the survey; that a meander line may be placed back a reasonable distance from a stream and nevertheless be a meander line, and include in the grant the line to the stream, but when it is so far back, for instance nearly half a mile as in this case, as to show it is not in fact a meander line, but a cut-off, and the footsteps of the surveyor are actually found crossing the cut-'off, then it is not in fact a meander line, and the surveyor is presumed to intend to locate the line where he actually does locate it. While the law presumes the survey- or does his official duty, and in making surveys all calls are correct, yet this presumption may be overcome by proof positive to the contrary. The fact that the Knott surveys are made four times as long as they are wide has probative value to show that they front on a stream, and also that the call for a stream shows, not conclusively however, that he did go to the stream, and that, if in future years the river is found further away, it might very well be presumed, and should be, that the river has changed its course so as to harmonize the facts found with the calls, rather than to say they are incorrect. Yet notwithstanding all these presumptions, when it is shown to a moral certainty that the river has not changed its course, and also to such certainty that the surveyor did not follow the meanders of the stream, it is the duty of the court to follow the certain footsteps of the surveyor, and there locate the line. The evidence shows that the defendants have their full quota of land, without adding to it the land sued for herein; that it is not a state of facts which could possibly include any excess north and south, there being no original corners on the south to hold an excess, so that it is only a question of showing defendants’ land north of the river and leaving that amount of land on the south out of his survey, or letting his survey remain where Robinson and Crews and all other surveyors have heretofore put it, without disturbing the south line in any way; they still having fully 640 acres.’

The first three assignments of error insist that the court erred in considering the entries in what is designated as “Little Book M.” This seems to be the field note book, made by T. Windsor Robinson, at the time of the original survey, and was called for by appellants’ counsel. It appears from the record that, after the pleadings had been read to the court, one of the attorneys for appellants, who had requested the court to bring the note booh to Childress, announced that he was going to introduce it in evidence. He afterwards objected to the bools, when the county surveyor was being interrogated, with reference to some matters contained in it, and withdrew his objections and agreed that it might go in as evidence. The trial judge states in his findings of fact that, before adjourning in the evening, both parties agreed that the book should go into the record in so far as it related to surveys 14 to 23 of the If. P. Knott block. If we could properly consider the objection as presented here, we think appellants’ agreement to admit the book would preclude them from moving to strike it from the evidence, after its recitals were found to be unfavorable to them. Kempner v. Beaumont Lumber Co., 20 Tex. Civ. App. 307, 49 S. W. 412. This matter, however, is not properly presented. The action of the court upon motion to strike out evidence in order to require review in this court should be presented by bills of exception, and no bill whatever is found in the record. Holt v. Cave, 38 Tex. Civ. App. 62, 85 S. W. 309.

In the present state of the record, we must take the court’s statement of the facts relating to the introduction of “Little Book M” as true, and conclude that the relevant entries found in it should have been taken into consideration by the court in passing upon the issues. In the consideration of several boundary suits, we have learned from a review of the work of the pioneer surveyors in this part of the state, done when the public domain was almost limitless and lands were barely worth the cost of surveying and pre-empting them, that lines were not run and corners and calls were not fixed and made with that degree of care and accuracy which the law required. Time and the demand for fuel and fence posts have in most instances caused the disappearance of bearing trees, and the shifting sand dunes of the river bottoms and the erosion of river banks have frequently changed the face of nature to such an extent as to render the location of lines and corners a matter of much doubt.

AVe think the court’s findings of fact are supported by sufficient evidence, even without taking into consideration the facts shown in “Little Book M.” The “gun barrel corner,” being the northeast corner of section 41, is an undisputed, long and well established corner in that neighborhood. The beginning corner adopted by the court, and concerning which the testimony is sharply conflicting, we think is sufficiently established by the course and distance, reversing the calls from the “gun barrel corner.” There can be no controversy with reference to the rules of law quoted in the briefs of parties,. and the whole question has resolved itself into one of fact. This being peculiarly within the province of the trial court, we do not feel called upon to disturb his findings, since we think they are supported, not only by sufficient evidence, but by a preponderance thereof. Under the evidence, as introduced, the court could have located the line according to the contention of either party; but he has seen fit to disregard the evidence of several Witnesses which tend to locate the line north of where it is fixed by his findings, and we feel it our duty to adopt his conclusion as our own.

The judgment is therefore affirmed.
      (g^aFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    SNAMAN v. LANE.
    (No. 5591.)

    (Court of Civil Appeals of Texas. Austin.
    Feb. 9, 1916.
    On Motion for Rehearing, March 29, 1916.)
    1. TRIAL &wkey;>191(l)— INSTRUCTION — ASSUMPTION of Facts.
    The court should not assume in its charge the existence of material facts controverted by the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420, 421, 435; Dec. Dig. &wkey;191(l).]
    2. Partnership <&wkey;247 — Liability of Surviving Partner.
    Where brothers for a number of years conducted a partnership business and bought a hotel with partnership funds, collecting and disbursing the rents therefrom in the name of the partnership, and one of such brothers employed an architect to prepare plans for an addition to such hotel, such brother being in charge of the business when the other was absent, and such other knowing that the plans had been prepared and made, making no objection, such other brother was liable for the charge of preparing the plans upon the death of the brother who ordered them.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 524r-528; Dec. Dig. &wkey;247J
    3. Partnership <&wkey;247 — Personal Liability for Debt of Decedent.
    Where two brothers owned a hotel, and one died, the survivor being made independent executor and sole legatee and probating the will, having charge and control of the entire estate and paying the debts, disposing of the hotel, and converting the greater portion of the estate to his own use and benefit, receiving assets greatly in excess of an amount which Ms deceased brother owed an architect for preparing plans for an addition to the hotel, such surviving brother was personally liable for the debt.
    [Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 524-528; Dec. Dig. <&wkey;247.]
    On Motion for Rehearing.
    4. Partnership <&wkey;258(8) — Contract by Partner — Sufficiency of Evidence.
    In an action against a surviving partner for services as an architect in drawing plans for an addition to the firm’s hotel, evidence held sufficient to show that the deceased partner employed plaintiff to draw the plans.
    [Ed. Note. — For other cases, see Partnership Cent. Dig. §§ 580-582, 596; Dec. Dig. <&wkey;' 258(8).]
    Appeal from District Court, McLennan County; Edwin J. Clark, Special Judge.

      Suit by Roy E. Lane against Joe Snaman. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. R. Webb and Marshall Surratt, both of Waco, for appellant. Sleeper, Boynton & Kendall, of Waco, for appellee.

      Writ of error pending in Supreme Court.

   RICE, J.

This suit was brought by Roy E. Lane against Joe Snaman to recover on a quantum meruit for services performed as architect in making cost estimates, drawing plans, and performing work incident thereto for the erection of an addition to the St. Charles Hotel in Waco, payment for which had been refused by appellant, alleging that Joe Snaman and his brother Harry, now deceased, were partners doing business under the partnership name of H. & J. Snaman, and as such owned and operated the St. Charles Hotel in said city. The right to recover against Joe Snaman is based on the theory, first, that he was liable as surviving partner, the work having been performed at the instance and request of his brother Harry; and, second, against him in his individual capacity on the ground of acquiescence and ratification of such employment; and, third, that he was the independent executor and sole legatee under the will of his brother, which had been probated and administration thereon closed, and from whose estate he had received more than sufficient assets to pay said claim.

Appellant, answering, admitted the partnership, but alleged that the same was a commercial partnership, and denied that he and his brother owned the hotel as partners, but asserted that they were joint owners and tenants in common thereof, and that such partnership was separate and distinct from their commercial partnership and denied that he or his brother had ever employed appellee to perform such services.

A jury trial resulted in a verdict and judgment in behalf of appellee for the sum of $1,650, from which this appeal is prosecuted. The first assignment urges that the court erred in charging the jury, in effect, that if they believed from a preponderance of the evidence that appellee, in compliance with the request of Harry ignaman, deceased, performed the services as architect as-claimed, in preparing certain sketches, cost estimates, and plans, and that the same were placed at the disposal of the said Harry Snaman, deceased, or the defendant, Joe Snaman, or either or both, then and in that event they would find for appellee as against appellant the reasonable value of such services, if any, not to exceed the amount claimed, with interest. It is asserted on the part of appellant that this charge assumed the existence of a partnership in the ownership and operation of said hotel on the part of Harry and Joe Snaman, or that they held themselves out as such, or that the alleged employment of ap-pellee by Harry Snaman was with the consent of appellant, or that the administration of the estate of Harry Snaman, deceased, by appellant as independent executor had ceased and the estate closed, and that as neither of such facts was established by the uncon-troverted evidence, to so charge was error.

It is unquestionably true, as asserted by appellant, that the court should not assume in its charge the existence of material facts controverted by the evidence; but in reply thereto appellee insists that this charge is not erroneous in this respect, because the uncontradicted evidence showed that appellee, in compliance with the request of Harry Snaman, deceased, performed the services alleged, and that the defendant, Joe Snaman, was liable therefor, because from the undisputed evidence it appeared that Harry and Joe Snaman were partners, and that as such they owned the St. Charles Hotel property, or, at least, that they held themselves out as such, and that the indebtedness sued upon was a partnership debt, for which appellant is liable as surviving partner.

We agree with appellee in this contention. Appellant admits that he and his brother Harry had for a number of years conducted a partnership business under the firm name of H. & J. Snaman; that the hotel in question was bought with partnership funds, and the rents therefrom collected and disbursed in the name of the partnership. The uncontradicted evidence also shows that H. Snaman employed appellee to prepare the plans in question; that he was in charge of the business when appellant was absent; and that appellant knew that the plans had been prepared and made no objection thereto, because it is shown that he saw a picture of the proposed structure, drawn by appellee, which hung for a considerable time in the hotel building, and under which was written: “St. Charles Hotel, H. & J. Snaman.” It was shown that both appellant and his brother were frequently in appellee’s office, looking over the plans and making suggestions as to changes therein during the progress of the work; and the uncontroverted evidence further shows that appellant admitted, after the death of his brother, that appellee had been employed by them to prepare the plans.

We believe, therefore, from the uncontra-dieted evidence that this hotel was the property of said partnership, and that Harry Snaman employed appellee to perform the services upon which this suit is predicated; for which reason we think appellant was liable to appellee as surviving partner, and hence hold that the court did not err in giving the charge complained of.

Besides this, we think the judgment should be affirmed on the ground that the uncontradieted evidence showed that Harry Snaman employed appellee to prepare said plans; that upon his death appellant, under his will, was made independent executor and sole legatee; that he probated the will, took charge and control of the entire estate, paid all the debts thereof, disposed of the hotel, and converted tlie major portion oí the property of the estate to his own use and benefit, receiving therefrom assets largely in excess of the debt sued upon, from which circumstances the administration thereon may be regarded as closed and the appellant thereby became personally liable for the debts thereof. Hence the court did not err, as urged by appellant in his second assignment, in telling the jury that if the alleged services were performed by appellee at the request of Harry Snaman, the deceased, the appellant would be liable therefor. See Runnels v. Knownslar, 27 Tex. 532; Houston v. Mayes, 66 Tex. 299,17 S. W. 729; Patterson v. Allen, 50 Tex. 25; Solomon v. Skinner, 82 Tex. 345, 18 S. W. 698; McClelland v. McClelland, 46 Tex. Civ. App. 26, 101 S. W. 1171; Mayes v. Jones, 62 Tex. 365 ; Kauffman v. Wooters, 79 Tex. 205, 13 S, W. 549; Webster v. Willis, 56 Tex. 468; McCampbell v. Henderson, 50 Tex. 601; Blinn v. McDonald, 92 Tex. 604, 46 S. W. 787, 48 S. W. 571, 50 S. W. 931; Middleton v. Pipkin, 56 S. W. 242.

No reversible error being shown, the judgment of the court below is in all things affirmed.

Affirmed.

On Motion for Rehearing.

Appellant assails our holding to the effect that the uncontradicted evidence shows that H. Snaman employed appellee to draw the plans for the hotel, citing the evidence of Joe Snaman, wherein he states, in effect, that appellee would draw the plans and specifications, and if the matter did not go through he would not charge anything for same. Notwithstanding this, however, the uncontradicted evidence, shows that appellant admitted that his brother Harry had a half interest in the building, and that Harry ran the business when appellant was away, and that appellant ran it when his brother was away; and appellee testified, without contradiction in this connection, that he had a- conversation with Harry Snaman relative to the cost of the plans, and informed him that the regular fee therefor would be 5 per cent, of the amount of the cost of the improvements, “which I then told him would probably be from $25,000 to $30,000, upon which he replied to go ahead and prepare the plans; that after this Harry was frequently at the office to see about it and how the plans were getting along, giving instructions and directions and suggesting changes therein.”

Even if we were to concede, however, that appellant’s contention in this respect is correct, there is ample evidence under other phases of the case to justify the affirmance of the judgment. After a full and thorough investigation of the record, in the light of appellant’s motion for a rehearing, we have concluded that there is no merit in same, and that it should he overruled; and it is so ordered.

Motion overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    WATKINS v. MINTER et al.
    (No. 968.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 3, 1916.
    Rehearing Denied Feb. 16, 1916.)
    Appeal from District Court, Hopkins County; R. L. Porter, Judge.
    Action by J. C. Watkins against L. B. Minter and others. Erom a judgment for defendants sustaining general demurrer to petition and dismissing the case, plaintiff appealed, and questions presented were certified to the Supreme Court. Questions answered (180 S, W. 227).
    Reversed and remanded.
    J. H. Beavers and Harris, Suiter & Britton, all of Winnsboro, for appellant. D. Thornton, of Sulphur Springs, for appellees. '
   HODGES, J.

This appeal is from a judgment sustaining a general demurrer to the appellant’s amended original petition and dismissing the case. The questions presented on appeal were certified to the Supreme Court in April, 1912. They have recently been answered in an opinion which will be found in Watkins v. Minter, 180 S. W. 227. The answer returned necessitates a reversal of the judgment and a remand of the cause, and it will be, accordingly, so ordered. It is unnecessary for us to add anything to what is said in the opinion of the Supreme Court.