text:
    SPEER v. RUSHING et al.
    (No. 5573.)
    (Court of Civil Appeals of Texas. Austin.
    June 23, 1915.)
    1. Appeal and Ejrkob <&wkey;759 — Assignments of Error in Motion fob New Trial — Repeating Assignments in Brief.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1512, providing that assignments of error in the motion for.new trial, constitute the assignments of error, and need not be repeated by the iiling of assignments of error, the grounds of the motion for a new trial may be copied into tiie brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dee. Dig. <&wkey;759.]
    2. Appeal and Error <&wkey;773 — Failure to File and Serve Briefs — Dismissal.
    On appellant’s failure to comply with Rev. C. St. 1911, art. 2115, requiring him to file a copy of his brief 5 days before the time of filing the transcript in the Court of Civil Appeals, and allowing the appellee 20 days after notice of filing within which to file his own brief, the appeal may be dismissed; but where the record in the case was delivered to appellant’s attorney May 11th and filed May 20th, and copy of his brief was filed June 2d and a copy delivered to appellee on the same day, and the case could not be reached before the October term, his failure to file a copy of his brief before taking out the transcript was not prejudicial to ap-pellee, and the appeal would not be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. &wkey;773.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Action between A. J. Speer and Will Rushing and others. From the judgment Speer appeals.
    On motion to dismiss appeal. Motion overruled.
    H. S. Morehead and K. W. Gilmore, both of Franklin, for the motion. W. W. Wilson, of Calvert, and Hudson & Hudson, of Bryan, opposed.
   JENKINS, J.

Appellee has filed a motion to dismiss the appeal in this case upon the grounds: (1) That there is no assignment of error in the record; and (2) that appellant did not file his brief in the trial court 5 days before taking out the record, as provided in article 2115, R. S.

Appellant filed a motion for a new trial, and has copied the several grounds thereof in his brief. This is in compliance with article 1012, Vernon’s Sayles’ Ann. Civ. St. 1914, which provides that:

“Where a motion for a new trial has been filed the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error.”

An appeal will be dismissed in a proper ease where there has been a failure to comply with article 2115; that is to say, where the failure to comply with said article has resulted in depriving appellee of reasonable time and opportunity to reply to appellant’s brief, and no sufficient excuse for same is shown. Bowden v. Patterson, 108 S. W. 177; Railway Co. v. Martin, 132 S. W. 834; Wiseman v. Maddox, 135 S. W. 756; Hernandez v. Pastran, 140 S. W. 508.

But, while the statute makes failure to comply therewith a ground for dismissing an appeal, it does not require a dismissal in such case, and an appeal will not be dismissed for such cause where the appellee has been afforded ample time and opportunity to file his brief before the cause is submitted. Railway Co. v. Holden, 93 Tex. 211, 54 S. W. 751; Railway Co. v. Wood (Civ. App.) 147 S. W. 283; Gibbs v. Eastham (Civ. App.) 139 S. W. 1166; Morrison v. Harrell (Civ. App.) 139 S. W. 1166; Danner v. Walker-Smith Co. (Civ. App.) 154 S. W. 295; Crenshaw v. Hempel (Civ. App.) 130 S. W. 731; Bull v. Railway Co., 33 Tex. Civ. App. 547, 78 S. W. 525; Deaton v. Feazle (Civ. App.) 85 S. W. 1167.

The record in this case was delivered to appellant’s attorney May 11, 1915, and was filed in this court May 20, 1915. On June 2, 1915, appellant filed a copy of his brief with the district clerk, and his counsel state, in answer to appellee’s motion to dismiss, that they delivered a copy of same to appellee’s attorneys on June 2, 1915. Appellant filed four copies of Ms brief with the clerk of this court on June 4, 1915. Owing to the crowded condition of our docket this case cannot be reached for submission before our October term. It thus appears that appellee has suffered no injury by appellant’s failure to file a copy of his brief with the district clerk before taking out the transcript.

For the reasons stated, the motion to dismiss this appeal is overruled.

Overruled.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    COX v. MAILANDER et al.
    (No. 5463.)

    (Court of Civil Appeals of Texas. Austin.
    June 23, 1915.)
    1. Husband and Wife <&wkey;278 — Postnuptial Agreement.
    . A postnuptial agreement between husband and wife, who have separated, will be upheld when fair and equitable.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1046-1053; Dec. Dig. &wkey; 278.]
    2. Husband and Wife <&wkey;271 — Separation Agreement.
    That a wife had knowledge of the character and amount of the community estate when partition was made between them by agreement on separation would not prevent the partition from being so unfair that it should not be enforced.
    [Ed. Note. — Por other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dec. Dig. &wkey;5 271.]
    3. Husband and Wife <&wkey;271 — Separation Agreement — Revocation by Diving Together.
    Though a partition of community property by agreement between husband and wife, made on separation, was fair, it would be vacated by their subsequent living together, there being no provision to the contrary in the partition or otherwise, and it was immaterial that after a reconciliation the husband, while using all the property, kept an account, showing what had been allotted to the wife, and that the business owed her for the money so used.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dec. Dig. &wkey; 271.]
    4. Husband and Wins &wkey;>271 — Separation Agreement — Validity.
    Where a husband and wife, by agreement, partitioned community property on a separation, such agreement was set aside by subsequent reconciliation and living together, and on a subsequent separation and partition agreement he could not justify concealing from her the ownership of certain shares in a corporation by him on the theory that he had paid for such shares by the property allotted to him in the first partition agreement.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dec. Dig. &wkey; 271.]
    5. Husband and Wipe <&wkey;271 — Partition and Separation Agreements — Fraud—Es-toppel.
    Where a wife, after discovering fraud in a separation and partition agreement, continued to receive a monthly allowance under such agreement, she was not thereby estopped from questioning its validity; she being entitled to more dividends than she received during such time.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 989-1002; Dec. Dig. <&wkey;>271.]
    Appeal from District Court, McLennan ■County; Tom L. McCullough, Judge.
    Action by E. M. Mailander and another against C. H. Cox. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Davis & Cocke, of Waco, for appellant. J. D. Williamson, of Waco, for appellees.

       writ of error pending in Supreme Court.

   Findings of Fact.

JENKINS, J.

Appellee, after the institution of this suit was married to F. M. Mail-ander, who was made a party pro forma, but she will be hereinafter referred to as the ap-pellee.

Appellant and appellee were married in January, 1895, and lived together until August, 1905, at which time they separated, intending such separation to be final; they, however, became reconciled in November, 1906, and again lived together until July, 1910, at which time they permanently separated. On June 11, 1911, she was granted a divorce. At the time of their separation in 1905 all of their property was community property, and consisted of a residence and a business house in Waco, a warehouse at Temple, and the goods, wares,.merchandise, and fixtures of a produce business in the name of C. H. Cox & Co. On August 7, 1905, .after their separation, they entered into a written agreement in reference to their property, whereby appellee received the residence property and furniture, her jewelry, and a horse and phaeton, of the value of $5,000, and was to receive from appellant $150 per month for life, or until she should marry. Appellant received the remainder of their property of the value of $50,000. Appellee

was to have the custody of and was to support their minor daughter, then about nine years old, and who was their only child. On December 1, 1905, the appellee expressing fears that appellant might cease to pay her the $150 per month, they entered into another written agreement, which declared that it was “in lieu of all other understandings verbal or written heretofore entered into between said parties.” Under this agreement the real estate was to be deeded by them to trustees, who were to convey the residence property to the appellee in her separate right and the business property to appellant in his separate right, which was done, and appellant executed his note to appellee for $5,400, payable in 36 monthly installments' of $150 each, which payments were to cease if appellee married again. Appellee retained the personal property which she received under the’ former agreement, and relinquished her claim to all of the property received by appellant under said agreement. Payment of the note was secured by a lien "on the business property. Appellant made the monthly payments under each of these agreements until their reconciliation in 1906, and he also paid her attorney $500, as provided in said last agreement. At the time of their reconciliation appellee had either $165 or $265, which she turned over to appellant. During, the time of their reconciliation the residence was sold for $4,800, which was also turned over to appellant and used by him in the business of C. H. Cox & Co. In July, 1909, the business of C. H. Cox & Co. was incorporated for $100,000, and paid-up stock was issued as follows:

To C. H. Cox.$67,900 00
To E. M. Cox. 5,500 00
To J. R. Davis. 3,000 00

These payments were made by transferring to the corporation the business property for $28,000, and the goods and fixtures of C. H. Cox & Co. for $58,500. There is nothing in the record to indicate that these were not fair values. J. R. Davis at this time owned an interest in the business of the firm of the value of $3,000. The par value of the stock was $100 per share. On June 15, 1910, after their second and final separation, another written contract was entered into between them, by which appellant agreed to deliver to appellee 100 shares of stock in the corporation of C. H. Cox & Co. when she obtained a divorce, to pay her $100 per month dividend on said stock as long as she held the same, to deliver to her all the household goods, and to pay $50 on her expenses in obtaining a divorce. Appellant paid the $100 per month until the agreement of June 9, 1911, was entered into. In March, 1911, appellee filed suit for divorce and for partition of their community property. On June 9, 1911, another written agreement was entered into by appellant and appellee, which contained the following recitation:

“Whereas said parties have agreed to settle perpetually all questions of property rights between them, which agreement is in lieu of all other understandings and agreements verbal or written heretofore entered into between said parties relating to earlier partial settlement of their interest, such contracts are hereby canceled.”

In this contract appellant agreed to transfer to appellee 100 shares of stock in addition to the 100 shares which she was to receive under the agreement of June 15, 1910, and to guarantee a dividend thereon of $75 per month, payable monthly, as long as she held said stock, such guaranty to cease upon her marriage, and also to pay $150 on expenses of her divorce suit.. Appellee released her claim to all other property belonging to O. H. Cox or to C. H. Cox & Co., or to their community estate. In this settlement appellee was represented by Rhodes Baker, Esq., of Dallas, Tex., .where appellee then lived. Appellant and his attorney represented to appellee and her attorney that 110 shares of said stock belonged to H. O. Tesson, 100 shares to R. W. Davis, and 10 shares to Leslie Finucane, that appellant owned only 470 shares of said stock, and that the indebtedness of the corporation was at least $10,000. Had this been true, in view of the fact that appellee retained her jewelry and furniture, the 200 shares which she received would have been a fair partition. But it was not true. Appellee brought this suit to set aside the partition of June 9, 1911, on the ground that the same was procured by fraud and was inequitable. Appellant replied that said partition was fair; that by virtue of former partitions the business house became the separate property of appellant; that 280 shares of the stock was paid for with said business lot; that each of the settlements had been acted upon and ratified by appellee. Appellee rejoined that the partitions of August and December, 1905, were unfair, that they were done away with by their reconciliation and living together,' and that they were done away with by the agreement of June 9, 1911.

In reply to special issues submitted to them, the jury found:

(1) That on August 7, 1905, appellee had knowledge of the amount and character of the common property of herself and appellant.

(2) That the partition of that date was unfair.

(3) That the partition of December 1, 1905, was unfair.

(4) That the property of each was kept separate and distinct after their reconciliation and prior to their second separation.

(5) That the contract of June 15, 1910, was to take the place of all former agreements.

(6) That the contract of .June 9, 1911, was not fair or equitable.

(7) That at the time the agreement of June 9, 1911, was made the appellant made false representations upon which appellee relied, and that a part of the property of the community estate was concealed from appellee and not taken into account in said partition.

(8)That appellee received from appellant eight checks of $75, after she was informed that the 210 shares of stock in the name of Tesson and R. W. Davis belonged to appellant.

The evidence is sufficient to sustain these findings, and we adopt the same with this modification of No. 4: Appellant after the reconciliation kept his books so as to show that the property received by appellee remained her separate property, but appellee had no knowledge of this fact, and there was no agreement prior to their reconciliation that this should be done.

Other facts and issues necessary to an understanding of our views will be stated in the opinion herein.

The court found:

“That all agreements of partition between plaintiff and defendant should be set aside and considered of no force or effect.”

Opinion.

Appellant assigns error upon the finding of the jury that the partitions of August 7, 1905, and December 1, 1905, were unfair. The property received by appellant by the first agreement was worth $50,000, and the property received by appellee was worth $5,000, in addition to which she was to receive $150 per month during her life or until she married. It is important to calculate the then present value of this monthly allowance, in view of the fact that her future marriage was an uncertain event, and that she had no security for the payment of such amounts beyond the continued solvency of appellant. In the agreement of December 1, 1905, appellee was to receive, instead of $150 per month during her life or until her marriage, $5,400 in 36 monthly payments of $150 each, without interest, the same being secured by mortgage on the business property. This sum may be taken as being, in the estimation of the parties, the equivalent of the former agreement to pay $150 monthly. The then present value of the $5,400 note, payable in 36 monthly installments, without interest, allowing money to have been worth 6 per cent, per annum, was $4,954.13, from which it appears that the total amount received by appellee was less than one-fifth of the property, of which she was entitled to one-half, and, besides this, she had the burden of supporting their child.

A postnuptial agreement between husband and wife, who have separated with the expectation of remaining permanently apart, will be upheld when the same is fair and equitable, but not otherwise. Proetzel v. Schroeder, 83 Tex. 687, 19 S. W. 292; Ximines v. Smith, 39 Tex. 52; Moor v. Moor, 24 Tex. Civ. App. 150, 57 S. W. 992.

It is true the jury found that appellee had knowledge of the character and amount of the community estate at the time of first partition of the same. With such knowledge that she should consent to receive less than one-fifth thereof would seem to indicate undue influence on the part of her husband in the transaction. She did not have the advice of an attorney, nor of any friend capable of giving advice in the transaction. At any rate, such knowledge does not prevent the partition from being so unfair that it should not be enforced by a court of equity. Appellant also knew the amount of the estate, and in good conscience he should have allowed her one-half of the same.

Even had the partition been fair, it would have been vacated by their subsequent living together, there being no provision to the contrary in the partition agreement, and no such agreement having been made between the parties 'while they were living apart. James v. James, 81 Tex. 378, 16 S. W. 1087; Kehr v. Smith, 20 Wall. 31, 22 L. Ed. 314; Shelthar v. Gregory, 2 Wend. (N. Y.) 422; Hitner’s Appeal, 54 Pa. 116; Wells v. Stout, 9 Cal. 479-498; Garland v. Garland, 50 Miss. 694; Schouler on Husband and Wife, § 478; Bright on Husband and Wife, vol. 11, pp. 319, 349.

The fact that appellant, after the reconciliation, while using in his mercantile business the proceeds of the property that had been allotted to appellee in the separation agreement, kept a book account, showing that the business owed her for the money so used, could not have the effect of continuing such money as her separate property, and thereby continuing that which had been deeded to him as his separate property. She was not aware that the account was so kept; but if she had agreed to such an arrangement while they were living together as husband and wife, it would not have been binding upon her. Cox v. Miller, 54 Tex. 26; Engleman v. Deal, 14 Tex. Civ. App. 3, 37 S. W. 653.

Even had the separation agreement of August 7, and December 1, 1905, been fair, and had. the same not been set aside by their again living together, the subsequent agreement of June 15, 1910, both by its necessary effect and by its express stipulation, set aside •all former agreements between the parties, and it, in turn, was in like manner set aside by the agreement of June 9,- 1911. These agreements purported to deal with all the property owned by the parties, treated the same as community property, and undertook ■to make an equitable partition thereof.

Appellant, while admitting that 210 shares of stock were represented by him in the negotiations leading up to the partition agreement of June 9, 1911, as belonging to Tesson and Davis, here insists that such misrepresentation was not in fact a fraud on ap-pellee, for the reason that he was the owner in his separate right of 280 of such shares by reason of their having been paid for with the business property deeded to him in 1905. This is evidently an afterthought. He made no such contention at the time of entering into either the agreement of 1910 -or of 1911. The agreement under which he obtained a deed to said property being unfair to appellee, and having been set aside by the reconciliation and subsequent living together of appellant and appellee, he held the legal title to said business lot in trust for the community estate, and its proceeds, when it was converted into corporation stock, became community property. In Rains v. Wheeler, 76 Tex. 390-395, 13 S. W. 324, and Caffey’s Ex’rs v. Caffey, 12 Tex. Civ. App. 616, 35 S. W. 739, wherein it is held that deeds of partition, when a husband and wife have separated, constitute the property conveyed separate property, there was no claim that the partition was unfair, no subsequent reconciliation, and no subsequent contract between the parties.

We do not think the facts raise the is sue of estoppel. It is true appellee continued to receive $75 per month dividends after she discovered the fraud with reference to Tesson and Davis stock, but she was entitled to more dividends than she received during this time.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      <S=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <^r-7>TT'(vr other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    FIRST STATE BANK OF HUBBARD et al. v. HUBBARD FARMERS’ OIL & GIN CO. et al.
    (No. 5506.)
    (Court of Civil Appeals of Texas. Austin.
    June 23, 1915.)
    Coupoeations <&wkey;480—Foreclosure of Mortgages—Priority—Receivership.
    In a suit to foreclose a mortgage lien on the plant of a private corporation engaged in the oil business, the court cannot give priority to receivers’ certificates and expenses of the receivership, where such receivership was obtained by a junior mortgagee over the objection of the first mortgagee, since the corporation is not affected with any public interest.
    [Ed. Note.—For other cases, see Corporations, Dec. Dig. <&wkey;480; Mortgages, Cent. Dig. §§ 296-323, 326, 455.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by the First State Bank of Hubbard against the Hubbard Farmers’ Oil & Gin Company and others. From a judgment subordinating plaintiff’s lien to other claims, plaintiff and others appeal.
    Reversed and remanded.
    See, also, 160 S, W. 1132.
    This suit was brought on the 7th of July, 1913, by First State Bank of Hubbard against Hubbard Farmers’ Oil & Gin Company, a private corporation, to recover an indebtedness evidenced by a note and overdrafts secured by a mortgage on the plant' of said company, and for foreclosure of said mortgage thereon. W. C. Horne, Eb Johnson, J. A. Madera, Percy Wood, W. E. Berry, and Will Bankston were likewise made parties defendant, on the ground that they were guarantors of said indebtedness, and recovery was also sought against them. Thereafter, on August 8, 1913, at the instance of said defendants, the court appointed O. O. Condor receiver of the properties of said oil company, who took charge thereof and proceeded to administer said trust. On September 2, 1913, upon hearing, the case was dismissed as to said guarantors, and judgment rendered in favor of First State Bank of Hubbard against said Hubbard Farmers’ Oil & Gin Company, for the sum of $18,937.-\)5, with interest. On September 2, 1913, the receiver filed his application for authority to issue receiver’s certificates, which was opposed by appellant; but the court on the 8th of said month granted authority to issue such certificates in the sum of $5,000, by virtue of which receiver’s certificates were issued for said amount and purchased by intervener, Dawson State Bank. During the administration of such receivership said property was destroyed by fire, at which time it was insured in various companies in the total amount of $27,634. The receiver, by permission of the court, settled with said companies for the sum of $21,000, which policies contained loss clauses payable to appellant as its interest might appear. On June 26, 1914, the receiver filed his final report, showing that he had received from all sources $23,234.17, of which $20,835.90 represented the corpus of said plant owned by said Oil & Gin Company. Appellant filed its motion on June 13, 1914, to require the receiver to pay its debt of $18,-937.95, established by the judgment of the court, the application stating that said amount had been established by the court as a preference lien. The following parties filed pleas of intervention in said cause: Robert Priddy and Eb Johnson on February IS, 1914; Dawson State Bank on April 24, 1914; R. M. Vaughan, on July 28, 1914; the Waco Machinery & Supply Company on June 30, 1914; and the Western Engineering Company on April 9, 1914 — to all of which appellant filed its exceptions. The court denied appellant’s motion to require the receiver to pay its debt, and he was ordered to pay all court costs, including cost of the receivership proceeding, as follows: Compensation allowed the receiver $2,000; compensation allowed R. M. Vaughan for legal services in the'receivership proceeding, $1,500; Dawson State Bank, $5,388.49 on receiver’s certificates; and after the payment of said several sums the receiver was ordered to pay appellant the balance remaining in his hands. Provision was made, if any balance remained, for the payment of the interveners, but the total amount in the hands of the receiver was not sufficient to pay appellant and the claimants first named. At the time the suit was filed said Oil & Gin Company was insolvent and not being operated, and the court found that unless a receiver was appointed the property, if sold, would bring from one-fourth to one-third less than its value, and it could obtain no money with which to operate during the ensuing season and would be closed down; that if a competent manager was appointed it might be run at a profit. From which judgment appellant and the Waco Machinery & Supply Company have prosecuted this appeal.
    The above statement is taken in part from appellant’s brief and is concurred in by some of the appellees, the substance of whose supplemental statement we have incorporated herein.
    J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellants. Frank T. West, of Waco, J. Dudley Stephenson and P. W. Robertson, both of Hillsboro, Albert Boggess, of Waco, R. M. Vaughan, of Hillsboro, and Woods & Kerr, and L. B. Cobb, all of Corsi-cana, for appellees.
   RICE, J.

(after stating the facts as above). Appellant challenges the correctness of said judgment postponing the payment of its claim to those of the other claimants, contending that by reason of the facts stated its debt was prior to any of the other claims so preferred, and should be paid first, and this is the principal contention involved in this appeal.

We think there can be no question but what the proceeds of the policies of insurance should be treated as standing in the place of the original property, charged with all the obligations outstanding against it. It will be recalled that the receivership was not put in motion by the appellant, nor the certificates, issued with its consent, but, on the contrary, was resisted by it. Being defeated in this, it could not be held, we think, that such judgment would bar appellant’s right to priority of payment out of such fund secured by its prior mortgage thereon, nor prevent its objecting to the payment of expenses of the litigation instituted by a junior mortgagee, ashore attempted.

If this suit involved a railroad or public-service corporation then authority is not lacking to sustain the judgment of the court; but the Hubbard Farmers’ Oil & Gin Company is a private corporation to whom appellant had furnished money, which was secured by a first mortgage, to which priority was awarded, and the application for a receiver was. made by a junior mortgagee, without appellant’s sanction or authority and over its objection. In International Trust Co. v. Decker Bros., 152 Fed. 78, at page 82, 81 C. C. A. 302, at page 306, 11 L. R. A. (N. S.) 152, at page 156, in discussing a similar question, the-court said:

“A practice has grown up incident to railroad receiverships, which, indeed, has become firmly established by judicial sanction, whereby, the receiver is considered to be legally competent under conditions of insolvency, and perhaps for other causes peculiar to the business of public service corporations, to issue receiver’s certificates, for the purpose of .paying labor claims,. within prescribed limits as to time, and other incidental and necessary expenses for carrying forward the business of the corporation, so that it may continue a going concern, and thereby to supplant or supersede the liens of mortgage claimants. The reasons, however, for the authority, are peculiar to railroad corporations, and to the enterprises in which' they engage, the most salient of which are that railroads are quasi public concerns, through which the public interests and convenience, as well as private ownership, are largely subserved, and that a maintenance of the roadway and equipment, and a continuation of the business and operation of the road, are essential to the preservation of the mortgage security. Any person or corporation, in taking and accepting a mortgage upon the property of a railroad, therefore, does so with reference to the law governing such corporations, and with knowledge, presumably, of the legal condition that, for the purpose of keeping the enterprisei a going concern, receivers may be appointed and receiver’s certificates issued in appropriate cases, which, in their force and effect, will supplant the mortgage, and hence with the understanding that the mortgage lien may be superseded by the necessary expenses for continuing the business and thereby preserving the security of the mortgage. These principles have been established by numerous adjudications in the Supreme Court of the United States. Fosdick v. Schall, 99 U. S. 235, 25 L. Ed. 339; Barton v. Barbour, 104 U. S. 126, 26 L. Ed 672; Miltenberger v. Logansport, C. & S. W. R. Co., 106 U. S. 286, 1 Sup. Ct. 140, 27 L. Ed. 117; Burnham v. Bowen, 111 U. S. 776, 4 Sup. Ct. 675, 28 L. Ed. 596; Union Trust Co. v. Illinois Midland R. Co., 6 Sup. Ct. 809, 117 U. S. 434, 29 L. Ed. 963; Wood v. Guarantee Trust & S. D. Co., 128 U. S. 416, 9 Sup. Ct. 131, 32 L. Ed. 472; Kneeland v. American Loan & T. Co., 136 U. S. 89, 10 Sup. Ct. 950, 34 L. Ed. 379. Neither the rule nor the reasons which go to its support have application to corporations engaged in strictly private enterprise. The Supreme Court of the United States has not as yet expressly said this, but it has so strongly observed the distinction- in that relation between the two characters of corporations that there is left but little room for conjecture as to what its determination in a case calling for a decision in the premises would be. It is said in Wood v. Guarantee Trust & S. D. Co., supra, that: ‘The doctrine of Fosdick v. Schall has never yet been applied in any case, except that of a railroad. The case lays great emphasis on the consideration that a railroad is a peculiar property, of a public nature, and discharging a great public work. There is a broad distinction between such a case and that of a purely private concern. We do not undertake to decide the question here, but only point it out.’ And so in Kneeland v. American Loan & T. Co., supra: ‘It is the exception, and not the rule, that such priority of liens can be displaced. We emphasize this fact of the sacredness of contract liens, for the reason that there seems to be growing an idea that the chancellor, in the exercise of his equitable powers, has unlimited discretion in this matter of the displacement of vested liens.’
“The federal courts, in both the circuit and district, have, however, passed upon the question, and are uniform in holding that a receiver of a private corporation has no such latitude in legal contemplation as it respects the issuance of receiver’s certificates as do those of a railroad or public service corporation, and that his authority for displacing mortgage liens, unless by the consent of the mortgagee, extends only to the necessary expenditures incident to administering the assets and preserving the property from deterioration pending the winding up of the business and the settlement of the receivership. This was held in Farmers’ Loan & Trust Co. v. Grape Greek Coal Co. (C. C.) 50 Fed. 481, 16 L. R. A. 603. We quote from the headnote: ‘In a suit to foreclose a mortgage on the property of a coal mining company, the court has no power, as against the objection of even a small minority of the holders of the mortgage bonds, to authorize a receiver appointed in the suit to issue certificates which shall be a first lien on the mortgaged property, in order to enable him to continue the operation of the mines.’
“So in Fidelity Insurance Trust & S. D. Co. v. Roanoke Iron Co. (C. C.) 68 Fed. 623: ‘A court of equity has no power, without the consent of all lien creditors, to authorize the receiver of an insolvent private corporation, whose business is not affected with any public interest, to issue certificates which will be a paramount lien upon its property for the purpose of carrying on its business, unless it be necessary to do so in order to preserve the existence of the property or franchises.’ The same doctrine was enunciated in the case of Hanna v. State Trust Co., 16 C. C. A. 586, 70 Fed. 2, 30 L. R. A. 201, wherein it was sought to issue receiver’s certificates for the purpose of raising funds whereby to carry out certain contracts of sale of real property with purchasers. And in Newton v. Eagle & P. Mfg. Co. (C. C.) 76 Fed. 418, it was determined that the court would not order receiver’s certificates to issue for the purpose of raising money to pay interest on the bonds of the company, and thus displace existing liens. To the same purpose is Baltimore Bldg. & L. Ass’n v. Alderson, 32 C. C. A. 542, 90 Fed. 142, wherein the court says: ‘In the case of private corporations, the court cannot authorize the issue of receiver’s certificates, for the purpose of improving, adding to, or carrying on the business of the company, without first having the consent of creditors whose liens would be affected thereby.’ The state courts are quite as uniform in their enunciation of and adherence to the doctrine. In Merriam v. Victory Min. Co., 37 Or. 321, 56 Pac. 75, 58 Pac. 37, 60 Pac. 997, which involved the operation of mining property, the same as in the case at bar, Mr. Justice Bean, after a review of the adjudications of the courts of the United. States touching the authority of the receiver in railroad matters to issue certificates in displacement of mortgage liens, says: ‘It will thus be seen that the right of a court appointing a receiver to give priority of payment to unsecured debts over the lien of a mortgage is restricted to creditors of railroads which are public concerns, and is only exercised as to them under special circumstances, and in favor of a particular class of claims.’ See, also, U. S. Inv. Corp. v. Portland Hospital, 40 Or. 523, 64 Pac. 644, 67 Pac. 194, 56 L. R. A. 627.
“In the case of Raht v. Attrill, 106 N. Y. 423, 13 N. E. 282, 60 Am. Rep. 456, it is held, in effect, that the court, in administering assets through the receiver, is not empowered to displace a mortgage lien by receiver’s certificates, except for ‘expenses of realization, and also certain expenses, which are called expenses of preservation,’ which may be incurred under the order of the court on the credit of the property. That was a case wherein it was sought to have issued receiver’s certificates by which to raise the necessary funds for completing a hotel then in course of construction. A later case is that of International Trust Co. v. United Coal Co., 27 Colo. 246, 60 Pac. 621, 83 Am. St. Rep. 59. The court there, after having examined many authorities, some of which we have cited, says: ‘We are of opinion that, in administering the affairs of an ordinary insolvent private business corporation for which a receiver has been appointed, a court of equity has not the power to authorize the receiver to incur indebtedness for carrying on the business, and to make the same a first and paramount lien upon the corpus of the property, superior to that of prior lienhold-ers, without their consent. While it may, in a proper action, and with the proper parties present, through the instrumentality of a receiver, carry on the business of private corporations or individuals temporarily, and incur obligations therefor that may be made a paramount lien on the corpus of the property, such obligations must have been contracted for, and must relate strictly to, the preservation of the status of the property at the time of the appointment of the receiver.’ This is the clearest enunciation of the rule that we have found. In a very late and well-considered case from Idaho the same conclusion is reached. Dalliba v. Winschell, 11 Idaho, 364, 82 Pac. 107, 114 Am. St. Rep. 267.
“So that, in the light of these authorities, there can remain no question as to the rule as it relates to private corporations. The court is without authority, except by the consent of the mortgage lienholders, to supplant their liens by receiver’s certificates issued for any obligations other than those arising by way of expenditures for realization and for preserving the property while the business is in course of administration under the receivership. It cannot, by its edict, make any debt or obligation a prior lien, unless appropriately entitled thereto under the law governing receiverships.”

The doctrine here enunciated was fully considered and approved in Houston Ice & Brewing Co. v. Clint, 159 S. W. 409, in which case a writ of error was denied by the Supreme Court (Houston Ice & Brewing Co. v. Clint, 169 S. W. 411), wherein Mr. Chief Justice Brown distinguished it from the case of Ellis v. Water Co., 86 Tex. 109, 23 S. W. 858, on the ground that in that ease a public service corporation was involved. In Houston Ice & Brewing Co. v. Clint, 159 S. W. 409, supra, it was said, Mr. Chief Justice Fly delivering the opinion, that the doctrine there announced did not contravene our statutory provisions on the subject of receiverships, but on the contrary held that article 2135, R. S. 1911, authorizing the application by receivers of the moneys in their hands to the different purposes therein stated, preferring them in the order named, had reference, not to the corpus, but to the earnings of the corporation pending receivership, and likewise held that the expression “mortgage lien” in article 2138 had reference, not to any and all mortgage liens, but to the particular mortgage lien mentioned in subdivision 2 of article 2128, which authorized the appointment of a receiver when a mortgagee seeks to foreclose his mortgage and sell the mortgaged property, stating, among other things, that:

“We are of the opinion that the Texas statute is merely declaratory of the rules as to receivers which have been applied for a long time, both in England and America, and that we should, in passing upon property in receiverships, be governed by well-established rules, and we find from them that the rights of first mortgage lien-holders are carefully guarded from second or inferior lienholders, and the authority denied them to cast property into the hands of a receiver, and practically consume the security of the first lienholder in costs and expenses incurred by an extravagant and reckless receiver.”

It is true that in that case the court does state that the prior lienholder was not a party to the suit, but we take it that this is immaterial, because in the present case, while appellant is a party to the suit, yet it resisted the appointment of a receiver and opposed the issuance of the certificates, and therefore comes within the spirit and reason of the rule stated in the case named.

For the reasons heretofore set out we also overrule the cross-assignment of the Waco Machinery & Supply Company.

Believing that the trial court erred in failing to give priority to appellant’s judgment over the claims stated, its judgment is reversed and the cause remanded.

Reversed and remanded.
      cg^For-other cases see same topic and KEY-NUMBER in all'Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    DOERING et al. v. DENISON et al.
    (No. 5471.)
    (Court of Civil Appeals of Texas. Austin.
    June 23, 1915.)
    1. Principal and Agent <&wkey;88 — Sales Contracts — Construction—Territory.
    Under a contract making plaintiffs sub-agents under defendant for the sale of automobiles within a specified territory, providing that plaintiffs should receive certain rebates on the amount of business done, cars furnished to another dealer in different territory at wholesale price were not to be considered in determining the amount of rebate.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 215; Dec. Dig. <5&wkey;S8.]
    2. Principal and Agent c&wkey;33 — Breach op Contract — Revocation by Principal — Waiver.
    The act of a subagent in furnishing automobiles to another dealer outside of his territory, if a violation of his sales agency contract entitling the principal to stipulated damages, was waived by the principal's failure to immediately terminate the contract and by its conduct in permitting the subagent to continue to represent it.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 54; Dee. Dig. <&wkey;>33.]
    3. Appeal and Error &wkey;>1138 — Reversal-Grounds.
    Judgment for plaintiff will not be reversed on the theory that defendant was entitled to judgment because of failure to deny certain allegations of the answer, where plaintiff had been refused permission, at the close of the evidence, to file a pleading denying such allegations, since a reversal and rendering of judgment would be improper, and a mere reversal would be useless, as plaintiff would amend and probably obtain another judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4456-4461; Dec. Dig. <&wkey;> 1138.]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Action by Frank L. Denison and another against Frank Doering and the Ford Motor Company. Judgment for plaintiffs, and defendants appeal.
    Judgment as between plaintiffs and defendant Ford Motor Company affirmed, and judgment against defendant Doer-ing reformed and affirmed.
    Spann & Spann, of Temple, for appellants. J. B. Talley, of Temple, for appellees.
   KEY, C. J.

This being a county court ease in which the jurisdiction of this court is final, and the business of the court, as well as tlie public interest, suggesting brevity, no elaborate opinion will be written. Appellees IP. L. Denison and-T. J. Laramey sued the appellants Frank Doering and tbe Ford Motor Company, alleging and recovering upon a separate cause of action against each defendant, and the latter have appealed.

All the questions presented in the brief filed on behalf of appellants have received due consideration, and our conclusion is that none of them point out error entitling either appellant to relief in this court, except appellant Doering’s second assignment, which charges that the judgment against him for $311.50 is excessive to the extent of $207.87. That judgment was based upon the plaintiff’s right to rebates under a contract making them subagents under appellant Doering for the sale of Ford automobiles, etc., within a specified territory. By the terms of the contract the plaintiffs were to receive a rebate of 1 per cent, on the first $10,000 worth of business and 2 per cent, on the second $10,-000. The trial court found that the total amount of business aggregated $20,782.50, but that included four cars, sold to another agent who was dealing in Ford cars in the eity of Waco, and outside of the territory assigned to the plaintiffs. The sales referred to were not made at the current retail price, as required by the contract, but at wholesale price, with freight charges added. We think the stipulation in the contract by which appellant Doering obligated himself to pay to appellees certain rebates upon the volume of business transacted was intended to stimulate the sale of Ford cars in the territory assigned to appellees, which was part of a larger territory belonging to appellant Doer-ing, and that it was not contemplated by the parties that cars furnished to another dealer in Ford cars in another and different territory and at wholesale price should be considered in determining the amount of rebate appellees would be entitled to. When the sales referred to are deducted, the basis upon which to calculate the rebate is reduced to less than $20,000, and therefore we hold ap-pellees were not entitled to recover more than $100 and interest from appellant Doer-ing, and the judgment against him will be reformed and corrected in that respect.

As heretofore intimated, we shall not undertake to elaborately discuss the other questions presented in appellant’s brief; but, in view of the ruling just made, we deem it proper to explain why we have not sustained the contention of appellant Ford Motor Company to the effect that, as the proof shows that appellees had breached the contract by selling cars at less than the current retail price and by selling outside of their territory, therefore they were not entitled to recover the $200 which they had deposited with the Ford Company as a guaranty of performance of the -contract by them, but that the Ford Company was entitled to recover $250 as stipulated damages for each of the breaches referred to. In the first place, we do not agree with the contention that the transaction in question in reference to furnishing cars to another Ford dealer in a different territory was a violation of the spirit and intent of the contract; but, if it was, we think the Ford Motor Company waived its right to claim the forfeiture and damages referred to by its failure to immediately terminate the contract, and by its conduct in permitting ap-pellees to continue to represent it under the contract.

We also deem it proper to say that we have given due consideration to the question of pleading presented in appellants’ brief. Counsel for appellees has cited authorities which seem to support the contention that, inasmuch as appellants did not insist that they were entitled to a judgment because of the failure of appellees to deny certain facts pleaded by them as a defense until after the case had been tried, and did not object to appellees’ introducing testimony tending to controvert the facts alleged in appellants’ answer, they should be held to have waived their right under article 1829 of the Revised Statutes, as amended by the Thirty-Third Legislature. (Acts 33d Leg. c. 127 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829]). Railway Co. v. Pennington, 166 S. W. 464; Railway v. Tomlinson, 169 S. W. 217; S. W. Tel. & Tel. Co. v. Andrews, 169 S. W. 219; Tabet Bros. v. Higginbotham, 170 S. W. 118; Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309; Hill County Cotton Oil Co. v. Gathings, 173 S. W. 597; 31 Cyc. p. 733. But, aside from that consideration, the record shows that, after all the testimony was introduced, but before the ease was finally decided, appellees asked permission to file another pleading, in the main and in effect denying the facts set up in appellants’ answer, which request the trial court refused to grant. Therefore, if we should sustain appellants’ contention as to the construction to be placed upon the amended statute, still we would not feel justified in reversing and rendering judgment; and it is reasonably certain that a mere reversal would not change the final result, because appellees would amend their pleading, deny the allegations referred to in appellants’ answers, and in all probability obtain judgment upon another trial.

As between appellees and appellant Ford Motor Company, the judgment of the trial court is affirmed; but, as between appellees and appellant Frank Doering, the judgment is reformed so as to reduce the recovery against him to $113.83, with interest at the rate of 6 per cent, from the date of the judgment of the trial court.

Reformed and affirmed.
      <S&wkey;For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    JEANS et al. v. LIQUID CARBONIC CO.
    (No. 5394.)
    (Court of Civil Appeals of Texas. Austin.
    June 30, 1915.)
    Appeal and Error <&wkey;833 — Rehearing.
    Where the briefs filed in the Court of Civil Appeals were lost so that it could not determine which of the grounds set forth in appellant's motion for a new trial were copied in his brief as assignments of error, the judgment overruling appellant’s motion for a rehearing would be set aside on the court’s motion, and the case continued until the following term to give the parties an opportunity to file copies of their briefs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3214, 3229-3240, 3244r-3246; Dee. Dig. <&wkey;>833.)
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    On motion for rehearing. Order overruling motion set aside on the court’s motion, and case continued until following term to give parties opportunity to file copies of their briefs.
    See, also, 173 S. W. 643.
    Jas. E. Yeager, of Waco, for appellants. R. L. Neal, of Waco, for appellee.
   JENKINS, J.

A motion to retax the costs in this case has lead us to re-examine appellant’s motion for a rehehring which has been heretofore overruled by us. We are not satisfied that we did not commit error in overruling said motion. The briefs of the parties filed in this court have been lost, for which reason we are not able to determine which of the grounds set forth in appellant’s motion for a new trial in the county court were copied in his brief as assignments of error in this court. Our original opinion was based on the theory that the county court was without jurisdiction to try the case, for which reason we did not examine the merits of the case.

For the 'reasons stated, our judgment overruling appellant’s motion for a rehearing herein is set aside on our motion, and the same is continued until the next term of this court, to give the parties hereto an opportunity to file copies of their briefs in this court.


text:
    MOODY v. BONHAM et al.
    (No. 5508.)

    (Court of Civil Appeals of Texas. Austin.
    June 16, 1915.)
    1. Appeal and Error &wkey;>745 — Assignments of Error — Filing in Court Below,
    Where no assignments of error were filed in the trial court, an assignment of error in the brief as to the refusal of the court to postpone the trial until witnesses could inspect the premises sued for will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3039, 3042; Dec. Dig. &wkey;745.]
    2. Appeal and Error <&wkey;745 — Assignments oe Error — Filing in Court Below.
    Under rule 101 (159 S- W. xi), providing that assignments of error to any ruling of the trial court subsequently to final judgment may be incorporated in the brief filed in the Court of Civil Appeals without being included in the transcript, assignments of error relating to findings of fact and conclusions of law, filed by the court subsequent to final judgment, need not be filed in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3039, 3042; Dec. Dig. &wkey;> 745.]
    3. Executors and Administrators <g=^55 — Sales — Proper Subject — Donation Certificates.
    A donation certificate issued by the state to-the heirs of one who fell at the Alamo in 1836, being a mere gratuity, did not belong to his estate and was not subject to sale by his administrator.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 306; Dec. Dig. <&wkey;> 55.]
    4. Estoppel &wkey;>83 — Representations as to Title — Donation Certificates.
    Since one who induces the purchase of land or other property as being that of a third party is estopped from asserting any title to such property, the heirs of an administrator who sold a donation certificate issued by the state to the heirs of his intestate, and which was not part of the estate, on representations in the petition for administration, the petition for sale, and in the report of sale that the certificate, belonged to the estate, were estopped from claiming any interest therein.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 218, 227-229; Dec. Dig. &wkey;83.]
    5. Estoppel <&wkey;98 — Representations of Title-Donation Certificate.
    The heirs of an administrator,_ who S9H a donation certificate issued to the heirs of his intestate on representations that it belonged to the estate, were estopped from claiming any interest therein, notwithstanding that the sale was made to the administrator’s attorney; no fraud appearing on the part of the latter.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 290; Dec. Dig. <&wkey;©8.]
    6. Equity <&wkey;84 — Stale Demand — Legal Title.
    The doctrine of stale demand does not apply as against the legal owners of a donation certificate and the land located by virtue thereof.
    [Ed. Note. — For other cases, see Equity, Dec. Dig. &wkey;>84.j
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action by M. L. Bonham and others against W. L. Moody. From a judgment for plaintiffs, defendant appeals.
    Reformed and affirmed.
    Anderson •& Moses, of Fairfield, for appellant. M. L. Bonham, of Anderson, S. C., W. W. Ballew, of Corsicana, T. H. Bonner, of Fairfield, and Boyd, Bell & Fryer, of Teague, for appellees.

       Writ of error pending in Supreme Court.

   Findings of Fact.

JENKINS, J.

James B. Bonham was killed at the Alamo in 1836. Donation certificate No. 37, for 640 acres of land, was issued I to his heirs October 15,1859. He left surviving him five brothers and sisters, one of whom was M. M. Bonham. The following agreement was entered into, signed both by counsel for appellant and appellees:

“For the purpose of expediting the trial of this canse, and to save expenses and time in the introduction of titles of record, it is agreed by and between plaintiffs and defendant herein, acting by their attorneys of record: Defendant admits that plaintiffs have title to the 186% acres involved in this suit, unless title to the donation certificate No. 37, to the extent of 186% acres of land passed out of James B. Bonham’s heirs to B. D. Bradley, by purchase or otherwise, or unless defendant can show that plaintiffs, or those under whom they daim, lost title to said certificate and land located by virtue of same, by the statute of limitation or otherwise. This agreement executed in duplicate.”

The land in controversy, 186% acres, was located by virtue of said certificate. The appellees claim said land as the heirs of James B. Bonham, deceased, and appellants claim the same by virtue of a sale thereof made by M. M. Bonham, as administrator of the estate of James B. Bonham, who was appointed as such administrator by the probate court of Freestone county October 31, 1859. He applied for and obtained an order to sell said certificate, and on September 24, 1860, sold the same at public outcry to L. 'D. Bradley, who was one of his attorneys in obtaining such administration.

Judgment went for the appellees.

Opinion.

Appellees object to a consideration of •each and all of appellant’s assignments of error, for the reason that he did not file any assignments of error in the court below. The case was tried by the court without a jury. This objection is sustained as to the first assignment of error, which relates to the refusal of the court to postpone the trial until witnesses could inspect the land for the purpose of ascertaining whether or not certain improvements which they knew had been made in that vicinity in 1860 or 1861 were situated upon the land in controversy.

Appellees’ contention as to the remaining assignments of error is overruled, for the reason that rule 101 for the government of district and county courts (159 S. W. xi) provides that:

“Assignments of error or cross-assignments relating to any ruling or action of the trial court or trial judge, which occurs subsequently to the rendition of a final judgment in the case, may be incorporated in the brief filed in the Court of Civil Appeals without being included in the transcript.”

All of appellant’s assignments of error, except the first, relate to the findings of fact and conclusions' of law filed by the court subsequent to final judgment herein.

Had we considered appellant’s first assignment of error, we would have held it without merit, for the reasons that it was not alleged in said motion that it was expected to prove by the witnesses that the improvements on said land were maintained thereon after 1861.The statutes of limitation were suspended in this state from 1860 to 1870. Peak v. Swindle, 68 Tex. 246, 4 S. W. 478; Grigsby v. Peak, 57 Tex. 142. Besides this, there was ample time after the conclusion of the trial for witnesses' to have examined the land and for appellant to have filed their affidavit as to what they would have testified after inspection of the same. No such affidavit was filed, presumably for the reason that their testimony would not have been favorable to appellant.

There are two controlling issues presented by this appeal. The first is as to whether the certificate issued to the heirs of Jas. B. Bonham was a gratuity; if so, it did not belong to his estate and was not subject to be sold by his administrator. There are cases which hold that certificates' issued to those who fell at the Alamo and at Goliad were the property of the estates of such parties. State v. Zanco, 18 Tex. Civ. App. 127, 44 S. W. 528; Goldsmith v. Herndon, 33 Tex. 708; Allen v. Clark, 21 Tex. 404. In these cases the certificates were headrights and had beep, earned by the parties before their death; but donation certificates were mere gratuities on the part of the state, and when issued became the property of the heirs of such parties and did not belong to their estates. Todd v. Masterson, 61 Tex. 622-627; Ames v. Hubby, 49 Tex. 710; Summerlin v. Robb, 11 Tex. Civ. App. 53, 31 S. W. 712; Dick v. Malone, 24 Tex. Civ. App. 97, 58 S. W. 168; Eastland v. Lester, 15 Tex. 98. Such being the facts, the sale by the administrator of M. M. Bonham of all of his right, title, and interest in said certificate conveyed no title to the same, for the reason that his estate had no interest in such certificate.

The remaining question is as to whether or not the heirs of M. M. Bonham, the administrator, are estopped by said sale from claiming an interest in such certificate and the land located by virtue thereof. Though the sale was made by M. M. Bonham as administrator of the estate of Jas. B. Bonham, we hold that it estops his heirs from claiming the same or any interest therein for the reason that in his petition for administration he alleged that the certificate was the property of the estate of James B. Bonham, deceased. He made the same representation in his petition for the sale of said certificate, and likewise in his report of said sale. One who induces the purchase of land or other property as being the property of a third party is estopped from asserting any claim to such property. Millican v. McNeill, 102 Tex. 192, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863, 20 Ann. Cas. 74; Poor v. Boyce, 12 Tex. 448; Cope v. Blount, 99 Tex. 431, 90 S. W. 869; Corzine v. Williams, 85 Tex. 503-506, 22 S. W. 399; Dooley v. Montgomery, 72 Tex. 429, 10 S. W. 451, 2 L. R. A. 715; Grande v. Chaves, 15 Tex. 551; Stafford v. Harris, 82 Tex. 178, 17 S. W. 532, 533. Spears v. Conley (Ky.) 87 S. W. 1073.

In Millican v. McNeill, supra, McNeill, the administrator, owned a life estate of one-sixth interest in the land which he sold as such administrator. The court said:

“The principle controlling- this case is that which estops the maker of a deed purporting to convey an estate of a particular kind from after-wards asserting that such an estate did not pass. McNeill owned the life estate when he made the deed in question and had full power to convey it then. His deed undertakes to convey the lot itself and full title to it as the property of the estate, without mention or reservation of any claim of his own. Although he assumes to convey as administrator, he assumes as well that the title is in the estate, and he should not be heard afterwards to assert that any part of it was in himself.”

In Cope v. Blount, supra, the land in controversy was sold by Jas. Knight and Lucinda Miller as legal representatives of P. Miller, deceased, and recited a decree of the probate court authorizing and empowering said parties to make such sale. Lucinda Miller was the wife of Phillip Miller, deceased, to whom the land was granted, and the same was community property. The court said:

“The fact that the deed made by the representatives of Phillip Miller was void as to his heirs does not prevent it from being admissible to prove the recitals contained therein against appellant, who claims under Lucinda Miller. * * * qijjg appellant, claiming under Lucinda Miller, was estopped by the recitals in the deed, signed by her, to deny that Phillip Miller made the contract recited therein.”

In Corzine v. Williams, supra, Sarah Cor-zine recited in her transfer of the certificate that she made the sale by virtue of the power vested in her by the county court of San Augustine county, and describing herself as ad-ministratrix of the estate of Shelby Corzine; she was the surviving wife of Shelby Cor-zine. The court held that she had no power, as the survivor of the community estate, under the facts of that case, to sell said certificate; and, as to authority under the orders of the probate court, the court said:

“The recitals in the deed as to her authority were found not to be true. Not only had the court made no order directing her as administra-trix to make a conveyance, but she had at the time ceased to be administratrix of her husband’s estate. As administratrix she could convey nothing. * * * It follows that, if it took effect at all, it must have been by way of estoppel.”

The court further said:

“Sarah Corzine, the grantor, was therefore es-topped by the deed to claim any interest in the certificate as against Vivian, the grantee, and those claiming undfer him, and her heirs are bound as privies by that estoppel.”

In Dooley v. Montgomery, supra, it was held that one who conveys land, in which he owned a half interest, as the property of another, was thereby estopped from claiming any interest in the land.

Appellants insist that the doctrine of estoppel should not apply as against the heirs of M. M. Bonham for the reason that he sold the'certificate to L. D. Bradley, who was his attorney. The law will closely scrutinize transactions between client and attorney; but in this case there is nothing to indicate that Bonham was misled by any representations made by Bradley. It is said in appellant’s brief that Bradley procured Bonham to obtain letters of administration, in order that he might purchase the certificate in question. It appears from the list of debts against the estate of James B. Bonham, filed by M. M. Bonham, that he was the principal creditor of said estate, and it is just as reasonable to presume that he desired letters of administration to collect the amount due him as that Bradley desired such administration in order that he might become the purchaser of the certificate. There is nothing in the record to show that M. M. Bonham took any steps in said administration after selling the certificate and receiving pay therefor, or that he ever paid any portion of the proceeds of such sale to any of the other heirs. Fraud is not presumed in the absence of proof; but, if in this case we could draw the inference of fraud on the part of Bradley, we might, with equal propriety, conclude that M. M. Bonham was a party to the fraud, and would therefore he estopped from setting up any claim as against Bradley.

Appellant invokes the doctrine of stale demand. The heirs of James B. Bonham were the legal owners of said certificate and the land located by virtue thereof. The doctrine of stale demand does not apply as. against a legal title. Satterwhite v. Rosser, 61 Tex. 172; Harvey v. Cummings, 68 Tex. 607, 5 S. W. 513; Land Co. v. Chisholm, 71 Tex. 523-529, 9 S. W. 479; Batcheller v. Besancon, 19 Tex. Civ. App. 137, 47 S. W. 296.

For the reasons stated, the judgment of the trial court is here reformed so that the appellees who are the heirs of James B. Bon-ham, and those claiming under them, except the heirs of M. M. Bonham, deceased, and those claiming under them, do have and recover of and from the appellant W. L. Moody a four-fifths undivided interest in the land sued for, and that the heirs of M. M. Bonham, and those claiming under them, take nothing by this suit. As thus reformed, the judgment of the trial court is affirmed.

Reformed and affirmed.
      ®=s>For other oases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes


author: KEY, C. J.:

text:
    RICHTER v. GRANITE MFG. CO. et al.
    (No. 4924.)
    (Court of Civil Appeals of Texas. Austin.
    July 5, 1915.)
    Waters and Water Courses <&wkey;156 — Riparian Rights — Deeds—Validity oe Reservations.
    Since riparian rights exist only by reason of ownership of riparian property, a deed granting all the grantor’s riparian property, reserving an equal undivided one-half interest in the water power included within the land described and the ground necessary to utilize it, was yoid, because so vague as to the amount of the land reserved that its exercise would be inconsistent with the grant.
    [Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. §§ 15S, 174^-183; Dec. Dig. <&wkey;>156.]
    Appeal from District Court, Bumet County; Clarence Martin, Judge.
    Action by Herman Richter against the Granite Manufacturing Company and others. Judgment for defendants, and plaintiff appeals.
    Affirmed in conformity to answers of the Supreme Court to certified questions. 174 S. W. 284.
    Edwin H. Yeiser, of Austin, and T. E. Hammond, of Burnet, for appellant. Ike D. White and T. B. Cochran, both of Austin, and Dayton Moses, of Burnet, for appellees.
   KEY, C. J.:

“This suit was instituted by the appellant against the appellees in the district court of Burnet county, Tex., on the 9th day of August, 1900. The appellant sought to establish his property rights in and to the water power at Marble Falls, in Burnet county, Tex., as riparian owner to a part of the R. G. Blanton survey, which abuts on the river at that point, and also his rights by virtue of certain files made by him, on the waters of the river at that point on the 10th day of April, 1909, and 31st day of May, 1909; alleging that the appellees had entered upon and dispossessed him of his property rights and were constructing a large dam at the point mentioned which would have the effect to submerge and destroy all of his property rights; and prayed that his rights be established, that he have his writ of possession, that appellees be enjoined from interfering with him, and, if the court should find that he was not entitled to this relief, then that he recover damages for the conversion of his rights as riparian owner. The appellee the Colorado Power Company resisted appellant’s action, contending that the appellant had no riparian rights; that he owned no land riparian to the river; that it owned all of the land on both sides of the river at the point above mentioned; and that it wias entitled to all of the water power and property rights at that point by virtue of certain files made by different persons, of which it was the owner; and that the work being done by it was being done 'by virtue of these rights. The other appellees adopted its answer in addition to filing disclaimers. The case was reached for trial on the 9th day of January, 1911, and, a jury being waived by all parties, the matters of fact as well as of law were submitted to the court, and the court, after having heard the pleadings, evidence, and argument of counsel, rendered judgment on the 11th day of January, 1911, that appellant take nothing and that the appellees go hence without day and recover their costs.
“The case is now pending in the Court of Civil Appeals, and among other material questions involved is the one herein certified. On the 29th day of January, 1883, the state of Texas, by patent issued on that day, granted to William R. Baker, assignee of R. G. Blanton, what was known as the R. G. Blanton survey of land on the Colorado river in Burnet county, containing 129 acres. On the 30th day of January, 1883, William R. Baker conveyed the same tract of land to Herman Richter, and on the 29th day of November, 1884, Herman Richter executed to W. H. Roper a deed, which reads as follows:
“ ‘Deed. Herman Richter to W. H. Roper.
“ ‘The State of Texas, County of Burnet.
“‘Know all men by these presents: That I, Herman Richter, of the county and state aforesaid, for and in consideration of the sum of ($50.00) fifty dollars, to me in hand paid 'by W. H. Roper, the receipt of which is hereby acknowledged and confessed, and in further consideration of the sum of one hundred dollars to be hereafter paid to me as is evidenced by the promissory note of the said Roper bearing date herewith, payable to me or by my order on or before the 29th day of November, A. D. 1885, do grant, bargain, sell, convey and have by these presents granted, bargained, sold and conveyed unto the said W. H. Roper, of Burnet county, state of Texas, the following piece, parcel or tract of land lying and being situated in the county of Burnet, in the state of Texas, about sixteen miles south of the town of Bumet, a part of the R. G. Blanton survey on the south side of the Colorado river, beginning at a stone mound the lower corner of survey No. 605, from which a cedar bears S. 40 E. 5 vrs., do. brs. N. 36 W. 3 vrs.; thence down the Colorado river with its meanders S. 24 E. 1,050 vrs. to a stone mound, from which a cedar brs. S. 10 E. 5 vrs.; do. brs. S. 5 W. 6 vrs.; thence S. 280 vrs. to Flat Rock creek; thence up the north bank of said creek 225 vrs.; thence across said creek to the opposite bank; thence along said bank up the creek to intersection of the west boundary line of the said Blanton survey; thence north 2,158 vrs. to the place of beginning, containing ninety-five acres of land; hereby reserving to myself, my heirs, executors, administrators or assigns an equal undivided one-half interest in and to the water power included within the above-described tract of land and necessary ground to utilize the same.
“ ‘To have and to hold the premises above described together with all and singular the rights, members, hereditaments and appurtenances incident or appertaining to the same unto the said W. H. Roper, his heirs, and assigns forever; and I do hereby bind myself, my heirs, executors and administrators and legal representatives to warrant and forever defend all and singular the title of and to the premises aforesaid unto the said Roper his heirs and assigns against the claim or claims of any and all persons whomsoever lawfully claiming or to claim the same or any part thereof.
“ ‘Witness my hand, this the 29th day of November, 1884.
“ ‘[Signed] Herman Richter.’
“Appellee the Colorado River Power Company now owns the Roper title, and appellant Richter bases his alleged riparian rights upon the reservation contained in the deed copied above, and alleges that the Colorado River Power Company by the construction of a dam across the Colorado river, has invaded his rights, and, if not prevented, will destroy the same.
“The Colorado River Power Company and the other appellees assert that the attempted reservation in the deed from Richter to Roper is void and of no effect, and therefore that Richter owns no part of the Blanton survey fronting on or touching the Colorado river,-and that he has no riparian or other rights that will be affected by the construction of the dam referred to.
“The trial court filed no findings of fact, and we do not deem it necessary to make full findings in order to certify the construction of the foregoing deed to the Supreme Court for decision. If appellees’ contention is correct, and the reservation is void, then the case was properly decided, and it will not be necessary to pass upon any other question.”

The foregoing statement is copied from the certificate sent by this court to the Supreme Court in certifying to that court the following question:

“Is the reservation in the foregoing deed of Herman Richter to W. H. Roper valid, and does it reserve to or vest in Herman Richter such right or rights as can form the basis of a suit to protect such rights to recover damages for injury thereto?”

The Supreme Court has answered that question in the negative, and in the opinion written upon the question of law Involved that court holds that the attempted reservation, in the deed referred to, of the necessary ground to utilize the water power, is too vague and Indefinite to be capable of enforcement. Accepting that decision as the law, it follows that appellant has no case, and therefore the judgment of the trial court is affirmed.

Affirmed.
      (gssFor other oases see same topic ancl KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    DEMARCO v. STATE.
    (No. 3320.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.
    Rehearing Denied Dec. 9, 1914.
    Motion to Modify Opinion Denied Jan. 27, 1915.)
    1. Criminal Law <&wkey;1092 — Bills of Exception-Time of Piling.
    Where the term of court continued more than eight weeks, the time in which bills of exception could be filed must be calculated from the date on which sentence was passed; and where sentence was pronounced on June 6, 1914, the last day on which 'bills of exception could be filed was September 4th following, and when not filed till thereafter they must be stricken from the record on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <§^>1092.]
    2. Criminal Law <&wkey;1092 — Bills of Exception-Time of Filing — Pile Mark.
    The trial court has no right to order the clerk of court to place on bills of exception a different file mark from that which they should bear.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ .2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;1092J
    3. Criminal Law >&wkey;1092 — Bills of Exception — Time of Filing — Proving by Bystanders.
    Where the judge refused to act on bills of exception until his vacation ended, thereby postponing action until the expiration of the statutory time, aocused could prove his bills by bystanders.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;1092.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Demarco was convicted of assault to murder, and he appeals.
    Affirmed.
    Puckitt & Milliken, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at four years’ confinement in the state penitentiary. No statement of facts accompanies the record; consequently some questions presented in the motion for new trial cannot be reviewed.

The term of court at which appellant was tried continued more than eight weeks; consequently the time in which bills of exception could be filed must be calculated from the date on which final sentence was passed. Sentence was pronounced in this case on June 6, 1914; consequently the last day on which bills of exception could be filed was September 4th. The bills that appear in the record were not filed until September 26, 1914 —22 days after the time in which they could have been filed under the law. Therefore the motion of the Assistant Attorney General to strike the bills of exception from the record must be sustained.

The record before us discloses that the trial judge undertook to have the clerk of the court file the bills of exception back; but this the clerk refused to do, and we wish to commend him for refusing to do so, and placing on the bills the date they really were filed. The trial court has no right to order the clerk to place on the bills a different file mark than that which they should bear. The laws are passed to govern each and every citizen of the state, and the trial judge who undertakes to have the clerk of his court to place on the bills of exception a file mark that does not speak the truth is violating the law of his state, and the clerk who has the moral courage to refuse to obey such instructions and abide by the law is entitled to commendation.

It may be that the trial judge felt that he needed a vacation, but he should perform the duties of his office first. The attorney for appellant may insist that, as the trial judge insisted on taking his vacation and would not act on his bills of exception until the vacation ended, the bills ought to be considered. But the law gives him a remedy— to prove up his bills by bystanders. However, should we consider his bills, each and every one of which we have read, they are not full and complete enough to present any error, in the absence of any statement of the evidence adduced on the trial. Neither they nor either of them present any error. Therefore the judgment is affirmed.
      <§z^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. SHUMATE.
    (No. 5479.)
    (Court of Civil Appeals of Texas. Austin.
    April 21, 1915.)
    1. Pleading <&wkey;171 — Trial — Amendment — Discretion of Court. '
    The statute declaring that the court may permit amendments to the pleadings at any time before announcing ready on the merits, and not thereafter, is directory, and thereunder the court in its discretion may permit a supplemental petition to be filed after the jury have been selected and the other pleadings read to the court and jury.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 333; Dec. Dig. <&wkey;>171.]
    2. Appeal and Error &wkey;3l041 — Harmless Error — Trial—Amen dment.
    Error, if any. permitting plaintiff to file a supplemental petition after the jury had been selected and the other pleadings read to the court and jury, was not reversible error, where it in no wise influenced the jury in finding against the appellant.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. &wkey;1041.].
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Action by R. D. Shumate against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, Sadler & Cobb, of Gatesville, and Scott & Ross, of Waco, for appellant. J. W. Stinnett, of Gatesville, and Odell & Turner, T. J. Powell, and Homer L. Baughman, all of Pt. Worth, for appellee.
   KEY, C. J.

Appellee brought this suit against appellant, seeking to recover damages for personal injuries to his wife, and, from a verdict and judgment for the plaintiff for $9,750, the defendant has appealed. No complaint is made of the verdict of the jury, and therefore it is unnecessary to make any findings of fact.

The first assignment of error complains because the trial court permitted the plaintiff to file a supplemental petition after the jury had been selected and the other pleadings read to the court and jury. Notwithstanding the fact that we have a statute declaring that the court may permit amendments at any time before announcing ready upon the merits and not thereafter, our Supreme Court has held that statute to be directory, and under that holding the trial court had the discretion to permit the supplemental petition to be filed at the time referred to. Furthermore, it is quite certain that, if error was committed in that respect, it in no wise influenced the jury in finding against appellant, and therefore the assignment complaining of that ruling is overruled.

All the other assignments of error complain of certain rulings upon the admissibility of testimony. The questions thus presented are neither novel nor difficult, and appellant has cited no authority in support of any of its contentions. Therefore we deem it unnecessary to discuss the questions involved in the rulings referred to, and content ourselves with saying that they have all been considered and are decided against appellant.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


text:
    NATIONAL LIVE STOCK INS. CO. v. GOMILLION.
    (No. 5482.)
    (Court of Civil Appeals of Texas. Austin.
    June 2, 1915.)
    1. Insurance <&wkey;>151 — Construction of Contract — Attaching Application to Policy.
    Under Rev. St. 1911, art. 4951, requiring a policy of insurance to be accompanied by a copy of the application and a copy of all questions asked and answered, and article 4953, requiring every policy to contain the entire contract and that the application shall be made a part thereof, the penalty for failure to comply with article 4951 is to exclude the application and questions and answers from the insurance contract notwithstanding it may be referred to in the policy as a part thereof.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 308-311; Dec. Dig. &wkey;151.]
    2. Statutes <&wkey;105 — Titles—Expression of Subject-Matter.
    Const, art 3, § 35, forbidding more than one subject to be contained in a bill, is mandatory, but should be liberally construed.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 117, 118; Dec. Dig. &wkey;105.)
    3. Statutes <&wkey;116 — Titles—Expression of Subject-Matter.
    Acts 28th Leg. c. 69, a part of the caption of which is “providing that no insurance contract shall be held void because of immaterial misrepresentations made in the application therefor or in the contract of insurance and providing conditions upon which a defense may be made upon. the ground of misrepresentation in the application,” was broad enough to include the condition in that part subsequently compiled as Rev. St. 1911, art. 4951, requiring a policy to be accompanied by a written copy of the application and questions and answers, and said act did not contravene Const, art. 3, § 35, as to expression of the subject in the title.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 152-154; Dec. Dig. &wkey;116.]
    4. Constitutional Law <&wkey;42 — Right to Question Validity of Statute — Foreign Insurance Companies.
    Under Rev. St. 1911, art. 4972, declaring the provisions of that title to be conditions on which foreign insurance companies should be permitted to do business in the state, and that such companies should be held to have assented thereto as condition precedent to right to so engage in business, a foreign insurance company could not question the validity of article 4951, a part of said title, requiring policies to be accompanied by copies of the application.
    TEd. Note. — For other cases, see Constitutional Law, Dec. Dig. <S=>42.]
    5. Justices oe the Peace <&wkey;91 — Complaint —Action on Insurance Policy.
    An allegation, by a plaintiff suing on an insurance policy, that he bad “duly performed all the conditions required of him by the terms of said policy,” was sufficient under the liberal rules of pleading in justices’ courts.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 307-323; Dec. Dig. <&wkey;>91.]
    6. InsuRance &wkey;>G02 — Failure to Settle Loss — Penalty and Attorney’s Fees.
    The penalty and attorney’s fees provided for allowance by Rev. St. 1911, art. 4746, against an insurance company for failure to settle a loss, were properly allowed in a suit on a policy insuring live stock in which plaintiff showed full performance and the defense was the unconstitutionality of the statute requiring annexation of the application to the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. <§=3602.]
    7. Insurance <&wkey;654 — Action on Policy-Live Stock — Evidence.
    In an action on a policy insuring a mule, alleged to have died from overheat, it was not error to permit witness to testify that he had treated the mule kindly and had not overdriven it on the day that it died, and that the day was not unusually warm for October.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1677, 1680, 1681, 1683-1685; Dec. Dig. <&wkey;654.]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Action by F. H. Gomillion against'the National Live Stock Insurance Company. On defendant’s appeal from a justice of the peace to the county court, there was judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 174 S. W. 330.
    Appellant issued a policy of insurance to appellee on a mule for $150 against loss by death caused by accident or disease. It died of disease within the life of the policy. The appellee was the owner of the mule at the time of its death. The policy provided that not more than two-thirds of the value of the mule at the time of its death should be collected. At the time the policy was issued and at the time of its death, the mule was worth $275. It did not die through any negligence or carelessness of appellee. Appel-lee complied with all the terms of the policy.
    Appellee demanded the payment of said loss, which was refused. He brought suit in the justice’s court for $150, and 12 per cent, interest thereon as a penalty and reasonable attorney’s fees, which he alleged was $25. He recovered judgment in the justice’s court for the full amount sued for. The case having been appealed, the county judge instructed the jury to return a verdict for appellee for a like amount, which they did, and judgment was rendered in accordance therewith.
    E. B. Coopwood and Nye H. Clark, both of Lockhart, for appellant. O. Ellis, Jr., S. R. Graves, and T. B. Monroe, all of Lockhart, for appellee.
   JENKINS, J.

(after stating the facts as above). The policy of insurance contains the following cLause:

“Reference being had to assured’s application No. 6421 on file in this office, which is hereby made a part of this policy, and a warranty on the part of the assured herein.”

Neither said application nor a copy thereof was attached to or accompanied said policy. Appellant pleaded said application and alleged misrepresentations therein. Appellee excepted to such plea for the reason:

“That said application nor a copy thereof was not attached to said policy, as required by the laws of Texas, as well as a copy of all questions asked and answers given thereto, and that by reason thereof the defendant could not plead the. falsity of said application as a defense against the liability of defendant under said policy” — which exception was sustained and said plea was stricken out.

Appellant assigns error upon the action of the court in striking out said plea; and insists that there is no law in this state requiring a copy of the application to accompany an insurance policy on live stock. Article 4951, R. S., reads as follows:

“Every contract or policy of insurance issued or contracted for in this state shall be accompanied by a written, photographic or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto.”

The penalty for failure to comply with this article is not stated therein. We think that the effect of such failure is to exclude such application and questions and answers from the insurance contract, notwithstanding the fact it may be referred to in the policy as a part thereof. That such was the intention of the Legislature as to life insurance policies seems manifest from article 4953, R. S., which reads as follows:

“Every policy of insurance issued or delivered within this state on or after the first day of January, 1910, by any life insurance company doing business within this state, shall contain the entire contract between the parties, and the application therefor may be made a part thereof.”

How? By a copy thereof accompanying the same, as provided in article 4951.

Appellant insists that article 4951 is unconstitutional for the reason that it was enacted by the Twenty-Eighth Legislature as a part of chapter 69 of said Acts, p. 94, and that the subject-matter of said article is not included in the caption to the act. Article 3, § 35, of the Constitution of this state, provides that not more than one subject shall be contained in a bill, and that the same shall be expressed in the title. Under the decisions of this state, this section of the Constitution is mandatory, but should be liberally construed. In Giddings v. San Antonio, 47 Tex. 553, 26 Am. Rep. 321, the court quotes with approval from Dillon on Municipal Corporations, as follows:

“This provision has been frequently construed to require only the general or ultimate object to be stated in the title, and not details by which the object is to be obtained.”

One of the objects stated in the title of the act above referred to was:

“Providing that no insurance contract shall be held void because of immaterial misrepresentations made in the application therefor, or in the contract of insurance, and providing conditions upon which a defense may be made upon the ground of misrepresentation in the application.”

The condition prescribed in article 4951, one of the sections of the bill, upon which a defense as to misrepresentations in the application may be made, is that the policy “shall be accompanied by a written, photographic or printed copy of the application for such policy.” That is but a detail and is included in the general expressed object as above set forth. See, also, State v. Revelle, 257 Mo. 529, 165 S. W. 1086.

But, regardless of whether or not article 4951 is constitutional, it is binding upon the appellant for the reason that it is a foreign insurance company doing business under a permit from the proper authorities of this state. Article 4972, tit. 71, R. S., reads as follows:

“The provisions of this title are conditions upon which foreign insurance corporations shall be permitted to do business within this state, and any such foreign corporation engaged in issuing insurance contracts or policies within this state shall be held to have assented thereto as a condition precedent to its right to engage in such business within this state.”

Article 4951 is a part of said title.

In the case of Insurance Co. v. Dalton, 178 S. W. 966, not yet officially published, this court said:

“But it is insisted on behalf of appellee that the stipulation in the policy concerning additional insurance is void. * * * Appellant is a foreign corporation and can do business in this state only upon such terms as the state deems proper to prescribe. * * * In Waters-Pierce Oil Co. v. State of Texas, 177 U. S. 28, 20 Sup. Ct. 518, 44 L. Ed. 657, the Waters-Pierce Oil Company assailed the validity of an antitrust statute of this state upon the ground that it was unconstitutional and void, but the Supreme Court held that as the company was a foreign corporation, and as the state had prescribed as a condition upon which it obtained its permit to do business in the state, that it must accept the terms of the statute assailed.”

For the same reason it is immaterial whether or not article 4955 is unconstitutional, as contended by appellant. This article provides:

“That all the provisions of the laws of this state applicable to the life, fire, marine, inland, lightning, or tornado insurance companies, shall, so far as the same are applicable, govern and apply to all companies transacting any other kind of insurance business in this state,” etc.

Subdivision 46 of article 1121, R. S., makes live stock insurance companies amenable to “all of the provisions of title 71 of the Revised Statutes of Texas.”

For the reasons stated, we hold that the trial court did not err in sustaining the exceptions to that portion of appellant’s answer wherein it pleaded the application and questions and answers upon which the insurance policy was issued. This disposes also of appellant’s assignments of error relative to refusing to permit said application and the deposition of the witness Cohen concerning same, to be read in evidence.

Appellee, after setting forth the contract of insurance, alleged that he had “duly performed all the conditions required of him by the terms of said policy.” Under the liberal rules of pleading in justice’s courts, we think this was sufficient, and hence we overrule appellant’s fourth assignment of error.

We overrule appellant’s sixth assignment of error, which complains of the judgment in so far as it relates to allowing 12 per cent, penalty and reasonable attorney’s fees, as provided in article 4746, R. S.

There was no error in permitting the witness Spaulding to testify that he had treated the mule kindly and had not over-driven the same on the day that it died, and that the day was not unusually warm for that time of the year (October). The policy provided that the company would “not be liable for losses occurring through negligence or carelessness of the assured.” It could not work any material injury to appellant for appellee to prove that he complied with the terms of the policy in the respect mentioned.

The proof shows that the mule died from overheat, and that overheat is a disease caused sometimes by working in hot weather, and sometimes by intestinal troubles, excitement, and nervousness. Dr. Buchel, a veterinary, testified:

“Heatstroke and overheat are interchangeable. * * * Heatstroke or overheat is a disease. * * * Often we say that an animal suffers from overheat, when we mean that overheat is not the cause, but the result of the trouble; the trouble being really caused from intestinal troubles.”

There is no merit in the contention that appellee was not entitled to recover because, he stated that the mule died from overheat, and that some of the evidence indicated that it died from colic..

Under the undisputed evidence, as indicated in our findings of fact herein, the court did not err in instructing a verdict for the appellee.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      (@=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «g^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes