author: PER CURIAM.

text:
    COLLIER et al. v. SMITH.
    (Nos. 671, 676.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 13, 1914.
    On Motion for Rehearing, Oct. 10, 1914.)
    1. Appeal and Error (§ 395) — Perfection— Bonds.
    Where appellants, special agents for the' commissioner of insurance and banking, were enjoined from realizing upon the liability of stockholders of an insolvent state bank, the fact that appellants, who were personally enjoined, filed a personal bond, although, as agents of the commissioner, they could appeal under Rev. St. 1911, art. 2105, without bond, is no ground for dismissal.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2058, 2064-2070, 2085, 2086, 3127; Dec. Dig. § 395.]
    2. Injunction (§ 145) — Proceedings—Affidavits — Sufficiency.
    Under Rev. St. 1911, art. 4649, providing that no injunction shall be granted unless the applicant shall present his petition verified by his affidavit, an affidavit attached to a petition for an injunction reciting that the affiant on oath stated he believed the facts alleged in the petition to be true, is not sufficient, where the grounds of belief were not stated, and the facts alleged were not sworn to in such an unequivocal manner that an indictment • for perjury would lie.
    [Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 318, 321; Dee. Dig. § 145.]
    3. Injunction (§ 145) — Proceedings —Amendment.
    The affidavit attached to a petition for an injunction may be amended so as to cure defects.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 318, 321; Dec. Dig. § 145.]
    4. Appeal and Error (§ 100) — Decisions Reviewable—Construction of Orders.
    Where the first order granting plaintiff a temporary writ restrained defendants from suing plaintiff or other stockholders of an insolvent bank to recover upon their stockholders’ liability, an order entered upon motion to dissolve the temporary injunction which restrained defendants from levying and collecting upon the individual liability of stockholders until it should appear to the court that such procedure was reasonably necessary to discharge the liabilities of the bank is a distinct order, and may be appealed from, even though no appeal will lie from an order denying a motion to dissolve a temporary injunction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.]

      5. Banks and Banking (§ 49) — Power of Banking Commissioner — Statute.
    In view of the National Banking Act (Act June S, 1864, c. 106, § 50, 13 Stat. 114 [U. S. Comp. St. 1901, p. 3507]), Acts 31st Leg. 2d Ex. Sess. c. 15, § 9 (Rev. St. 1911, art.. 459), authorizing the commissioner of banking, if necessary to pay off the debts of an insolvent state bank, to enforce the liability of stockholders, confers upon the commissioner the power to enforce the individual liability of stockholders, and the courts cannot compel him to first show in a judicial proceeding that such recovery is necessary to discharge the bank’s liabilities.
    [Ed. Note. — Eor other eases, see Banks and Banking, Cent. Dig. §§ 71-81%, 513, 534, 535; Dec. Dig. § 49.]
    6. Statutes (§ 226) — Construction—Adoption of Foreign Statute.
    Where a foreign statute which has already been construed by the courts of that country is adopted, the construction is also adopted.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. §307; Dec. Dig. § 226.]
    On Motion for Rehearing.
    7. Statutes (§ 226) — Construction—Prior Construction.
    Where a foreign statute which has already been construed is adopted, the courts of the forum should, only where the most cogent reason exists, depart from that construction.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. § 307; Dec. Dig. § 226.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Suits by E. L. Smith against W. W. Collier and another. From orders denying motions to vacate temporary injunctions, defendants appeal.
    Orders vacated and set aside.
    Madden, Trulove & Kimbrough, of Amarillo, for appellants. Gustavus & Jacks on and W. E. Gee, all of Amarillo, and H. H. Cooper, of Houston, for appellee.

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

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

   PER CURIAM.

The motion to consolidate cause No. 676 with 671 is granted, and the records in both proceedings will be considered together and carry the numbers in this court of 671, 676.

The record in No. 676, which comprehends the entire record in 671, with additional proceedings thereafter in the same cause in the district 'court, discloses that E. L. Smith, a stockholder in the First State Bank of Amarillo, Potter county, Tex., petitioned the district court of said county for a writ of injunction for the purpose of restraining W. W. Collier, the bank commissioner of the state of Texas, and his special agent, J. O. Roots, who are in the possession and control of the assets and property of said bank, from disposing of the property of said bank, and from bringing suits against petitioner and other stockholders of said institution, and from paying, or permitting to be paid, any deposits out of the state guaranty funds, without first ascertaining that the same were deposited subject to the payment thereof; and specially petitioning a restraint of the payment by the bank commissioner of the sum of $6,500 to the First National Bank of Amarillo, Tex.

Upon the presentation of the application for injunction, the district judge, in chambers, on the 24th day of April, 1914, ordered the issuance of a writ of injunction “in all things as prayed for,” conditioned upon the execution of a $2,000 injunction bond, and thereafter on May 5, 1914, upon motion to dissolve the temporary injunction, after answer filed, the district judge, upon “pleadings of the parties only” entered an order “that the temporary injunction * * * is hereby dissolved as to all matters in plaintiff's original petition, save and except that said injunction be continued in force as against said defendants, and that they be restrained from levying, assessing, or collecting any assessment on the stock of the individual stockholders of the First State Bank until such time as it may be made to appear to the court that the levying and collecting of such assessment of the individual liability of said stockholders upon their stock shall be reasonably necessary to discharge the liabilities of the First State Bank, and that said temporary injunction, so modified, be continued in force until the further order of this court. * * * » The appellee urges in both causes that this court.is without jurisdiction, for the reason that the proceedings were instituted against appellants, W. W. Collier and J. O. Roots, in their official capacity as commissioner of insurance and banking of the state of Texas and as special agent, respectively, and .not as individuals, and that the attempted appeal as individuals is in reality no appeal.

The appellants have executed an appeal bond as individuals. All that is necessary to perfect an appeal from a temporary injunction is to file the transcript within the proper time in the Court of Civil Appeals. The contention of appellee appears to be based on the fact that the appeal bond is signed by appellants as individuals, and not in their official capacity. If appellants were acting in their official capacity, under the direction of the commissioner of insurance and banking, then they were not required to give bond. R. S. art. 2105; Lane v. Hewgley, 155 S. W. 349, 350. If Roots was special agent for the commissioner, he was, in that capacity, a part of the department, and he was also an officer of the state of Texas, the same as a receiver of a national bank is an officer of the United States, appointed by the comptroller. The petition charges the appellants with acts which are alleged to have been unlawful and unauthorized by law, and sought to restrain their further doing such acts. The temporary order of injunction restrains appellants personally. As state commissioner of insurance and banking, in order to appeal, he was not required to execute a bond. The appellants were enjoined personally from doing - alleged unlawful acts. We see no reason why they may not also join in the appeal as individuals. In' doing so it certainly would not dismiss the appeal. This ground of the motion is overruled.

The affidavit attached to plaintiff’s petition, which petition is in both records, is as follows:

“Before me, the-undersigned authority, on this day personally appeared E. L. Smith, who, being by me duly sworn, deposes and states on oath that he believes the facts therein contained to be true.”

Under Revised Civil Statutes 1911, art. 4649, we think this affidavit is insufficient. This article provided that no injunction shall be granted unless the applicant shall present his petition to the judge, verified by his affidavit. The test of an affidavit, as laid down by the Commission of Appeals, is that the affidavit of the facts sworn to be so direct and unequivocal as that an indictment for perjury would lie if the oath is falsely made. Whitemore & Co. v. Wilson, 1 Posey, Unrep. Cas. 213. In 1 Ruling Case Law, p. 770, § 15, it is said:

“An affidavit should always be made by one having actual knowledge of the facts, if possible, and its allegations should be full, certain, and exact; * * * a bare statement of one’s belief being absolutely immaterial unless the case is one where an affidavit as to belief only is required.”

Page 772, § 18:

“Affidavits upon information and belief should allege facts definitely and also set forth the sources of the affiant’s information and the grounds of his belief, to enable the judicial mind to determine whether the belief is. well or illy founded. Inasmuch as affidavit upon information and belief cannot supply the place of positive allegation, affidavits of this nature cannot ordinarily be used except when authorized by statute.”

In our' opinion, the affidavit is wholly insufficient. Smith v. Banks, 152 S. W. 449; Ross v. Veltmann, 161 S. W. 1073.

Since the affidavit is a defect which may be amended, we will not rest the decision of the case upon this assignment.

An analysis of the first order providing for the issuance of the temporary writ exhibits that the defendants, the commissioner of banking and his special agent, were not restrained from levying or assessing the stock of the individual stockholders of the bank, and the proceedings upon the hearing of the motion to dissolve is in rehlity a first dispensation of that character of relief. The first order for the temporary writ, as stated, restrained the defendants “from suing or bringing suits against this plaintiff and the other stockholders,” of the bank. The subsequent order, at the hearing upon the motion to dissolve not only restrained the defendants from levying any assessments on the stock of the individual stockholders of said bank, but also .restrained them from collecting any assessments which had been previously levied as a condition to collecting the same: The first order did not enjoin the defendants from levying the assessments and collecting the same, by personal solicitation or otherwise by said defendants, outside of court. The first order did restrain the defendants “from suing or bringing suits against this plaintiff and the other stockholders of said institution.” But the second order restrained them from “levying and collecting' * * * such assessment of the individual liability of said stockholders upon their stock “until such time as it may be made to appear to the court that it shall be reasonably necessary to discharge the liabilities of said bank. The operative effect of the last order is to prevent the levy of assessments upon the stock and of collecting any such assessments, except by presentation of appropriate reasons, based upon the necessity of a discharge of the liabilities of said bank, addressed to the judicial determination of the court; in other words, it means that if, in this proceeding, or in any independent proceeding, the commissioner of banking files a petition or other appropriate pleading, making an exhibition of a certain predicate, with reference to the assets and liabilities of the bank, as a prerequisite to the necessity of a discharge of the liabilities of said bank, and the court determines that those reasons are sufficient, the levy, the assessments, and the collection of such assessments may then be made by said officer, and not until then. It is difficult to apply a judicial scalpel and cut in twain that which is new and that which is old, but the granting of the relief in the case in the subsequent order at the hearing upon the motion for dissolution is so changed, in substance and in effect, effectuating such a preponderating influence upon the affairs of the bank, different from that first granted in chambers, upon the application, in the first order of the court, that we are prone to say that this is such a new order, granting, in substance, such different relief, that the statute permitting appeals grants the jurisdiction to this court for the purpose of reviewing this matter. We concede, of course, on account of the phraseology of this statute, as has been often decided, that an appeal will' not lie from an order to dissolve a temporary injunction. The operative effect of this order is to constitute a prerequisite showing to the district court, based upon certain grounds, a condition precedent to the right of collecting, or attempting to collect, any money due by said stockholders, which compels the commissioner of banking to go to court, which is a restraint in its injunctive features, commanding and requiring ’the things to be done, different from any relief theretofore prayed for, so that the substance of the relief and the nature and character of the restraint is new and independent.

In the cause of Baumberger v. Allen, 101 Tex. p. 356, 107 S. W. 526, the Supreme Court of this state, speaking through Justice Brown, inferentially held that, if the continuation of an old Injunction was, In effect, the granting of a new writ (at least it is deducible from that opinion), the Court of Civil Appeals would have jurisdiction to consider the appeal.

Upon the merits of this appeal we think the order at the bearing upon the motion to dissolve, granting the relief, is improper for the following reason: Without setting out specific provisions of the national bank act, and detailing, analogous provisions of the state act, in regard to state banks, however, upon an inspection of same, we think it was the purpose of the Legislature of this state, to a considerable extent, to follow the trend of the national act, unnecessary to particularize, except to say that section 5234 of the national act (U. S. Comp. St. 1901, p. 3507) provided, among other provisions, that the federal Comptroller (where a national bank is in the hands of a receiver) “may, if necessary to pay the debts of such association (meaning a national bank), enforce the individual liability of the stockholders,” and that article 459 of the Acts of the 31st Legislature, 2d Ex. Sess. c. 15, prescribes that “the commissioner may, if necessary to pay the debts of such state bank, enforce the individual liability of the stockholders.”

In the case of Kennedy v. Gibson, 75 U. S. (8 Wall.) page 505, 19 L. Ed. bottom page 478, the Supreme Court of the United States said:

“It is for the Comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce' their personal liability, and whether the whole or a part, and, if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. This action (making the assessment) on his part is indispensable, whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of the suit by the receiver. * * * It would be attended with injurious consequences to forbid action against the stockholders until the precise amount necessary to be collected shall be formally ascertained. This would greatly protract the final settlement, and might be attended with large losses by insolvency and otherwise, in the intervening time. The amount must depend in part upon the solvency of the debtors and the validity of the claims. ’ Time will be consumed in the application of these tests, and the results in many cases cannot be foreseen. * * * A speedy adjustment is necessary to the efficiency and utility of the law; the interest of the creditors require it, and it was the obvious policy and purpose of Congress to give it. If too much be collected, it is provided by the statute that any surplus which may remain after satisfying all demands against the association shall be paid over to the stockholders. It is better they should pay more than may prove to be needed than that the evils of delay should be encountered.”

The Supreme Court of the United States has uninterruptedly, without the necessity of citations, adhered to the rule announced in the Kennedy-Gibson Case; and when the Legislature of this state adopted the act of the federal Congress with reference to the particular question under discussion, it adopted the construction by the Supreme Court of the United States given to the federal act. If there is something Incorporated into the statute, or if there is a legislative purpose exhibited in any act germane to the same subject-matter, indicating that the construction given by the courts of the country, from which the act was borrowed, should not prevail, the uniform construction given to the act borrowed does not prevail. There is nothing indicated, however, in the acts of the Legislature pertaining to this subject-matter that any different rule of construction should prevail with reference to the statute under consideration; hence the settled and uniform construction by the Supreme Court of the United States is a part of this law. Morgan v. Davenport, 60 Tex. 230.

The orders of the trial court in both cases, 671 and 676, are vacated and set aside, with the further order that the appellee pay all costs of both appeals.

On Motion for Rehearing.

The appellee presents the ease of Cheney v. Scharmann, 145 App. Div. 456, 129 N. Y. Supp. p. 994, decided by one of the Supreme Courts of New York, as in conflict with the ruling announced by this court in construing our banking law, as to the power of the commissioner to make and maintain an assessment against the stockholders of a state bank while the bank is in the process of administration and liquidation. The similarity of the New York statute, with the construction of the New York court upon the same, makes the opposition of the two rulings clear cut; but the settled construction of the United States Supreme Court, noted in our main opinion, according to our view, is so much more compatible with a wise public policy as to the administrative features of the law, operating upon a bank in the settlement of its affairs in the hands of the government, that this court has not the slightest hesitancy in refusing to follow the New York court, thereby adopting the principles of the federal Supreme Court as to the meaning, policy, and purpose of the law. If the law is a borrowed law upon the main features affecting the issue involved, the argument in reality should be ended; the construction of the Supreme Court of the United States is a part of the law. As to the power of our banking commissioner, in comparison with the power of the federal Comptroller in charge of a national bank, authorizing him to enforce the additional liability of a stockholder, when necessary to pay the debts of the corporation, the law is identical, and also embraced in a section of our banking act containing other provisions upon other matters, in substance the same as the federal act; and we believe it is indisputable that this act was borrowed from the federal law.

It is also clear that, as to the'immediate provisions under consideration, the New York act, with some additional features, is the same as the federal law upon cognate subjects; hence an interpretation of the New York law by the New York court, in this instance subsequent to the passage of our act, should be very controlling as to the policy of the law, and as to the wisdom of its interpretation, before a Texas court could, or should, even consider overruling the interpretation by the courts of the country from which the act was borrowed; and when, as it appears to us, that such a construction is inimical to an expeditious administration, obstructing the settlement of the affairs of a bank in the hands of the government, and which would subordinate the interests of the creditors of the bank to the interests of the stockholders, it is with an unhesitating conviction that such an interpretation, enunciating such a policy is refused by us. It is the stockholders’ bank which has become delinquent, and with reference to which the law makes it a part of his contract to pay the debts by his increased liability when the default occurs; and then to say that the necessity to pay is to be a litigated question, when the bank is in default, and that the courts and juries of the country are to find this necessity by balancing the reliable assets and the proper liabilities of the institution, for the purpose of finding the deficit, a.nd thence determining the criterion of the liability of the stockholders and the amount of the assessment, is to our minds a construction retarding the very purpose of an expeditious administration and settlement of a bank’s' affairs, and adds uncertainty to insolvency, and which by delay extends the avenue of escape and evasion. The appellee asserts, however, that the liability feature of our statute imposes a secondary liability, while the federal statute burdens the stockholder with a primary liability, and this asserted difference distinguishes the rights of the stockholders when called upon to pay. We do not deem the solution of this question in the slightest as any material aid whatever in the construction of the law as to the finality of the assessments made by the commissioner. We will say, however, that under the nation-al bank act, when a bank refuses to pay its circulating notes, or when, on account of a violation of the law by its directors, a national bank shall have been dissolved and its franchise forfeited, or when a creditor is the holder of an unsatisfied judgment against the bank, or whenever the Comptroller is satisfied of the insolvency of an association, a receiver may be appointed by the Comptroller, and such receiver, under the directions of the Comptroller, may, if necessary to pay the debts of such association, enforce the personal liability of the stockholders. The technical and legal liability of the stockholders, of a national bank for the debts of the bank is to the Comptroller for the benefit of the creditors.

“Creditors must seek their remedy through the Comptroller in the mode prescribed by the statute; they cannot proceed directly in their own names against the stockholders or debtors of the bank. The receiver is the statutory assignee of the association, and is the proper party to institute all suits.” Kennedy v. Gibson, 75 U. S. (8 Wall.) 506, 19 L. Ed. 479.

Of course, there may be a suit in equity instituted by the creditors against the stockholders of a national bank when there is a voluntary liquidation of the bank’s business by its directors, under another provision of the national banking'law. In that character of litigation we assume that a creditor who brings a suit against the stockholders of a national bank does so because the bank refuses to pay its debts; and, as a practical question, the enforcement of the liability would never arise unless occasioned by default; and, as a further practical question, when a national bank is in the hands of a receiver — involuntary liquidation — such a condition would generally arise on account of the bank having failed or refused to pay its debts. This attempted distinction of primary and secondary liability only tends to eonfuse. Secondary to what? If you say it is secondary, in the sense that the commissioner has to await his collection and realization of the assets of the bank, and their application to the debts to determine the deficit, and then determine the .amount owing by the stockholders, such would be intolerable. If you say it is secondary in the sense that the necessity for the enforcement of the liability is required to be first litigated by the balancing of good assets with the debts of the bánk, the language of the Supreme Court of the United States, in the case of Kennedy v. Gibson, cited in the main opinion, is, to us, so unanswerable, as that repetition is unnecessary. We assume that the default of the bank in the payment of its debts has occurred; otherwise the petitioner in this injunction suit would have alleged that no default had occurred.

The case of Alsop v. Conway, 188 Fed. 575, 110 C. C. A. 373, decided by the Circuit Court of Appehls of the Sixth Circuit, is of no assistance to the appellee in this matter. That court did hold, construing the Kentucky statute, that:

“Although it is alleged in the bill that the entire liability is necessaryto be enforced in order to enable payment in full to creditors, every stockholder is at liberty to contest this allegation.”

However, the immediate provision under consideration here giving the commissioner of banking of this state the power to enfbrce liability of the stockholders is evidently not in the Kentucky statute, as none was adverted to. by the court in its consideration of that cause; and we presume that the absence of-such a provision occasioned the following language of the circuit .judge in that case:

“We have not overlooked the settled course of decisions that actions for the recovery of the full statutory liability under the national banking act must be had at law. Casey v. Galli, 94 U. S. 673, 24 L. Ed. 168; U. S. v. Knox, 102 U. S. 422, 26 L. Ed. 216. But suits for collection under the national banking act differ from the proceedings before us in two important respects: First, that under the national banking act the question whether the assessments shall be for 100 per cent, or less than the full statutory liability rests entirely in the discretion of the Comptroller; * * * and, second, the administration and distribution of the funds collected is not had in the suit for their collection, but is carried on by the Comptroller independent of judicial proceedings.”

Under our law, as well as under the federal law, upon the settlement of the affairs of a state bank, after all collections have been made and an excess exists, the amount un-expended, after the payment of expenses, reverts to the stockholders.

The motion for rehearing is in all things overruled.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    CONN v. MARSHBURN.
    (No. 6626.)

    (Court of Civil Appeals of Texas. Galveston.
    June 9, 1914.
    Rehearing Denied July 1, 1914.)
    Trespass to Try Title (§ 12) — Prior Possession — Continuity—Necessity.
    The plaintiff in an action of trespass to try title, was not entitled to recover on proof of prior possession with which he connected himself, where it appeared that such possession was abandoned by 1871 and not reasserted until the sale to plaintiff in 1909.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 17; Dec. Dig. § 12.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action of trespass to try title by R. C. Conn against L. H. Marshburn. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Smith & Blackshear, of Jasper, and John B. Warren, of Houston, for appellant. Powell & Lee, of Jasper, for appellee.

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

       Writ of error denied by Supreme Court.

   McMEANS, J.

This is an action of trespass to try title, brought by the appellant against the appellee. The case was tried before the court without a jury and resulted in a judgment for appellee, from which the appellant has prosecuted this appeal.

There was no evidence offered in the court below on the question of title, except that offered by appellant, and the only question presented for our decision is whether such evidence was sufficient to require a judgment for the land sued for in favor of appellant as against a trespasser. The only evidence offered by appellant, and upon which he insists he was entitled to a judgment as against appellee, was to prove the prior possession of those through and under whom he claims. The land in question was a labor patented in 1849 to Willis Donaho, assignee of Patsey Gregory. It was shown that in 1855, or soon thereafter, the ancestors of appellant’s immediate vendors moved on the land, opened a small field and cultivated it, and built houses upon it; that they lived upon it until some time prior to 1871, when they moved off and abandoned the land, and never thereafter actively asserted title or claim to it. From 1850 to 1880 the land was not rendered for taxes by any one; but in the year last named it was assessed as the property of. an unknown owner, and in 1881 it was sold at tax sale and bought in by James Morgan, one of the ancestors of appellant’s vendors. In 1909 appellant purchased the land from the heirs.

We have not stated the evidence with greater particularity for the reason that, in the view we take as to the law applicable, it is not necessary. We recognize.the rule that prior possession is sufficient to authorize one connecting himself therewith to recover as against a trespasser or one showing no title. But, to authorize a recovery upon proof of prior possession alone, it is incumbent upon one who relies upon it to show that the possession was continuous, or at least that it was not abandoned. Wilson v. Palmer, 18 Tex. 592; Gray v. Thompson, 5 Tex. Civ. App. 32, 23 S. W. 926; Telegraph Co. v. Hearne, 7 Tex. Civ. App. 67, 26 S. W. 479; Sabariego v. Maverick, 124 U. S. 297, 8 Sup. Ct. 461, 31 L. Ed. 430. Here the court found, and the finding appears to have been warranted by the evidence, that the prior possession relied upon was abandoned before 1871, and that those who, prior to said date, held such possession, and those claiming under them, had not since then asserted any right or title to the land until the sale to appellant in 1909. We think that, under the authorities cited, appellant was not entitled to recover on the issue and proof of prior possession, even if the appellee was a trespasser. But it was not established that the appellee was a mere trespasser, but rather the contrary is indicated by an agreement of the parties introduced in evidence to the effect that the grantors, under whom appel-lee claims, were some of the heirs of Willis Donaho, the original patentee. To this may be added that there was no evidence to show that Willis Donaho ever parted with the title.

We think the judgment of the«court below should be affirmed, and it has been so ordered.

Affirmed.


author: PLEASANTS, C. J.

text:
    WEIR et al. v. W. T. CARTER & BRO. et al.
    (No. 6633.)
    (Court of Civil Appeals of Texas. Galveston.
    June 11, 1914.
    Rehearing Denied Oct. 15, 1914.)
    1. Judgment (§ 461) — Equitable Relief— Pakol Evidence — Admissibility.
    The parol evidence rule does not apply where a written instrument is attacked on the ground of fraud or mistake; hence, in a suit to correct .the entry of a judgment by agreement, parol evidence is admissible to show that the judgment entered did not, because of mistake, comply with the agreement.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 892, 893, 895; Dec. Dig. § 461.]
    2. Judgment (§ 427) — Cobkection.
    Where, through mistake, the judgment entered was not prepared in accordance with the agreement for rendition of a judgment, and plaintiffs were not guilty of any negligence in failing to discover .the error, they are entitled, in subsequent proceedings, to have the judgment corrected.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. §§ 805-807; Dec. Dig. § 427.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Suit by W. T. Carter & Bro. and others against I-I. P. Weir and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Baldwin & Baldwin, of Houston, and W. D. Gordon and Thos. J. Baten, both of Beaumont, for appellants. J. C. Feagin and Hill & Hill, all of Livingston, and Baker, Botts, Parker & Garwood, of Houston, for appellees.

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

   PLEASANTS, C. J.

This suit was brought by the appellees against appellants to correct the entry of a judgment by agreement rendered by the district court of Polk county on December 4, 1911, in cause No. 4055 on the docket of said court, styled Annie T. Lomax v. Wm. Carlisle & Co. et al. This suit No. 4055, brought in the name of Annie T. Lomax, was an action of trespass to try title to six several tracts of land of 160 acres each, situated on the J. D, Nash league in Polk county. The defendants in said suit were Wm. Carlisle and George Pennell, composing the firm of Wm. Carlisle & Co., W. T. Carter, E. A. Carter, and Jack Thomas, composing the firm of W. T. Carter & Bro., and H. P. Weir. The defendants Wm. Carlisle & Co. by appropriate pleadings in said suit claimed title to all of the Nash league against all of the other parties to 'said suit. The defendants W. T. Carter & Bro. claimed title to two segregated tracts, one of 85 and the other of 119 acres on the Nash league, and also an undivided interest of .300 acres in said league. They further alleged ownership of an adjoining survey of 640 acres, known as International & Great Northern Railway Company survey, and disclaimed title to all of the land claimed by plaintiffs and their co-defendants, except the tracts on the Nash survey above mentioned,' and such portions of the land claimed by plaintiffs and defendants Carlisle & Co. and H. P. Weir as might be in conflict with said International & Great Northern Railway Company 640-acre survey.

The defendant H. P. Weir by his answer set up claim to all of the Nash league, except ah undivided 1,200 acres admitted to be owned by defendants Carlisle & Co., and the interests claimed by defendants W. T. Carter & Bro. He further averred that the defendants Carter & Bro., under their claim as to the location of the boundary line of the , International & Great Northern Railway Company survey, had ejected him from a portion of his land, and prayed that the true boundary line of said Nash league be established. Sam Griffin and C. Bailey intervened in the suit, claiming vendor’s liens, respectively, upon two of the 160-acre tracts claimed by plaintiff Annie Lomax. This suit, though brought in the name of Annie T. Lomax, was in fact a suit by Jacob C. Baldwin, who had purchased the six 160- . acre tracts from parties claiming under the statute of limitations. The defendant H. P. Weir was represented in said suit by W. D. Gordon, who also had an interest in the suit by purchase from Weir. On June 15, 1910, the West Lumber Company intervened in said suit, setting up that, after the institution of the suit, they had purchased the interest of defendants Carlisle & Co., and asking judgment against all parties for said interest.

From this statement of the pleadings in the suit of Annie T. Lomax v. Wm. Carlisle & Co., it is apparent that one of the issues in said suit was the location of the boundary line between the Nash league and the International & Great Northern Railway Company survey. This disputed boundary line was the west line of the Nash league. The original English field notes from the archives of the General Land Office describe said survey as follows:

“On Big Sandy or Village creek, beginning at a double beach at a famous Indian camp on the west side of Big Sandy and at a trace leading from Menard’s creek at the crossing of the road from Liberty to Nacogdoches, from which beach a white oak 12 in. dia. brs. S. 78 E. 6% vrs. dist. also a beach 12 in. dia. brs. N. 7 E. 5 vrs. dist Thence N. 70 E. 600 vrs. Big Sandy 15. vrs. wide, course south 1,970 vrs. pine 16 in. dia., line tree 3,100 vrs. mound 2nd corner from which a black oak 11 in. brs. N. 87 W. 4.7 vrs. dist. also a pine 9 in. dia. brs. S. 17 E. 3 vrs. dist. All kinds of oak, ash, hickory and' some pine undergrowth, peach, dogwood and cane, land rich. Thence S. 20 W. 961 vrs. spring branch 1.5 varas wide, course S. 80 W. 1,770 varas black oak 9 in. dia. line tree 350 varas small spring branch 4,800 varas Big Sandy 16 varas wide, course S. 70 E. 6,-500 varas small ash 1.5 in. di. 3rd. corner, from which a beach 15 in. di. brs. 59% W. 9.5 varas dist. also a black oak 26 in. di. bears S. 70 E. 6 varas dist. oak, ash, hickory and 'some pine undergrowth, peach, dogwood and cane, land rich but appearance of overflow on the first bottom. Thence S. 70 W. 5,000 varas to 4th corner in the bottom and directly on the east bank of Menard’s creek from which a black oak 20 in. di. bears S. 37 W. 2.7 varas dist. also a black oak 16 in. di. bears N. 53 E. 9 varas dist., oak, ash, hickory and pine timber, land fertile. Thence N. 20 E. 6,500 varas to the 5th corner, timber and land the same. Thence- N. 70 E. on random line 1.S98.5 to the place of beginning, fell 3.4 varas southerly of the corner. Thence on true line S. 70 W. 1,898.5 to the 5th corner, containing one league about 13 labors of farming land.”

The field notes, as translated from the original Spanish grant, are as follows:

“From a double beaeb tree which is found near to an Indian town to the west of Big Sandy creek at the point where the road from Men-ard creek crosses the road from Nacogdoches to Liberty, from which a white oak 12 inches in diameter is to the south 7S east at the distance of 6.5 varas and a beach of 12 inches in diameter is to the north 7 east at the distance of 5 varas. Erom thence to the north 70 east there was measured 3,100 varas, and the second corner was raised formed by a mound or stake from which a black oak of 11 inches in diameter is to the north 78 at the distance of 4.7 va-ras and a pine 9 inches in diameter is to the south 17 east at the distance of 3 varas. Erom thence to the south 20 west there was measured 6,500 varas to an ash 1.5 inches in diameter, which is the third corner from which a beach 15 inches in diameter is to the north 59% west at the distance, of 9.5 varas and a black oak of 26 inches in diameter is to the south 70 east at the distance of 6 varas. From thence to the south 70 west there was measured 5,000 varas and the fourth corner was raised from which a black oak of 20 inches in diameter is to the south 37 west at the distance of 2.7 and another black oak of 16 inches in diameter is to the north 53 east at the distance of 9 varas. Erom thence to the north 20 east there was measured 6,500 varas and the fifth corner was raised, from thence to the north 70 east there was measured 1,898.5 varas to the first corner.”

Prior to the time the suit of Lomax v. Carlisle was instituted, there had been two surveys made of the Nash league, one known as the A. B. Garvey survey, which located the southwest corner of the Nash league on the east bank of Menard creek, as called for in the original English field notes, and ran said line north 20 east from such corner. The other survey, known as the Wilcoxen & Elubert, placed the southwest corner and the west line of the Nash some distance further east than placed by the Garvey. The southeast corner of the Nash league, as now known and recognized, is only 4,480 east of Menard creek, and if the south line of the league is run from said recognized southeast corner, the 5,000 varas distance called for in the field notes, the west line of the league would be placed 520 varas west of Menard creek. In the Lomax-Oarlisle suit Carter & Bro. were claiming the line as fixed by the Wilcoxen & Hubert survey, and appellant H. P. Weir claimed the line 5,000 varas west of the southeast corner of the league, as called for in the field notes. The issues raised by the pleadings and the contentions of the parties in said suit being as shown by the foregoing statement, a judgment was entered in said suit on December 4, 1911, which upon its face appears to be a judgment upon a hearing of the evidence, but which the undisputed evidence shows was entered by agreement of the parties. This judgment, after decreeing that the plaintiff Lomax and the interveners Bailey and Griffin take nothing, proceeds to fix the location of the boundary lines of the Nash league, and adjudges' to the other parties to the suit the several tracts and undivided interests claimed by them, respectively, in said league. As fixed in said decree, the boundaries of the Nash are as follows:

“Beginning on the north boundary line of the H. W. Augustine headright league at a point 257 varas west of Big Sandy creek for the southeast corner of this survey. Thence south 70 west 5,000 varas to a stake for corner (bearing trees as called for in the original field notes). Thence north 20 east 6,500 varas to a stake for corner. Thence north 70 east intersecting the L. T. Hampton line at 920 varas 5,000 varas to a stake for corner. Thence south 20 west 6,500 varas to the place of beginning.”

The plaintiffs in this suit are W. T. Garter & Bro. and West Lumber Company, and the defendants are H. P. Weir, Annie T. Lomax, Sam Griffin, and O. Bailey, and, as before stated, the purpose of the suit is to correct the above judgment entry describing and locating the boundaries of the Nash league. After alleging the facts in regard to the issues involved in the Lomax-Carlisle suit and the compromise and settlement of said suit by agreement, plaintiffs’ petition' contains the following allegations:

“Plaintiffs further show to the court: That the firm, positive, and unambiguous agreement with reference to the compromise of the issues involved in said cause of action was that the south boundary line of the John D. Nash league should extend from the beginning at the southeast comer south 70 west 4,480 varas along the Garvey line and to the corner established by Garvey on the east bank of Menard’s creek, said creek being a large, well-known stream of water, the location of which was well known to all of the parties to said suit. That the southeast corner of said Nash league of land is described in the original field notes as follows: ‘Thence S. 70 west 5,000 varas to the 4th corner in the bottom and directly on the east bank of Menard’s creek, from which a black oak 20 in. di. boars S. 37 W. 2.7 varas dist.; also a black oak 16 in. di. bears N. 53 E. 9 vrs. dist., oak, ash, hickory and pine timber, land fertile.’ That having reached this agreement, the preparation of the decree in this case was intrusted to W. D. Gordon, attorney for H. P. Weir, and that said decree, as entered in said cause and hereinbefore copied, was prepared by said W. D. Gordon. Plaintiffs further show that the description which the said W. D. Gordon incorporated in said decree entered in cause No. 4055 incorrectly described the said John D. Nash league in this: That the south line is called to extend 5,000 varas south 70 west from the beginning corner described in said judgment, and the north line is described as being 5,000 varas in length, when in truth and in fact the beginning corner, as. described in said judgment, along the south line to the southwest corner as fixed by the bearing trees, the description in the original grant and field notes stops at a point 4,480 varas distant from the beginning point, and that the north line corresponds in its true distance with the south line, as last above described. That there is a conflict in the description of said Nash league, as contained in said judgment, between the call for the distance of 5,000 varas and the call for the bearing trees and natural objects referred to in said decree, which as shown in the original grant are located on the east bank of Menard’s creek. That, as shown in said original field notes and grant, the southwest corner of the Nash league is located on the east bank of said stream, and that, to prolong the south line of said Nash league, 5,000 varas would extend it across-Menard creek, which is a large stream, and well-defined natural object, a distance of 520 varas. That the true agreement, as made between the parties, was that said south and north lines should be 4,480 varas in length, and that the southwest corner should be fixed and established on the east bank of Menard’s creek, as called for in the original field notes archived in the General Land Office, and as shown in the grant to said league. That the description of said Nash league, as contained in said decree in cause No. 4055 in the district court of Polk county, is the result of a mutual mistake, on the part of the parties to said decree, in describing the north and south lines as 5,000 varas in length, when it was intended by all parties that the length of said lines should be 4,480 varas, corresponding with the natural objects located on the ground and called for in said decree and in the original grant and field notes of the John D. Nash league, and this action is brought for the purpose of curing this mistake and making the distance called for in said decree correspond and conform to the natural and artificial objects found on the ground called for and referred to in said decree, as shown by the said original field notes and grant.”

The petition further alleges in substance that, if the failure to describe the Nash league in said decree in accordance with said agreement and locate the west line thereof as located by the Garvey survey was not the result of a mutual mistake, the call in said description in said decree giving the length of the south line as 5,000 varas was fraudulently inserted for the purpose of depriving plaintiffs of land to which they are justly entitled. Then follow the following allegations: ■

“That said decree was prepared late on the afternoon of the day when the parties and attorneys were trying to dispose of said cause to enable the parties and attorneys to return to their respective homes. That, when the said decree had been prepared by the said Gordon, he stated expressly that the same correctly described the said Nash league of land in accordance with the agreement of settlement which had been reached, viz., that said description was according to the survey made by A. B. Garvey, which was the basis of the agreement. That, in examining the decree which the said Gordon had prepared, counsel for the parties herein expressly asked the said Gordon whether or not he had described the boundary lines of said league according to the Garvey survey and location of same, which was the basis of said agreement. That upon the assurance of said Gordon that such was the case, and relying upon this statement, he at that time, acting for the defendants herein named, and especially for the said H. P. Weir, counsel for plaintiffs herein, on account of the fact that it was late in the afternoon, and the time for the adjournment of court almost at hand, and the desire of the parties and their attorneys to have said decree entered by the court on that date, did not read that portion of the decree describing the Nash league, but read the portion of the decree describing the different tracts of land by metes and bounds which were adjudged to the plaintiffs herein. That it was not known to the plaintiffs herein or their counsel that said Gordon had inserted the call for a distance of 5,000 varas from the southeast to the southwest corner of said Nash league and from the northwest to the northeast corner of said league, until after the adjournment of the term of court at which said decree was entered, and, promptly after the discovery was made, this suit was filed seeking relief.”

The defendants answered by general demurrer and by special exception, the nature of which it is unnecessary to state. The answer further avers that the description of the Nash league in said decree was in accordance with the agreement under which said decree was drawn, and that said decree was examined and approved by the attorneys representing Carter & Bro. before same was entered. The allegations of mutual mistake and fraud, contained in plaintiffs’ petition, are expressly denied. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs.

The cause was submitted to the jury upon special issues. The first issue, being whether the. verbal agreement of the parties -upon which the- judgment was prepared and entered in the Lomax-Carlisle suit, was that the Garvey survey should be adopted in fixing the boundaries of the Nash league, and the second whether the failure to prepare said judgment in conformity with said agreement was the result of mutual mistake. The verdict answered both these questions in-the affirmative. The issue of fraud was also submitted in event the jury found there was no mutual mistake. Having found for the plaintiffs on the issue of mutual mistake, there was, in accordance with the instructions of the court, no express finding upon the issue of fraud. The finding that the agreement was as alleged by plaintiffs is sustained by the great preponderance of the evidence. The undisputed evidence shows that W. D. Gordon, who was the attorney for Weir in said suit, prepared the decree. C. L. Carter, who was the attorney for Carter & Bro. in the suit, testified that he did not read that portion of the decree fixing the location of the Nash survey, but relied upon the statement of Mr. Gordon that the location of said league was fixed by said decree in accordance with the agreement. This statement of Mr. Carter was not denied by Mr. Gordon. He did deny, however, that he had agreed to adopt the Garvey survey In fixing the location of the Nash league.

Appellants’ first assignment of error complains of the refusal of the court to sustain defendants’ objection to the parol evidence offered by plaintiffs to show the agreement upon which the judgment was prepared. The ground of the objection was that, all prior agreements having been merged in the judgment, it was not competent to prove a different agreement from that expressed by the judgment. The rule invoked by this objection has no application when the written instrument is attacked on the ground of fraud or mistake. Whenever, as a result of mutual mistake or fraud, a written instrument fails to express the agreement of the parties; parol evidence is admissible to show what the agreement was. If this was not the rule, the reformation or correction of a written instrument could rarely, if ever, be accomplished. This proposition is too elementary to require the citation of authorities. There is no merit in appellants’ contention that the allegations of mistake and fraud in the preparation and entry of the judgment contained in the petition are insufficient to entitle plaintiffs to show by parol that the agreement was different from that expressed in the judgment. It is true that the judgment, as prepared and entered, was approved and signed by the attorney for plaintiffs, hut he did this without reading it and relying upon the representations of Mr. Gordon that it was prepared in accordance with the agreement. It cannot be held in these circumstances that his signing the approval of the judgment was such negligence that he cannot be heard to coinjilain of the mistake or fraud in its preparation. It is well settled that a party to an agreement, who induces another to sign it by misrepresenting its contents, will not he heard to say that the party so signing was negligent in not reading the contract, and is therefore bound by its terms. San Antonio National Bank v. McLane, 96 Tex. 48, 70 S. W. 201; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Ins. Co. v. Brannon, 99 Tex. 396, 89 S. W. 1057, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020.

It would serve no useful purpose to discuss appellants’ several assignments of error in detail.

The jury having found that the judgment entered was not prepared in accordance with the agreement, and this finding being supported by the great weight and preponderance of the evidence, and plaintiffs’ attorney not being chargeable with negligence in permitting the entry of such erroneous judgment, plaintiffs are clearly entitled to have the judgment corrected and made to conform to the agreement. If the misdescription in the judgment as entered was not caused by a mistake of the draughtsman, it must have been fraudulently inserted, and it is immaterial, in so far as plaintiffs’ rights are concerned, whether such false description was mistakenly or fraudulently inserted in the judgment.

None of appellants’ assignments presents any error which would authorize a reversal of the judgment, and each of them is overruled. It follows that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.


text:
    SWILLEY v. PHILLIPS et al.
    (No. 6585.)
    (Court of Civil Appeals of Texas. Galveston.
    June 17, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Husband and Wife (§ 262) — Community Property — Evidence—Presumptions.
    Under Act Jan. 20, 1840, p. 6, § 12, 2 Gam. Laws, p. 180, and Rev. St. 1895, art. 2969, providing that all the, effects which a husband and wife possess at the time the marriage be dissolved shall be regarded as common ieffeets or gains, unless the contrary be satisfactorily proved, there was a presumption that real estate reciprocally possessed by a husbahd and wife at the time of the husband’s death was community property, in the absence of evidence tending to show that it was acquired by him prior to his marriage, especially where it appeared that in 1839 he was granted a certificate for 320 acres of land, the amount to which a single man was then ■ entitled, and that in 1840 he was granted a certificate for the 320 acres in controversy, and it did not appear that he was the head of a family so as to be entitled to 640 acres, unless the marriage had previously taken place.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.]
    2. Husband and Wife (§ 262) — Community Property — Evidence—Presumptions.
    Where a conditional land certificate was issued to A. R. in 1839 prior to her marriage to U., the issuance in 1846 of an unconditional certificate for such land to “A. R.” was not sufficient evidence that she was not then married to rebut the presumption that land granted to U. in 1S40, of which he and his wife died reciprocally possessed, was community property ; the issuance of the unconditional certificate in the name of A. R. being proper to keep the record straight, even though she had changed her name by marriage.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§' 913, 914; Dec. Dig. § 262.]
    3. Wiles (§ 800) — Election — Provisions for Surviving Wife.
    A will giving to testator’s wife for life all the real and personal property of which he died possessed did not attempt to dispose of the wife’s share of the community _ property, and did not affect her community title to one-half of the land acquired by him during marriage and she did not surrender such title by accepting the life estate under the will; so that limitations ran in favor of an adverse-occupant as to a one-half interest in the land, notwithstanding the suspension of the remaindermen’s right of action during the existence of the life estate.
    [Ed. Note. — For other eases, see Wills, Cent. Dig. §§ 207A-2076; Dec. Dig. § 800.]
    Appeal from Special District Court, Liberty County; J. Llewellyn, Judge.
    Trespass to try title by Mattie B. Phillips and husband against W. S. Swilley and another. From a judgment for plaintiffs, the defendant named appeals.
    Affirmed in part, and reversed and rendered in part.
    Stevens & Stevens, of Liberty, and Tharp & Tharp, of Houston, for appellant. L. A. Kott-witz, of Houston, for appellees.

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

   PLEASANTS, C. J.

This is an action of trespass to try title brought by Mattie B. Phillips, joined by her husband, Morris Phillips, against appellant and L. B. Palmer. The land involved is a 320-acre survey in Liberty county patented to Charles Under ton. This is the second appeal of the case. The opinion of this court on the former appeal, styled Phillips v. Palmer, is reported in 56 Tex. Civ. App. 91, 120 S. W. 911. On the trial from which this appeal is prosecuted the defendant Palmer, by a settlement between himself and plaintiffs, was eliminated from the case, and this appeal is .by Swilley alone.

Appellant answered in .the court below by general denial, plea of not guilty, and pleas of limitation of three, five, and ten years. Under his pleas of limitation appellant claimed title to all of the land except a tract of 20 acres claimed by his codefendant Palmer. The trial in the court below resulted in a verdict and judgment in favor of plaintiffs against the defendant Swilley for all of the land, except a tract of 20 acres, which by agreement, was awarded to defendant Palmer. The verdict in favor of plaintiffs against defendant Swilley was returned under peremptory instruction of the trial court.

The facts disclosed by the record are as follows: The conditional certificate for 320 acres of land under which the land in controversy was patented was issued by .the board of land commissioners of Liberty county on January 4, 1840, and the unconditional certificate therefor on October 3, 1842. It appears in recitals in a deed under which appellee claims that the land in controversy was located and surveyed in June, 1841. The patent was issued to Charles Underton on October 3, 1848. Another conditional certificate for 320 acres was issued to Charles Underton by the board of land commissioners of Galveston county in May, 1839, followed by an unconditional certificate on October 3, 1842, and a patent to said Underton on June 9, 1848. Underton died prior to June 2, 1847, on which date, upon the application of his widow, Ann Underton, L. W. Duke was appointed administrator of his estate by the probate court of Galveston county. There is no other evidence in the record showing more definitely the date of the death of Charles Underton. On May 24, 1848, Ann Underton, as sole, heir of Charles Under.tdn, conveyed the land in controversy to A. B. Jones, and on June 10, 1848, A. B. Jones conveyed to Chauncey Richardson.

In 1849, upon the application of L. W. Duke, in which he was joined by Ann Under-ton, he was discharged as administrator of the estate of Charles Underton. This application and the order granting same -recite .that no debts or claims against the estate had been presented and no property of the estate had come into the possession of the administrator ; that there were no debts; and that all of the property of the estate had remained in the possession of the widow of the deceased. At the time of her marriage to Charlds Underton, Ann Underton was a widow with two children; her name then being Ann Ratcliff. The exact date of her marriage to Underton is not shown.

Thomas H. Edgar, a witness for plaintiff, testified by deposition taken on August 26, 1905, that he was then 68 years old, and had resided in Galveston county all of his life; that he knew Charles Underton in the early 40’s, and knew him up to the time of his death, which occurred between 1840 and 1850; that at the time be knew him Under-ton was married, and that his wife’s name before her marriage to him wd!s Ann Rat-cliff ; that at the time of her marriage she was a widow and had two children, and that Charles Underton had no children. Ann Un-derton died in 1866 or 1867.

On April 24, 1839, conditional certificate No. 171 for 640 acres of land was Issued by the board of land commissioners of Galveston county to Ann Ratcliff. On October 24, 1846, said land board issued the following certificate:

“No. 243, Class 3rd.
“State of Texas, County of Galveston.
“Ann Ratcliff is entitled to six hundred and , forty acres of land by virtue of certificate No. 171, dated 29th day of April, 1839, granted to her by the board of land commissioners for the county of Galveston, she having! proved to us that she has resided in the republic of Texás three years and performed all the duties required of her as a citizen.”

Chauncey Richardson died in 1852, leaving a will which was duly probated, and by which he disposed of his estate as follows:

“I give and bequeath to my beloved wife, Martha G. Richardson, during her natural life all and singular the real and personal estate of which I may die possessed, the same at the. decease of my said wife, Martha G., to descend to my daughter, Ann Sophia.”

Mrs. Richardson was named as independent executrix of the will without bond, and was given full power to manage the estate in such manner as her judgment might dictate. This will was probated upon the application of Mrs. Richardson. No inventory of the estate is shown, and it does not appear what, if any, property belonged to the estate in addition to the 320 acres of land in controversy. The plaintiff Mrs. Phillips is the daughter and sole heir of Ann Sophia Richardson, who died in 1881. Mrs. Richardson, plaintiff’s grandmother, died in 1900. She was the wife of Richardson at the time the land in controversy was conveyed to him by Jones. After Richardson’s death she claimed the land and paid the taxes thereon during her lifetime.

Appellant introduced a deed to the land from A. N. B. Tompkins to J. J. Moore executed on March 5, 1872, and a deed from Moore to himself executed February 1, 1894. The undisputed evidence shows that Moore, and after him the appellant, held continuous adverse possession of the land from 1872 to the present time, claiming it under their respective deeds. This suit was filed on January 28, 1905.

.Appellant, by an appropriate assignment of error, assails the judgment on the ground that the evidence raises an issue as to whether the 320 acres of land was community property of Charles Underton and his wife, Ann Underton, and therefore the cour.t erred in peremptorily instructing the jury to return a verdict for plaintiffs for any part of the land. Under another assignment appellant makes .the following attack upon the judgment:

“The uncontradicted evidence having shown that the property in controversy was originally the community property of Chauncey Richardson and his wife, and that the said Chauncey Richardson willed his estate to his said wife for life, with remainder over to his daughter, and there being no evidence to show that the said Richardson attempted to devise the community interest of his said wife in the land in controversy, and there being an entire absence of testimony showing election on the part of his said wife to take her community interest under the will, and not under the deed to her husband, as community property, and the evidence having shown that this defendant, and those under whom he held, was entitled to recover the land under the statute of five and ten years’ limitation, the court erred in not} directing a verdict in behalf of this defendant for an undivided one-half of the land in controversy.”

The evidence clearly shows that the land was “reciprocally possessed” by Ann and Charles Underton at the time of the latter’s death, and, in the absence of any evidence tending to show that it was acquired by Underton prior to his marriage, the presumption is that it was community property. Phillips v. Palmer, 56 Tex. Civ. App. 91, 120 S. W. 911; section 12, Act Jan. 20, 1840; 2 Gam. Laws, p. 180; article 2969, R. S. 1895.

So far from there being any evidence tending to rebut this presumption, we think the evidence tends to show that Underton received the certificate for the land after his marriage to Ann Ratcliff. In May, 1839, he was granted a certificate for 320 acres of land, the amount to which he would have been entitled as a single man. On January 4, 1840, he was granted another certificate for 320 acres, which, with the 320 previously granted to him, amounted to 640 acres, the quantity to which the head of a family was entitled. There being no evidence that Un-derton was the head of a family or was married prior to his marriage to Ann Rat-cliff, we thing it a reasonable inference that this marriage occurred between the date of the issuance to him of the first certificate for 320 acres and the date of the second certificate for a - like quantity of land, and it was his marriage to Ann Ratcliff which entitled him to receive the additional 320 acres of land. The fact that an unconditional certificate for 640 acres was issued to Ann Ratcliff in 1846, when considered in connection with the further fact that the conditional certificate for said land had issued to her in 1839, before her marriage to Under-ton, is not sufficient to sustain a finding that she was not the wife of Underton in 1840, when the certificate for the land in controversy was issued to him. The conditional certificate having been issued to her in her then name of Ann Ratcliff, it was but “keeping the record straight” to issue the Unconditional certificate in the same name, and its issuance in that name cannot be regarded as any, evidence that Ann Ratcliff had not prior to its issuance become the wife of Charles Underton.

The trial court did not err in failing to submit to the jury the question of whether the land was community property of Charles and Ann Underton, the conclusive presumption from the evidence being that it was such community property.

At a recent sitting of this court we affirmed the judgment of the trial court in its entirety, but upon a further investigation of the record we have reached the conclusion that appellant’s second contention before set out is sound, and must be sustained. The question of whether Mrs. Richardson elected to take under the will of her husband does not arise upon the evidence in the record. The will cannot be construed as disposing, or attempting to dispose, of her interest in the community property of said estate. No specific property is mentioned in-the will, and it only refers to the property of the testator, and does not attempt to dispose of his wife’s share of the community. This being true, her claim under the will to all of the property owned by her husband, even if it had been shown that he owned property other than a one-half interest in the land in controversy, would not have affected her community title to one-half of said land. There being no attempt to dispose of her property by the will, she cannot be held to have surrendered her title by accepting under the will a life estate in her husband’s property. The will did not call for an election on her part. She could hold her title to one half of the community and take under the will a life estate in the other half, her taking under the will being in no sense inconsistent with her claim of ownership of half of the community property. Philleo v. Holliday, 24 Tex. 45; Carroll v. Carroll, 20 Tex. 731; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; Sauvage v. Wauhop, 143 S. W. 259; Packard v. De Miranda, 146 S. W. 211.

The title to her one-half not having been converted into a life estate by her accepting under the will, the plaintiff had no , right of reversion thereto. In these circumstances appellant’s adverse claim and possession ripened into title to the one-half of the land owned by Mrs. Richardson and in which plaintiff had no right of reversion.

Prom the facts stated in the opinion on the former appeal of this case (Phillips v. Palmer, supra) it does not appear that Mrs. Richardson owned any interest in the land other than the life estate devised by her husband’s will, and the statement in that opinion that the existence of the life estate in Mrs. Richardson prevented the running of the statute of limitation against plaintiffs was a correct statement of the law as applied to the facts set out in the opinion, and cannot be regarded as in conflict with the conclusion above expressed.

It follows from this conclusion that our former order affirming the judgment in its entirety should be set aside and a judgment entered affirming the judgment of the court below in favor of plaintiffs for an undivided one-half of the land in controversy, and reversing said judgment as to the remaining one-half of the land, and rendering judgment for appellant therefor, and it is so ordered.

Affirmed in part. Reversed and rendered in part.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. INTERSTATE CHEMICAL CO.
    (No. 6701.)
    (Court of Civil Appeals of Texas. Galveston.
    June 22, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Sales (§ 273) — Implied Warranty of Fitness — Sales by Manufacturer.
    Where a manufacturer sells an article for a particular purpose, so that the buyer necessarily trusts to his judgment, the law implies a promise that the article is reasonably fit and proper for such purpose, but such promise depends upon its use upon the conditions prescribed by the manufacturer, and, when not so used, is not implied.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 772-776; Dee. Dig. § 273.]
    2. Sales (§ 279) — Implied Warranty of Fitness — Knowledge, of Buyer.
    Where the buyer’s general manager knew that the seller claimed that at least two applications of its secret preparation were necessary to destroy grass and weeds, and did not so inform the buyer’s representative charged with its actual purchase, there could be no implied warranty that one application would suffice.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 783-792; Dec. Dig. § 279.] .
    3. Sales (§ 358) — Action for Price — Evidence.
    In an action for the price of a secret preparation manufactured by the seller, where it appeared that the buyer’s general manager was told by the seller that it would take two applications to kill grass and weeds, evidence that the buyer’s subordinate was not so informed, and would not have purchased it had he known that two applications were necessary, was not material.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1049-1055; Dec. Dig. § 358.]
    4. Sales (§ 440) — Warranty—Documentary Evidence — Photographs.
    In an action for the purchase price of a secret manufactured preparation to kill grass and weeds, defended on the ground of an implied warranty that one application would be sufficient, photographs shown by the seller to the buyer prior to the sale, labeled to show that more than one application had been made to cause the destruction of the grass and weeds therein shown, were admissible.
    [Ed. Note. — For other cases, see Sales, Oent. Dig. §§ 1261-1276; Dec. Dig. § 440.]
    5. Appeal and Error (§ 1071) — Harmless Error — Findings.
    The trial court’s findings of fact, not material in the view taken of the law of the case, if erroneous, constituted no reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4234-4239; Dec. Dig. § 1071.]
    6. Appeal and Error (§ 1050) — Harmless Error — Admission of Evidence.
    Error, if any, in the admission of evidence, not material in the view taken of the law of the case, was not reversible error.
    [Ed. Noté. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from District. Court, Galveston .County; Robt. G. Street, Judge.
    Action by the Interstate Chemical. Company against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker, & Garwood, of Houston, John L. Darrouzet, of Galveston, and John T. Garrison, of Houston, for appellant. George Q. McCracken and Mart H. Royston, both of Galveston, for appellee.

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

   McMEANS, J.

The appellee, Interstate Chemical Company, brought this suit against the appellant, Missouri, Kansas & Texas Railway Company of Texas, to recover $6,-750 which it alleged that the appellant owed it by virtue of a written contract executed between the parties on December 20, 1912. Appellee alleged that it contracted to sell and deliver, and that it did sell and deliver, according to the terms of the contract, 200 barrels of a chemical known as' “dinamine,” a weed and grass destroyer, at the price of $33.75 per barrel, f. o. b. Galveston, to be used by appellant on its railway right of way; that by the terms of the contract payments were to be made by appellant therefor in four equal parts, one-fourth on the date of delivery, and the balance in three equal payments every 30 days thereafter; that during the month of April, 1912, appel-lee delivered the dinamine in accordance with the terms of the contract, and applied and distributed the same along appellant’s right of way, at the places designated by the officers of appellant and in the quantities desired by them, but that the appellant had failed and refused to pay therefor as it contracted to do.

The appellant answered, alleging that the dinamine was a secret preparation manufactured by appellee, and advertised and sold to appellant for the purpose of killing grass and weeds, and that there was an implied warranty on the part of appellee that the dinamine would kill and destroy weeds and grass; that the same was purchased by appellant with the understanding that it was a grass and weed destroyer, and that the quantity contracted for by it was placed upon its right of way under the’supervision of appel-lee, but that the grass and weeds on the right of way where the dinamine was applied were not materially affected, and that the dina-mine did not kill, destroy, or affect the weeds and grass upon the right of way, and that by reason thereof there was a breach of implied warranty, and therefore a failure of consideration.

The case was tried before the judge without a jury and resulted in a judgment for the chemical company, from which the railway company has appealed.

By its propositions under its first, second, and third assignments of error, which sufficiently raise the point, appellant contends that, having purchased from plaintiff dina-mine to be used for destroying weeds and grass, nothing being said at the time of purchase as to the number of applications that would be required to kill weeds and grass, there would be an implied warranty upon the part of the manufacturer, the appellee, that the dinamine sold was reasonably fit for the uses and purposes for which it was manufactured and sold, and that, the quantity purchased having been applied under the direction and supervision of the appellee, the manufacturer, and having ¿ailed to kill the weeds and grass as applied under appellee’s direction, the defendant, as the purchaser, would be relieved from the payment of the purchase price; the purchaser having relied upon the implied promise and warranty of the manufacturer that the dinamine was reasonably adapted and fitted for the purpose for which it was sold.

The evidence shows, and the trial court found, that the appellee is a manufacturer, according to a secret formula, of dinamine, the article sold, and that it held out to the public that two applications would, under normal conditions — i. e., when the railroad was ballasted with rock or gravel — kill grass and weeds. Advertisements to this • effect were especially circulated by the appellee among railroad companies.

On December 20, 1912, the following contract was entered into by and between the parties hereto:

“Dallas, Texas, December 20, 1912.
“I hereby agree to furnish your company, the Missouri, Kansas & Texas Railway Co. of Texas, two hundred (200) barrels, or (1,000) one thousand gallons, of our chemical known as ‘dinamine,’ a weed and grass destroyer, at the price of ($33.75) thirty-three and 75/100 dollars per barrel, f. o. b. Galveston.
“I further agree to furnish our railway power sprinkling cars and crew free of charge, all f. o. b. Galveston, the railway company to transport these cars and crew from Galveston to point where used, and return to Galveston, at their expense.
“I further agree to furnish the dinamine, equipment and crew after fifteen days’ written notice from you, it being understood that the railway company accept this material and start work prior to May 1, 1913.
“In addition to the equipment to be furnished by me, I will expect the railway company to furnish a tank car, box car and bunk car, and necessary water cars, together with work train service.
“The Terms: Payments to be in four equal parts, one-fourth on date of delivery, and the balance in three equal payments, every thirty days thereafter. .
“TSigned] Interstate Chemical Company,
“By I. F. Orton,
“Assistant General Manager.
“Accepted: The Missouri, Kansas & Texas Bailway Company of Texas,
• “By C. A. Tanheiser,
“Engineer, Maintenance of Way.”

Preliminary to the contract the following correspondence was had between appellant and appellee, the former being represented by its general manager, W. A. Webb, and the latter by its assistant general manager, I. F. Orton:

“On Texas Central Railroad, Sept. 5, 1912. “Interstate Chemical Company, Galveston, Texas :—
“Gentlemen: Your letter of August 31st. Can you give us the approximate cost per mile for using your weed killer and also how many applications it is necessary to make?
“Yours very truly, W. A. Webb.”
“September 9, 1912.
“Col. W. A. Webb, Vice President and General Manager M., K. & T. B. B. Co. of Texas, Dallas, Texas — Dear Sir: Many thanks for your favor of September 5th. It gives me great pleasure to submit you the following: Let us take for granted that the approximate cost per mile for hand-grassing of sixty-seven dollars and fifty cents, for two miles one hundred and thirty-four dollars and fifty cents. The approximate cost for a mile jor two applications, which is all that will be necessary, is sixty-seven dollars and fifty cents. You save per mile in two years sixty-seven dollars and fifty cents. Aside from this, the vegetation is killed, to stay killed. In addition to this saving you add the approximate saving of 1 per cent, of the ballast which is wasted by hand-grassing (at two dollars per cubic yard rock ballast, three hundred cubic yards per mile — six thousand dollars for five miles). This added to the above saving would make a total of one hundred and eighty-seven dollars.
“Furthermore on an order of one hundred barrels or over of dinamine we will bring our railroad power sprinkling car and crew, f. o. b. Galveston, and make the application free of charge, relieving you entirely of this problem. And as it is to our interest to make a success of it, we believe that the work will be done at less cost and better than if you were to apply, it by your own men. The cost of your train crew is approximately one dollar per mile for this treatment. It supplies approximately one and one-half to two ban-els per mile. The price per barrel for fifty one hundred barrel lots is thirty-three dollars and seventy-five cents net, f. o. b. Galveston. Again thanking you and giving you our assurance that your orders and instructions will have our immediate attention, we are,
“Very truly yours, I. F. Orton,
“Assistant General Manager.”

After this correspondence ensued Mr. Webb, appellant’s general manager, committed the matter of buying, and using the dinamine to his subordinate, Mr. H. F. Anderson, general superintendent of appellant, with authority to use his discretion in the premises, and thereafter Mr. Anderson turned the matter over to Mr. C. A. Tanheiser, appellant’s engineer, maintenance of way. Thereafter the contract hereinbefore set out was dictated by Mr. Tanheiser, and duly signed. Nothing was said by either party at the time the contract was executed about the number of applications it would take to kill grass and weeds.. Mr. Tanheiser had heard of dinamine as a weed and grass destroyer, had recommended its use to railroads and to the city engineer of the city of Beaumont for such purposes, and had seen places on railroads where the grass and weeds had been killed by its use, but did not know how many applications would be required.

After the execution of the contract the . dinamine was applied to the right of way of appellant’s railroad between Dallas and Denison, a distance of about 106 miles, under tbe supervision and direction of Mr. Orton, appellee’s assistant general manager. But one application was made, and this did not bill or materially affect tbe grass and weeds other than to bill tbe roots of most of the Johnson grass upon tbe right of way. The railroad between the points named was ballasted with burnt gumbo, and appellee had no previous experience in destroying grass and weeds with the preparation growing upon tracbs where this character of ballast was used. While applying the dinamine Mr. Orton informed Mr. Tanheiser that more than one application would be required to reach the desired result, but a second application was not made or requested by appellant, notwithstanding appellee, through Mr. Orton requested that it be permitted to mabe a second application. In advertisements of dinamine sent by appellee to railroad companies, including appellant, before the contract in question was made, it was stated that two or more applications were required to effectually kill grass and weeds. One of such advertisements introduced in evidence contained the following:

“Common sense would suggest to any practical mind that it is reasonable to ask for persistence in any work, and not to look for a miracle, as such would be the case could grass like Johnson, Bermuda, Coco, Russian Thistle, etc., •be destroyed with one effort.”

During the time of making the application Mr. Anderson, the appellant’s general superintendent, asked Mr. Orton to guarantee that one application would suffice, but this was refused; but, notwithstanding such refusal of ■ guaranty, the work was permitted to go on.

It is true that where a manufacturer contracts to supply an article which he manufactures, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment of the manufacturer, the law implies a promise or undertaking on his part that the article so manufactured and sold by him for a specific purpose, and to be used in a particular way, is reasonably fit and proper for the purposes for which he professes to make it, and for which it is known to be required; but such implied promise is conditioned and dependent upon the use of the article in the manner, quantity, and under the conditions prescribed by the manufacturer, and, when not so used, then such promise is not implied. Seitz v. Brewers, etc., Co., 141 U. S. 511, 12 Sup. Ct. 46, 35 L. Ed. 837.

The evidence, construed most favorably to appellant, was not sufficient, we think, to raise the issue of a warranty -that the use of the dinamine under the circumstances and in . the manner it was used would kill grass and weeds on appellant’s right of way. Certainly it is not sufficient to compel a finding in appellant’s favor on that issue. The contract is itself silent as to the 'number of applications that were required or that should be made, although it was dictated by appellant’s representative. At that time the appellant had been informed through its general manager by appellee’s representative, and knew, that appellee claimed that at least two applications were necessary to destroy the grass and weeds. The fact that appellant’s other representatives, those to whose judgment and disere-' tion the purchase' of the dinamine was committed, did not have this information imparted to them by the general manager does' not alter the situation. The appellant having been thus informed that two applications were necessary to accomplish a certain result, there could be no implied warranty, in the circumstances, that one application would suffice, and the doctrine of implied warranty is not, therefore, in the case. The assignments are overruled.

The fourth assignment complains of the action of the court in refusing to permit appellant to .prove by its witness Anderson that he would not have purchased the dinamine if he had. known that it would take two or three applications to kill the grass. Whether he knew it or not, the appellent knew it through information of its general manager, Webb, imparted to him by appellee in response to a direct question. Webb committed to Anderson’s judgment the question of whether or not to buy the dinamine, and if he did not disclose to him the facts he' knew as to the number of applications it would require, his failure in this regard should not be visited upon appellee to its injury. As the appellant had this information, we think it immaterial that its officer acting for it was not advised of it.

There was no error in permitting the photographs referred to in the fifth assignment to be offered in evidence showing sections of territory which had been treated with dinamine, which showed that the grass and weeds had been destroyed by more than one application, in view of the testimony of the witness Orton that these same photographs had been exhibited to the general manager, Webb, prior to the purchase by appellant of the dinamine, and that these photographs bore a label showing that more than one application had been made to attain the result shown thereby.

The fact findings of the court which are objected to by appellant as not being sustained by the record are not material in the view we take of the law of the case, and, if erroneous, they constitute no reversible er-# ror. And so too of the testimony of the witness Lister, the admission of which is complained of in the sixth assignment of error.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.