author: WILLSON, C. J.

text:
    DECATUR LAND, LOAN & ABSTRACT CO. v. RUTLAND et al.
    (No. 1622.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 13, 1916.)
    1. ABSTRACTS 03? TITLE <&wkey;3 — BREACH OE DUTY — LIABILITY.
    A title abstract company, acting for the sellers of land, incurred no liability to the buyer because of its negligence in the discharge of the duty it owed, in drawing up abstract of title, not to the buyer, but to. the sellers alone.
    [Ed. Note. — For other cases, see Abstracts of Title, Cent. Dig. §§ SL6; Dec. Dig. <®=?3.]
    2. Abstracts oe Title <&wkey;3 — Breach oe Duty — Right oe Action.
    A title abstract company, which undertook, at the instance of the buyer of land, after it was informed that he contemplated the purchase and would rely on the title as shown in the abstract, to examine, correct, and complete, if incorrect or incomplete, the abstract made for the sellers, the buyer offering to pay for the service, owed the buyer the duty to diligently search for all matters of record touching the title, and became liable to, him for damages suffered because of its failure to do so.
    [Ed. Note. — For other cases, see Abstracts of Title, Cent Dig. §§ 2-6; Dec. Dig. <&wkey;>3.j
    3. Evidence <&wkey;83(4) — Regularity oe Record — Presumption—Statutes.
    In an action against a title abstract company for damages occasioned by breach of its duty to make diligent search for matters of record affecting the title to land purchased by plaintiff, in the absence of contrary testimony, the court had the right to presume that the county clerk discharged his duty, and, without delay, duly recorded a trust deed and noted it in the index of the Records of Mortgages and Trust Deeds of the county, as required by Vernon’s Snyles’ Ann. Civ. St. 1914, arts. 6790, 6792, 6793.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. <S&wkey;83(4).]
    4. Abstracts oe Title <&wkey;3 — Breach oe Duty— Negligence — Concurring Cause oe Damage.
    To render a title abstract company liable for damages occasioned a buyer of land by its negligence in failing to make diligent search for matters of record touching the title, it was not necessary that the company’s negligence should have been the sole cause of the loss sustained by the buyer; it being sufficient if its negligence concurred with the sellers’ fraud.
    [Ed. Note. — For other cases, see Abstracts of Title, Cent. Dig. §§ 2-6; Dec. Dig. <&wkey;3.]
    5. Abstracts of Title &wkey;>3 — Damages—Liability oe Examiner — Pleading.
    In an action by the buyer of land against a title abstract company for damages caused by its failure to make diligent search for matters touching the record title, where plaintiff’s petition alleged damages at $2,500, but did not state the items thereof, further than to allege that he paid $1,800 for the land, and the further sum of $250 on debts against it, judgment for $2,-118.25 was not erroneous as in excess of the amount claimed in the petition, the sufficiency of which was not questioned because damages were not more particularly stated, while plaintiff’s testimony showed that he had suffered damages in the amount of the judgment.
    [Ed. Note. — For other cases, see Abstracts of Title, Cent. Dig. §§ 2-0; Dec. Dig. <&wkey;>3.]
    Appeal from District Court, Hunt County; A. P. Dolioney, Judge.
    Suit by L. W. Rutland against the Decatur Land, Loan & Abstract Company and others. From judgment for plaintiff against the defendants, entered after dismissal as to one Shannon, a defendant, the named defendant appeals.
    Judgment affirmed.
    This was a suit for damages brought by appellee Rutland against appellant, one Shannon, and appellees W. C. Mortimer, T. B. Weathersby, J. T. Browning, and R. L. Browning, in which, after a dismissal as to Shannon, judgment was rendered in Rut-land’s favor against the other parties named for the sum of $2,118.85. The judgment against Mortimer, Weathersby, and the Brownings was by default. The appeal is by the appellant abstract company alone.
    In his original petition Rutland alleged as his cause of action that appellant and Mortimer, Weathersby, and the Brownings acted together in perpetrating a fraud on him, whereby he was induced to purchase and pay for a tract of land on the faith of its being unincumbered by liens, other than one for $1,100, whereas the land was further incumbered by a trust deed thereon made to secure a debt of $2,000, which trust deed was foreclosed against him, whereby he lost the land. 1-Ie alleged that the fraud was perpetrated by means oft an abstract of title to the land, from which mention of the trust deed was omitted. A supplemental petition filed by Rutland contained allegations as follows:

      “That if said defendant Decatur Land, Loan & Abstract Company is not guilty of the frauds and collusions to defraud as alleged in plaintiff’s original petition, then this plaintiff says it was guilty of gross negligence in making and certifying to said abstract and turning same over to the other defendants, thus enabling them to knowingly perpetrate a fraud on plaintiff as alleged in his original petition, and but for the said gross negligence of said defendant Decatur Land, Loan & Abstract Company, in thus making and certifying to said false abstract and turning same over to said other defendants, the fraud as alleged in plaintiff’s original petition would not and could not have been perpetrated on plaintiff by the other defendants as alleged in his original petition. That after said abstract was turned over to this plaintiff for the purpose of examination, plaintiff went to the expense and trouble of sending his attorney from Commerce, Texas, to Decatur, Texas, for the purpose of interviewing said abstract company as to the correctness of said abstract, and that in said interview said attorney informed said abstract company of plaintiff’s intention to purchase said lands, and that plaintiff was relying on said abstract and certificate on same for the title therein shown, said defendant Decatur Land, Loan & Abstract Company, at that time assured this plaintiff’s said attorney, that said abstract and certificate was absolutely_ correct' in every particular. That at that time in order to procure a certain release and be sure of the title to the lands as described in said abstract, plaintiff paid to said defendant Decatur Land, Loan & Abstract Company the sum of $1 in cash and offered to pay to said defendant any other sum necessary in order to be assured that said abstract was absolutely correct and the title to the lands described therein being properly shown in the abstract in every particular. That said defendant Decatur Land, Loan & Abstract Company assured the attorney of this plaintiff at that time that the title was absolutely perfectly shown in said abstract, and that said abstract was in every particular correct and true, and that thereupon after said attorney had returned to Commerce, Texas, and made report to plaintiff, as per above; plaintiff, relying on the title as shown by said abstract and certificate, completed his deal with the other defendants, and was by said other defendants acting by, with, and through the said negligence of the defendant Decatur Land, Loan & Abstract Company defrauded of his property as alleged in his original petition. And that but for the negligence of said defendant Decatur Land, Loan & Abstract Company in thus making and certifying to said false abstract and delivering the same to said other defendants, and but for the representations and assurances of said abstract company made to the attorney for plaintiff, and the false certificate attached to said abstract, and the reaffirmance of same to plaintiff’s attorney, the frauds perpetrated on plaintiff as alleged would not and could not have been done.”
    It appears from findings made by the trial court that on November 25, 1913, Mortimer and Weathersby contracted with Rutland to sell him a tract of land in Wise county. By the terms of the agreement they were to 'furnish to Rutland an abstract showing the title in them to be clear of incumbrances except the one for $1,100, which Rutland agreed to assume. At that time Mortimer and Weathers-by placed in escrow a deed they executed conveying the land to Rutland, to be delivered to him when the title was determined by him to be as represented by them. They then requested appellant, who was engaged in the business of making abstracts of title to lands in Wise county, to make an abstract covering the land they had agreed to sell to Rutland. Appellant, in making the abstract, failed to note therein the existence of the deed of trust mentioned above. When appellant delivered the abstract to Mortimer and Weathersby, they delivered it to Rutland, who had his attorney to go from Hunt county, where he resided, to Wise county, where appellant was engaged in business, “for the purpose of interviewing” appellant “as to the correctness and verification of said abstract.” The attorney “called on said abstract company,” quoting from the court’s findings, “and had it re-read and examine said abstract, and informed it, the said abstract company, that plaintiff was contemplating the purchase of said lands as described in said abstract, and had contracted to purchase same provided the title was good, and that he (the plaintiff) was relying altogether on the title as shown in said abstract, and desired to know of said abstract company if said ab-> stract was true and correct, and that said abstract company, after due examination and rereading of said abstract, and after it knew that plaintiff was intending to purchase said lands and was relying on the said abstract as to the title to said lands, reaffirmed said abstract to the said attorney of plaintiff and assured him that said abstract was absolutely correct in every particular, and that plaintiff need have no fear in relying on the title as therein shown; that said attorney then returned to his home in Commerce, Hunt county, Texas, and made a report to plaintiff as to the facts as stated above; that plaintiff through his said attorney paid to said abstract company the sum of $1 in cash to procure a certain release to some outstanding notes against the said lands and offered at that time to pay to said abstract company any other reasonable sum for the purpose of having said abstract company reaffirm and verify said abstract to said plaintiff’s attorney as being absolutely true and correct in every particular; that said abstract company, at that time, by and through its secretary and manager, R. L. Thompson, assured said attorney that said abstract was true and correct, and that he knew it was for the reason that he in person had made said abstract himself, and that plaintiff' need have no hesitancy in relying on said abstract as to the title to said lands and buying same on the title as shown by said abstract; that plaintiff did therefore rely on the title as shown in said abstract, and the said reaf-firmanee and recertifying of same and the assurances of said abstract company that same was true and correct, and thereafter closed the deal for said lands and paid the defendants Weathersby and Mortimer for same; that at the time said Mortimer and Weathersby closed said deal and accepted from plaintiff the consideration for same, they and each of them knew of the existence of the said trust deed, and that same was a valid and subsisting lien against the said lands, but that they willfully and fraudulently represented to plaintiff that said lands were clear of all debts and liens except the $1,100 which plaintiff assumed and agreed to pay; that the defendants J. T. Browning and R. L. Browning who executed the said trust deed also defrauded plaintiff hy making warranty deed to said lands and leaving out of said deed the trust deed after they had executed the same and it had been placed of record in Wise county, Texas; that plaintiff did not know of the existence of said trust deed at the time he contracted for and purchased said lands and paid the considerations for same to the said defendants Mortimer and Weathersby; that the Decatur Land, Loan & Abstract Company was guilty of negligence in making and certifying to said untrue and false abstract and in reaffirming and recertifying to same to plaintiff after it was informed that plaintiff was contemplating the purchase of said lands and was relying on the title as shown in said abstract as being true and correct;. that the said trust deed above referred to was filed for record in the office of the county clerk of said Wise county, on the 20th day of June, 1913, before the said abstract was certified to on the 1st day of December, A. D. 1913 ; that same was duly recorded in volume 29, p. 256, of the Records of Mortgages and Trust Deeds of Wise county, Texas, and was duly recorded by said clerk on the 28th day of June, A. D. 1913; that plaintiff never knew of the existence of said trust deed until some time in July, A. D. 1914, and that he had said lands taken away from him hy said trhst deed being foreclosed and the said lands sold under the terms of same; that plaintiff was therefore damaged the amount he had paid out in purchasing said lands and in getting possession of same and what he paid out on the notes he had assumed, which the court finds to be the sum of $2,118.85, and that he .was so damaged by the willful fraud and collusion to defraud of the defendants W. C. Mortimer, T. B. Weath-ersby, R. L. Browning, and J. T. Browning and the negligence of the defendant Decatur Land, Loan & Abstract Company; that but for the said negligence of the said Decatur Land, Loan & Abstract Company, as herein found, the said fraud could not have been perpetrated on plaintiff by the other defend-ánts.”
    McMurray & Gettys and Ratliff & Spencer, all of Decatur, for appellant. O. C. Mulkey, of Commerce, and Clark & Leddy, of Green-ville, for appellees.
   WILLSON, C. J.

(after stating the facts as above). It appeared from the testimony that at the time it made and' delivered the abstract to Mortimer and Weathersby appellant did not know it was not for their use alone, but, instead, was for Rutland’s use in determining the condition of the title to the land Mortimer and Weathersby had agreed to sell to him. Appellant insists it therefore appeared it owed no duty to Rut-land to discover and note in the abstract the existence of the trust deed, and hence that the finding of liability on its part to Rutland on the ground of negligence was unauthorized.

If the finding of negligence on the part of appellant made the basis of the judgment against it had to be referred to the transaction between it and Mortimer and Weathers-by, its contention, perhaps, should be sustained, for by the rule applicable to such a state of facts recognized by the weight of authority, appellant incurred no liability to Rutland because of its negligence in the discharge of the duty it owed in that transaction, not to him, but to Mortimer and Weath-ersby alone. 1 Oyc. 215; 1 C. J. 369; 4 Elliott on Contracts, § 3554; 3 Page on Contracts, § 1313; 1 R. C. 94.

But the finding of the court is not to be 'referred to that transaction alone. He also found, and the finding is not attacked as without the support of testimony, that appellant was guilty of negligence in “reaffirming and recertifying” the abstract to Rut-land, after it was informed that he contemplated the purchase- of the land and would rely “on the title as shown in the abstract as being true and correct.” It cannot be doubted, we think, that if appellant in its business as an abstracter of titles undertook at Rut-land’s instance, under the circumstances found by the court, to examine, and correct, and complete, if incorrect or incomplete, the abstract it had made for Mortimer and Weathersby, it owed him the duty to make diligent search for all matters of record relating to or affecting the title to the land, and became liable to him, for damages he suffered because of its failure to do so. Appellant’s duty to Rutland under such circumstances would not be different from the duty it would have owed him had it undertaken to make and furnish him a full and complete abstract of title to the land. Appellant, however, insists it did not undertake, in the contractual sense of the word, to examine and correct and complete the abstract. If it “reaffirmed and recertified” the abstract as found by the court, it insists it did so gratuitously, that therefore' no contractual tie was created between it and Rutland, and hence that the only duty it owed him in connection with the transaction was “to be honest with him.” But we are of opinion it should not be said on the facts found by the court that appellant’s acts in reaffirming and recertifying the abstract at Rutland’s instance was without consideration. It appears from the findings that Rutland’s attorney when he requested appellant to re-read and re-examine the abstract for the purpose of determining whether it was true and correct or not, explained to appellant’s manager that Rutland had contracted to buy the land if the title on investigation was found to be good, and that he (Rutland) was relying altogether on the abstract for information as to the condition of the title. It further appears that said attorney then offered to pay appellant any reasonable sum for the service, if it complied with his request. And it further appears from the findings that appellant in compliance with such request examined and reread the abstract, and then “reaffirmed said abstract to the said attorney of plaintiff and assured him that said abstract was absolutely correct in every particular, and that plaintiff need have no fear in. relying on the title as therein shown.” It seems to us that the legal effect of facts found as stated was to show the existence of a valid contract between appellant and Rutland. The former performed service at his request. Even if the latter had not agreed to pay the former for the service, the law would imply an undertaking on his part to do so. If appellant might, when it performed the service, have demanded of Rutland that he pay it a reasonable sum therefor, the fact that, waiving its right, it did not do so would not relieve it of the obligation it incurred when it' undertook to pass upon the correctness and completeness of the abstract presented to it. For reasons indicated by what has been said, the first and second assignments are believed to be without merit. Therefore they are overruled.

The contentions presented by the third and fourth assignments are: (1) That the finding of negligence on the part of appellant in failing to note the trust deed in the abstract was unauthorized because of the absence of testimony showing that said trust deed had been “recorded or indexed in such manner as to make it discoverable by any reasonable search”; and (2) that if it was guilty of negligence in failing to discover and note the trust deed in the abstract, it appeared that the fraudulent conduct of Mortimer, Weathersby, and the Brownings, and not appellant’s negligence, was tne proximate cause of the loss Rutland sustained. It appears from the record that the trust deed omitted from the abstract was filed for record June 20, 1913, and “was recorded in volume 29, page 256, of the records of Mortgages and Trust Deeds of Wise county.” The abstract in question was made in December, 1913, about six months after the trust deed was filed for record. The law required the clerk when the trust deed was filed to record it “without delay,” and to enter it in the index lie was required to keep. Articles 6790, 6792, 6793, Vernon’s Statutes. In the absence of testimony showing the fact to be otherwise, the court, we think, had a right to presume that the clerk discharged his duty and without delay duly recorded the trust deed and noted it in the index. The testimony was sufficient to support the finding of the court that Rutland in buying the land relied upon the abstract as correctly showing the condition of the title, and would not have purchased same had the existence of the trust deed been noted therein. The assignments are overruled.

It is next insisted that appellant,. if guilty of negligence as charged against it, was not liable as determined by the judgment, because it did not participate and share in the fruits of the fraud its negligence enabled Mortimer, Weathersby, and the Brownings to practice upon Rutland. To render it liable it was not necessary that appellant’s negligence should, have been the sole cause of the loss sustained by Rutland. It was sufficient that its negligence concurring with the fraud of Mortimer, Weathers-by, and the Brownings caused the loss. 29 Cyc. 496, and authorities there cited; 1 Thompson on Negligence, § 75; 3 Thompson on Negligence, § 2779.

Finally, it is insisted that the judgment is for a sum in excess of that claimed in the petition, and therefore is fundamentally erroneous. This contention is based on the fact that Rutland, though he alleged the damages he claimed to be $2,500, did not state the items thereof further than to allege that he paid “the defendants” $1,800 for the land, and “paid the further sum of $250 on certain other debts against the land which he assumed and agreed to pay.” The sufficiency of the petition was not questioned on the ground that the damages claimed were not more particularly stated therein. Testimony on the part of Rutland admitted without objection showed he had suffered damages in the sum of $2,118.25, as found by the court. We do not think the judgment was erroneous as claimed by appellant.

The judgment is affirmed.
      other cases see same topic and XEY-NUMREH in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEYY, J.

license: Public Domain

text:
    ROSAMOND v. MURFF.
    (No. 1623.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 6, 1916.)
    Appeal and Ek&ok i&wkey;30—Decisions Reviewable— Order oe Judge—Sessions.
    No appeal lies to the Court of Civil Appeals from an order of the judge of the county court npt made at a regular term of court in a proceeding in the nature of a habeas corpus to obtaip custody of a minor child.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 105; Dec. Dig. &wkey;>30.]
    Appeal from Van Zandt County Court; R. M. Lively, Judge.
    Proceedings between J. O. Rosamond and J. C. Murff in the nature of a habeas corpus to obtain custody of a minor child. Judgment for Murff, and Rosamond appeals.
    Dismissed.
    Crawford & Carlisle, of Grand Saline, for appellant. Earl M. Greer and C. L. Stanford, both of Canton, for appellee.
   LEYY, J.

This is a proceeding in the nature of a habeas corpus to obtain custody of a minor child. The proceedings were had on July 5, 1015, which was not at a regular term of the county court. The proceedings in this ease are identical with those in the case of Ex parte Reeves, 100 Tex. 617, 103 S. W. 478, wherein it was decided that no appeal would lie to the Court of Civil Appeals from the order of the judge. Therefore this appeal must be dismissed for want of jurisdiction in this court to entertain it.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    KIRBY LUMBER CO. v. SMITH et al.
    (No. 82.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 13, 1916.
    On the Merits, March 16, 1916.)
    1. Appeal and Error <&wkey;771 — Briefs—Time op Filing — Statute—Dismissal.
    Vernon’s (Sayles’ Ann. Civ. St. 1914, art. 2115, providing for filing a brief in the lower court 5 days before filing of the transcript in the Court of Civil Appeals is not mandatory; and failure to comply therewith will not cause a dismissal of the case, where good cause is shown for the failure, as sickness of counsel, and no prejudice results, as where the brief is short, and ample time, 2 months, remains for answering it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3105; Dec. Dig. <S&wkey;771.]
    2. Appeal and Error <&wkey;564(2) — Time op Filing Statement op Facts.
    A statement of facts filed within 12 months after final judgment was rendered, is in time, in case of writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2502, 2555; Dec. Dig. <&wkey;> 564(2).]
    On the Merits.
    3. Husband and Wipe <&wkey;252 — Community Property — Title op Wipe.
    The wife of one acquiring right to land by pre-emption survey has only an equitable title, by reason of her community interest therein, he deeding it to another, to whom patent issued.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 895; Dec. Dig. <&wkey;>252.]
    .4. Vendor and Purchaser <&wkey;242 — Bona Fide Purchaser — Burden op Proof — Legal and Equitable Titles.
    Plaintiffs, in trespass to try title against one having the legal title under purchase from the patentee, have the burden of showing defendant purchased with notice, actual or constructive, of their equitable title, or was not a purchaser in good faith for value.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. <®=»242.]
    5. Vendor and Purchaser &wkey;>226(l) — 'PreEmption Land — Notice to Purchaser — Community Interest op Wipe.
    As a single man could acquire land under the Pre-Emption Act of January 22, 1845 (Paschal’s Dig. art. 4326, and article 4341) patent to R., as assignee of the rights of S. so acquired, was not notice to a purchaser from R., of S', having a wife with a community interest in the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 475; Dec. Dig. &wkey;> 226(1).]
    6. Vendor and Purchaser <&wkey;226(l) — Bona Fide Purchaser — Purchase prom Paten-tee.
    The purchaser of land from a patentee is not required to go behind the patent; there being nothing in it to put one on notice of the claims of others than the patentee in and to the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 475; Dec. Dig. <&wkey;> 226(1).]
    Error from District Court, Shelby County; W. C. Buford, Judge.
    Action by G. S. Smith, and another against the Ivirby Lumber Company. Judgment for plaintiffs, and defendant brings error.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue, of Houston, for plaintiff in error. D. M. Short & Sons, of Center, for defendants in error.
   CONLEY, C. J.

Defendants in error file a motion to dismiss this cause. First, for the reason that the plaintiff in error failed to file brief in the lower court, as well as briefs in the appellate court, within the time, and in the manner prescribed by law and by the rules governing this court in such matters ; and second, for the reason that the statement of facts, constituting a part of the record, was not filed until more than 90 days after the adjournment of the term of court at which the cause was tried. It would appear from the record that final judgment was rendered on September 7, 1914, and that the court adjourned September 12, 1914. The statement of facts was filed in the lower court January 30, 1915. A writ of error was sued out and bond filed August 30, 1915, citation in error was served on the defendants in error on the 30th day of August, 1915. The record was filed in this court November 8, 1915. A copy of plaintiff in error’s brief was forwarded to the clerk of the district court of Shelby county on the 14th day of December, 1915, and another copy sent, on the same day, to counsel for defendants in error, and on the same date briefs were filed in this court.

Article 2115, Sayles’ Texas Civil Statutes, provides that not less than 5 days before the date of filing of the transcript in the Court of Civil Appeals, the appellant or plaintiff in error must file with the clerk of the court below a copy of his brief, and the rules further provide that four copies of such brief shall be filed in the appellate court. The courts have uniformly held that the statute above referred to is not mandatory, and when a failure to so file the briefs has not. resulted in any prejudice to the appellee or defendant in error, the case will not be dismissed therefor. Railway Co. v. Holden, 93 Tex. 211, 54 S. W. 751. It has been further held that if good cause is shown for the failure to file brief in the lower court 5 days before filing the transcript in the appellate court, the appeal will not be dismissed for such failure. Railway Co. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W, 656. There appears an affidavit attached to plaintiff in error’s reply to the motion to dismiss this cause, in which counsel for plaintiff in error says that he intended and expected to he able to brief this cause in time to file such brief in the lower court within the time required by law, but that he was taken ill, and was compelled to go to a sanitarium, where ho underwent an operation, which confined him to his home for a considerable time, and that on account of other urgent and pressing obligations to brief cases pending in the several Courts of Civil Appeals, he was unable to reach this case, and to file the briefs until the time herein stated. It also appears from examination of the docket of this court that the defendants in error will have at least 2 months in which to answer plaintiff in error’s brief, which brief is typewritten, containing only 14 pages, and has incorporated therein but one assignment of error. Under such circumstances we feel that plaintiff in error has shown good cause for his failure to comply with the statute and the rules of the court governing the filing of briefs, and that the defendants in error will have ample time to brief this cause, and that therefore the defendants in error have not been prejudiced by such failure to file briefs. Crenshaw v. Temple, 130 S. W. 731; Deaton v. Feazle, 85 S. W. 1167; Peoples v. Evans, 50 Tex. Civ. App. 225, 111 S. W. 756.

The statement of facts was filed in time. A statement of facts filed any time within 12 months after the final judgment was rendered would be in time under a writ of error. Louisiana, etc., Canal Co. v. Quinn, 160 S. W. 151; McLane v. Haydon, 178 S. W. 1197.

The motion to dismiss the appeal will therefore be overruled.

On the Merits.

This suit was instituted in the district court of Shelby county, Tex., by 6. S. and C. C. Smith, as plaintiffs, against the Kirby Lumber Company, as defendant, in trespass to try title to a tract of 125 acres of land in Shelby county, Tex., patented by the state of Texas to W. J. Ragland, as the as-signee of James M. Smith. The plaintiffs specially pleaded their title in substance as follows: They claimed they were the only heirs at law of their mother, Barbara Smith, who died intestate; that the tract of land in controversy was the community homestead of their father, James M. Smith, and their mother, Barbara Smith; that while said tract of land was being used as a homestead, James M. Smith, their father, conveyed the same to W. J. Ragland, the mother refusing to join in the deed, and that the said land was afterward patented by the state of Texas to W. J. Ragland, and that the Kirby Lumber Company now holds the legal title to said tract of land under that chain of title; that their mother’s one-half interest in said property had never passed from her; and that they were invested with an equitable title, inherited by them from their mother, for said one-half 'interest, and they accordingly prayed that they have judgment therefor. The defendant answered by general demurrer, general denial, plea of not guilty, and in reply to the facts specially pleaded by the plaintiffs denied that the plaintiffs had any interest whatsoever in said premises, and set up that under the patent issued to W. J. Ragland, as the assignee of James M. Smith, defendant acquired and held full and perfect title, legal and equitable, to the entire tract of land described in plaintiffs’ petition. The cause was tried before the court without a jury, and on the 7th day of September, 1914, the court rendered judgment in favor of plaintiffs for an undivided interest of s/12 in and to the tract of land sued for. From this judgment the Kirby Lumber Company has sued out a writ of error, and the same is now before us for review.

Before considering the assignments of error, it is appropriate to here state that the defendants in error filed a motion to dismiss this cause: First, for the reason that the plaintiff in error failed to file its brief in the lower court, as well as briefs in the appellate court, within time, and in the manner prescribed by law, and by the rules governing this court in such matters; and second, for the reason that the statement of facts constituting a part of the record, was not filed within more than 90 days after the adjournment of the term of court at which the cause was tried. It appears from the record that the final judgment was rendered on September 7, 1914, and that the court adjourned September 12, 1914. The statement of facts was filed in the lower court on January 30, 1915. A writ of error was sued out, and bond filed August 30, 1915. Citation in error was served on the defendants in error 011 the 30th day of August, 1915. The record was filed in this court November 8, 1915. A copy of plaintiff in error's brief was forwarded to the clerk of the district court of Shelby county on the 14th day of December, 1915, and another copy sent, on the same day, to counsel for defendant in error, and on the same date, the briefs were filed in this court.

' Article 2115, Sayles’ Texas Civil Statutes, provides that not less than 5 days before the date of filing the transcript in the Court of Civil Appeals, the appellant or plaintiff in error must file with the clerk of the court below a copy of his brief, and the rules further provide that four copies of such brief shall be filed in the appellate court. The courts of this state have uniformly held that the statute above referred to is not mandatory, and when a failure to so file the brief has not resulted in any prejudice to the rights of appellee or defendant in error, the case will not be dismissed therefor. Railway Oo. v. Holden, 93 Tex. 211, 54 S. W. 751. It has further been held that if good cause is shown for the failure to file brief in the lower court 5 days before filing the transcript in the appellate court, the appeal will not be dismissed for such failure. Railway Co. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W. 656. There appears an affidavit attached to plaintiff in error’s reply to the motion to dismiss this cause, in which counsel for plaintiff in error says that he intended and expected to be able to brief this cause in time to file such brief in the lower court, within the time required by law, but that he was taken ill, and was compelled to go to a sanitarium, where he underwent an operation, which confined him to his home for a considerable time, and that on account of other urgent and pressing obligations to brief cases pending in the several Courts of Civil Appeals, he was unable to reach this case and to file the briefs until the time here stated.

When this motion to dismiss was first presented to us and considered, on or about the -— day of January, 1916, it then appeared from an examination of this court’s docket, that the defendants in error would have at least 2 months in which to answer plaintiff in error’s brief before this cause would be regularly reached for submission, and that appellant in error’s brief was typewritten, containing only 14 pages, and had incorporated therein but one assignment of error. Under such circumstances, the plaintiff in error was thought to have shown good cause for his failure to comply with the statute and the rules of the court governing the filing of briefs, and the defendants in error, having ample time in which to brief this cause, therefore, were not prejudiced by such failure to file briefs. Crenshaw v. Hempel, 130 S. W. 731; Deaton v. Feazle, 85 S. W. 1167; Peoples v. Evans, 50 Tex. Civ. App. 225, 111 S. W. 756.

This court also concluded that the statement of facts was filed in time. A statement of facts, filed any time within 12 months after the final judgment was rendered, would be in time under a writ of error. Louisiana, etc., Canal Co. v. Quinn, 160 S. W. 151; McLane v. Haydon, 178 S. W. 1197.

The motion to dismiss the appeal was therefore overruled.

The first assignment of error attacks the judgment of the court as being wholly without any evidence to support it, for that the claim of the defendants in error of title to the premises in controversy being limited by their pleadings and the evidence to whatever interest in said premises they acquired by inheritance from their mother, Barbara Smith, and any interest in said premises, if any, which the said Barbara Smith ever had in said premises being purely equitable, and the legal title to said premises being shown by the undisputed evidence and admitted by the defendants in error, Kirby Lumber Company, and the burden of proof being upon the defendants in error to show that the Kirby Lumber Company, .when it purchased said premises, was not a bona fide purchaser for value without notice of such equitable ownership or claim, and there being no evidence that the Kirby Lumber Company, when it purchased, did not pay a valuable consideration for said premises, or was not a bona fide purchaser thereof or purchased same with notice, either actual or constructive, of such equitable interest or claim, judgment should therefore have been rendered in favor of the plaintiff in error, Kirby Lumber Company, and there was therefore no evidence justifying or supporting the judgment in favor of defendants in p error. The evidence is undisputed that James M. Smith and Barbara Smith were husband and wife, and father and mother of defendants in error; that they are now both dead, and that the mother died intestate; that in 1861 the mother and father and their children were living on the tract of land in controversy, and continued to live there for 3 or 4 years, when they moved to Graham’s Mill, where they both died, the mother dying first, about 3 years after the war ended; that there were three children living when the mother died namely, C. C. Smith, his brother, the other defendant in error in this cause, and Isabel, a sister, those three being all the children; that the sister died a good .while after the mother’s death; that the father died after the sister died; that their father and mother did not own a home at Graham’s Place when the land in controversy was sold; that it was a matter of family history that the father, James M. Smith, sold the land in controversy to Dr. W. J. Ragland, in payment of a doctor’s bill, Dr. Ragland having practiced medicine in the Smith family, and attended the father and mother; that the mother, Barbara Smith, refused to sign the deed; that the father then executed the deed and sold the place; that the deed was executed by James M. Smith in payment of Dr. Ragland’s bill. The evidence further shows that the James M. Smith survey was a pre-emption survey, and that the field notes were made by George W. Lock, county surveyor, on March 1, 1858, being the same field notes which subsequently were put into the patent; that the patent to the land in question was issued by the state of Texas to W. J. Ragland, assignee of James M. Smith, May 1, 1876; that Dr. W. J. Ragland, deceased, left a will naming A. M. Ragland as independent executor and vesting in him the power to sell and convey; that A. M. Ragland, as executor of the estate of W. J. Ragland, deceased, executed to J. T. Polly a deed to the land in controversy, dated November 18, 1901, and that J. T. Polly sold the land to the Kirby Lumber Company in consideration of $375 cash, under deed dated April 26, 1902. The patent to the tract of land in controversy having issued to W. J. Ragland as assignee of James M. Smith, the legal title to the premises.was thereby vested in W. J. Ragland, and passed to the Kirby Lumber Company, plaintiff in error, holding under said patent, so that the title of Barbara Smith, the mother of defendants in error, was purely equitable. Wimberly v. Pabst, 55 Tex. 587; Durst v. Daugherty, 81 Tex. 653, 17 S. W. 388; Saunders v. Isbell, 5 Tex. Civ. App. 513, 24 S. W. 307; Johnson v. Newman, 43 Tex. 628; Hall v. Gwynne, 4 Tex. Civ. App. 109, 23 S. W. 289; Bogart v. Moody, 35 Tex. Civ. App. 1, 79 S. W. 633.

The legal title to the premises in controversy being shown by the undisputed evidence, and admitted by the defendants in error in their pleadings to be vested in the plaintiff in error Kirby Lumber Company, the burden of proof rested upon the plaintiffs, to entitle them to recover, to show that the Kirby Lumber Company, when it purchased, had actual or constructive notice of the equitable title of the defendants in error or that it was not a purchaser of said premises in good faith for a valuable consideration. Saunders v. Isbell, 5 Tex. Civ. App. 513, 24 S. W. 307; Brown Hardware Co. v. Catrett, 45 Tex. Civ. App. 647, 101 S. W. 559. There was no evidence whatsoever that the Kirby Lumber Company when it purchased, had any actual notice of the equitable title claimed by defendants in error, nor is there any evidence that the plaintiff in error, Kirby Lumber Company, when it purchased said premises, did not purchase the same in good faith, and pay a valuable consideration therefor.

The only question now remaining for us to consider is whether or not the Kirby Lumber Company had constructive notice of the equitable title. There was no one living upon the land in question when the Kirby Lumber Company purchased. The land had been vacated by the Smiths shortly after the war. There is therefore no evidence whatsoever that from any possession of the land, or from any physical facts existing when the Kirby Lumber Company bought, it had constructive notice of plaintiffs’ equitable claim. The instruments in the plaintiff in error’s chain of title consist of a deed from James M. Smith to William J. Ragland; the patent to the tract of land in controversy issued by the state of Texas to W. J. Ragland, as assignee of James M. Smith; a deed from the independent executor of the estate of w. J. Ragland to J. T. Polly, and a deed from J. T. Polly to the Kirby Lumber Company. There are no recitals of any hind in said instruments to put the Kirby Lumber Company upon notice of plaintiffs’ equitable title. The patent issued by the state covers 125 acres of land, and it states that this land had been conveyed by James M. Smith to W. J. Ragland, to whom the patent issued, and that the patent was issued by virtue of an affidavit made by James M. Smith under the act of March 24, 1871 (Acts 12th Leg. e. 22). The Pre-Emption Act of January 22, 1845, Paschal’s Digest, art. 4326, provided :

“All individuals who have settled upon and improved * * * a portion of the vacant public domain * * * have the privilege of locating and surveying a tract of land, not exceeding 320 acres.”

The same language is used in article 4341, limiting the right to pre-emption to 160 acres. It is to he seen from the language of this act that a single man could acquire land under the pre-emption statute. The record in this case shows that James M. Smith had the land in question surveyed in the year 1858, as a pre-emption survey. It was not necessary that he should have been a married man. In view of the fact that he could, as a single man, acquire the pre-emption, a conveyance thereof would certainly put no one upon notice that he was a married man. Likewise, there is nothing in the patent to put any one upon notice that James M. Smith was a married man. The patent recites merely that the land was patented to W. J. Ragland, to whom it had been conveyed by James M. Smith, and that the patent was issued by virtue of affidavit made by James M. Smith under the act of March 24, 1871. There is nothing in the patent or in any of the deeds visiting constructive notice that there were others than James M. Smith interested in the land. This case does not come within the rule announced in Hill v. Moore, 85 Tex. 335, 19 S. W. 162, holding that a patent to a league and a labor of land conveys notice to a purchaser that there are other persons than the patentee interested; this rule being put upon the ground that a headright league and labor could be granted only to a family. The rule has never been extended to eases where the patent covers a quantity of land which could have been granted to a single person, as well as to a married person.

When there is nothing in the patent to put one upon notice of the claims of others in and to the land covered thereby, the purchaser of the land is not required to go behind the patent, and therefore, in the instant case, was not chargeable with notice of the wife’s community interest therein. Wimberly v. Pabst, 55 Tex. 587; Bogart v. Moody, 35 Tex. Civ. App. 1, 79 S. W. 633.

It follows from what has been said that this assignment of error must be sustained. This cause is therefore reversed and rendered ; and it is so ordered.
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author: HALL, J.

text:
    KRUEGEL v. WILLIAMS et al.
    (No. 970.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 19, 1916.
    Rehearing Denied May 10, 1916.)
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by Herman Kruegel against W. H. Williams and another. Prom a judgment for defendants, plaintiff appeals.
    Affirmed.
    Herman Kruegel, of Dallas, pro se. J. M. Avery, of Dallas, for appellees.
   HALL, J.

Appellant sued H. H. Williams, as district clerk of Dallas county, together with the sureties on his official bond, for actual and exemplary damages, because of the refusal of Williams to issue an execution upon a judgment rendered in favor of appellant against Murphy & Bolanz, March 7, 1894. A review of the record shows that the same issues, based upon the same facts, have heretofore been decided adversely to appellant in the cases cited below, where full statements of all the matters presented in this appeal are set out. Por the reasons announced in the eases cited, the judgment herein is affirmed. Kruegel v. Bolanz, 103 S. W. 435; Kruegel v. Jones, 121 S. W. 218; Kruegel v. Rawlins, 121 S. W. 216; Kruegel v. Murphy & Bolanz, 59 Tex. Civ. App. 482, 126 S. W. 680; Kruegel v. Jones, 136 S. W. 835; Kruegel v. Jones, 143 S. W. 989; Kruegel v. Rawlins, 148 S. W. 343; Kruegel v. Murphy & Bolanz, 157 S. W. 1182; Kruegel v. Williams, 153 S. W. 903; Kruegel v. Murphy, 168 S. W. 983.


author: HODGES, J.

text:
    NATIONAL EQUITABLE SOCIETY OF BELTON v. ARNOLD.
    (No. 1617.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 24, 1916.
    Rehearing Denied May 4, 1916.)
    Appeal from Hunt County Court; H. O. Nor-wood, Judge.
    Action by J. Sid Arnold against the National Equitable Society of Belton. Judgment for the plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    D. R. Pendleton, of Belton, and Neyland & Neyland, of Greenville, for appellant. A. J. Gates and Clark & Leddy, all of Greenville, for appellee.
   HODGES, J.

The appellee sued the appellant to set aside and annul a written application made by him to purchase a $2,000 contract or certificate issued by the appellant, on the ground that the agent who procured the application made false and fraudulent representations to induce the appellee to execute the same. The appellee alleged that he was desirous of securing an immediate loan upon real estate owned by him in the city of Greenville; that the appellant’s agent represented to him that; if he would purchase a contract or certificate issued by the appellant, and pay $220 in cash, the appellant company would issue to him a certificate by the terms of which it would agree to make him a loan of $2,000 at 5 per cent, interest upon acceptable security. I-Ie further alleged that he was not familiar with the terms and conditions of the written contract to be issued by the appellant, nor with the rules and. regulations controlling the same; that, relying upon representations of the agent, he signed an application to purchase one of these contracts, and that within a few days thereafter the contract was sent to him by the agent, and he was notified to indicate his acceptance thereof by signing and returning a duplicate to the company; that the contract sent him did not provide for an immediate loan, but merely provided that a loan would be made when the accumulations in the company’s reserve fund were sufficient; that he refused to execute the written contract, and so notified the appellant, demanding that the loan be made in accordance with the representations of its agent. It is further alleged that the appellant requested him to make application for the loan, sent blanks for that purpose, and thus led him to believe that the loan would be made as represented by the agent, and that he continued to negotiate with the appellant for some time thereafter in an effort to secure the loan, but that it finally failed and refused to make the loan; that thereupon the appellee demanded the return of his money, which was refused. This suit followed as the result.

Appellant in its answer denied that its agent procured the execution of the application to purchase the contract by any false or fraudulent representations. It alleged that, if the agent did make such representations, he was not authorized to do so, his authority extending only to selling the contracts and taking applications therefor; that the application signed by the ap-pellee contained notice of the limitation thus placed upon the agent’s power to bind the company by any representations whatever other than those contained in the instrument itself. There were some supplemental pleadings, which are unnecessary to mention.

The case was trial by the court without a jury, and a judgment rendered in favor of the appellee for $220, the full amount sued for. The contention on this appeal is that the evidence did not warrant that judgment. This is one of four appeals prosecuted by the appellant in this court involving practically the same issues. See National Equitable Society of Belton v. Carpenter, 184 S. W. 585; National Equitable Soc. of Belton v. Camp, 184 S. W. 589; National Equitable Soc. of Belton v. Dunnington, 184 S. W. 590 — none of which have yet been officially published.

From the case made by the pleadings of the qppellee the inference to be drawn is that he had by false and fraudulent representations been induced to apply for a contract which he had not then seen; that he had been assured that by the terms of this contract he could secure an immediate loan of the sum desired; that when the contract was presented in response to his application he repudiated and refused to accept it. The facts do not sustain those allegations. According to the testimony of the ap-Sellee himself, his application was made on larch 4, 1913, and in a few days thereafter he received the document applied for, which is called a “contract” or “certificate.” Instead of returning that instrument, he retained it and insisted upon the promised loan. It was more than a year after he discovered the true character of the contract before he repudiated it and demanded a return of his money. The case, we think, falls within the rule heretofore announced in the cases above referred to.

The judgment, for the reasons stated in National Equitable Society of Belton v. Dunnington, supra, will be reversed, and judgment will be here rendered for the appellant.


author: PRENDERGAST, P. J.

text:
    HOPKINS v. STATE.
    (No. 4067.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.)
    Cbimiiítal Law <&wkey;200 — Former Jeopardy-Identity of Offenses.
    Acquittal on a charge of murder does not bar prosecution for unlawfully carrying the pistol with which the murder was alleged to have been committed; the offenses being entirely separate and distinct.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. &wkey;> 200.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Mary Hopkins was convicted of unlawfully carrying a pistol, and she appeals. Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully carrying a pistol and fined $100. No statement of facts nor bills of exceptions are in the record.

Appellant pleaded former jeopardy, in that she was acquitted of a charge of murder, with which she was charged while she carried the pistol with which she committed the killing. The two offenses are entirely separate and distinct, as has many times been held by this court. The court did not err in overruling her plea of former acquittal.

The judgment is affirmed.


text:
    KIRVEN v. STATE.
    (No. 4059.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.)
    Criminal Law <&wkey;1184 — Appeal — Affirmance.
    Where the jury assessed punishment for murder at 10 years, and the judge sentenced the defendant for only 2 years, on appeal it was necessary to reform the sentence to conform with the indeterminate sentence law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. <&wkey;> 1184.]
    Appeal from District Court, Freestone-County ; A. M. Blackmon, Judge. '
    Benton Kirven was convicted of murder, and he appeals. Reformed and affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

On a conviction of murder, with 10 years in the penitentiary assessed as punishment, this appeal was prosecuted.

There is no statement of facts or bills of exceptions in the record, and nothing for review in the absence of these. However, the verdict assesses the punishment at 10 years. The sentence is for 2 years only. It will therefore be necessary for the sentence to be reformed to conform to our indeterminate sentence law, which is ordered.

The judgment will be reformed and affirmed.


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

text:
    HAZELWOOD v. STATE.
    (No. 4060.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.)
    1. Criminal Law <&wkey;48 — Insanity—Use of Drugs.
    Insanity caused by continued use of narcotics and drugs, such as morphine and cocaine, does not come within the statute with reference to temporary insanity produced by the recent use of intoxicating liquors.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. <§=^>48.]
    2. Criminal Law <&wkey;48 — Insanity as a Defense.
    A person, tried for insanity and found insane by the county court and who while out of jail under bond commits an assault and is arrested and placed in an insane asylum, cannot be indicted and tried for the assault, under Pen. Code 1911, art. 39, providing that no act done in a state of insanity can be punished as an offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. <&wkey;48.]
    3. Criminal Law <&wkey;465 — Opinion Evidence —Nonexperts.
    Testimony of nonexperts may be received' only where they state sufficient facts on which, to base their conclusions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1057; Dec. Dig. &wkey;465.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Donley County; Hugh L. I-Iumphres, Judge.
    Robert Hazelwood was convicted of aggravated assault, and appeals. Reversed.
    J. W. Crudgington, of Amarillo, E. A.. Simpson, of Clarendon, and A. M. Mood, and Veale & Lumpkin, all of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for. the State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault and given 22 months in the county jail.

[1,2] Long prior to the alleged assault appellant had been tried for insanity andfound insane in the county court of Potter county, where this case arose. He was seat to the lunatic asylum in San Antonio, where he remained for some months, until the superintendent discharged him. This judgment was never set aside by any legal authority. Dr. White, superintendent of the insane asylum of San Antonio, testified that he believed at the time of'the discharge of appellant that, if certain circumstances arose, appellant would be insane, and in fact was not, perhaps, sane within the comtem-plation of the -law at the time of his discharge. The evidence shows that appellant was addicted, not only to drinking intoxicants heavily, but used morphine, cocaine, and “dope” of such character, and when under tlie influence of it was not responsible, and. this had continued so long that his mind was deranged from the use of these narcotics and drugs. Insanity for these causes does not come within the statute with reference to temporary insanity produced by the recent use of intoxicating liquors. This has been the subject of a number of decisions. After returning from the San Antonio asylum to his home in Amarillo, he was again tried for insanity, and again found insane. There seems to have been no room for him in the asylum at the time of the second judgment, and he was taken out for a while under bond, as authorized by the statute, and was placed in charge of his bondsmen. Later, however, he was surrendered by his bondsmen and placed in jail. A few days before the alleged assault he was taken out of jail again .under bond, and while out he was charged with having committed the assault He was then arrested, and conveyed to the insane asylum at Austin. After being so placed in the asylum, the grand jury of Potter county returned this bill of indictment, charging him with assault with intent to murder. This action of the grand jury occurred while he was in the insane asylum in Austin. The trial judge, at the instance of the prosecution, issued a bench warrant, authorizing the bringing of appellant from the lunatic asylum to be tried under the indictment. This was executed, and appellant carried to Amarillo. Change of venue then occurred to Donley county, where the trial subsequently occurred under the indictment. These matters all appear of record, and are clearly manifest and undisputed. Under our statute insane people cannot be tried while in a state of insanity. Branch’s late Annotated Penal Code, art. 89, provides:

“No act done in a state of insanity can be punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition. No person who becomes insane after he is found guilty shall be punished for the offense while in such condition.”

The facts as stated are uncontroverted. It is undisputed further that he was in the asylum while this judgment finding him insane was in existence, and it is still in existence. No attempt was made to set aside the conviction for insanity. If the testimony even on the trial of this case is to be credited, defendant was insane, but whether that be the correct position or not, aside from the county court judgment, yet that judgment remained intact, was in full force and effect, and appellant confined in the insane asylum under and by virtue of it. In the face of all this, this defendant was brought out of the asylum and tried for a criminal offense. No man in Texas can be tried while he is insane. Tl^is precluded the trial of appellant under the circumstances of this record. For this reason this judgment must be reversed.

There are some bills of exception reserved to the testimony of nonexpert witnesses, which we think well taken. These witnesses do not state sufficient facts on which to base their conclusion. That testimony of nonexperts may be given where a proper predicate has been laid has been announced as the correct rule, but sufficient facts and circumstances must be drawn from the witness as a basis for his opinion. Even the experts must know the facts in order to base an expert opinion, either by his observation or .under the rule of hypothetical questions and statements. If the testimony on another trial of nonexperts is sought, a proper predicate should be laid as a prerequisite for their opinion.

The judgment is1 reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). The well-considered case of Chase v. State, 41 Tex. Cr. R. 560, 55 S. W. 833, written by Judge Henderson, holds the reverse of the decision in this case, and is exactly in point. Judge Davidson, in Wilson v. State, 58 Tex. Cr. R. 596, 127 S. W. 548, expressly approved the Chase Case. Mr. Branch cites other cases1 to the same effect in section 27, p. 15, of his new Annotated Penal Code. I believe these decisions correctly decide the law of this case.

The testimony of the nonexpert witnesses comes within the law as laid down in Jordan v. State, 64 Tex. Cr. R. 187, 141 S. W. 786, Key v. State, 72 Tex. Cr. R. 129, 161 S. W. 130, Rogers v. State, 71 Tex. Cr. R. 149, 159 S. W. 40, and other cases, and was admissible.

This case should be affirmed, not reversed.

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