text:
    BROWN v. DAVIS et al.
    (No. 822.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 26, 1915.)
    1. Pleading <&wkey;205 — Answer—Sufficiency.
    An answer presenting- a good defense is good against a general demurrer, though it contains matters which might be stricken out upon special exception.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 49G, 49S-510; Dec. Dig. <@=>205.]
    2. Appeal and Error <@=>232 — Objections to Pleading — Reversal.
    Where a general demurrer as well as special exceptions were sustained to an answer which presented a good defense, though it was open to special exceptions, the judgment will, on defendant’s appeal, be reversed, though he failed to comjjlain of the sustaining of the exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. &wkey;232.]
    3. Bills and Notes <&wkey;477 — Actions—Defenses — Answer.
    An answer, averring that a relation of trust and confidence existed between plaintiff and others, that they made misrepresentations to him as to the nature of the corporation about to be organized, that by reason of such misrepresentation he executed a note in favor of the corporation, not believing that it was in payment of a stock subscription, but understanding that it was only to enable him to procure loans, and that the agents of the corporation procured the making of such misrepresentations, of which facts the holder had knowledge, presents a good defense in an action on the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1524, 1525, 1558; Dec. Dig. &wkey;477.]
    4. Bills and Notes <&wkey;481 — Actions—Answer — Defenses.
    An answer, averring that the holder of a note, obtained through false representations by the agents and promoters of corporation, was the brother-in-law of the promoter, _ that the personal and business relations existing between them were intimate, that though the maker was solvent the note was bought at a great discount, that the holder failed and refused to make any inquiries with reference to the origin of the note, and that the maker was of weakened mentality, is sufficient to charge that the holder was not a bona fide purchaser without notice.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1530-1532, 1559-1561; Dec. Dig. <@=>481.]
    5. Pleading <&wkey;228 — Defects—Exceptions.
    Uncertainty in respect to time is a defect •which can be raised by exception alone.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5844590; Dec. Dig. <§=>228.]
    6. Bills and Notes <&wkey;4Sl — Actions—Defenses — Answer .
    In view of rule 17 for district and county courts, providing that in passing upon a general demurrer every reasonable intendment shall be indulged in its favor, an answer, averring that the holder of a note obtained it through misrepresentations, acted in bad faith in not making inquiries, and that there were sufficient facts to charge him with knowledge, is sufficient to show that the holder acquired knowledge of the infirmity of the instrument before he acquired it.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 153(1-1532, 1559-1561; Dec. Dig. <@=>481.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by A. J. Davis against H. W. Brown and others. From a judgment sustaining a general demurrer and special exceptions to the answer of Brown, he appeals.
    Reversed and remanded.
    Synnott & Underwood, of Amarillo, for ap-. pellant. Lumpkin & Harrington, of Amarillo, for appellees.
   HALL, J.

Appellee Davis sued appellant Brown upon a promissory note in the sum of $1,000, making the Amarillo Securities Investment Company and Mark Logan codefend-ants. The court sustained a general demurrer and all special exceptions to the answer of Brown, and upon his failure to amend rendered judgment against him for the full amount of the note, from which judgment this appeal is prosecuted. *

The first nine paragraphs of the answer consist of admissions and denials of specific facts in plaintiff’s pleading. Beginning with the tenth paragraph, the allegations are as follows:

“Specially answering herein, this defendant shows to the court: That some time in the summer of 1912 the Bankers’ Trust Company was conceived and originated, and the Amarillo Securities Investment Company was also conceived and originated for the express and only purpose of selling the capital stock of the said Bankers’ Trust Company and promoting and organizing the same and getting a permit for it to do business in Texas as a trust company, and that the promoters, officers, and managers of the Bankers’ Trust Company were either officers, managers, and owners of the Amarillo Securities Investment Company, or were in control of the same in some way, the details of which are unknown to this defendant, and that D. C. Lowe, R. L. Underwood, and one Brown, whose first name and initials are unknown to this defendant, were,, the agents and acting for both said companies in the matter of selling to the public the stock of said Bankers’ Trust Company, during the time hereinafter alleged and set out.
“(11) That during said year 1912, and especially during the summer and fall, this defendant was in feeble health and prematurely old, and that his said poor health and old age had weakened his mind and will to such an extent that he was easily persuaded and overreached, and his judgment was poor, and his will was easily overcome by artful solicitors and scheming agents with their glittering descriptions of ventures and prospects.
“(12) This defendant further shows to the court: That for many years theretofore he had been well acquainted with the said D. C. Lowe, and that he had been on intimate social and business relations with the said Lowe, and during many years had transacted a great deal of banking business through the said Lowe, and especially in his declining years had learned to look, to and lean upon the said D. C. Lowe for advice, counsel, and direction in all weighty business matters, and had for many years known and respected and had great confidence in the father of the said R. L. Underwood, which fact inclined him, especially in his said weakened mental and physical condition, to have great confidence in the statements, representations, and promises of the said R. L. Underwood.
“(13) That about August, 1912, the said Brown approached this defendant and represented to him that said Bankers’ Trust Company of Amarillo, Tex., was already organized and a going concern. doing a great volume of business, and that it had on hand an almost unlimited amount of money which it was already ready, willing, and able to loan and was loaning to various parties and for various enterprises in the Panhandle and Plains of Texas, and that it was already in shape to pay large dividends to its stockholders and was in a present financial condition as to enable it to pay and guarantee to all stockholders immense dividends upon its capital stock in the future, and thereupon solicited this defendant to give said company his note in some amount, either for stock in said company or to share in the privileges of its loaning money to him thereafter, but the -exact nature of which this defendant did not then and does not now understand, but that this defendant was not then wholly taken in by said proposition and steadily refused to do so .until time hereinafter mentioned.
“(14) That thereafter and before November 15, 1912, the said R. L. Underwood, another agent of the companies hereinbefore named, came, to this defendant’s house and made substantially the representations hereinbefore alleged as having been made by the said Brown, and in addition thereto represented to this defendant that said company already had on hand enough money to supply the whole Plains country and was ready, willing, and anxious to loan the same to citizens thereof, including this defendant. That this defendant then owed a note for several thousand dollars which was soon to become due, and the same was secured by a lien on the cattle of this defendant, and the said R. L. Underwood, knowing the same that this defendant was anxious to find sufficient money somewhere to take up said note, then and there proposed to this defendant that if he would only execute a small note to said Bankers’ Trust Company, simply to be held by it as collateral, as soon as this defendant’s said note matured said Bankers’ Trust Company would loan him sufficient money to take up said note, and on such occasion repeatedly urged this defendant to do the same, and informed this defendant that he could within a few hours after executing said note obtain any amount of money from said Bankers’ Trust Company which he might care for, and when this defendant demurred and hesitated, he, the said R. L. Underwood, urged this defendant to consult the said D. O. Lowe.
“(15) That at the suggestion of the said R. L. Underwood, and because of the aforesaid confidence he had in the said Lowe, and because of his habit and practice of following the advice of the said Lowe, he soon thereafter did consult the said D. C. Lowe, and the said D. C. Lowe informed him, this defendant, that the said Bankers’ Trust Company was a great enterprise, and that he, the said Lowe, had such confidence therein that he had invested several thousand dollars cash therein, and that many others of the best business men of the Panhandle and Plains country had also invested their property and money therein, and then and there advised this defendant to accept the proposition of the said Underwood as hereinbefore set out.
“(16) This defendant further shows to the court: That by reason of his confidence in the said Lowe and said Underwood, and by reason of his weakened mental and physical condition, and by reason of his aforesaid desire to find a place to get the money aforesaid to take the note up aforesaid, he was overreached, over-persuaded, and his will was overcome, and his good judgment beclouded to such an extent that he believed all of said representations to be true, and that he implicitly relied upon all of the statements of the said Underwood and the said Lowe and placed himself under their control and direction.
“(17) That thereafter about the 15th day of November, 1912, the said Underwood presented to him for bis signature some kind of an instrument, the exact nature of which he did not then and does not now understand, but which was probably the note herein sued on, and that, unless it was and is the note herein sued on, then the note herein sued on was never signed by him or by any- one by his authority, and thereupon told this defendant that if he would sign the same it would be attached to a receipt therefor showing that he was entitled to the privileges of borrowing money from said company, and that the same would be held by said company as collateral to secure said future loans, and that upon his later application for said funds said company would loan him the same as hereinbefore set out, and that by reason of the matters hereinbefore alleged his judgment and will and reason were all overcome, and he did sign the same believing the same to be for the purpose only of securing him the future loan of said money and would be held as security therefor and would be attached to a receipt showing him entitled thereto, and would be used for no other purpose.
“(18) This defendant further shows to the court: That all of the aforesaid representations of the said Brown and the said Lowe and the said Underwood were false. That said Bankers’ Trust Company had not then begun business and never did thereafter begin business. That it had no money whatever and no prospects of ever obtaining anj'. That it could not then loan this defendant any money and had no other property on which it could hope or expect to receive any money to loan this defendant, or for any other purpose, and that said D. O. Lowe had not placed therein the said amount of money so represented by him, and none of the other parties mentioned by said agents had done the same. That all of said representations were knowingly made by said agents and were knowingly false and were made for the express purpose of defrauding, deceiving, and overreaching this defendant with full knowledge on their part of his aforesaid confidence in them and his aforesaid weakened mental and physical condition.
“(19) That, soon after the execution of said paper and delivery to said agents as aforesaid, the said Brown and the said R. L. Underwood disappeared, and this defendant’s aforesaid lien on his cattle was nearing maturity, and lie applied to the said D. C. Lowe and asked him to notify the said Bankers’ Trust Company that he was ready for his money and to request them to send the same on to him at once, and thereafter made other efforts to obtain the same, but wholly failed to receive any money or other thing of value on said note.
“(20) This defendant further shows to the court that in June, 1913, this defendant received 50 shares of the capital stock of the said’ Bankers’ Trust Company of Amarillo, Tex., and this was the first time he ever knew that he had subscribed for the stock in said company instead of making an application for a loan, or that such claim was made by any ohe.
“(21) This defendant further shows to the court that it is now claimed by said Bankers’ Trust Company that said note was given wholly as payment for said 50 shares of capital stock of said Bankers’ Trust Company, and this defendant says that if in fact the writing signed by him showed that it was given therefor, instead of to secure money as represented to him, then that in either event the same is absolutely void and of no force and effect; and of this he puts himself upon the country.
“(22) This defendant further shows to the court that at the time of the execution of said paper or papers he was in the town of Lockney, several miles from his home, and did not have his glasses with him and could not read without the same; that, as hereinbefore alleged, he had implicit confidence in said agents of said companies, and was wholly under their influence and control, and he did not read said instrument or instruments, and he implicitly accepted their statements as to the contents thereof and does not even now know the real contents of the paper or papers signed by him as hereinbefore shown, that he was only signing a note for money to be advanced to him later and a receipt to be attached thereto and made a part thereof for the purpose of showing his right to. receive said money thereon, and that if said receipt has been detached from said note that he did not execute the same in the form it now is in; and of this he puts himself upon the country.
“(23) .This defendant further shows to the court that the said Mark Logan and the plaintiff herein, A. J. Davis, are and have been brothers-in-law for a great many years, frequently visiting each other and' each intimately acquainted with the affairs of the other.
“(24) This defendant further shows to the court that he is informed that the plaintiff herein is claiming, and will claim, that he is an innocent purchaser of the note herein sued upon without any notice as to this defendant’s defenses against the same, and that he paid full value therefor; but this defendant shows to the court that plaintiff did have actual and constructive notice of all said defenses, and did know that said note was given, if for any consideration at all, for capital stock in said Bankers’ Trust Company, and did know that the same was void; and of this he puts himself upon the country.
“(25) This defendant further shows that plaintiff, before his alleged purchase of said note, was informed and believed that this defendant was amply solvent, and that said note was worth 100 cents on the dollar so far as the solvency of the maker was concerned, and there was then due thereon more than one-half a year’s interest, and it was offered to plaintiff for less than 65 cents on the dollar, and that this was sufficient notice to plaintiff that there must be some defense thereto and was sufficient to put plaintiff on an inquiry and which would have put a reasonably- prudent person upon an inquiry, which if properly followed out would have led plaintiff to a discovery of this defendant’s defenses thereto, and of this he puts himself upon the country; and plaintiff acted in bad faith in not making and following such inquiry.
“(26) This defendant further shows to the court that the plaintiff well knew that Mark Logan was the promoter of the said Bankers’ Trust Company, and that promoting the same and selling stock thereof was his principal business at such time and had been for many months theretofore, and that all notes and other papers placed into his hands more than likely related to the sale of such stock, and that this alone was sufficient to put the plaintiff upon such notice as would cause a reasonably prudent person to make an investigation and would have led to knowledge of the fact that said note was given, if for any consideration, for said capital stock, and in not making such inquiry plaintiff acted in bad faith.
“(27) That defendant further shows to the court that said note was payable to the Amarillo Securities Investment Company, and that the plaintiff accepted the same knowing that the same was indorsed by Mark Logan for said company, and negligently failed and refused to make any inquiry as to what said company’s business was, when the least inquiry would have shown plaintiff that all papers handled by said company were given for capital stock in the said Bankers’ Trust Company, and such failure was bad faith in plaintiff.
“(28) That defendant further shows to the court: That for many months between November 15, 1912, and the date of the alleged purchase of said note by plaintiff, the said Amarillo Securities Investment Company published repeatedly large display advertisements in many newspapers reaching every community in Texas, showing that the Amarillo Securities Investment 'Company was engaged in the business of selling-capital stock of the Bankers’ Trust Company, and, if when said note was presented to plaintiff he had made such inquiry as a reasonably prudent person would have made under the circumstances, he would have learned that all notes payable to said company were given for said stock, and of this he puts himself upon the country, and failure not to do so was such negligence as amounted to bad faith.
“(29) That by reason of the premises said note is and always has been absolutely void even in the hands- of an innocent purchaser, and this defendant is not liable. to plaintiff for any part thereof, whether plaintiff had notice of his defense or of such facts which would have led a reasonably prudent person to an investigation as would have discovered the same or not.
“(30) That, in the event said note is not absolutely void in the hands of an innocent purchaser, then this defendant shows to the court that plaintiff had actual knowledge, of the consideration and want of consideration therefor and all of this defendant’s defenses against the same, or, if this defendant be mistaken there, then by reason of the matters hereinbefore enumerated plaintiff, when he purchased the same, had notice of such facts which would have led a reasonably prudent person to make inquiries which if they had been properly pursued would have led plaintiff to a discovery of all this defendant’s defenses hereof, and he acted in bad faith in not doing so; and of this he puts himself upon the country.
“(31) This defendant further shows to the court that, if he be mistaken in all of the foregoing, then he shows to the court that said note was procured by fraud as hereinbefore set out and was fraudulently obtained and put into circulation, and therefore the plaintiff, even though he be an innocent purchaser as alleged, can only recover herein $666.66%, with 6 per cent, thereon from the date of said alleged purchase of said note, and cannot recover any attorneys’ fees; and of this he puts himself upon the country.”

It will be observed that the answer alleges the agency of Lowe, Underwood, and Brown, for the Bankers’ Trust Company, in the matter of selling stock. This allegation is followed by the specific statement that defendant, during the time negotiations leading up to the purchase of the stock were on hand, was in feeble health, which together with premature old age had weakened him mentally and physically and destroyed his will power to such an extent that he was easily persuaded and overreached. It is alleged that a relation of trust and confidence existed between plaintiff upon the one hand, and Lowe and Underwood upon the other, and that he was accustomed to rely upon the advice and counsel of Lowe and implicitly relied in this matter upon Lowe and Underwood and was deceived by their misrepresentations. In the light of the discussion by Judge Fisher, in I. & G. N. Ry. Co. v. Shuford, 36 Tex. Civ. App. 251, 81 S. W. 1194, 1195, we think the allegations a sufficient statement of the facts as against a general demurrer. See, also, Parker v. Naylor, 151 S. W. 1096. The false representations alleged to have been made are that the Bankers’ Trust Company was a corporation already organized and doing a great volume of business, having an almost unlimited amount of money, which it was lending to various parties-; that it was already in shape to pay large dividends to its stockholders and had sufficient money on hand to supply the whole Plains country; that Lowe himself had invested several thousand dollars in cash in it, together with many others, among the best business men of the Panhandle and Plains country. It is further shown that appellant owed a note for several thousand dollars which would soon become due, and which, without the proposed loan from the Bankers’ Trust Company, he would not be able to meet; that at such time one of the above-named agents proposed to him, if he would only execute a note to the Bankers’ Trust Company simply to be held by it as collateral, that as soon as said note matured the company would lend him sufficient money to take up the note; and that he was informed that he could within a few hours after executing said note obtain any amount of money from said Bankers’ Trust Company. Appellant alleges that all of the above statements were falsely and fraudulently made, that he relied thereon and was deceived thereby. While the pleading contains allegations of many representations not of fact but which are merely the expressions of opinion and extravagant promises by the agents concerning the benefits likely to accrue to defendant, these are matters which should be met by special exception and do not affect the sufficiency of the petition as against a general demurrer. Hoechten v. Standard Home Co., 157 S. W. 1191. If the answer to which a general demurrer is filed is sufficient to enable the court to say that a good defense exists, a general demurrer should not be sustained, even though it contains matters which should be stricken out upon special exception. In ' his brief, appellant presents as error only the action of the court in sustaining the general demurrer. The fact that he does not complain of the judgment sustaining the special exceptions is no reason for refusing to reverse the judgment, if upon the whole a good cause of action is shown, even though there may be defects in the form of stating it. Bigham Bros. v. Port Arthur Channel Co., 100 Tex. 192, 97 S. W. 686, 13 L. R. A. (N. S.) 656. We think the misrepresentations set out refer to material matters which could not ordinarily be known to the defendant, and, since the facts rested peculiarly within the knowledge of the agents who it is alleged made them, he was warranted in relying thereon.

Appellee insists that the allegations . are not sufficient to show notice to Davis of the defenses urged by appellant. We do not assent to this contention. It is alleged that appellee is a brother-in-law of Mark Logan, who was the promoter of the Bankers’ Trust Company, and that the personal and business relations existing between Logan and appellee were intimate. It is alleged as a fact that plaintiff did have actual and constructive notice of all of said defenses, and that the note, if given for any consideration at all, was executed and delivered in payment for capital stock of the Bankers’ Trust Company; that Davis knew defendant was solvent and that the note in question was worth 100 cents on the dollar if not fraudulently procured, and, notwithstanding the fact that at the time of his purchase there was more than six months’ interest due thereon, he paid only 65 cents on the dollar therefor; that he knew Mark Logan was a promoter of the company and had for many months been engaged in selling stock of the company; that he negligently failed and refused to make any inquiries with reference to the origin of the note and ignored all of the above facts which would have led a reasonably prudent person to an investigation by reason of which, he would have discovered that said note was absolutely void; and that in the purchase of said note and in refusing to make such investigation he was guilty of bad faith. It is further alleged as a fact that the note in question was executed in payment for 50 shares of stock in the Bankers’ Trust Company, for which reason it was void, under the Constitution and laws of this state. It is true that appellee does not allege directly and with certainty the purpose of the execution of the note, nor does he state with clearness the terms of the contract and agreement which he says was attached to the note and formed a part thereof; but he shows, as an excuse for his failure to make his allegations more direct and certain, his weakened mental condition, and further the possession of these instruments by the plaintiff. Under fundamental rules of pleading, we think this is all he was required to do. G., C. & S. F. Ry. v. Smith, 74 Tex. 276, 11 S. W. 1104; McFarland v. Mooring, 56 Tex. 118; Schneider & Davis v. Ferguson & Son, 77 Tex. 572, 14 S. W. 154; Florida Athletic Club v. Hope, 18 Tex. Civ. App. 161, 44 S. W. 10; Varner v. Carson, 59 Tex. 303.

Appellee insists that, because it is not alleged when appellant acquired notice of the matters set up in defense by him, the petition is fatally defective. The general rule is uncertainty in respect to time is a defect which can he reached by special exception alone. Henry v. McCardell, 15 Tex. Civ. App. 497, 40 S. W. 172; Townes, Texas Pleading (2d Ed.) 409. In our opinion, however, paragraphs 24, 25, 26, 27, 28, and 30 of the answer are sufficient to charge notice and bad faith on the part of appellee prior to the date of his purchase of the note, although the exact date is not given. Rule 17 for the government of district and county courts provides that in passing upon a general demurrer every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency. Northwestern National Insurance Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 185; Patterson & Wallace v. Frazer, 79 S. W. 1077; Morgan v. Brown, 156 S. W. 361. Construed according to this rule, we must hold that the answer was sufficient as against a general demurrer, and the judgment is therefore reversed, and the cause remanded.
      cg=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    WARE et al. v. PERKINS et al.
    (No. 805.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 5, 1915.)
    1. Deeds &wkey;>114 — Property Conveyed — Plats.
    The owner of certain lands conveyed 200 acres thereof, described as beginning at a certain point, thence west to the west line of the survey, thence south a number of varas sufficient to make 200 acres. Subsequently the owner platted the land and set aside a certain block as coveting the 200 acres so conveyed, but it contained in fact more than 200 acres. Meld, that the mere fact that the owner platted such land did not place title to the entire block in the grantees of the 200 acres.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 316-322, 326-329, 388; Dec. Dig. &wkey; 114.]
    2. Frauds, Statute op <&wkey;70 — Establishment of Boundaries — Parol Agreement.
    That a boundary may be established by a parol agreement, it is essential that there be doubt and uncertainty as to its true location.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 112; Dec. Dig. i&wkey;>70.]
    3. Frauds, Statute of <&wkey;158 — Establishment of Boundaries — Oral Agreement-Evidence.
    In a suit to recover real estate, evidence held sufficient to sustain a finding that the parties agreed to locate a certain line bounding plaintiffs’ purchase, and that such location was not made to settle a doubt or dispute.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. 158.]
    4. Estoppel <&wkey;55 — Essentials — Reliance on Act.
    In a suit to recover a strip of land included in a block intended to represent plaintiffs’ purchase, which in reality contained more than the amount purchased, that defendants, who originally owned the land, had platted it and established lines showing the extent of plaintiffs’ purchase, did not constitute an estoppel as against defendants, where the purchase was not made in reliance on the lines as fixed, or improvements put upon the land with reference to such lines.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 136-141; Dec. Dig. &wkey;>55.]
    5. Appeal and Error <&wkey;>559 — Record—Bill of Exceptions.
    That bills of exception are included in the statement of facts, and not brought up in the record outside thereof, does not prevent consideration of the assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2483-2489; Dec. Dig. <&wkey; 559.]
    6. Boundaries <&wkey;35 — Establishment—Evidence.
    In a suit to establish a boundary, evidence that no two surveyors could run a line and reach the same point was properly excluded, since it would not have tended to prove a consideration for the agreed boundary, where there was no evidence that either party gave that as reason for their agreement.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 153-155, 157-159, 163, 165, 177-183; Dec. Dig. &wkey;35.]
    Appeal from District Court, Wichita County ; Edgar Scurry, Judge.
    Action by H. P. Ware and others against J. J. Perkins and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Fitzgerald & Cox, of Wichita Falls, and Davis & Davis, of Gainesville, for appellants. John C. Kay, of Wichita Falls, for appellees
   HUFF, C. J.

H. P. Ware and 16 others, as plaintiffs, instituted suit against L. N. Lochridge, J. J. Perkins, W. E. Norton, and P. H. Pennington, as defendants. The suit is over a small strip of land out of the Louisa Netherly survey, in Wichita county. The plaintiffs set up specifically the facts as claimed by them entitling them to the land.

The Louisa Netherly survey was owned by L. N. Lochridge, consisting of 786 acres. On the 27th day of November, 1912, L. N. Lochridge executed a written contract to T. W. Owen and G. E. Wilson, with the customary rights of ingress and egress to oil and gas, in and under 200 acres of the Louisa Netherly survey in Wichita county, which contract was registered March 25, 1913, in said county. The land conveyed by the contract is described as follows:

“Beginning at a point 1,500 varas from its N. E. corner on the E. line of said survey; thence W. to the W. line of said survey; thence south a number of varas sufficient to make'200 acres of land” — reciting sufficient consideration.

Owen and Williams, on the 11th day of March, 1913, for a.recited consideration of ?250,000, assigned their interest in said contract to the Forest Oil Company, together with other leases, which assignment was registered in Wichita county March 25, 1913. For a purported consideration of 810,000, the Forest Oil Company assigned to A. J. Bart-rug, so far as it related to 20 acres in the form of a square out of the southwest comer of said 200 acres. This assignment is dated August 20, 1913, and recorded December 29, 1913. Afterwards on December 26, 1913, in an assignment which was registered December 29, 1913, Bartrug, for a recited consideration of 8500, transferred and assigned to B. F. Taylor his right to the gas and oil in and under said 20 acres, under said contract; and afterwards, on the 29th day of December, 1913, Taylor, by assignment, for a recited consideration of 8600, transferred and assigned to the plaintiff, J. A. Watkins, a half interest in his right to the oil and gas upon and under said 20 acres. It is admitted that said last contract was transferred to Watkins in trust fdr the other plaintiffs in this case as beneficiaries. On the 30th day of December, 1913, by written contract registered January 3, 1914, L. N. Lochridge, for a consideration of 8100, granted to W. E. Norton an option to lease 10 acres or less as he might choose out of the Louisa Netherly survey, except 25 acres out of block No. 5, L. N. Lochridge plat, and the land leased previous to that date to E. B. Stevens and the Carson Oil Company. It was provided in the option that Norton should pay at the rate of 8100 per acre therefor and a royalty of one-eighth of the oil. Afterwards, by written contract dated January 21, 1914, and recorded January 28, 1914, Lochridge granted and conveyed to J. I. Perkins and W. E. Norton the gas and oil under a strip of the said Netherly survey described as follows:

A strip 12 varas wide and 990 varas long, more or less, off the south side of block No. 4, as per the L. N. Lochridge plat of 786 acres out of the Louisa Netherly survey, abstract No. 240, and being all the land out of said block No. 4, not heretofore covered in a lease of 200 acres to Owen and Wilson, being at the N. E. corner of block No. 5, per the L. N. Lochridge plat of said land; thence north 12 varas, more or less, to the g. E. corner of said 200 acres heretofore leased to Owen and Wilson; thence west along the S. line of said 200 acres 990 varas; thence S. 12 varas, more' or less, to the N. W. corner of said block No. 5; thence E. 990 varas to the place of beginning, containing two acres more or less.

This strip is the land in. controversy. In consideration of this lease the grantees agreed to pay the grantor 8200 yearly in advance for each gas-producing well and to furnish him free of charge gas therefrom for domestic purposes and a royalty of one-fifth of the oil obtained from said land.

Before the lease contract to' Owen and Wilson, heretofore set out, Lochridge platted the tract of land leased by him, but did not subdivide it. His son, who lived at San Antonio, appears to have been something of a civil engineer, and he requested his son to plat the land into blocks of 80 and 100 acres each, except the 200 acres theretofore leased to Owen and Wilson. His son made a plat or sketch of the several blocks in his office in San Antonio, numbering them 1, 2, 3, 4, 5, 6, 7, and 8. Block No. 4 is marked on the plat 200 acres, but is shown to be 1,152 varas long, north and south and 990 varas east and west. At the time of making the lease Owen and Wilson knew nothing of the plat, if in fact it was then in existence, and the lease to them was made without reference to the plat. Block 5 of the plat lies immediately south of block 4. It is shown by the introduction of several lease contracts that Loch-ridge recognized the north line of block 5 in conveying certain parcels of land to various owners, calling for the north line or corners of that block. The Netherly survey of land is shown to be 990 varas wide east and west. After the land was platted by Lochridge’s son in San Antonio, and the plats sent to his father, Lochridge employed a surveyor to run out the blocks in accordance with the plat, and at the corners of the several blocks he or the surveyor placed stakes or marked the corners of the several blocks, gome time after, this, just when it is not shown, Lochridge met Owen and told him that he had placed stakes at the corners of block 4, which represented the 200 acres leased to him and Wilson, and that it was under the fence and where he could find it.

Owen says that he found the stakes and claimed the south boundary of his 200-acre lease to be at those stakes. Owen further testified that he had been thinking of surveying the land out until he was informed by Lochridge that he had made the survey, and that he considered the stakes the comer of his “stuff,” and that Lochridge told him that he had put the stakes for the comers of the 200 acres. These stakes were placed by Loch-ridge after the lease to Owen and Wilson had been made and after the making of tbe map. Owen did not purchase by tbe map, and knew nothing ■ about tbe map. Lochridge never pointed out tbe stakes to Owen, but simply told him that it was under tbe fence and where be could find it. Wilson, tbe partner of Owen, knew nothing about the map or stakes, and testified that they had just leased 200 acres. Lochridge did not know, he says, at the time that there was an excess in block, 4, and that he did not intend to lease more than 200 acres to Owen and Wilson. A surveyor was employed to run out the 200 acres, and says that 1,152 varas by 990 varas is not exactly 200 acres; it is 202.03 acres.

We find that the 20 acres sold to Taylor and his assignor is simply described as 20 acres out of the southwest comer of 200 acres conveyed to Owen and Wilson. After-wards Taylor had 20 acres surveyed, and began at a small stake for the southwest corner of block 4, and ran the 20 acres out in a square in the southwest corner. Taylor’s testimony shows that he did not purchase the 20 acres at the time of his purchase with reference to the plat; that he had only seen it once, and that he purchased it simply as 20 acres out of the southwest corner of the 200-aere tract; and that his contract only called for the land so situated. He knew that the appellees, Norton and Perkins, were purchasing the option to the 12x990 vara strip, and in fact took the acknowledgment to the contract to them, and says that he saw these men buy the lease from Lochridge, and never said a word about his lease covering the same, and “supposed we had what was coming to us,” and did not think he had a right to say anything, and that he had never tried to get the 20 acres north of the strip, and that he did not suppose there was anything in the way of their getting the 20 acres somewhere there. It seems that Mr. Watkins, one of the plaintiffs, was also present and knew of the contract, and saw the parties purchasing the 12-vara strip when they went to work. These parties, appellees, put down five wells on the strip and obtained oil therein. The appellants and those knowing of the work said nothing to them about owning any portion of the strip, but permitted them to proceed with the work until after oil was obtained, when this suit was instituted. Lochridge testified that he supposed, in making the plat, that the line between block 4 and 5 was a common line of the two blocks, and that block 4 only, covered the 200-aere lease.

Appellants’ first assignment is:

“The evidence shows that the line between the Owen and Wilson lease of 200 acre's and block No. 5, as evidenced by the stake at the northeast and northwest corners of block No. 5, and the southeast and southwest comers of block No. 4, was an agreed and established line, and the court erred in not so holding.”

The second assignment is:

“The court erred in not holding that the stakes placed by L. N. Lochridge at the common corners of block No. 4 and 5 control the division line between block 5 and the Owen and Wilson lease.”

As we understand, there is no controversy but that the lease to Owen and Wilson conveyed only 200 acres. The point the land leased was to begin and end is and can be readily ascertained. There is no controversy that the survey out of which it was conveyed is 990 varas wide east and west. The 200-acre tract was to be commenced 1,500 varas from the northeast corner of the Netherly survey, on the east line of that survey; thence running west from that point to the west line of that survey; thence south the number of varas sufficient to embrace 200 acres. The plat named block 4 on the map, which is platted so as to exclude the Owen and Wilson lease from other lands platted, is in excess of 200 acres about 2.03 acres. Its east and west boundary lines are about 12 varas, too long north and south for the Owen and Wilson lease. This fact was apparent upon the plat. The lease was made without reference to the plat, which at the time of the execution of the lease was not in existence. At this time, or afterwards, there was no controversy between the lessor and the lessees as to the point the south line should be placed. The lessor, Lochridge, voluntarily platted the Netherly survey and placed the stakes. The south line of the lease was not placed by agreement, or to settle a dispute, or because there was any uncertainty as to the length of the east and west boundary lines running north and south, in order to embrace the 200 acres. The line was not surveyed or stakes set to adjust any differences that had then arisen, or because there was any uncertainty. Placing the stakes at the point they were placed is the only cause for any uncertainty, and that does not produce uncertainty as to the true south line of the 209 acres, but as to whether it was the purpose of Lochridge to donate the -lessees 2.03 acres of land. There is no conveyance in writing of this land, either as a sale, or as a gift; hence the statute of frauds prevents a recovery, either as a donation or as a sale. Under the pleadings and evidence in this case it may well be questioned whether this is a boundary suit in any sense of the word. The true location of the two tracts of land is not-controverted, but apparently it is admitted that the Owen and Wilson lease does not include the land.

The contention is that Lochridge having blocked the land, and set aside block 4 as covering the 200 acres leased, had the effect of placing the title in the lessees. This it did not do, unless Lochridge is estopped by some act or declaration of his. If, however, it is a boundary case, the facts and pleading show the true boundary is 12 varas north of where appellants are claiming. In order to establish the line where claimed by appellants, it must be either by agreement or estoppel. In order to the validity of a parol agreement establishing a boundary, it is necessary that there be doubt and uncertainty as to its true location, and sometimes it is said an actual dispute between the parties. 5 Cyc. 932. In this case the trial court was authorized to find there was never any doubt, uncertainty, or dispute between the parties as to the true location.

‘‘Where the parties knew where the divisional lino was, such an agreement would not, it is said, be binding, because it would be a parol conveyance of land, and contrary to the statute of frauds.” Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340; Levy v. Maddox, 81 Tex. 210, 16 S. W. 877; Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, 140 Am. St. Rep. 141; Lewis v. Ogram, 149 Cal. 505, 87 Pac. 60, 10 L. R. A. (N. S.) 610, and notes thereunder, 117 Am. St. Rep. 151.

The parties hereto must be held to have known the east and west boundary to the 200-acre tract would be 1,140 varas, us called for in the lease, and not 1,152 varas, and that the description of the land in the lease would not include the 12 varas in dispute. It follows, therefore, they knew block 4 called for 12x990 varas more than the lease conveyed, and the plat relied upon gave appellants notice of that fact. We find no evidence of doubt, uncertainty, or dispute at the time of the alleged agreement; on the contrary, it is quite certain that the party making the map knew that block 4 was in excess of 200 acres and was too far south for the south boundary line of the 200-acre tract. There was no mutual concession made by the parties. The lessees were not contending for •an extension beyond 1,140 varas.

We do not believe the facts conclusively establish an agreement of any sort to establish the south line of the 200-acre strip at the point the stakes were driven. Owen did not accept in terms the survey, but only stated he did not survey the land, but that he claimed to the stake. This claim the evidence does not disclose he made to Loch-ridge; but, if the facts would warrant the conclusion that there was a meeting of the minds of the parties, they are sufficient, we believe, to have authorized the trial court to find that the parties agreed to locate the true south line of the 200 acres, and that such was the purpose of the parties, and not for the purpose of settling a doubt or dispute. The fact is uneontroverted that the stakes are not on the true line, and, if placed there for the 200 acres, were so placed through a mistake as to its. true south boundary. The intention of Loehridge was to set apart in one block the 200 acres. This was his instruction to his son to so plat the land, and he says he did not know that block 4 contained an excess over that amount. Owen’s testimony indicates that his purpose was simply to get his 200 acres, and that he did not survey it out because of the stakes set by Loehridge, but Owen claimed they were at his south corners. We do not think it dear from the evidence that there was an agreement to establish the line at the stakes set by Loehridge, but it is inferable that the purpose of the parties was to find and locate the true south line. It is unreasonable to believe that the intention of Loehridge was to give to Owen and Wilson land they never bought; all that was intended by the parties was to put 200 acres in one block, which the deed called for. Davidson v. Pickard (Civ. App.) 37 S. W. 374, 376; Schraeder v. Packer, 129 U. S. 688, 9 Sup. Ct. 385, 32 L. Ed. 760; Weston v. Meeker (Civ. App.) 109 S. W. 461, on page 467; Wiley v. Lindley (Civ. App.) 56 S. W. 1001; Higginson v. Schaneback (Ky.) 66 S. W. 1040; Brewer v. Boston, etc., 5 Metc. (Mass.) 478, 39 Am. Dec. 694.

The third assignment is to the effect that the court erred in not holding appellees estopped by the establishment of lines by Loehridge upon which the parties had acted. There was no plea of estoppel as such; there is a plea that appellants purchased without notice that the line was elsewhere than at the stakes. The evidence and pleading do not show that appellants purchased and relied upon the lines fixed by the stake. They put no improvements upon the land, or placed any with reference to the supposed lines, and there is no allegation or proof that they would lose anything by reason of the mistake, or that they relied upon the map as showing their land or its situation. The field notes of their land do not call for these stakes, or for block 5 south of block 4. There was no representation which induced them to change their position from what it was before. Love v. Barber, 17 Tex. 312. The evidence shows that appellant will get the quantity of land contracted for out of the southwest corner of the 200-acre tract. There is. nothing to show that its value is not as great as it should be if extended 12 varas south. There is nothing to show any difference, except that added by labor and capital of the appellees. This improvement or work appellants knew was being placed on the strip of land sued for, and no protest was made, until oil was obtained. They did not claim to have purchased it. One of the appellants, if not two, was informed of the vacancy, and that Loehridge claimed it, and that appellees were purchasing it, and Taylor took the acknowledgment to the lease, thereby being, fully informed of the contention made by appellees. It has not been shown the appellants-have been injured by the mistake, or that the lands they get are not as good as those they contended they were getting. Hollingsworth v. Fowlkes, 6 Tex. Civ. App. 64, 22 S. W. 1110, 24 S. W. 708; Davidson v. Pickard (Civ. App.) 37 S. W. 374; Hunter v. Malone, 49 Tex. Civ. App. 116, 108 S. W. 709.

Our gupreme Court has held, where land is-pointed out to a purchaser as being the land, proposed to be sold, and he could have ascertained the true facts by getting a surveyor to run it out, having failed to exercise such measures as were then at hand, he cannot claim the land by estoppel. Clevenger v. Blount, 103 Tex. 27, 122 S. W. 529. The lease under which appellants claim, as well as the map giving the dimensions of block 4, were sufficient to notify them that the block was 12 varas too far south foy the south line of the 200 acres, out of which latter survey they were purchasing 20 acres.

The fourth, fifth, and sixth assignments of error assert the court was in error in excluding certain testimony. The bills of exceptions are contained in the statement of facts. There are no bills independent of the statement of facts. The appellees object to the consideration of these assignments, because the bills of exceptions were not presented and brought up in the record outside of the statement of facts. They assert that bills of exception to the exclusion of evidence cannot be so brought up in the statement of facts. The objection of appellees to the assignments will be overruled. As we understand, our Supreme Court has ruled that such practice is not in violation of the rules for taking bills of exceptions. Stephens v. Herron, 99 Tex. 63, 87 S. W. 326. These assignments, however, will be overruled.

The fact that a surveyor would testify no two surveyors could run a line and reach the same point would not have tended, we think, to prove a consideration for an agreed boundary. Neither party to the purported agreement gave that as a reason for the agreement. Such evidence could make any declaration as to a line a consideration for an agreement, if such a fact, when testified to, would be a consideration, whether parties thereto considered it as a reason for the contract or not. The other testimony excluded would not bind Lochridge or appellees, if it had been admitted (Davidson v. Pickard [Civ. App.] 37 S. W. 374), and would not have estopped either of them.

We find no reversible error, and the case will be affirmed.
      <@^oE'or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J. PIUEF, C. J.

text:
    BELL v. SWIM.
    (No. 783.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 22, 1915.
    On Motion for Rehearing June 26, 1915.)
    1.Assignments foe Benefit of Oeeditoes @=>295 — Action by Cbeditoe — Inconsistent Findings.
    The holder of a note signed by defendant’s son brought suit against defendant as trustee of the son. The son being indebted to plaintiff and also other parties, including his father, assigned all his property to his father, including vendor’s lien notes on a certain tract of land previously sold by the son. The purchaser of such tract, in consideration of a release, conveyed it on the son’s request to the defendant. Special findings were made that this tract of land was deeded to pay the son’s debt, and was kept by defendant for the purpose of paying plaintiff’s debt, and that defendant kept such land with the understanding that he would pay plaintiff’s debt. Held, that such findings were not contradictory, and a judgment for plaintiff could be founded thereon.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 853-867; Dec. Dig. @=>295.]
    2. Dimitation of Actions @=>127 — Amendments — New oe Diffeeent Cause of Action.
    In an action against defendant for the payment of his son’s debt to plaintiff, the action was originally brought against both plaintiff and his son to seek a recovery of the son’s note. The son having died, an amendment was filed, making his wife and children parties, but this amendment did not abandon the original cause of action against defendant on his assumption of plaintiff’s debt. A subsequent amendment was made, wherein the assumption of debt was clearly alleged. If old, that plaintiff had not abandoned his cause of action on defendant’s assumption of the debt, and consequently the action was not barred by the two-year statute of limitations.
    [Ed. Note. — For other cases, see Dimitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. @=> 127.]
    3. Assignments foe Benefit of Oeeditoes @=>295 — Action by Cbeditoe — Evidence.
    In an action against defendant on the ground that he had assumed payment of his son’s debt, evidence held to justify a finding that a certain tract of land was conveyed to defendant for the purpose of paying such debt and retained by him for that purpose.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 853-867; Dec. Dig. @=>295.]
    4. Tbial @=>253 — Insteuctions — Insteuc-TIONS DlSEEGABDING ISSUES.
    In an action against defendant on the ground that he had assumed payment of his son’s debt, and had received certain property for such purpose as trustee, an instruction that if the son directed the owner of the tract to convey it to his father for the purpose of paying off the son’s indebtedness due the father, then no further questions need be answered was erroneous, since it would have eliminated the issue made by the pleadings, and evidence that defendant retained the land for the purpose of paying-plaintiff’s debt.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. @=>253.]
    5. Assignments foe Benefit of Oeeditoes @=>295 — Action by Cbeditoe — Evidence.
    In an action against defendant on- the ground that he had assumed payment of his son’s debt, evidence of direct promises by defendant to plaintiff to pay such a debt was relevant and admissible, as showing a subsequent assumption by defendant to pay such debt.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 853-867; Dec. Dig. @=>295.]
    6. Evidence @=>99 — Relevancy—What Constitutes.
    Evidence which conduces in any reasonable degree to establish the probability or improbability of the fact in controversy is relevant.
    [Ed. Note. — For- other cases, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. @=>99.]

      On Motion for Rehearing.
    7. Trial <§=>115 — Instructions—Pleadings.
    In an action against defendant on the ground that he had assumed payment of. his son’s debt, it was not error to read to the jury parts of the petition setting out defendant’s liability on the note sued on, based on alleged verbal promises to pay the same, although such allegations had been eliminated by special exceptions, where such parts were so interwoven with the remainder of the pleading as to require it to be read as a whole, or where the eliminated parts, though not in themselves stating a cause of action, were proper matter of inducement to the cause of action alleged.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 279-283, 295, 298; Dec. Dig. <§=>115.]
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    Action by S. E. Swim against H. A. Bell. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Cecil Storey and L. P. Bonner, both of Yernon, and Turner & Rollins, of Amarillo, for appellant. Berry, Stokes & Morgan, of Yernon, for appellee.

       Writ of error pending in Supreme Court.

   HENDRICKS, J.

The appellant, H. A. Bell, is the father of P. C. Bell, deceased, and the note creating the controversy between appellant and appellee was executed by the deceased, P. C. Bell, in favor of Swim, for the consideration of certain mules sold by the latter to said P. C. Bell. During the pend-ency of this obligation of P. C. Bell to Swim, the former transferred to his father, H. A. Bell, on January 28, 1909, all of his real estate, and practically all of his personal property, as an assignment, for the purpose of paying his debts. Prior to this assignment of P. C. Bell to H. A. Bell, for the purpose stated, the deceased, P. C. Bell, had conveyed a certain 200-acre tract of land, situated in Wilbarger county, Tex., to one Curtis, for which the latter executed to the former certain vendor lien notes, as part of the purchase money of said property, and these notes were embraced in the assignment by P. C. Bell to his father, H. A. Bell; and upon the 6th day of February, 1911, the said A. G. Curtis, being unable to pay for said land, executed a deed to H. A. Bell of said property, in consideration of the cancellation of the notes previously executed by him for the purchase price of the particular land, said land being designated in this record as the “Curtis tract.”

As applicable to the particular issues upon which the cause was tried, the appellee, Swim, by a second amended petition, alleged that upon the 9th day of February, A. D. 1911, the defendant, H. A. Bell, and his son, P. C. Bell, had a settlement of their affairs, and at said time H. A. Bell reconveyed 535 acres out of 735 acres previously conveyed to him, and at the time of this settlement it was agreed between the father and son that H. A. Bell should retain the 200 acres of land conveyed to him by A. G. Curtis, for the purpose of paying the Swim note sued upon, and that the said H. A. Bell, at said time, verbally agreed to pay the note in consideration of his retention in said settlement of said 200 acres of land. It is also alleged by Swim that on the conveyance by Curtis to Bell of the 200 acres of land in consideration of the cancellation of the note as stated, it was agreed between H. A. Bell and P. C. Bell that the former would assume the payment of the note sued upon, or would use the property or the proceeds thereof in payment of the debt.

The trial court, among other issues, submitted the following four special issues to the jury, the first two having been submitted by him of his own motion, and the last two submitted at the request of the plaintiff, and reproduced with the answers thereto:

“1. Was the 200 acres, called the Curtis tract, deeded to H. A. Bell for the purpose of being used, or the proceeds of its sale being used, to pay off the Swim debt? Answer: This land was deeded to pay the P. C. Bell debts.
“2. Was the 200 acres, called the Curtis tract, kept by H. A. Bell after the settlement, testified about as having occurred on the 9th day of February, 1911, for the purpose of paying the Swim debt? Answer: Yes.”

Issues submitted at the request of plaintiff:

“First. Did H. A. Bell keep the Curtis 200-acre tract of land in consideration that he would pay the Swim debt? Answer: Yes.
“Second. Did H. A. Bell keep or retain the Curtis 200-acre tract of land with the understanding- that he would pay the Swim debt heroin sued upon? Answer: Yes.”

The appellant assigns that the answers of the jury, in their special verdict to the first and second questions propounded by the court, and to the first and second questions submitted by the court upon plaintiff’s request, are contradictory, and a proper judgment could not be based thereupon. The court rendered a judgment in favor of appellee against appellant, H. A. Bell, for the sum of $2,781.39, comprehending principal, interest, and attorney’s fees. H. A. Bell conveyed the Curtis tract to one Reynolds upon the 16th day of February, 1912, in exchange for other real estate, which Reynolds at the direction of Bell, conveyed to his sons. A previous lien upon the Curtis tract leaves an equity in the property, based upon another finding of the jury, of the value of the land, at $16 an acre, considerably less than the amount of the debt and the judgment. Appellant argues that the issues submitted by the court of his own motion that the land was conveyed by Curtis to H. A. Bell for the purpose of using the same, or the proceeds of its sale, to the payment of plaintiff’s debt, or was retained by Bell under the settlement writh his son for the same purpose, are, in their nature, contradictory to the answers to plaintiff’s interrogatories, to the effect that Bell kept the land, as a part of the settlement, in consideration, or with the understanding, that he would pay the said debt. The logic is, if the first and second findings are true, the fourth and fifth cannot be true, and the judgment could have been only for the equity in the land, and not for the full amount of the debt. The alleged inconsistency is more apparent than real. We are unable to understand why a party could not make a conveyance to another in trust for the purpose of paying his debts, and the trustee assume the payment of the debts, or that the trustee, in consideration of a certain settlement between them, could not agree to retain the property for that purpose, and at the same time assume the payment of a debt, without being involved in the inconsistency as urged.

The evidence in this record suggests that when P. 0. Bell directed Curtis, on account of the cancellation of the notes owing by the latter, to convey the land to his father, it was done with an understanding that the father would reconvey to his wife (P. C. Bell’s) a portion of the land previously conveyed in the assignment, and also suggests that they were in the progress of a settlement of their affairs, and that H. A. Bell, two or three days after the execution of the deed by Curtis, gave the said P. C. Bell a final acquittance, or receipt, of obligations between them. There is no real contention in this record that the note upon which the suit is based was not a valid obligation of P. C. Bell; there is some testimony, from appellant’s standpoint, that it was not regarded by P. C. Bell and wife as a proper obligation against the former, though the jury evidently considered that P. C. Bell had not repudiated it as a debt in his dealings with H. A. Bell. There is no issue joined, nor any evidence offered, upon an issue that P. C. Bell did not owe the debt. Bell received the mules for the note and sold the same, and the record suggests that before the assignment he used a major portion of the proceeds, and the father, after the assignment, used a considerable portion of the same, in payment of P. 0. Bell’s debts. Swim says that H. A. Bell told him, immediately after the general assignment to him, the pui--pose of the same, and that he would not re-convey to his son any of the property until his, (Swim’s) debt was paid, and promised him on his word of honor that he would pay the debt. H. A. Bell reconveyed a greater portion of the real estate to P. C. Bell’s wife, and sold 200 acres to one Tombs, retaining the 200 acres conveyed by Curtis, and Swim claiming a repetition by H. A. Bell of his good intentions, with the testimony of Tombs and Martin suggesting the agreement between H. A. and P. C. Bell as to the purpose of the Curtis conveyance and the retention of the land in accordance with appellee’s theory of recovery. Upon this consideration and the testimony hereinafter stated, we do not think the different findings are destructive of each other.

Appellant also urges that, taking the previous petitions into consideration, filed by appellee, prior to the one upon which the trial was had, his special exceptions, presenting the two-year statute of limitations, should have been sustained; also that his special answer, alleging the same defense upon the facts, should have elicited from the court a judgment in his favor. We think the allegations and the evidence upon which the special findings are based are sufficient, as to trusteeship, to take the case out of the statute of limitations. If H. A. Bell received the Curtis tract for the purpose of using it to pay the debts of P. C. Bell, or if he retained the land in the final settlement with P. 0. Bell for the same purpose, and assumed obligations owing by P. C. Bell, Swim was the beneficiary of the result of these negotiations, and H. A. Bell was the trustee, which, if true, was not ended within such time as that the statute of limitations would apply. “As between trustee and cestui que trust in the case of an express trust, the statute of limitation has no application, and no length of time is a bar. Against an express and continuing trust, time does not run until repudiation' or adverse possession by the trustee and knowledge thereof on the part of the cestui.” Perry on Trusts, vol. 2, § 863. See, also, Babcock v. Wyman, 19 How. 289, 15 L. Ed. 649; Bell County v. Felts, 122 S. W. 269; Gibbons v. Bell, 45 Tex. 417; Robertson v. Dubose, 76 Tex. 1, 13 S. W. 300. Of course in ease of constructive trusts arising from fraud, which presuppose an adverse holding to the purposes of'the trust from the beginning in the trustee, a different rule applies. See Barnet v. Houston, 18 Tex. Civ. App. 134, 44 S. W. 691, wherein C. J. James discusses to some extent this question as applied to trusts. If the trust exists to use the land, or its proceeds, upon the debt, and no time was stated, appellant would have a reasonable time, under the circumstances, to effectuate the trust. The assumption of the debt would necessarily follow the trust, being a part of the consideration creating the trust, and would not mature until this time expired, or until the trust, if it exists, was repudiated.

Appellant assigns that the evidence is insufficient to show that the Curtis tract was conveyed to H. A. Bell for the purpose of paying the Swim debt, or retained by him for the same purpose, in consideration that he would pay plaintiff’s debt. When the negotiations between the parties were pending, Martin testified that H. A. Bell told him that the Swim note would have to be satisfied out of the proceeds of the sale of the Curtis tract. H. A. Bell admits he after-wards tried to satisfy the Swim note with the equity exceeding the first lien in the Curtis tract, and $200 to tie paid to Mm by Swim in an amount equaling some fised charges he claimed to have paid. There is testimony that the deed was not passed, or papers were not “swapped” (as Tombs expressed it), until the final settlement, the day the deed was made to Tombs, and the reconveyance by H. A. Bell to Mrs. P. C. Bell.

We have attempted to analyze this testimony searchingly, with the inferences deducible therefrom, and conclude that appellant’s position is entirely untenable. The testimony of Tombs (while not wholly satisfactory) in connection with the testimony of Martin, and the consistent course of conduct upon the part of H. A. Bell (which he says was voluntary, but which the jury evidently rejected) to obtain the cancellation of this note and the settlement of same, induces the above conclusion.

The appellant assigns that the trial court erred in refusing to submit the following requested special instruction:

“Did P. C. Bell direct A. G. Curtis to convey to II. A. Bell the 200-aere Curtis tract of land for the purpose of paying off the indebtedness due by P. C. Bell to H. A. Bell, if any? If you answer this question, Yes, then I instruct you that you answer no further questions propounded in this case.”

This instruction, with an affirmative answer, would have eliminated entirely the following issue raised by the plaintiff’s pleadings and testimony: Did H. A. Bell retain the land in his settlement with P. C. Bell for the purpose of using the same or its proceeds, in paying the Swim debt?

The most serious question to us, in this case, is the complaint against the permission of the trial court of the reading to the jury of a portion of appellee’s petition, alleging defendant’s liability on the note sued upon, based upon certain alleged verbal promises, .after the same had been eliminated from the case by special exceptions, and also the admission of the testimony of the plaintiff, Swim, over the objections of the defendant, as to the same promises, claimed by Swim to have been made directly to him by H. A. Bell, to pay said debt at different times. The issues were so drawn and the direct testimony of H. A. Bell, assisted by P. C. Bell’s mother-in-law, is of such contradictory nature to the theory of the appellee, as to the trusteeship and the assumption of the debt by H. A. Bell, that the writer thinks that the admission of this testimony, especially if not relevant to the essential facts in litigation, was necessarily prejudicial and injurious. But was the testimony irrelevant? We admit the question is not free from considerable doubt and difficulty. And at this point we cite the case of Cathey v. Railway, 104 Tex. 39, 133 S. W. 418, 33 L. R. A. (N. S.) 103, by the Supreme Court, as a repudiation of the doctrine in Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S. W. 507, contended for by appellee, that if error has been committed in admitting testimony, the objector has waived the same by requiring the witness to repeat the same testimony on cross-examination.

The trial court, as noted by his qualification in the bill of exceptions referable to this testimony, partly permitted the same “as throwing light upon the reason for the settlement, and upon the probability of the parties, I-I. A. Bell and P. O. Bell, making such an agreement as that set out by plaintiff as the basis of his cause of action,” which we believe to be the true justification of the testimony, if it exists. In other words: Is the testimony, suggesting a previous contractual relationship of II. A. Bell with Swim, based upon promises from the former to the latter directly to pay this debt, relevant as evidence of a subsequent assumption by H. A. Bell to P. C. Bell to pay the same debt? And as further relevant to the proposition whether the land was held by him in trust, with Swim as beneficiary, for the same purpose? There is no real issue in this cause, as stated, that P. C. Bell did not owe the debt to Swim. There is no dispute but what Bell conveyed all of his property to H. A. Bell for the purpose of paying all of his debts. There are numerous circumstances manifested by II. A. Bell of a significant character which indicate that at least he recognized the justness of the debt of P. C. Bell to Swim. It is undisputed that H. A. Bell used at least a part of the proceeds of the sale of the mules (the mules being the consideration for the note) in carrying out his contract as trustee, under the assignment, for P. G. Bell, in payment of his debts. There is testimony by an apparently disinterested witness of the statements of II. A. Bell to P. G. Bell in terms of strong recognition of the justness of this debt, and why it should be paid, when the last settlement was made.

We are unable to find any case directly bearing upon the particular point, and are guided, as best we can be, by general principles as to the relevancy of this testimony.

Of course there must be some logical connection, either directly or by inference, between the fact offered and the fact to be proved, to make the former circumstance relevant to the latter.

“No precise and universal test of relevancy is furnished by the law. The question must be determined in each case according to the teachings of reason and judicial experience. If the evidence offered conduces, in .any reasonable degree. to establish the probability or improbability of the fact in controversy, it should go to the jury. The question as to its admission or rejection addresses itself to the court as one to be answered with a view to practical, rather than theoretical, considerations. One fact is relevant to another fact whenever, according to the'common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other certain or more probable.” Jones Blue Book on Evidence, vol. 1, § 135, pp. 659, 660.

There probably could, be no question but what antecedent contracts or promises are admissible for the purpose of proving subsequent contracts or promises with some logical connection of a similar nature between the same parties — not wholly analogous, of course, but bearing somewhat upon the question.

In the cause of Wood v. Einson, 91 Me. 280, 39 Atl. 1007, plaintiff sued the defendant for certain oil delivered on board a certain vessel in Boston, for shipment. The answer of the defendant was that plaintiff failed to insure the oil, and they lost its value on account of the oil having been lost at sea. The question at issue between the parties was whether, when the oil was sold, a contract was made that the vendor would insure the oil; affirmed by defendant and denied by the plaintiff. Defendant offered testimony as to other sales previously made by plaintiff, upon which insurance was placed by plaintiff for defendant’s benefit, and the 'Supreme Court of Maine said:

“ * * * While the fact of whether there had been insurance effected on previous sales, or not, might not be conclusive as to what was done in this particular instance, it was admissible on the question of probability or improbability of the contract being as claimed by plaintiff. It was in accordance with this principle that the court, in Trull v. True, 33 Me. 367, held that ‘testimony cannot be excluded, as irrelevant which would have a tendency, however remote, to establish the probability or improbability of the fact in controversy.’ ”

The court further said:

“See, also, Tucker v. Peaslee, 36 N. H. 167, and Huntsman v. Nichols, 116 Mass. 521, where it was held (in the latter case) that, although the authenticity of the note in suit was the only issue, yet the business transactions between the parties had some bearing upon the probability of the indorsement having actually been made by the defendant, and were therefore admissible in evidence.”

Justice Williams held, in the case of Kocher v. Mayberry, 15 Tex. Civ. App. 342, 39 S. W. 604, that where the evidence is conflicting as to the price fixed by contract for work and labor, evidence of the value of work and labor furnished is admissible for the consideration of the jury in resolving the conflict; followed by Justice Dunklin in the case of Carver v. Power State Bank, 164 S. W. 892.

It is true that the question of the relevancy of the testimony is whether it has any bearing upon tlie issue of the assumption of the particular debt by H. A. Bell, and whether he received the property, or retained the same, in trust for the purpose of using the same in payment of P. C. Bell’s debt. H. A. Bell testified that in reality his agreement with P. C. Bell was that this property was to be conveyed to him, or retained by him, in payment of some $1,500 that P. C. Bell owed him in final settlement, and emphatically denying that he assumed to pay this particular debt. If, however, he were obligated to Swim at a different time, and made several promises directly to Swim to pay the same debt, we are inclined to think it would have some bearing, and, having reference to the same debt, it would have some logical connection with the proposition and issue that he obligated himself, and received the property, or retained the same, in his dealings with P. C. Bell, to pay the same debt. The relevancy of the testimony as bearing upon what H. A. Bell would do, or be inclined to do, oí-as to what he actually did in a settlement with P. C. Bell, may be cogent or remote as addressed to different minds, viewing the matter. We do not think the case of Simpson v. Thompson, 43 Tex. Civ. App. 273, 95 S. W. 94, cited by appellant, is in point, and we are inclined to think the testimony was admissible; and, there being no other assignments which we think are deserving of particular discussion, we find no error such as we think should reverse the case, and the judgment of the lower court is affirmed.

HALE, A. J., not sitting.

On Motion for Rehearing.

PIUEF, C. J.

As suggested in the original opinion, the findings of the jury in answer to the special issues submitted to them are not inconsistent, especially so when considered in the light of the evidence. The facts in this ease show that P. C. Bell, the son of appellant, was involved and, according to the testimony of his father, threatened with criminal prosecution. Appellant procured from his son, P. C. Bell, a transfer of 735 acres of land to himself, practically all of the personal property, notes, and accounts and vendors’ lien notes against what is known as the Curtis land, for the sum of $3,000, which property was to be used in paying the son’s indebtedness. Swim testified that he was informed by the parties that his son’s debt to him was among those to be paid, and that the appellant personally gave him his word of honor the debt would be paid, and that he would pay it. It appears that Curtis did not pay the notes against the land, and, after being sued thereon, he, Curtis, by consent of the son, P. C. Bell, conveyed the land to H. A. Bell, February 6,1911. It cannot well be disputed that by that transaction on that date the land was thereafter, until the settlement, held by H. A. Bell in trust to pay the debts under the terms of the original trust, and that the land occupied the position of the $3,000 vendors’ lien notes. Thereafter, on the 9th of February, 1911, the father and son had a settlement. At this settlement the father deeded to the son’s wife 535 acres of the land theretofore conveyed to him in trust, and it was agreed between them that the father should retain 400 acres of the land then owned by the son — 200 acres of which was the Curtis tract. The evidence tends to show and warrants the finding that the 200 acres out of the 400 acres, which was sold to Tombs, which, sale on the date of the settlement was then being negotiated, and by ■which it was understood that appellant was to receive $6,000 net to him on this Tombs tract, that this sum was to be paid on debts, or to pay H. A. Bell for the debts that he had theretofore paid or become responsible for. The Swim note was not included in this Tombs sale. The consideration for the 200 acres of land which Tombs purchased was the payment of the debts, except the Swim debt, paid and to be paid by H. A. Bell. The 200-aere Curtis tract H. A. Bell agreed to keep as his property, and as consideration therefor agreed to pay the Swim debt. After this settlement and the deed from P. C. Bell and wife to H. A. Bell to the Tombs tract of land, appellant then deeded to Tombs that tract, receiving net thereon to him $6,000, which the evidence indicates he applied on the debts that he had theretofore assumed or paid, and to reimburse himself for whatever indebtedness his son was due him. The 200-acre Curtis tract appellant offered to Swim if he would pay a difference: One of his propositions was $S00, another $500, and another $200. The propositions Swim testified he was unable to accept, for the reason that he was involved in other indebtedness, and was unable to pay that sum, whereupon Bell sold or exchanged the Curtis land to one Reynolds, and in that trade procured from Reynolds, as consideration for the Curtis land, lands in Culberson county. Appellant caused Reynolds to execute the deed to two other of his boys to this land.

The second question answered by the jury clearly responds to the facts. That is on February 9,1911, the Curtis land was kept by appellant for the purpose of using it, or the proceeds, in paying the Swim debt. That was what he said he would do if Tombs’ testimony is true, as well as other facts and circumstances in this case. The jury, on that issue, did not find he then kept the land in trust, as he had theretofore held it, for the purpose of paying the debt. Their first finding includes that purpose or proposition; that is, on February 6, 1911, the land was deeded in trust for the purpose of paying the debts of B. C. Bell, but on February 9, 1911, appellant kept it for the purpose of paying Swim’s debt, in accordance with his agreement; and by the first special issue they found the payment of the Swim debt was the consideration for the land, and to the second issue they answered that it was the understanding that he should pay the Swim debt. The payment of the Swim debt was his “purpose,” the “consideration” and “understanding” for keeping the 209-acre Curtis tract. These things are not inconsistent, but necessary to make a contract for the payment of the debt. The title by this agreed settlement was vested in H. A. Bell to the 200-acre tract. He had the right to sell and appropriate the proceeds, which he did by procuring other land and procuring a deed made to two of his boys. What was the consideration for vesting the title in H. A. Bell? The jury say it was the payment of the Swim debt. What was his purpose in procuring the title to himself? The jury say to pay the Swim debt, either «with the land or out of its proceeds. What was the understanding, that is, between P. C. and H. A. Bell, in appellant keeping the land? The jury answered to pay the Swim debt. There cannot necessarily be any inconsistency in these findings.

On February 6, 1911, appellant had paid out sums of money for his son to prevent prosecution and to prevent the sale of the property. I-Ie had up to that date notes of Curtis to the amount of $3,000 to secure him in these sums, as well as Swim’s note. He took the 200 acres in place of the notes, and thereby held it subject to the same trust the notes were held under. This was the finding of the jury in answer to the first issue. After that, on February 9, 1911, he and his son agreed to change the trust relationship. They, in other words, repudiated the trust for the first time. The father released 535 acres of land from the trust and became thereafter the payor or bound for the debts sought to be secured thereby. He did this by having his son convey to him the 200 acres which he afterwards conveyed to Tombs. This land he then knew would net him $6,-000 and would pay all the debts except Swim’s. The Curtis land, 200 acres, was sufficient to pay the Swim debt and something over, as he then evidently thought, for he demanded from Swim a difference between the debt and the land $S00. This Swim says he was unable to pay, but offered to assume the mortgage on the land and give up his note, but appellant refused that, and traded it for other land. Appellant, simply as a part of the consideration paid for this land, assumed to pay the Swim debt, and by this assumption, on February 9, 1911, made it his debt and his promise to pay for a valuable consideration. On that day he turned a trust into an absolute conveyance for a valuable consideration; that is, the payment of a valid debt, which as trustee he had theretofore agreed to pay out of the funds in his hands, a part of which funds he then discharged from the trust by his agreement and a reconveyance to the wife of his son. The jury, in accordance with this situation, answered the two special issues, which do not conflict with the findings that when the Curtis deed was made it was in trust to pay the debts. No one had a right to complain at this settlement but cestui que trust, and, upon learning that appellant had assumed the payment of his note, he accepted the changed relation and accepted appellant as the principal obligor on the note. The only question in this case, and really the only disputed fact, was whether, in the agreement and settlement of February 9, 1911, the consideration for the 200-acre Curtis tract was the payment of appellee Swim’s note, or whether the consideration was to pay a balance claimed by appellant to be due him by his son after applying $6,000 and the proceeds from personal property and the rents collected by appellant while holding the property in trust. On this issue the jury found against appellant and we believe upon ample testimony.

It is true while testifying upon this trial appellant claimed his son owed him a balance of some $1,573, then due. The evidence, however, shows that on two different occasions after this settlement the appellant, by affidavit, stated that his son’s indebtedness to him was only $6,000 and that this was paid by the Tombs tract of land. He made this to enable his son to procure a loan on the 535 acres of land. If the indebtedness to appellant had not been paid, then there was an equitable lien on the land, created by virtue of the trust theretofore executed and existing. On the date of the settlement he also gave his son a receipt, acknowledging the receipt of $10, which when settled, discharged all obligations by the son to his father. After this he sought to sell the land to Swim for the debt and $800 difference, showing that he considered that he owed the debt to Swim. That appellant claimed the absolute title to this 200 acres of land after the settlement is beyond question. He sold it as his and deeded it as his. His son, as far as this record shows, never claimed an interest in the land after the settlement; and, as above stated, there is no question on that point in this record. The only question is, What was the consideration moving from appellant to his son for the land? And the jury have settled that beyond cavil by finding that the consideration was the payment of the Swim debt.

One of the appellant’s contentions is that the cause of action was barred by the two-year statute of limitations. The action was brought and suit instituted and filed originally October 26, 1932, against P. C. Bell and H. A. Bell, seeking a recovery on the note executed by P. C. Bell, and in the original petition it is averred that H. A. Bell, for a valuable consideration, in February, 1911, assumed the payment of the note and became liable therefor. After filing this suit P. C. Bell died, and thereupon an amendment was filed August 16, 1913, making his wife and children parties thereto. In this amendment, the assumption of the debt is not clearly alleged. The plea was defective in that particular, but clearly there was no abandonment of the original cause of action against H. A. Bell and his assumption of the debt. On September 19, 1913, an amendment was filed, upon which the parties went to trial. In this petition an entire history of the transaction, from Swim’s standpoint, was given, and a clear allegation is made that on the 9th day of February, 1911, H. A. Bell assumed to pay the note in consideration for the Curtis 200-acre tract of land. So that the two years have not expired between the 9th day of February, 1911, and October 26, 1912, when the suit was filed. The note fell due October 29, 1909, and four years from that date had not lapsed when the suit was filed. The note was not barred. Neither was the assumption of its payment by H. A. Bell barred when the suit was filed October, 26, 1912. The allegations of the several amendments do not materially differ in substance. The trial court could not say, and we cannot, in any of the pleadings that appellee abandoned the assumption on the part of Bell to pay the note; but it was averred and claimed in each and all as stated, and is so as to the first amendment. The plea was defective and required amendment, but that was not an abandonment of the cause of action on that ground. The discussion and proposition asserted in the original opinion on the statute of limitation we regard as sound and applicable to the particular facts' of this ease. Appellant took over all the property of his son, holding it in trust to pay his debts. Appellant, without consulting the beneficiaries in the trust, reconveyed part of this property, and, if Tombs’ testimony is true, insisted that he should have the Curtis land to pay the Swim note, and upon that consideration alone procured the title. -He had, in so far as Swim was concerned, without Su'im’s consent, repudiated the trust and induced his son and wife to give him the absolute title to the land in consideration that he pay the note. Afterwards he denied to Swdm his liability, either as trustee or individually to Swim. After his conduct and representations, to both Swim and his son, and thereby causing delay in the institution of the suit, he should not be allowed to interpose the statute of limitations, because, first, he was trustee and held himself out to Swim and others as such. Thereafter, to get the title in his own name, he agreed with his son to pay the debt without notifying Swim to that effect, but afterwards denying all liability, either as trustee or as an individual. In order to defeat the statute of limitations if necessary, equity will fasten on Mm the character of trustee, and require him to comply with his agreement. The testimony of Swim, to the effect that appellant had verbally promised Swim in 1909 and subsequently to pay the note, giving his word of honor to do so, after stating he had in his hands his son’s property for that purpose, we think was clearly admissible. It was part of this continuous transaction. It showed the relation of the parties, and a jury could not well have understood the case without it. It was material and relevant on the question whether he was trustee for the purpose of paying the note sued on; it was also a circumstance showing why he assumed the payment of the note. Swim, by virtue of the trust, had the right as a lienholder in all the property turned over to appellant by his son. The evidence in this case indicates that appellant so understood, as is evidenced by his subsequent affidavits, in order that a mortgage could be given on the 535 acres of land reconveyed. He admits that the affidavit was made to release the land from the debts for which the trust was given to pay. He must have known he coul'd not release the 535 acres from the lien without in some way satisfying the note in suit. Hence his statements to Swim were potent circumstances showing why, and the consideration for becoming personally responsible for the payment of the note, and his reasons therefor. The writer hereof has not the slightest hesitancy in holding this testimony material, relevant, and pertinent to the issues presented in this case.

It is contended that the court erred in permitting paragraphs of the petition to which exceptions had been sustained read to the jury. There could have been no injury to appellant, such as will require a reversal in permitting the petition so to be read. If the matter was so interwoven with other matters as to require the reading of the entire pleading, it should have been permitted, especially so in the absence of a requirement of an amendment or a repleader eliminating the objectionable matter. The gravamen of the exception to the pleading was that it sought a recovery on a verbal promise to pay the debt more than two years before instituting the suit. If a recovery could not be had on such promises as the trial court held, we think it not improper to allege all the facts which led up to the cause of action declared on and submitted to the jury by the court. The explanation of the trial court to the bill of exception in this ease clearly evidences the fact that such was the opinion of the trial judge. He held, as we gather from the bill of exception, that the promises first made as trustee by appellant would not constitute a cause of action against him personally, but did not hold that the facts stated therein were not proper' to be alleged as part of the inducement to the cause of action thereinafter set up. We think, for the same reason given in sustaining the court in admitting the testimony of Swim as to the verbal promises, that the allegation giving the entire history and transaction of this case was not improper, but was altogether proper, and that no injury could have resulted to appellant thereby.

First, in answer to appellant’s request for specific findings, we find the judgment is sustained upon the fact that for a valuable consideration, that is, the vesting of title in appellant in the 200 acres of land, appellant assumed to pay the debt of his son, P. 0. Bell, to appellee; that appellee upon the finding of the jury was entitled to judgment for the full amount of the debt, interest, and attorney’s fees; second, the jury having so found, the judgment should not have been rendered against appellant as trustee, but against him as the principal obligor on the debt such as was rendered by the trial court.

We believe that this case has been correctly disposed of, and the various assignments correctly overruled, and the motion for rehearing will therefore be overruled.

HALL, J., not sitting.
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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