text:
    POWELL v. STEPHENSON.
    (No. 49.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1916.)
    1. EXECUTORS AND ADMINISTRATORS <&wkey;56 — Assets — Property Sold.
    Where property is conveyed by a decedent during his lifetime, whether bona fide or in fraud of creditors, the title and possession having passed, such property forms no part of the estate, and the administrator is without authority to prosecute a suit for its recovery or to list it as the property of the estate.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 308; Dec. Dig. &wkey;^56; Action, Cent. Dig. § 262.]
    2. Judgment &wkey;>632 — Conclusiveness—Suit Against Estate of Decedent.
    A judgment in favor of the estate of a decedent, in a suit by a creditor to establish his claim, is binding in an action by the creditor against a purchaser of the decedent to set aside a sale of personal property as in fraud of creditors.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1148; Dec. Dig. <&wkey;632.]
    3. Sales <&wkey;148 — Bill of Sale — Necessity of Record — Delivery.
    There being no intention on the part of a seller of cattle to sell or transfer his mark, where there was a bill of sale followed by actual delivery of possession upon the range, Rev. St. art. 4564, touching the sale of cattle by sale and delivery of marks and brands, and providing that to acquire title the 'purchaser shall have the bill of sale recorded, did not require the record of the bill o’f sale in order to pass title, although it recited marks and brands.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 346-348; Dec. Dig. <§=3148.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by B. Z. Powell, as temporary administrator of the estate of J. W. Erwin, deceased, against George W. Stephenson, in which B. Z. Powell, individually, and others later filed interventions as creditors of the estate, and upon Ms appointment' as permanent administrator, W. C. Erwin having declined to prosecute the suit, the case proceeded to trial with the interveners prosecuting the suit for the benefit of the estate and for themselves. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Wightmon & Hancock, of Newton, and Powell & Huffman, of Jasper, for appellant. Forse & Hamilton, of Newton, and Roi Blake, of Jasper, for appellee.
   BROOKE, J.

This is an action brought by B. Z. Powell, as temporary administrator of the estate of J. W. Erwin, deceased, against George M. Stephenson, for the possession of 142 head of stock cattle alleged to be the property of J. W. Erwin, deceased, and alleged to be of the reasonable value of ,$2,500. In this cause B. Z. Powell individually subsequently filed an intervention as a creditor of the estate of J. W. Erwin, deceased; also the Galveston Dry Goods Company intervened as a creditor of the estate of J. W. Erwin, deceased. Interveners, after alleging their indebtedness against the estate, alleged the ownership and possession of the property sued for to have been in J. W. Erwin, deceased, until the date of his death, and pleaded the statute of two years’ limitation, and also pleaded in the alternative that, if the defendant, George M. Stephenson, claimed the property under conveyance to him by the said J. W. Erwin, deceased, prior to and before his death, such sale or pretended sale was fraudulent, and that the property remained in the possession of the deceased, J. W. Erwin, until the time of his death, and never was in the possession of the defendant George M. Stephenson, prior to the death of said Erwin, and interveners further alleged the insolvency of J. W. Erwin, deceased, at the time of said sale. Interveners further alleged that they were not informed as to whether W. C. Erwin, administrator of the estate of J. W. Erwin, deceased (who had been appointed permanent administrator of the estate of J. W. Erwin, deceased, after the filing of this suit), would prosecute the suit as originally filed by the temporary administrator, and prayed the court that in the event said administrator, W. C. Erwin, failed to do so, that interveners be permitted to prosecute the action for the benefit of the estate of J. W. Erwin, deceased.

Defendant answered, excepting to the original petition filed by the temporary administrator, and to the interventions filed by interveners, the gist of his answer being that the defendant had purchased the cattle sued for from J. W. Erwin, deceased, pri- or to the death of said J. W. Erwin, upon a range delivery, and that interveners had no rights in the cause, because interveners’ claim had been refused by the administrator, and they had not been established against the estate by suit. The permanent administrator, W. C. Erwin, who was .the duly appointed administrator of the estate of J. W. Erwin, deceased, appointed after the filing of this cause by the temporary administrator, admitted ownership in the defendant, George M. Stephenson, of the cattle sued for, and for other reasons refused to prosecute the suit, to which plea interveners filed an answer specifically denying the allegations thereof. The case proceeded to trial, with the interveners prosecuting the suit for the benefit of the'estate of J. W. Erwin, deceased, and for themselves, on their alternate pleas. The case was submitted to the jury on special issues as follows, and the jury found as follows:

Question No. 1: “Was the sale of the cattle the subject-matter of this suit by J. W. Erwin to George M. Stephenson on the 2d day of July, 1911, made by J. W. Erwin for the purpose of defrauding his creditors? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”
To which the jury answered “No.”
Question No. 2: “Did' George M. Stephenson, at the time he purchased the cattle, if he did purchase the cattle, from J. W. Erwin, and received the bill of sale therefor, if he did receive a bill of sale therefor, know that it was the intention of J. W. Erwin to sell said cattle to him for the purpose of defrauding his creditors? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”
To which the jury answered “No.”
Question No. 3: “At the time of the sale of cattle by J. W. Erwin to George M. Stephenson, was it the intention of J. W. Erwin and George M. Stephenson to enter into a pretended sale of said cattle for the purpose of placing the cattle beyond the reach of creditors of J. W. Erwin? You will answer this question ‘Yes’ or ‘No’ as you may determine the fact to be.”
To which the jury answered “No.”
Question No. 4: “Was the sale of cattle by J. W. Erwin to George M. Stephenson made in good faith on the part of George M. Stephenson, and did George M. Stephenson pay to J. W. Erwin a valuable consideration for the cattle? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”
To which the jury answered “Yes.”
Question No. 5: “At the time of the sale of the cattle by J. W. Erwin to George M. Stephenson, did J. W. Erwin make a range delivery of said cattle to George M. Stephenson, and did George M. Stephenson understand that J. W. Erwin was making a delivery of the cattle on the range to George M. Stephenson, and did George M. Stephenson receive from J. W. Erwin said cattle on the range? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”
To which the jury answered “Yes.”
Question No. 6: “What was the market value of the cattle in controversy in the spring of the year 1914, when taken into possession by George M. Stephenson, defendant herein? Answer this question by stating the amount in figures and placing the dollar mark in front of the figures.”
To which the jury answered, “$16.50 per head.”

On the answers of the jury above the court rendered judgment for the defendant, George M. Stephenson, for the title and possession of the cattle sued for.

The verdict is assailed in the first assignment for the reason that appellant claims the answers by the jury to the first four questions submitted to them by the court are not supported by the evidence Introduced on the trial of this cause.'

At the outset it may he well to say the answer of the permanent administrator, W. O. Erwin, setting forth that he, as such administrator, is without power or authority under the law to prosecute this suit, or to inventory the said cattle as the property of said estate, for the reason that, inasmuch as the said Stephenson is claiming said cattle as his own, under the alleged purchase by him from the said J. W. Erwin during his lifetime, the title and possession of said cattle thereby passed from the said decedent to the said Stephenson, and that, inasmuch as the said J. W. Erwin could not have recovered from the said Stephenson said cattle during the lifetime of the former, his estate could not recover them from the said Stephenson after the death of the said J. W. Erwin, and this is true whether the alleged sale and transfer of the cattle was done bona fide or otherwise, embodies a correct proposition of law, and, so far as said administrator is concerned, should have been dismissed with his costs.

This identical question was passed on in Willis & Bro. v. Smith, 65 Tex. 658. Chief Justice Willie, speaking for the court says:

“There can be no doubt but that the administrator was the proper party to sue for such property as descended to the heirs upon the death of Laird. This property came to them charged with Laird’s debts, and the administrator was entitled to ijfe possession and management, for the purpose of paying, as far as possible, all claims against the estate. Pending an administration, no one creditor, nor any combination of creditors, has any right to such property, or can bring suit for its recovery. They must have it subjected to their debts through the county court, and the proper officer of that court, viz. the administrator, must bring such suits as are necessary to reduce it to possession, and bring_ it within the jurisdiction and control of that tribunal. But the case is different when property has been conveyed by a decedent in fraud of his creditors. Such property forms no part of his estate, and hence the administrator has no concern with it whatever. [Italics ours.] All the title of the grantor passed to his fraudulent grantee, subject only to the right of the defrauded creditor to have the conveyance set aside, so far as his debt is concerned, and the property made liable for its payment.
“As to subsequent creditors, the title of the grantee is good, and the fraudulent grantor has no right in it whatever. He has no title which can descend to his heirs, or vest in his executor or administrator for the payment of debts. As none but prior creditors have any claim against the property, and the estate has no title to it, these creditors are the only parties who can sue to subject it to their debts, and an administrator would not be a proper plaintiff in such a'proceeding. Erom these views it follows that the appellants, having a judgment against the estate of Laird-, his estate being insolvent, were entitled to subject property conveyed in fraud of their debt to the payment of their judgment. The administrator of Laird was not authorized to sue for the property, for the purpose of administering it, as it could under no circumstances form part of the estate. Forming no part of the estate to be administered, the county court could have no jurisdiction or control over it, and hence the court should not have sustained the plea in abatement. The plaintiffs .should have been allowed to proceed with their action, so far as it sought to subject any property conveyed by Laird, in fraud of the plaintiffs’ claim, to the payment of the judgment; and the suit could be dismissed only so far as it claimed to have any property which descended to the heirs made liable to the plaintiffs’ demand.”

It may be well also to state in this connection, that the claim of B. Z. Powell against J. W. Erwin had been presented to the administrator and was rejected by him, and subsequently, upon suit to establish the same, it was decided by the district court of Jasper county, before whom said suit was brought, that the consideration bad failed, and that therefore the said B. Z. Powell was not a creditor of the estate; and, said cause having been appealed to this court, being numbered 133 on the docket thereof, it was decided during the present term of this court in favor of the estate, which action is binding, so far as B. Z. Powell’s interest is concerned in the present controversy, and eliminates him from the same.

The Galveston Dry Goods Company, so far as this record shows, presented its claim to the permanent administrator, and the same was rejected, and we are unable to find where the same has been established by a judgment of any court. However, we will proceed to consider the appellants’ assignments of error.

It is earnestly contended and strenuously urged that the bill of sale given by J. W. Erwin, deceased, to the appellee in this case, which reads as follows:

“Know all men by these presents that I, J. W. Erwin, of the county of Jasper and state of Texas, have hereby granted, sold, and conveyed all of my cattle to George M. Stephenson, same being three hundred, more or less, at range delivery, cattle being marked split and under bit in one ear and under square in the other, for a consideration of $10.50 per head.
“Signed and dated this 2d day of July, 1911.
his
“J. W. X Erwin, mark
“Witness:
“Webb Smith.
“Leo Blake”

—has never been recorded, and, as above stated, the contention is that the statute requires the record of bills of sale in such cases as the above. We must not forget that there is testimony in the record showing that after the bill of sale was made there was an actual delivery of the cattle on the range to Stephenson. Therefore, if the parties . went upon the range, and Stephenson took possession of the cattle, the contention of appellant would be of no avail. On this phase of the matter Jack Bishop testified:

“I am acquainted with George M. Stephenson, and I was raised in two miles of J. W. Erwin. I have lived about two miles or two and a half miles from Mr. Erwin’s place. I have known him ever since I was old enough to remember. I was acquainted with Mr. Erwin’s cattle. I helped Mr. Stephenson gather and look after those cattle. I helped Mr. Stephenson mark and helped to gather when he carried them off. Mr. Stephenson paid me for that work. Neal Hayes and Pole Erwin helped me in the work. Mr. George sent back money by me once to Neal. I had a conversation with J. W. Erwin relative to this title. I don’t know how long ago he told me he didn’t 'own but two in the world. He said he didn’t own but two head. He said the old woman there claimed them two. He said Mr. George Stephenson had sold them all to him but two, and he said the old woman claimed them. Mr. Stephenson came up there at various times for the last four or five years to look after these cattle. We were at Mr. Erwin’s house when he told me about the two cows and the old woman claiming them. He told me that three or four years ago. It was in 1912 or 1913, somewhere along there. I wasn’t paying much attention to it; two or three years ago, somewhere along there. He told me something about his debt at that time. He said B. Z. Powell had cleaned him up. He said he had to sell his cattle to pay his debts. He didn’t say anything about the Galveston debt. He didn’t tell me what he got for them. I never asked him. Julius Erwin and I were raised together, and never had any trouble. I have known him all my life, raised in the same settlement with me. I didn’t ask him what he received for the cattle. I was never no hand to question anything. I don’t remember how many he said he sold. He said he sold all but two. I have helped Mr. Stephenson for the last four or five years with his cattle. We marked the calves. I don’t know how many we marked in 1911. I don’t know how many we marked in 1912. We marked them with Mr. Erwin’s mark. Mr. Stephenson was with me when we marked them, also Neal Hayes and Pole Erwin. I don’t know who else; maybe Dow Reese has helped some time or other; seems like maybe Hal Hayes might have been along. I know Neal Hayes was there, and Pole Erwin, I know that. We were from Wharton Switch to Jules when we marked them, wherever we could catch them. We marked them every spring, some time we would be a week. George was with me every time when I went in the woods. He carried them all away from there last year, 1914. He carried them off last summer. I don’t know how many we marked last spring before Mr. Erwin died. I helped Mr. Stephenson. Julius never did hire me to help him. George never did brand any cattle. I helped him mark. I helped him drive them off after Jule died. I don’t know how many they drove off. There was something over 100 head. I never counted them. He brought other cattle from Robertson’s down to Jasper, in that country. I believe we made two round-ups last year. I don’t know how many we drove off the last time. I didn’t have a book and pencil. He bought part of them from me. I don’t know how many we rounded up then. I never did count them. I don’t know of his buying any cattle from Julius. He would drive cattle from there before Julius died. I mean during that year. He drove every year for the last four or five years. Last year he got all he could find. He had been there every year for the last five years. I know that, and he got cattle, and I have helped him. He bought some cattle from other people. I don’t know whether he bought any from Jules or not. He claims them to be his. He didn’t buy any from Jule. They were his. I knew it. In 1914 he cleaned up the Erwin hunch,, just about all we could find. He bought some cattle in 1913 from Son Boy Robinson. He bought cattle from most everybody in that country. These were his own, I know he had them. He had authorized me to sell them and I had not done it. He authorized me to sell some cattle over there in the Erwin bunch. I never did sell any. I never had time to fool with them. I helped him when he hired me, and he always paid me. He got cattle there for the last five or six years.”

Being asked, if lie ever knew of bis buying cattle from Julius Erwin in 1911, be answered:

“I don’t know what he done. They had me on the horse all the time, and I couldn’t tell what they was doing. Julius was there, and sometimes he would help, and sometimes he wouldn’t.”

Being asked wben be got those cattle up there and carried them out, whether he knew that be bought them from Julius or not, he answered:

“He was messing with them. He had bought them some time along — I don’t know what year exactly. He said so, and others said so; two or three years hack. I don’t know anything about him getting 30 head from Jule. X didn’t know how many he got. I did not question him. I was hired to work, and wasn’t hired to tend to their business. I was helping them gather in 1914, when he came up there and made the last two gatherings. He got them on Sandy creek and from Mellin’s creek, and Beef creek. They were in the range where they had been raised, promiscuous range of Julius Erwin’s cattle. When I helped George round up the cattle sometimes we penned them at Dow Reese’s. Most of the time at Julius’ house. We penned Mr. George’s cattle. They said they were his. He was paying me for the work. The cattle he was buying up there he carried them off down where he lived. They carried the Erwin cattle along with the others, all hunched together. He had bought a few from me ever since he has ever bought up there. I helped him pen them when they were carrying them off. I have helped mark ever since he has been coming up there. I don’t know; I didn’t set it down. When I am working for a man, I ain’t a tending to his business. I haven’t helped Jule round up and mark any cattle. I don’t know of him doing it for the last few years. It has been six or seven years ago since I heard of Jule’s marking any cattle; if he marked any I don’t know of it. I am in the woods a right smart when there is anything in it. It is about 2y2 miles from my place to where Julius lived. I don’t know what Julius was doing about selling his cattle.”

Hamp Mattox testified:

“I was acquainted with J. W. Erwin and George M. Stephenson. I have had occasion to go among the Erwin cattle. Mr. Stephenson employed me all I ever had anything to do with them. Mr. Erwin told me about who these cattle belonged to. He told me they belonged to George Stephenson. Mr, Stephenson took some cattle from the ranch up there prior to the time he gathered the whole bunch. He took them at different times. He would take beef cattle, mostly steers. I don’t know exactly how many times I helped Mr. Stephenson drive cattle. About six years ago was my first helping. He came to my place and had dinner, and he was buying cattle, and I remarked to him that if he needed any help I would like to have a little job in the drive. I have helped him some ever since. He bought a few from nearly everybody." He drove the cattle off. I don’t think he failed to get any from Julius’ place every year. I don’t know whether he paid for them or not. So far as I know, he may have paid him each and every year. It has been something like two years since Mr. Erwin told me that the cattle belonged to George Stephenson, something about a year before Erwin died. Erwin died last spring, and I think it was about a year before that he told me he had sold the cattle to George. I .was at his place when he told me. He told me that as I was figuring on buying myself. He just remarked that he had sold all his cattle to George Stephenson. I know a negro by the name of Joe Wilson. He came to see me once to get me to help Erwin drive some cattle. I remember it was about the 10th of last April. I went and helped him drive some cattle. We drove them to Brookeland. My recollection was Mr. Lewis Letney and Julius Erwin, maybe a little negro boy, helped part of the way. I don’t know who it was for. It was about 15 head. I was in the general gathering with Mr. Stephenson after Mr. Erwin”s death. He was there with a good many of them were driven off. I remember being in this drive. I don’t remember how many there were. Seems to me there were about 60. I never kept any account, with reference to bill of sale and of its record.”

In the case of Swan et al. v. Larkin, Deceased, 8 Tex. Civ. App. 421, 28 S. W. 217, in which a writ of error was denied by the Supreme Court, the court says:

“Article 4562 of the Revised Statutes provides that the sale of any animal of the species therein enumerated, accompanied with actual delivery, is prima facie illegal, unless also accompanied by a written bill of sale giving the number, marks, and brands of each sold and delivered. This statute is directory, and the presumption of illegality that attends the sale without the written evidence accompanying is one that can be rebutted and removed by proof of good faith. Wells v. Littlefield, 59 Tex. 561. Article 4564 applies to a different class of sales, and contemplates no delivery of the property itself, but merely a written transfer of marks and brands in the manner prescribed; and it is declared, in effect, that under a sale made in this manner no title shall be acquired, unless the statute is followed. As we understand these articles, there are only two methods, by voluntary transfers, in which title to property of the kind described can be acquired, the one by actual delivery, accompanied by a bill of sale, or other proof of good faith; the other contemplating no delivery of the animals, but the mere transfer of the marks and brands in the manner specified. Under article 4562 there could he a valid sale of a number of cattle described simply by marks and brands, or in any manner that would identify and segregate them from other stock, when accompanied by delivery. Bank v. Brown, 85 Tex. 85, 23 S. W. 862. We are of the opinion that this delivery might he accomplished by designating them as all the cattle in certain brands in certain pastures, provided the latter were not of such proportions, when considered with the number of cattle, and other circumstances, as to amount, in effect, to having the cattle at large upon the range. If the cattle in controversy were loose on the range, there was no delivery, under the facts of this case; and, a bill of sale being an absolute prerequisite to the acquisition of title, it follows that the sale would be 'absolutely null and void. The question of whether the stock were ‘loose’ on the range, as that word is used in the statute, involving, as it did, the question of delivery, was the turning point in this case. Without delivery of the property by Dubois & Wentworth to appellants, there could have been no valid sale, under article 4562; and if the cattle were on the range, there being no compliance with the statute as expressed in article 4564, there could have been no valid sale under its provisions. It cannot be said, as a matter of law, that 3,000 cattle turned loose in a 60,-000-acre pasture are running in the range, as contemplated in article 4564.”
“There is no law, statutory or otherwise, defining what ‘running on the range’ means; and. indeed, it would be impracticable to define the term, but it is purely a question of fact to be determined by the jury.”

Further, the court says:

“We can readily imagine cases where the animals could not ‘be herded, and penned without great inconvenience and expense,’ in which there could be such actual delivery as to meet the requirements of article 4562. In other words, ‘running at large in a range,’ as qualified and explained in article 2293, is not necessarily the same as running on the range as contemplated in article 4564.”

In the ease of Nance v. Barber, 7 Tex. Civ. App. 111, 26 S. W. 151, the court, speaking through Justice Key, says:

“The district court held that the sale from T. N. Nance to the plaintiff was within the purview of article 4564 of the Revised Statutes, and that, as the bill of sale was not recorded, the sale was void, and conferred no title, and the jury were directed to return a verdict for the defendants. The article referred to reads as follows: ‘Persons may dispose of stock animals of the kind mentioned in article 4562, as they run in the range, by the sale and delivery of the brands and marks; but in every such sale the purchaser, in order to acquire title thereto, shall have his conveyance or bill of sale of such stock recorded in the county clerk’s office, in a book to be kept by him for that purpose, and such sale or transfer shall be noted on the record of original marks and brands in the name of the vendee or purchaser.’ In sales covered by this statute it cannot be doubted that, in order for the purchaser to acquire title to the property, he must take a written conveyance, and have the same duly recorded. But, in our opinion, the statute does not apply to the sale from T. N. Nance to the plaintiff. By its terms it is limited to the transfer of live stock as they run in the range, by the sale and delivery of the brands and marks. [Italics ours.] This statute was first enacted in 1866. At that time, and even when the Revised Statutes were adopted, a considerable portion of the state was devoted almost exclusively to stock raising. Individuals owned large numbers of live stock that were not kept in any inclosure, but ran at large upon the common, and were identified exclusively by the owner’s mark and brand. It was a common practice then, and in some parts of the state may be at this time, for an owner of a stock of horses or cattle to sell Ms entire stock; that is to say, all the animals that he owned, running on the range,, in a particular mark and brand. Such transactions were commonly known as and designated a ‘sale of a mark and brand.’ It is to these sales that the statute in question refers ; and, as it places restrictions upon the right of an owner to sell his property, one of the most valuable rights incident to ownership, we do not feel at liberty to extend its meaning to transactions that are not embraced within its terms. In the present ease T. N. Nance owned a stock of cattle in Llano county. Part of this stock — in fact, the greater part — he removed to Ilays county, and placed in a pasture. These he sold to the plaintiff, designating them as 116 head, bearing certain brands and various marks. This was not a transfer by sale of brands and marlcs. [Italics ours.] The bills of sale do not purport to convey all the cattle owned by T. N. Nance in designated brands, but do convey a specified number of such cattle. The concluding clause of article 4564, which requires the ‘sale or transfer to be noted on the record of marks and brands in the name of the vendee or purchaser,’ supports our construction of said article. A person can have but one brand and mark, which is required to be recorded ; and it was intended by the clause above quoted that the record of brands and marks should-at all times show to whom a brand and mark once recorded belonged.”

The testimony in this case shows there was no intention to sell or transfer his mark or brand by J. W. Erwin to George M. Stephenson.

We have carefully examined all the assignments of error of the appellant, and, finding no merit in the same, the action of the lower court in entering judgment for George M. Stephenson is in all things affirmed.

It is so ordered.
      <fc=For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    SALE et ux. v. GERSDORFF.
    (No. 5737.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1916.)
    Appeal and Eseoe &wkey;>387(3) — Time fob Filing Appeal Bond — Extension—Change of Residence.
    Where the petition alleged that defendants, husband and wife, resided in the county, which was not denied, but defendants, in their answer, alleged that the property in controversy was their homestead and had been used openly and notoriously as such by them, the husband, by going to another county, could not place himself and wife in the category of nonresidents, and they could not, by affidavits, change their residence as fixed by the record to gain additional time to file appeal bond.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064, 2066, 2067; Dec. Dig. &wkey;387(3).]
    Appeal from Fifty-Seventh District Court, Bexar County; R. B. Minor, Judge.
    Suit by Charles Gersdorff against A. P. Sale and wife. From a judgment for plaintiff, defendants appeal.
    Judgment affirmed.
    Forrest Campbell, of San Antonio, for appellants. McCollum Burnett, of San Antonio, for appellee.
   FLY, C. J.

It is alleged in the petition that appellants reside in Bexar county, and that allegation is not denied by appellants, but in their answer they allege that the property in controversy, is their homestead, and had been “used openly and notoriously as a part of the homestead by the defendants herein.” The appellants introduced evidence, to the effect that they had used the lots in controversy as a part of their homestead for eight years prior to the trial, and that they resided on lots near those in controversy. After appellants failed to file their appeal bond within the 20 days required by the statute, then it was discovered that A. P. Sale was not then, and is not now, a resident of Bexar county, and affidavits were produced to that effect. The residence of appellants was fixed by the allegations and proof at the trial, and the husband, by going to another county, cannot place himself and wife in the category of nonresidents. He and she claimed to live on the land in such a way as to make it their homestead, and they cannot, by affidavits, change the residence fixed by the record to gain additional time in which to file an appeal bond.

The motion for rehearing is overruled.
      «tenFor other cases see same tonic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    INTERNATIONAL & G. N. RY. CO. v. SUTHERLAND.
    (No. 5722.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1916.)
    1. Appeal and Eeboe <§=>742(4) — Reservation op Geounds op Review — Admission of Evidence.
    Where the statement following an assignment of error to the admission of testimony failed to show it was objected to, or any bill of exceptions taken to refusal to withdraw it from the jury, and no such bill appeared in the record, which showed the jury was instructed not to consider the testimony, the assignment will not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec.' Dig. 742(4).]
    2. Evidence <§=5368(1) — Documents — Pbo-DUCTION OP WBITTF.N CONTEACT.
    Where the suit of a shipper of live stock for damages from negligence in handling was not based on a written contract, but on the contract arising from delivery to a railway to be delivered by it to the negligent road, and no effort was made to have a bill of lading produced, the court was not in error in failing to require plaintiff to produce any written contract.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1540; Dec. Dig. <§=5368(1).]
    Appeal from Jim Wells County Court; L. Bxoeter, Judge.
    Suit by G.'W. Sutherland against the International & Great Northern Railway Company and another.’ From a judgment for plaintiff against the named defendant, it appeals.
    Judgment affirmed.
    Greer & Hamilton, of Laredo, and Wilson, Dabney & King, of Houston, for appellant. Dougherty & Dougherty, and H. S. Bonham, all of Beeville, for appellees.
   FLY, C. J.

This is a suit instituted by ap-pellee to recover damages arising from negligence in handling certain cattle and delay in transportation, said cattle having been shipped from Hebbronville, Tex., to Ft. Worth, Tex. There was no contract alleged, except one arising from delivery of the cattle to the Texas Mexican Railway Company to be by it delivered to appellant. Receivers of appellant answered by general demurrer and" general denial. The cause was submitted to a jury on special issues, and upon the answers judgment was rendered for appellee as against appellant for $250, and in favor of the Texas Mexican Railway Company, that appellee recover nothing by his suit.

The first assignment of error seeks to raise error as to the admission of testimony upon the part of J. W. Sutherland as to a conversation he had with C. Hanson, appellant’s live stock agent. The statement following the assignment of error fails to show that the evidence was objected to, or that any bill of exception was taken to a refusal to withdraw it from the jury. No such bill of exceptions appears in the record, and if it did the record shows that the jury was instructed not to consider the testimony to which the assignment of error applies. The assignment of error will not be considered.

The second assignment of error seeks to question the action of the court in failing to require appellee to produce a bill of lading or other written contract. The statement fails to indicate that appellant made any effort to have appellee produce a bill of lading. It would have been rather difficult for appellee to produce a bill of lading, as none was given him by the initial carrier, and his suit was not based on a written contract. The statement under the assignment of error seems to have no application to it whatever. The assignment of error is overruled.

It was alleged as one of the grounds of negligence that appellant had caused the cattle “to be needlessly unloaded for feed and water, whereby said stock were delayed for many hours.” For some reason not disclosed by the assignment of error, which is submitted as a proposition, objection is made to the submission of the issue, but the record fails to show that any such issue was submitted to the jury. The assignment is overruled.

The evidence is sufficient to sustain the answers of the jury.

The judgment is affirmed.


author: HIGGINS, J.

text:
    TERRELL v. HOUSTON & T. C. RY. CO.
    (No. 611.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1916.
    Rehearing Denied Nov. 23, 1916.)
    1. Appeal and Eeeok <§=699(4) — Scope — Recoed — Sufficiency.
    Refusal of special requested instructions will not be reviewed on assignments of error where the record fails to show that they were presented to opposing counsel for examination and objection, as required by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2929; Dec. Dig. <§=699(4).]
    2. Tbial <§=>252(9) — Instbuctions—ConfobmITY TO PbOOF.
    Direction of verdict for the railway, should the jury find the injuries to plaintiff in a crossing accident were the result of unavoidable accident, is error, where there is nothing in the evidence to suggest unavoidable accident.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. <§=5252(9).]
    3. Raileoads <§=5395 — Ceossing Accidents— Evidence — Confoemity with Issues.
    In _ suit for injuries when plaintiff’s mule was frightened by a train on an overhead crossing, based on failure to give signals in approaching the crossing, it was error to admit testimony that, had signals been sounded while the train was on the crossing, it would have increased plaintiff’s danger.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1339, 1340.; Dec. Dig. <§=>395.]
    Appeal from Burleson County Court; W. M. Hilliard, Judge.
    ] Action by Ludie Terrell against the Houston &' Texas Central Railway Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    A. B. Gerland and Jesse Garrett, both of Caldwell, for appellant. R. S. Bowers, of Caldwell, and Baker, Botts, Parker & Gar-wood, of Houston, for appellee.
   HIGGINS, J.

This suit was brought by appellant to recover damages resulting from personal injuries. From an adverse verdict and judgment, she appeals.

Appellant was riding in a buggy driven by her brother. They were driving along a public road leading from town of Caldwell, and which crossed the railroad line of ap-pellee. The crossing was an overhead crossing ; that is to say, the railroad track passed over the public road. The crossing was 200 or 300 yards east of Davidson creek. The public road here runs in a depression. When the buggy reached a point 10 or 15 feet from the crossing a train suddenly flashed across the crossing, frightening the mule which the parties were driving. By reason of its fright, the mule whirled and upset the buggy, threw the occupants to the ground, inflicting painful injury upon appellant. According to appellant’s evidence, they were unable to see this train until it was immediately upon the crossing because of the depression in which the public road was situate and trees and weeds which also obstructed the view. There was testimony that trains coming from the direction from which this train was coming would coast along as they approached the crossing, it being down grade, and would approach the crossing almost noiselessly. The plaintiff and her brother testified that the bell was not rung and the whistle not blown as it approached the crossing, and, according to their testimony, they approached the crossing with all due care and caution, carefully listening and looking for a train. The negligence alleged wa's the failure to ring the bell and blow the whistle upon approaching the crossing. The court in its charge submitted the issue of negligence as alleged and the issue of contributory negligence upon appellant’s part in approaching the crossing.

The first four assignments complain of the refusal of special requested instructions. They are overruled because the record fails to show that they were submitted to opposing counsel for examination and objection as required by chapter 59, Acts 33d Leg. p. 113; Floegge v. Meyer, 172 S. W. 194; Railway Co. v. Jones, 175 S. W. 488; Railway Co. v. Hargrave, 177 S. W. 509; Lumber Co. v. Illig, 179 S. W. 1093.

In addition to the issue of contributory negligence submitted in the main charge, the court, at defendant’s instance, gave a special instruction directing a verdict for defendant if they believed that plaintiff’s injury was the result of an unavoidable accident. There is nothing in the evidence to suggest that the accident was unavoidable or inevitable, and it was error to give such an instruction.

The court permitted defendant’s witness Johnson to testify:

“It would be safer to a person approaching said underground crossing from the direction of Caldwell, if the defendant’s train would approach said crossing from the east without ringing the bell or blowing the whistle at said underground crossing, than it would be for the whistle to be blown and the bell to be rung while running over said underground crossing.”

This was objected to by plaintiff “because whether or not the bell should have been rung and the whistle blown while passing over said underground crossing was not an issue in the case.” The objection should have been sustained. The alleged ground of negligence related to the failure to sound the whistle and ring the bell as a warning of the approach of the train to the crossing. No complaint was made of any failure to do so as it was passing over the road.

Reversed and remanded.
      —.Fnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. PRENDERGAST, P. J.

text:
    LEACH v. STATE.
    (No. 4124.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.)
    1. Criminal Law <&wkey;673(5) — Trial — Limitation of Evidence.
    In a prosecution for riding on the railroad pass of another, testimony of the railroad’s auditor, that defendant had previously ridden on the pass, was admissible on the question of identity to show the number of times witness had been with defendant and his opportunity for recognition, and should have been limited to the purpose for which it was introduced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1876; Dec. 'Dig. &wkey;>673(5).]
    2. Criminal Law t&wkey;434 — Evidence—Alibi.
    In a prosecution for riding on another’s railroad pass, where a witness was offered bjr defendant, after the road’s auditor had positively identified defendant as being the party who used the pass, who would have sworn that on that particular day defendant was at a Sunday school elsewhere at the time, and it was made to appear that witness was familiar with Sunday school matters and the roll book, as his sister and wife had been the secretaries, the evidence should have been admitted.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. § 1023; Dec. Dig. <&wkey;434.]
    3. Criminal Law &wkey;>369(15) — Evidence — Materiality.
    Testimony of a train auditor, that the pass was used on certain trips and certain dates other than those charged, was inadmissible, since if defendant did ride on the pass on such trips and such dates, it would not serve to identify him in relation to the offense charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 824; Dec. Dig. 4&wkey;369(15).]
    4. Witnesses &wkey;>331% — Impeachment.
    Where the owner of the pass testified that he did not permit any one to ride on it, testimony, of a train auditor on other trips and dates other than that charged, that the owner’s pass was used on such trips and dates by defendant was not admissible to impeach the owner of the pass.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. <&wkey;>331%.]
    5. Criminal Law &wkey;>1169(5) — Harmless Error-Limiting Testimony.
    The limitation of inadmissible testimony does not cure the error in its admission.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. &wkey;>1169(5).]
    6. Criminal Law &wkey;>783(2) — Trial — Instruction.
    Where the court charged not to consider testimony, tending to show that defendant rode on the pass on another trip, as showing an offense charged, and that defendant was not on trial for riding on the pass on other trips than that charged, such charge was objectionable as not specifying and properly submitting that the evidence of other trips was admitted to show the chance of the railroad’s auditor knowing and identifying defendant, and to contradict the owner of the pass, who had testified he let no one use it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1S75; Dec. Dig. &wkey;783(2).]
    7. Crimina'l Law <&wkey;763, 764(14) — Trial — Charge on Weight of Testimony.
    A charge, that the jury should not consider testimony tending to show that defendant rode on the pass on other trips and dates, was on the weight of the testimony, as assuming that defendant did ride on it, at least that the testimony tended to show that fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1741; Dec. Dig. &wkey;> 763, 764(14).]
    8. Criminal Law &wkey;>673(3) — Limiting Impeaching Testimony.
    Where testimony was admissible only to impeach a witness, the jury should have been so told.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1875; Dec. Dig. &wkey;G73(3).]
    9. Criminal Law <&wkey;339 — Evidence—Identity.
    The auditor of the road could have testified that he had seen defendant previously to the offense, if defendant showed the auditor did not know him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 767-772; Dee. Dig. &wkey;339.]
    Appeal from Hunt County Court; H. O. Norwood, .Tudge.
    Hamp Leach was convicted of riding on the railroad pass of another, and he appeals.
    Judgment reversed, and cause remanded.
    See, also, 180 S. W. 122.
    Clark & Leddy, of Greenville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of riding on the pass of J. R. Ratliff; his punishment being assessed at a fine of $100, and 30 days’ imprisonment in the county jail.

The state’s case is dependent upon the fact that appellant simulated J. R. Ratliff, to whom had been issued a Missouri, Kansas & Texas Railway free pass, and used it under the name of J. R. Ratliff. This was denied by appellant, and testimony introduced showing it not to be the fact. There was testimony introduced by the state over objection of appellant.

One of the bills recites that after the state’s witness A. M. Kirby testified that defendant rode on J. R. Ratliff’s pass on the train of which he was auditor on the 13th of December, 1914, and positively identified defendant as the man who presented Ratliff’s pass for transportation, the state asked witness if defendant ever presented that pass at any other time for transportation. Appellant excepted to the introduction of this evidence on the ground that he was charged with using the pass in question on a specific trip from Greenville to Emory, and the evidence offered showed a separate and distinct offense from that for which the defendant was on trial; that it did not in any way tend to connect defendant with the commission of the offense charged; did not tend to show system, or develop the intent of defendant; was not a part of the res gestoe of the transaction, and was highly prejudicial and calculated to cause the jury to believe that the defendant was an habitual violator of the law. These objections were all overruled, and the witness testified that the defendant had prior to said trip from Greenville to Emory rode from Emory to Greenville on December 8, 1914, on the pass of J. R. Ratliff, and that he presented same for transportation as being J. R. Ratliff on that date; and the bill further recites that the state offered in evidence slips identified by the auditor Kirby as being recorded by him as auditor, showing that on train No. 12, on December 8, 1914, on the run from Emory to Greenville, pass No. B2089 of J. R. Ratliff was used as transportation between Emory and Green-ville; that at the time the state offered said slips in evidence defendant objected for the reasons above stated, setting them out in full. The trial judge approves this by stating one of the contentions of defendant was that the witness could not identify him, and this testimony was admitted to show the number of times the witness had been with defendant, and the opportunity for recognition, and because this is controlled by paragraph No. 5 of the main charge. If it be conceded this testimony was admissible, then it. should have been limited to the purpose for which it was introduced, and the court said that was identity. The court says he controls this by subdivision No. 5 of his charge. This reads as follows:

“You are instructed not to consider the testimony tending to show that defendant rode on the pass of J. R. Ratliff from Denison to Wichita Falls, as showing an offense charged in this case. The defendant is not on trial for riding on the pass of J. R. Ratliff on other roads of the Missouri, Kansas & Texas Railway Company of Texas, than that from Greenville to Emory, and you should not find him guilty of other offenses.”

In a general way the court charged the jury they could not convict appellant on the use of the pass from Denison to Wichita Falls, but this transaction was on the Missouri, Kansas & Texas Railway Company between Emory and Greenville, in an entirely different part of the state, and if the court is correct that the testimony was admissible, it was to identify the defendant, as that became a question in. the case. This was the trial court’s theory of the matter and his reason ror permitting the evidence to go to the jury. Wherever testimony is introduced for the purpose of identification of an accused as a means of connecting him with the crime for which he is being tried, this testimony must be limited. The authorities have been collated by Mr. Branch in his work on Criminal Daw, § 366. This was a different offense at a different occasion, if appellant used Ratliff’s pass. The state’s case was, and so submitted to the jury, that he rode on the pass from Greenville to Emory, and this was on the 13th of December. The train auditor Kirby identified defendant as the man who rode -from Greenville to Emory at that time. The testimony of defendant is to the effect that he did not ride on the train on the 13th of December going from Green-ville to Emory. Quite a number of witnesses were introduced who swore positively to an alibi on that particular day. This evidence was introduced to show that he rode from Emory to Greenville five days before on the same pass. The writer does not believe this testimony introducible either on the trial court’s theory of identification, and cer-' tainly not on the question of system. System is not involved by this character of testimony. But having admitted the testimony, it certainly should have been limited to the purpose for which n. was admitted.

Another bill recites that after Kirby had positively identified defendant as being the party who used Ratliff’s pass on December 13th, the witness Lon Bullock was offered by the defendant, and who would have sworn, had he been permitted, that on December 13th defendant was at a Baptist Sunday school 30 odd miles from Greenville at 10 o’clock, and was not in Greenville. Other testimony was introduced to show the same fact. One or more of the witnesses testified positively that they were members of that Sunday school, and one or two of them members of the Bible class, of which defendant was also a member; that the secretary of that Sunday school kept a roll of attending members each Sunday, and that he was familiar with this book, as his sister and his wife had been the secretaries; that he knew their handwriting, and knew of the fact that they kept this book, and knew their means of showing on the bools the attendance or absence of each attendant; that those who were absent were marked “a” and those who were present had a straight mark after their name. This indicated their presence or absence at roll call and their attendance or nonattendance upon Sunday school. This matter and what the book contained was offered to be proved by Bullock. The court excluded it. The court says that defendant did not show to his satisfaction that the record was properly or correctly kept, or that it spoke the truth; that the party who made the record was not in attendance upon the court to testify as to the correctness or truthfulness of the same. The sister of the witness Bulloc-k was not present, neither was his wife. The sister had gone to the western part of the state, and perhaps was living in Kent county. It seems the wife of the witness was at home. But if this witness knew the facts as certainly and accurately as did the other two witnesses, there is no reason why he should not have so testified. It is shown by this and another witness these books were correctly kept, and that they were familiar with them and with not only the books themselves and the manner of keeping them, but were thoroughly identified with the whole Sunday school, and one of the Bullocks at one time superintended or was president of the Sunday school. Certainly the question of identity being an issue, here is an alibi which is shown not only by the witness, who stated that defendant was at Sunday’ school and was not in Greenville at the time, but here was evidence of the secretary’s boohs showing he answered his roll call that day at Sunday school. If the court was of opinion that Kirby had seen the defendant on his train five days before the 13th of December, on the question of identity, this evidence would be contradictory of Kirby. The judge states that it was not proved to his satisfaction that the books were properly or correctly kept, but the witness swears they were, and there is no evidence to the contrary in the record. The state did not undertake to show that the books were not correctly kept. The court was in error in this matter. Upon another trial this evidence should be permitted to go to the jury along with the other testimony if identity, or defendant’s presence on the train on the 13th of the month as testified by Kirby, becomes an issue.'

Another bill recites that the witness Connell was offered to prove that his record showed that Ratliff’s pass was used from Wichita Falls to Henrietta on November 6, 1914, and that the same pass was used from Denison to Wichita Falls on November 5th, and his record showed that fact; that he was train auditor on said dates, running between Denison and Wichita Falls; that when he was asked whether the defendant was the man who used said pass at that time, appellant objected for various and sundry reasons, which are unnecessary to repeat. These were all overruled, and the witness testified that he had seen this defendant since he had been at the trial, and identified defendant as such party, and was positive of such fact. The court approves this bill with the statement that paragraph No. 5 of the main charge tells the jury that they shall not consider the testimony tending to show that defendant rode on pass from Denison to Wichita Falls as showing an offense, but this evidence was only permitted to contradict J. R. Ratcliff who had testified that he had not permitted any one to ride on his pass at any time, and this was so stated by the county attorney when he offered the testimony. The charge has already been copied in full on this question. This testimony was not admissible. If appellant did ride on the pass between Henrietta and Wichita Falls, or between Denison and Wichita Falls, it would not serve to identify him on the 13th of December on the Missouri, Kansas & Tesas Railway between Greenville and Emory. But the court admitted the evidence to impeach the witness Ratliff, who testified, the judge states, that he did not permit any one to ride on his pass. The court told the jury they could not convict under this inc^ictment for that offense, but he did not limit it for the purpose for which it was offered. If the witness Connell was correct, appellant was using Ratliff’s pass between Henrietta and Wichita Falls, some time before he is charged with having used it on the train between Greenville and Emory. It is the same pass, or that was the theory of the state, bearing the same number and same name, it seems. While the court did tell the jury they could not convict him under this indictment, yet he did' not tell them for what purpose the evidence could be used. The writer is of the opinion that this testimony is not admissible for any purpose under this record. It could serve but one purpose, so far as the writer can see, and that is to show that appellant was riding on this pass on different occasions.- The writer does not understand, however, that the mere fact that defendant is identified fully as being the man by the state’s witness with a transaction occurring a month before in a different part of the state could be used to identify him on the date relied upon for conviction. This testimony was not only not admissible, but, having been admitted, it ought to have been limited. However, the limitation of inadmissible testimony does not cure the error in its admission.

The appellant excepted to the court’s charge before it was read to the jury and asked special charges, which were refused. A charge asked by appellant was:

“You are instructed that the trips testified to by the witness Kirby, that defendant made from Emory to Greenville on December 8th, in which it is claimed, that the defendant used Ratliff’s pass, cannot be used by you to base a conviction, as the indictment in this case charges defendant with having- ridden on Ratliff’s pass from Greenville to Emory, and you cannot therefore convict him for any other trip than the one alleged in the indictment. If, therefore, you do not believe that defendant rode on said pass from Greenville to Emory on the occasion testified to by Kirby, or if you have a reasonable doubt of such fact, you will acquit him.”

He also asked the court to charge the jury that:

“The state has offered- evidence in regard to other trips on which it claimed the defendant used said pass. You are instructed that defendant cannot be convicted for any offense other than the trip from Greenville to Emory, and if therefore you have a reasonable doubt as to whether defendant rode from Greenville to Emory on the pass of J. R. Ratliff on the 13th day of December, 1914, you will return a verdict of not guilty.”

Bills of exception were reserved to the refusal of these charges. The court signs one of the bills as follows:

“The request is fully complied with in paragraph No. 5, general charge; and the evidence of this and other trips was admitted for the purpose of showing chance of auditor Kirby knowing and identifying defendant, and said charge does not permit of conviction for riding on pass from Greenville to Emory at any time in two years prior to indictment, as charged in paragraph No. 4 of main charge.” ■

- The other bill is signed with the statement by the judge:

“Tliat other trips were permitted to be proved for the purpose of identifying defendant, while one was permitted after defendant had closed his case, for the purpose of contradicting witness J. R. Ratliff, the owner of the pass, and because said charge does not give the state, the chance of a conviction for proving any violation in riding from Greenville to Emory within two years prior to filing indictment.”

The court charged the jury in his general charge that if the jury should find that appellant rode on this pass from Greenville, Hunt county, to Emory, Tex., they would convict him. In the fifth clause of the charge they were instructed, as before stated, not to consider the testimony tending to show that defendant rode on the pass of Ratliff from Denison to Wichita Falls as showing an offense charged in this case; that defendant was not on trial for riding on the pass of Ratliff on other roads of the Missouri, Kansas & Texas Railway Company than that from Greenville to Emory, Tex. There were several objections urged to the court’s subdivision 5, that it does not specify and properly submit these issues, which we think was correct, and enough has been said without discussing the bills of exception in reference to the testimony. This charge is on the weight of the testimony. The court charges the jury not to consider testimony tending to show defendant rode on the pass, etc. That assumes that appellant did ride on this road between Wichita Falls and Denison, at least that the testimony tended to show that fact. This is on the weight ‘of the testimony by a great number of cases. Appellant in his testimony denied that he had ever ridden on Ratliff’s pass at any time or anywhere. The-court informs the jury that this evidence tending to show that he rode on the pass on this particular line of railway and between these two points should not be considered by them as a basis of conviction, but left it before them without any guide or direction as to why or how they should consider it. This charge assumes the testimony was in there to show this fact, when it was a disputed issue that he rode on the pass between those points. However the evidence was inadmissible. But if admissible to impeach Ratliff the jury should have been so told.

These matters grouped show that appellant has hardly had a fair trial under this record. These matters were of a damaging nature and were introduced showing that appellant was using this passi on several occasions under the state’s theory. It was all disputed and denied by appellant’s testimony. The state’s witness identified him as being the man who rode at the time indicated and relied on by the state, and it was a square issue as to that question. If he did not ride on the pass that day, the state had no case. The state showed that he was on the train by the witness Kirby. He denied this by showing that he was not in Greenville, and could not have been at Greenville on that particular day, but was at a different place 80 miles away. The fact that.he may have, in the opinion of the witness Kirby, ridden from Emory to Greenville on tile 8th of December, would not identify him as being the man who rode on the 13th in the opposite direction. The witness could have testified that he had previously seen appellant, if appellant showed Kirby did not know him, but as we understand this record, that was not the question. The evidence was to previous use of the pass. Appellant denied that he was on the train; the state’s witness Kirby said he was. There is other testimony on this same line, but on another trial the trial court, if. it becomes necessary to the ends of justice or fair trial for either side to let in this matter or testimony, it should be strictly guarded and limited so the accused will not be injured in any way by its admission. The charge should properly charge not generally, as here, but specifically; the jury should be informed for what purpose they can consider such testimony.

There is another very serious question. The writer has not deemed it advisable to discuss the question now, being aware of the fact that the same question is before the civil courts, and doubtless will reach the Supreme Court for final adjudication; that is the constitutionality of the act, or that portion of the act under which appellant was indicted for using the free pass of another. The theory is that the act is unconstitutional in its being discriminating, granting a right to ride on passes to one class and not another class, and is not only unconstitutional, but arbitrarily so. The writer has read the briefs not only of counsel in this case, who are learned lawyers and have occupied high official position, but also a very able and lengthy brief prepared by the Attorney General’s department to be used in a civil case, and but for the fact that the matter is to be determined finally by the civil - courts of Texas the writer would take it up and discuss it at length. But for himself he would state that he believes the law to be unconstitutional and in violation of article 10, § 2, of the state Constitution.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(concurring). The most material question in this case was as to the identity of appellant as the person who rode on the pass at the time he is charged with doing so in the indictment. While the state’s main witness Kirby identified him as such, he denied it was him and introduced much testimony to show he was not, and to show the state’s witness was mistaken as to his identity, or falsely testified to it. Under such circumstances I think there can be no question, under all the authorities, the state could prove by Kirby he saw and identified him on other occasions as the same person, and who at such times rode on said same pass.
      ©a^Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON,'J.

text:
    CLARK v. STATE.
    (No. 4245.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.)
    Larceny <@=51(1) — Evidence—Possession of Stolen Property by Another.
    In prosecution for theft, held error to admit evidence that articles similar to those stolen, but not clearly identified as the articles stolen, were found in the possession of another person the day after accused’s arrest, with no testimony showing any acting together between this person and accused.
    [Ed. Note. — Eor other cases,' see Larceny, Cent. Dig. §§ 144, 146; Dee. Dig. '<@=51(1).]
    Appeal from Lavaca County Court; P. H. Green, Judge.
    George Clark was convicted of theft of personal property, and appeals.
    Reversed and remanded.
    Marcus Schwartz, of Hallettsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON,'J.

Appellant was convicted of the theft of one horse collar of the value of $2.50 and one pair of breast chains of the value of $1.25 from the owner, Cervenka. Cervenka says that he lost the things set out and other things of the same sort at the same time. It is claimed appellant was found in possession of a collar and chain, and that Peters, living in a different section of the county some miles away, was found in possession of some of the property of Cervenka. There was no connection shown between Peters and appellant. They were not shown to have been together. The sheriff went to Peters’ house, and found a large collar in a' cane patch; he also found a breast chain on Peters’ cultivator, which he was then using. These were similar to those found at the home of the defendant. He says he brought the chain and collar to town, and a few days later Cervenka came to town and identified same as his property. Appellant objected to the introduction of this testimony for various reasons. There was no testimony introduced to connect the defendant with the theft of that collar and breast chain, and the testimony was incompetent and irrelevant, and tended to prejudice the jury against the defendant by showing other petty thefts by other people. These objections were overruled, and the testimony was permitted to go to the jury. The bill of exceptions shows the sheriff stated the next day (meaning the day after he arrested the defendant), he went to the home of Joe Peters, southwest of town, and found this large collar in Peters’ cane patch, and breast chain on the-cultivator. This occurred in the absence of defendant. There is no testimony to show any acting together between the parties, and, outside of the identification by Cervenka, there is nothing to indicate that Cervenka lost this collar and chain. The testimony is weak on the identification, and is made to depend largely upon the fact that the collar had a hole in the strap, which Cervenka says was made by him with a buckle pin. He also says there are a great many collars in the country just like his, with holes, made, perhaps, in the same way. The testimony as to Peters was about a different matter, and property found-in his possession was in no way connected with appellant. The evidence showed appellant lived northwest and Peters lived southwest. These matters, occurring as they did, could not (be used as evidence against defendant, and ought not to have been permitted to go to the jury. There is evidence to show that defendant and Hafer-nik were seen together driving in a wagon on a public road by parties in an automobile. They were seen by the witness Dufner some miles west of Hallettsville, slowly driving in a wagon on a public road going in the direction of Shiner. Dufner says, after going several miles up the road and near Shiner, he and Dornak stopped on the roadside, waiting for his son, Dr. Dufner, and while there defendant and Hafemik passed. The sheriff testified he knew defendant and Cer-venka ; that Cervenka lives about three miles west of town, on the main road leading from Hallettsville to Shiner; the defendant lives between Shiner and Moulton. The next day he went to defendant’s and got a collar and chain, and the next day went to Joe Peters’ southwest of town and found a large collar in Peters’ cane patch, which was claimed by Cervenka. The state does not seek to connect Peters with appellant.

The judgment is reversed, and the cause remanded.


author: HARPER, C. J.

text:
    TEXAS & PAC. RY. CO. v. ELLIOTT.

    (No. 621.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 2, 1916.
    Rehearing Denied Nov. 28, 1916.)
    1. Master and Servant <@==>258(18) — Injuries to Servant — Pleading.
    In a servant’s action against a railroad for personal injuries, a statement in plaintiff’s petition that he was acting under the orders of defendant’s car inspector in going between cars to make repairs, was not a charge of liability because of the fact that defendant’s car inspector ordered plaintiff to go between the ears.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 833; Dec. Dig. <@=> 258(18).]
    2. Master and Servant <@=270(15) — Injuries to Servant — Evidence—Admissibility.
    In a servant’s action against a railroad for personal injuries received while between two cars repairing a handhold, evidence that it was customary for defendant’s car inspector to exercise control over repairers, and that he ordered plaintiff to go between the cars at the time of his injuries, was a part of the res gestee and admissible, as an explanation, of how plaintiff came to be in the place of danger.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 926; Dec. Dig. <&wkey;> 270(16).]
    3. Master and Servant <&wkey;270(16) — Injuries to Servano>-Proox.
    In a servant’s action against a railroad for personal injuries received while between two ears engaged in repair work, where the pleadings raised the issue whether a written rule of the company requiring a flag to be stationed as a warning to switching crews, etc., had been abandoned, or abrogated by nonobservance, evidence that a custom prevailed in the yards of defendant of doing light repair work without placing flags for the protection of those doing the work was admissible.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 925; Dec. Dig. i&wkey;> 270(16).]
    4. Master and Servant <&wkey;>274(9) — Injuries to Servani^Contributory Negligence-Evidence — Admissibility.
    In a servant’s action against a railroad for personal injuries received while between two ears engaged in repair work, a written rule of the company requiring a flag to be stationed in such cases was shown, evidence that a custom prevailed in defendant’s yards of doing light repair work without placing flags for protection of those doing the work was admissible on the question of contributory negligence, since the mere fact alone that injuries were inflicted while an employe was acting in disobedience of known rules would not relieve the master of liability.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 949; Dec. Dig. <&wkey;> 274(9).]
    5. Damages <&wkey;159(3) — Pleading and Proof — Personal Injury.
    Under an allegation in the petition that plaintiff’s hand was rendered useless, evidence by plaintiff that his earning capacity had been diminished and so materially impaired that he could not engage either in the work of car repairer or in any other manual labor, was admissible.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 440-443; Dec. Dig. <&wkey;159(3).]
    6. Witnesses <&wkey;154^-Co'NVERSATiONS with Person Since Deceased — Corporations.
    The statutory rule touching testimony of conversations with persons since deceased does not apply whore the person deceased was the superintendent of a corporation.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 661; Dec. Dig. &wkey;>154.]
    7. Witnesses &wkey;M54^-OoNVERSATioNS with Person Since Deceased — Corporations.
    In a servant’s action against a railroad for injuries, received while making repairs between two cars, plaintiff’s testimony that he had applied to defendant’s superintendent for work, and that the superintendent crushed a letter given him by plaintiff and threw it down, asking him what further action he was going to take, not being an attempt to bind defendant because of its contents, but simply to show that plaintiff made an effort to take up his work and was refused, was admissible, although the superintendent was dead at the time of the trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 661; Dec. Dig. <®=?154.]
    8. Damages &wkey;>132(8) — Personal Injuries— Excessive Damages.
    Where plaintiff was 46 years old at the time of the injury and earning about $100 per month at his trade, was uneducated, and two of his fingers and the palm of his hand were permanently injured, stiffened, etc., a verdict for $2,610 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 379; Dec. Dig. <&wkey;>132(8).]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action .by Hugh H. Elliott against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    S. N. Russell, of El Paso, for appellant. Lea, McGrady & Thomason and Winter, Me-Broom & Scott, all of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   HARPER, C. J.

The Texas & Pacific Railway Company has appealed from a judgment in favor of Hugh H. Elliott for $2,610, as damages for injuries to his hand.

Appellee charged the following acts of negligence upon the part of the company: That he was in the employ of the railway company as a car repairer. That it was especially his duty to do light repair work on cars in the railway yards. That as such he was directed by the car inspector to repair or replace a defective handhold in a car belonging to and in the possession of defendant. That acting upon said order and the rules of the company, he went in between the cars for said purpose. That while engaged in so repairing said handhold, an engine was by one of defendant’s employés run in against the cars, pushed them together, and thereby his right hand was caught between the drawheads and couplers, and .thereby injured. That it was the duty of the agents of the company — the car inspector, switchman, and other members of the switching crew — to keep a lookout for plaintiff’s safety and protect him, and to warn him of the approach of the engine, which they failed to do.

Defendant answered by general denial, and specially that the plaintiff failed to take proper precautions to protect himself in that he failed to put a flag at the place required by the rules of the company as notice to operators of the switch engine that he was to be engaged in repair work between cars of the train in question; that plaintiff was warned that the cars were about to be coupled, but that he, without heeding said warning and without taking the precautions above described, required by the company, for his own protection, negligently entered between the cars and carelessly placed his hand upon the drawheads of the cars. He therefore assumed the risk, and was guilty of contributory negligence.

By supplemental petition, plaintiff answers that he was acting under the orders of defendant’s car inspector; denied that there was any rule requiring him to place a flag; that if there was, that it was not in force; that there was in force a rule which applied to emergency repairs on line tracts such as that in question; that if there was such .a rule intended to apply to instance in question that it had been, with the knowledge and consent of defendants, abrogated; further says that at the time he went between the cars to do the repair work, defendant’s car inspector and switchman, who had control oyer the engine, were present and knew that he was between the cars, so it became their duty to keep watch for plaintiff’s safety, which they negligently failed to do.

The first assignment is abandoned.

The second is to the admission of the testimony of plaintiff that defendant’s car inspector had ordered him to go between the cars at the time of his injuries for the reason that the testimony at that time did not show that he had any control over plaintiff.

The third complains of the admission of plaintiff’s testimony; that it was customary for the car inspector to exercise control over car repairers for the reason that there was no evidence that such usage or custom was known to the defendant, nor that it had prevailed in the yards so long that the company is charged with knowledge, etc.

We think it apparent from the pleadings quoted above that no liability for negligence is charged to the company because of the fact that the ear inspector ordered or directed plaintiff to go in between the cars to repair or replace the handhold, but the negligence charged is in the fact of failure of said inspector and the switchman, etc., to keep a lookout for the coming of the switch engine and notify plaintiff so he could get out from between the cars, and the court’s charge confines the jury to the latter. The statement in the pleading, the evidence to same effect complained of, amounts to no more than a statement of fact, a part of the res gestee, and admissible as an explanation of how plaintiff came to be in the place of danger.

The sixth is:

“The court erred in permitting plaintiff to prove by his own testimony and that of others, over the objection of defendant, that the custom prevailed in the yards of defendant of doing light repair work, without placing up flags for the protection of those doing the work when the written rule of the company, which was offered in evidence, required the placing of flags in all cases without exception.”

The answer is that the defendant pleaded the rule of the company requiring a flag to be stationed as a warning to switching crews, etc., that workmen, such as car repairers, were in a place of danger, and that plaintiff, appellee, pleaded that the 'rule, in such emergency cases as the one here presented, had been abandoned by the act on the part of the defendant company of permitting for a long period of time its employés to do their work without its observance. Therefore it became a question of fact as to whether the rule had been abandoned or abrogated by the company permitting its nonobservance for such a length, of time;, so upon this issue the evidence was admissible. Railway v. Scott, 71 Tex. 709, 10 S. W. 298, 10 Am. St Rep. 804.

And in so far as the showing made of appellant in his brief is concerned, the evidence was admissible upon the question of contributory negligence. Kailway v. Wink-ler, 179 S. W. 696. For “the mere fact alone that the injuries were inflicted while the employé was acting in disobedience of known rules would not relieve the master of liability.” Railway Co. v. Wallace, 76 Tex. 636, 13 S. W. 566.

The fourth is:

“The court erred in permitting plaintiff to state that his earning capacity had been so materially impaired that he could not engage either in the work of car repairer or in any other employment which involved manual labor, for the reason that in so stating the plaintiff was permitted to cover a wider scope than the pleadings in the ease would authorize and justify, in that the allegations of plaintiff’s petition were that by reason of his injuries, he had become incapacitated from ever engaging again in the work of a car repairer, in which business he had been engaged for years and which was his trade and occupation, and that his hand was almost destroyed; that at the time of said injuries he was earning about $100 per month as a car repairer, and his earning capacity is greatly diminished so that he cannot earn more than one-third as much as he could before his injury, for the remainder of his life; and the said petition did not allege that he was incapacitated from engaging in any business that would involve manual labor, other than that of car repairer.”

If plaintiff’s physical disability on account of the injuries inflicted did not incapacitate him to the extent testified to by him, it was defensive matter which should have been met by proof. The allegation in plaintiff’s petition that his hand was rendered useless was sufficient to authorize the proof of diminished capacity. Railway Co. v. Butcher, 98 Tex. 462, 84 S. W. 1052.

The fifth is that it was error to permit plaintiff to testify:

“After T was discharged from the hospital, I asked Mr. gmith, superintendent of the Texas & Pacific Railway Company, for work again; he was the only man who had authority to employ me at that time. I was refused work. The reason I quit applying to him to get a job was because I gave him a letter that he crushed up in his hand and threw it down, and asked me what further action I was going to take in this suit.”

The reasons given for the objection to this testimony are that the testimony showed that Mr. gmith was dead at the time of the trial, and to admit such testimony placed the defendants at the mercy of plaintiff, being no way to contradict it, etc.

This evidence was not objectionable for the reasons given. The statutory rule sought to be invoked does not apply to corporations. In the second place, it was not an attempt to bind the corporation on account of the matter about which this conversation related, but if it had any probative force relative to any matter involved in this suit, it was simply that plaintiff made an effort to again take up his work as car repairer or inspector, and for some reason was refused. Bexar Bldg. & L. Ass’n v. Newman, 25 S. W. 461.

The seventh is that the amount of damages awarded is manifestly excessive. We do not think so. Plaintiff was 46 years of age at the time of the injury, and earning about $100 per month at his trade, was uneducated, two of his fingers and the palm of his hand were permanently injured, stiffened, etc.

The assignments are therefore overruled, and cause affirmed.
      <@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (fo^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    MARTINEZ v. DE BARROSO et al.
    (No. 5712.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1916.)
    1. Tkespass to Try Title <&wkey;32 — Pleading —Definiteness.
    Under the statutory pleadings for trespass to try title, the notice required to be given by the pleadings in other character of causes is not required, but when in addition to the statutory allegation the parties plead specially, the pleadings are subject to the ordinary rules of pleadings requiring sufficient definiteness to apprise the opponents of the contentions relied upon.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. '©=> 32.]
    2. Trespass to Try Title <3&wkey;32 — Pleading —Common. Source oe Title.
    ■ In trespass to try title by á wife joined by her husband, where the wife alleged that she was the common source of title, and that the property was her separate property, and defendant, claiming under a subsequent execution sale as the property of the husband, alleged that the common source of title was not in the wife, but in the community, or the husband, the pleadings sufficiently apprised the defendant that the plaintiff wife would prove the same deed under which both claimed as the common source of title.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. <&wkey;> 32.]
    3. Pleading <&wkey;403(2) — Defect Supplied by Answer — Claim of Separate Property.
    In such action, the allegations of the defendant’s answer supplied any deficiency as to the plaintiff wife’s allegations as to common source of title or her claim of separate property.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1344-1347; Dec. Dig. &wkey;403(2).]
    4. Husband and Wife <&wkey;119(l) — Conveyance to Wife — Title. '
    Where a wife was alone named as the grantee in a deed, the legal title was vested in her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 424; Dec. Dig. <§=?119(1).]
    5. Vendor and Purchaser <&wkey;237 — Innocent Purchaser — Sheriff’s Deed — Credit on Judgment.
    In trespass to try title to property claimed by the plaintiff wife as her separate property and claimed by the defendant under an execution sale as the property of the husband or of the community, the defendant was not an innocent purchaser, where it was alleged and proven ■ that he credited the amount of his bid upon his judgment.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 577-579; Dec. Dig. &wkey;237.]
    Appeal from District Court, Maverick County; W. C. Douglas, Judge.
    Trespass to try title by Felix R. De Bar-roso, joined by her husband, Ignacio De Bar-roso, against Juan Martinez. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Sanford & Wright, of Eagle Pass, for appellant.
   SWEARINGEN, J.

Felix De Barroso, joined by her husband, Ignacio De Barroso, sued Juan Martinez to recover title and possession of certain described real estate, and to cancel a sheriff’s deed to Juan Martinez made pursuant to execution sale under a judgment for debt in favor of Juan Martinez against Ignacio De Barroso, the husband.

Special issues submitted to a jury were, whether the property was the separate property of the wife, and whether the property was the homestead of the appellees. The jury answered that the property was the separate property of the wife, and that it was not the homestead of appellees. Judgment was rendered in favor of appellees.

Appellees, plaintiffs below, pleaded in their original petition the formal statutory “trespass to try title suit.” Appellant, defendant below, answered by the formal plea of not guilty. Then, in the first amended answer and the first supplemental answer, appellant, defendant, pleaded specially that the common source of title was in Ignacio De Barroso, the husband, or in the community of appellees, who were husband and wife; and that the property at the time of the levy of the execution belonged either to the appellee Ignacio De Barroso, or to the community estate of aiipel-lees, who were husband and wife; and further pleaded that the judgment was against the husband for debt for which the property was liable, whether community or the separate property of the husband; and alleged further that appellant, the judgment creditor, bought the property at sheriff’s sale, and credited the amount bid upon the judgment.

Appellees, by their first supplemental petition averred that the common source of the title was in Felix De Barroso, the wife, and that the property belonged to her in her separate right. Appellant specially denied that Felix De Barroso owned the property in her separate right, and that she was the common source.

The evidence proved that the legal title was vested in Felix De Barroso by a deed in which she was named as grantee, though it contained no words to indicate it was for her sole and separate use; appellees were husband and wife, and were living together when the deed to the wife was executed; that the wife paid her separate funds for the purchase of the property; that appellant, subsequent to the deed, obtained a judgment for debt against the husband, Ignacio De Barro-so, by virtue of which an execution was issued and levied upon the property, and the property sold to the judgment creditor, and the amount bid was credited upon the judgment debt.

Appellant’s first assignment is as follows:

“The court erred in refusing and overruling defendant’s motion to enter judgment in his favor on the verdict as returned for the reason set out in said motion under paragraph 1, said reason being as follows: ‘The defendant, Martinez, specially pleaded his title under a sheriff’s deed executed by virtue of a sheriff’s sale under authority of an execution based on the judgment described in said defendant’s answer and cross-action, to which special title so pleaded by the defendant, the plaintiff pleaded that the property in controversy was, at the time of the levy of execution, the separate property of the wife, and that the legal title to the property was not in fact in the community; the effect of the allegation of said plaintiffs being that the legal title was vested in the wife as her separate estate; consequently the pleadings did not raise the issue of a resulting trust.’ And it appearing that plaintiffs had pleaded that they did not hold under the common source pleaded by defendant, but that the property was the wife’s separate estate under an independent title, and the proof failing to show that the independent title, if any, was not affected by the registration statutes, in fact, plaintiffs introduced no proof of an independent title (of the common source) in the wife.”

Under this first assignment appellant contends that the Terrell deed, which conveyed the property to the wife in her own name as the grantee, did not put the legal title in the wife, but vested the legal title in the community and an equitable title in the wife, inasmuch as the pleadings and the evidence both showed that appellees, Felix De Barroso and Ignacio De Barroso, were married at the time. No complaint is made of the findings of fact by the jury, other than that appellee, plaintiff, had not pleaded sufficiently to raise the issue that the property was her separate property.

Under the statutory pleadings for trespass to try title, the notice required to be given by the pleadings in other character of causes is not -required. But when in addition to the statutory allegations the parties pleaded specially, the pleadings are subject* to the ordinary rulgs of pleading requiring sufficient definiteness to apprise the opponents of the contentions relied upon. McSween v. Yett, 60 Tex. 184.

There is no question, in this" case, but that the allegation by appellee, plaintiff, that she was the common source and that she owned the legal title was sufficiently understood by appellant for him to deny the fact, as he did, without specially excepting to the sufficiency of the allegation. When appellant alleged that the common source was not in the appellee, but in the community or the husband, the issue was clearly made that both plaintiff and defendant claimed the common source to be the Terrell deed, for that was the only deed through which appellant could claim. This was known to appellant, for he knew his own chain of title. The allegation that the Terrell deed was the common source was an admission that ap-pellee Felix De Barroso claimed under this same deed.

On the other hand, the allegation of Felix De Barroso that she was the common source of title was a clear declaration that appellant claimed under the Terrell deed, and that deed vested the legal title in her. And her allegation that the property was her separate property gave ample notice to appellant that she would prove that the same deed under which both claimed as common source vested the property in her for her sole use and benefit. “Where the plaintiff claims under a conveyance to the wife as her separate property, and the defendant claims under a subsequent execution sale as the property of the husband, a prima facie case of claim under a common source is made out.” Edrington v. Butler, 33 S. W. 143.

The wife alone being named as the grantee in the deed, the legal title was vested in the wife by that deed. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Ferguson v. Dodd, 183 S. W. 391; Barrett v. Weimer, 62 Tex. Civ. App. 172, 130 S. W. 181; Mitchell v. Schofield, 106 Tex. 512, 171 S. W. 1121.

While the Terrell deed vested the legal title in the wife, an innocent purchaser might, under certain circumstances, have relied upon the presumption that the real title was in the community. But in the case at bar appellant was not an innocent purchaser, because it was alleged and proven that he credited the amount of his bid upon his judgment. Simpkins on Equity, 243; Brown v. Marwitz, 10 Tex. Civ. App. 458, 32 S. W. 78; Overstreet v. Manning, 67 Tex. 661, 4 S. W. 248. We conclude that the issue of common source and the claim of separate property was clearly raised by the pleadings of appellant and appellees. The allegations of appellant supplied any deficiencies of appel-lees. Peoples v. Brockman, 153 S. W. 907; I. & G. N. Ry. Co. v. Sein, 11 Tex. Civ. App. 386, 33 S. W. 558.

What has been said above also disposes of the second and third assignments, both of which are based upon an erroneous conception of the nature of appellees’ title. The second and third assignments are overruled.

The former opinion is withdrawn, and the present one substituted therefor.

The judgment is affirmed.
      <Ecs>For other cases see same topic and KEY-NUMBÉB in all Key-Niimbered Digests and Indexes