author: PHILLIPS, O. .7. HAWKINS, 7.

text:
    ATCHISON, T. & S. F. RY. CO. v. AYERS.
    (No. 3079.)
    (Supreme Court of Texas.
    Nov. 20, 1918.)
    Error to Court of Civil Appeals of Eighth Supreme- Judicial District.
    Suit by A. E. Ayers against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed (192 S. W. 310), and defendant brings error.
    Reversed, and cause remanded, with instructions.
    Terry, Cavin & Mills, of Galveston, Turney, Guliwell, Halliday & Pollard, of El Paso, and Jno. G. Gregg, of Galveston, for plaintiff in error.

      Geo. E. Wallace, P. E. Gardner, and W, S. Berkshire, all of El Paso, for defendant in error.
   PHILLIPS, O. .7.

Upon the questions discussed in the opinion this day delivered in the case of Atchison. Topeka & Santa Fe Railway Co. v. Stevens, 206 S. W. 921, the facts in the jiresent case are practically identical. The case in those particulars is accordingly ruled hy that decision. ,

, The judgments of the honorable Court of Civil Appeals and the District Court are _ reversed’ and the cause is remanded to the District Court with instructions to transfer it to the District Court of one of the counties , named in the'defendant’s plea of privilege, as the plaintiff may elect.

HAWKINS, 7.

(concurring). My views concerning the final clause of the foregoing opinion are expressed in my concurring opinion in a companion case, No. 3080, A., T. & S. F. Ry. Co. v. Stevens, 206 S. W. 921, this day decided here.


source: Caselaw Access Project

author: PHILLIPS, C. 7. HAWKINS, J.

license: Public Domain

text:
    RED RIVER NAT. BANK v. FERGUSON et al.
    (No. 3042.)
    (Supreme Court of Texas.
    Dec. 2, 1918.
    Concurring Opinion, Dec. 4, 1918.)
    1. Husband and Wife &wkey;>159 — Wife’s Suretyship fob Husband — Liability — “Surety.”
    Where note signed by husband and wife was not given for necessaries for the wife or children, or for the benefit of her separate estate, wife’s relation to the transaction was that of a “surety” for her husband, and she would not be liable under laws existing prior to passage of Married Woman’s Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624).
    [Ed. Note. — For other definitions, see Words and Phrases, First and. Second Series, Surety.]
    2. Husband and Wife i&wkey;113 — Power of. Wife to Contract — Married Woman’s Act.
    The Amendment of Rev. St. art. 4621, by the Married Woman’s Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4621), introduces a distinct change in law in respect to the control and management of the wife’s separate estate.
    3. Statutes <&wkey;212 — Construction — Extending by Implication.
    While Legislature had power to overturn the steady unbroken policy of the laws_ of the state to protect the property of the wife from the debts of her husband, it is to be assumed that, in the execution of such a purpose, proposed law would use language so plain and certain, that it would need no construction.
    4. Husband and Wife <5&wkey;154, 159 — Wife’s Authority to 7oin in Husband’s Obligation.
    Under Married Woman’s Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624), a wife is not authorized' to join in the husband’s obligations, cither as a joint maker or as a surety.
    5. Statutes &wkey;>212 — Construction.
    It is not to be supposed that a law would require a vain thing.
    6. Husband and Wife <&wkey;171(l) — Separate Estate of Wife — Power to Convey or Incumber.
    Rev. St. 1911, art. 1114, conferring authority on wife to convey her real estate when joined by her husband, necessarily includes by implication the power of the wife to incumber her estate in the same manner, and accordingly she may mortgage it to secure the husbahd’s debts.
    7. Husband and Wife <&wkey;171(l) — Married ■ Woman’s Act — Effect on Prior Statutes.
    The power of the wife to mortgage her separate property for the debts of her husband was not impaired by the- Married Woman’s Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624).
    8. Statutes <&wkey;211 — Construction—Reference to Title.
    An act is to be interpreted in the full light of its title; but the title itself has no enacting force, and cannot confer powers not mentioned in the act.
    9. Husband and Wife cj&wkey;57 — Disabilities of Coverture.
    Married Woman’s Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624), authorizing the wife, by implication, to become joint maker or surety of another when joined by her husband, confers upon the wife powers with which she was not theretofore invested, and the maxim “Expressio unius est ex-clusio alterius” has marked application.
    Error to Court of Civil Appeals of Sixth Supreme 7udicial District.
    Suit by the Red River National Bank against 7. E. Ferguson and wife and the sureties on their note. 7udgment for plaintiff against' 7. E. Ferguson and the sureties,, and that plaintiff take nothing against defendant Bessie E. Ferguson, wife, was affirmed by the Court of Civil Appeals (192 S. W. 1088), and plaintiff brings error.
    Affirmed.
    7. R. Kennedy, of. Clarksville, and Mahaf-fey, Keeney & Dalby, of Texarkana, for plaintiff in error.
    Burdette, Conner & Daley, of Paris, for defendants in error.
   PHILLIPS, C. 7.

It was sought in the trial court to charge Bessie E. Ferguson, the wife of 7. E. Ferguson, as a signer upon a note given by her husband as principal, and others as his sureties. Her coverture was duly pleaded, and it ivas found by the court that the note was not given for necessaries for herself or children or for the benefit of her • separate estate. This made her relation to the transaction simply that of a surety for her husband. Under the law of the State as it existed prior to the passage of what is known as the Married Woman’s Act of 1913 (Acts 33d Leg. c. 32 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624]), she was clearly not liable. If she is liable at all, it is in virtue of that act, the transaction having occurred after its adoption. The effect of that act is, therefore, the question in the case.

The caption of the act is a very broad one. It indicates a law of marked variance from that heretofore prevailing in the State in respect to the wife’s contracts, as well as in other particulars. It announces broadly, following a declaration as to the amendment of Articles 4621, 4622, and 4624 of the Revised Statutes, that one of its purposes is to confer upon the wife “the power to make contracts,” apparently without limitation. If such a law had been actually enacted, there could be no question of the power of the wife to make a contract of the kind here presented, or of any other kind, — contracts not only for her husband, but with her husband, notwithstanding their possible disadvantageous nature and consequent depletion of her separate estate as their result.

There is, however, a wide discrepancy between the caption and the act as finally passed. This, in a large measure, is explained by tlie history of the act as revealed in the legislative journals hereafter adverted to.

In the first place, it is stated in the caption that one of the purposes of the act is to repeal Article 4625, which prescribes the procedure and form of judgment in suits upon alleged contracts of the wife for necessaries or for the benefit of her separate estate. But in the act, as passed, that article is nowhere mentioned.

Furthermore, although the caption announces that the wife is to be clothed with apparently unfettered authority to contract, Article 4624 is so amended by the act itself as to leave her wholly without express statutory power to contract for the benefit or preservation of her separate estate, — a salutary and necessary power, and one with which she had been invested since the act of March 13, 1848, a period of sixty-five years.

The amendment of Article 4621 under the act introduces a distinct change in the law in respect to the control and management of the wife’s separate estate. Whereas under the former law its sole management was given to the husband, such management, together with its sole control and disposition is by the act given to the wife, with the proviso that the husband’s joinder shall be necessary to a conveyance or encumbrance of her real estate and transfer of her stocks and bonds; with the authority given her, in the event of his refusal, to resort to the District Court for a hearing as to whether such a transaction is to her interest, and in the case of a favorable judgment to execute such conveyance, encumbrance or transfer alone. It provides that the homestead, whether the separate ■property of either the husband or wife, or the community property of both, shall not be disposed of except by -their joint conveyance. It contains this significant provision:

“Neither the separate property of the wife, * * * nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings shall be subject to the payment of debts contracted by the husband.”

It is thus declared, not only that the wife’s separate property shall not be liable for the husband’s debts, but in addition, that certain classes of community property shall be entitled to the same exemption.

By Article 4622 as amended under the act, tlie wife’s personal earnings, the rents from her real estate, the interest on bonds and notes and the dividends on stocks owned by her, heretofore as community property subject to the husband’s management, control and disposition, are given to her sole management and control, and she is invested solely with the power of their disposition, subject to the provisions of amended Article 4621.

While it had been held that the husband .was without power to dispose of the wife’s personal property, even her choses in action (Kempner v. Comer, 73 Tex. 200, 11 S. W. 104) — his authority over her separate estate being restricted by the former statute to its sole “management,” his right under that authority to draw from a bank money there deposited in the wife’s name, has been recognized (Coleman v. National Bank, 94 Tex. 605, 63 S. W. 867, 86 Am. St. Rep. 871), though in the particular case the deposit was made by him upon an understanding with the bank that he should have that right. Upon the subject of bank deposits, amended Article 4622 declares that any money on deposit in a bank, whether in the name of the husband or the wife, shall be presumed to be the separate property of the one in whose name it stands, regardless of who made the deposit; and unless notified to the contrary the bank shall be governed accordingly in honoring checks against the account.

Article 4624 as amended reads as follows:

“Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those' contracted for necessaries furnished her or her children; provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

The remainder of the act consists of the emergency clause, the ground for which is declared to be “the injustice to a large number of citizens resulting from the denial to married women, under the present law, of the right to manage their separate property and to make contracts.”

In any effort to fairly arrive at the meaning of this act, it is to be borne in mind that the steady, unbroken policy of the laws of Texas has been to protect the property of the wife from the debts of the husband. Magee v. White, 23 Tex. 180; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51. While less liberal than the laws of a number of the States in respect to the management of her property, those laws have been subject to no reproach in their care for its preservation. From the beginning of the State’s history, when, in rejection of the rigid doctrines of the common law, the wife was endowed with the capacity to own a separate estate, they have afforded her property a constant shield against the iiuQpovidence of the husband. This protection of her property from liability for the husband’s debts has been an outstanding feature of our system of marital property rights. It has served the great purpose which lay at the foundation of that system. It has placed the wife’s property beyond the influence, the importunity, or even the necessity of the husband, and has secured to her an actual separate estate, in keeping with the spirit of the broad policy in which her right of ownership had its origin. If her powers have been restricted, her property, at least, has been safeguarded. The limitations upon her authority are but the expression of a scrupulous concern for the preservation of her estate, and were imposed to that end. In that interest her authority to contract debts at all was confined to those essentially to her advantage, that is, for necessaries for herself or her children and the benefit of her estate, with a court, in all suits against her for such debts, charged with the duty of seeing that they were actually incurred for those purposes and were reasonable and proper.

In this act, which it is asserted had for its purpose the repudiation of this established policy and the destruction of all limitation upon the wife’s freedom to charge her estate by simple contract with liability for the husband’s debts, this influence of our former laws still survives. It is found in the emphatic declaration of amended Article 4621, already noted, that—

“Neither the separate property of the wife * * * shall be subject to the payment of debts contracted by the husband.”

The Legislature had full authority to change the law. It was within its province to overturn this established policy and through the wife’s simple contracts charge her estate with the husband’s debts. But in the execution of such a purpose it is to be assumed that the radical change to be effected by the proposed law would constrain it to the use of language so plain and certain as to stand in no need of construction. The Legislature would not be expected to rest such a law only in the deductions to be drawn from a caption or the inferences of an emergency clause. It is not to be presumed that its expression would be found in doubtful phrase. Nor is it to be supposed that it would be left to the mere implication of a purely negative provision. It would naturally be sought for in the body of an act, and in terms positive and clear.

The only language in the act at all capable of being construed as authorizing the wife to become the husband’s surety, is that of the proviso of amended Article 4624, reading:

“Provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

This is a restrictive clause,—a purely negative provision. It does not purport to confer upon the wife any express authority. Such as it does confer is only by implication. It implies that the wife, when joined by her husband in the making of such contract, may become the joint maker of a note with another, or a surety upon another’s bond or obligation. It is to be construed as if so written. But the common sense of the language is that it is not the husband’s note, bond or obligation that is referred to or intended. It is the note, bond or obligation of “another,” in whose execution with the wife he is merely required to join. If'his own obligation was intended, his “joinder” with the wife in her execution of the instrument,—entailing a double execution on his part,—would be an entirely superfluous requirement. The wife’s signature, with his own as an original maker or principal, would of itself accomplish their joint execution of the obligation, and there could be no need of any further joinder at his hands. It is not to be supposed that the law would require a vain thing. Under this clause, the husband’s sole relation to such obligations with or of “another” as the wife is there authorized to execute, is simply that of joining in the wife’s contract. He is referred to in no other connection. This signifies, clearly, that the husband is not to be the beneficiary of her contract If the term “another” be construed as including the husband and thus authorizing the wife to become his surety when joined by him in the execution of the obligation, the act must be held as having contemplated that by so joining in the suretyship contract the husband could become his own surety—a manifest absurdity.

The husband’s joinder is made necessary not merely to effectuate the wife’s contract, but because the obligation is that of some one else to whose advantage it is to obtain her signature, which, in the view of the law, makes it advisable for her protection that the husband concur in her action. For his joinder to have any virtue and fulfil the spirit of the requirement, this must be a disinterested concurrence,—one free from self-interest and that secures to him no selfish advantage. The reason for his joinder is the same which since the Act of 1841 (Acts 1840-41, p. 144) has required, as now found in Article 1114, that he join in any conveyance of the wife’s real estate. It is to induce his counsel, afford the benefit of his judgment, and give her the protection from imposition which is the husband’s duty and should naturally lie within his power. If the obligation which the wife is under this clause authorized to execute, be held to include that of the husband, either as a joint maker or as the principal,, thus making him the beneficiary of her contract, his concurrence in her execution of it would naturally be an interested one, and the reason for the requirement of his joinder would fail.

Under Article 1114, the wife’s authority, there conferred, to convey her real estate when joined by her husband in the conveyance, includes, necessarily, the lesser power to encumber it in the same manner. Accordingly, she may mortgage it to secure the husband’s debts. Hollis v. Francois, 5 Tex. 199, 51 Am. Dec. 760; Wofford v. Unger, 55 Tex. 480; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51. She incurs, thereby, no personal liability; her property merely stands in the relation of surety for the debt.

The power heretofore possessed by the wife to mortgage her separate property for the'debts of the husband was not impaired by this act. It remains with her as aforetime.

It is true that the mortgaging of the wife’s real estate for the husband’s debts is for the husband’s benefit, and it is possible in those conveyances for his joinder to be dictated by self-interest. But in such transactions there is no element of personal liability on the wife’s part. And in them provision against the husband’s self-interest is made, and protection to the wife from his influence is afforded, by the statutory requirement for her privy acknowledgment. In all such cases it is her private examination, acknowledgment and declaration before the officer which constitute the essence and foundation of her obligation. Cross v. Everts, 28 Tex. 524; Berry v. Donley, 26 Tex. 737; Johnson v. Taylor, 60 Tex. 360.

A brief reference to the history of the act demonstrates that it was not the husband’s notes or obligations that were intended by this clause.

As originally passed, the bill had the identical caption of this act — that is, the act as finally adopted. And as originally passed, in respect to the wife’s unlimited power to contract, it conformed fully to the caption. In the bill, Article 4624 was so amended as to read:

“The wife may make any contract which she would he authorized to make hut for her marriage, except those hereby or elsewhere forbidden, and her coverture shall never he a defense m any suit or action based on sitch contract, hut suits may he brought thereon m the manner prescribed by Articles 1840 and 1841.”

This wasi followed immediately by two provisos in the identical language of Article 4624 as amended by the bill as finally passed, as follows: '

“Provided, however, that neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted for necessaries furnished her or her children: Provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the join-der of her husband with her in making such contract.”

Under the first clause of the article as thus originally amended, the wife was empowered, fully and completely, to join in any obligation of the husband, to bind herself by simple contract for his debts, to contract debts, generally, as a feme sole, and to make any other kind of contracts, as could a feme sole, except those involving the conveyance of her real estate and the transfer of her stocks and bonds, in which, according to the amendment of Article 4621 in the original bill, the husband was required to join unless otherwise ordered by the District Court upon a hearing. With this true, the clause under discussion — constituting the second proviso in the article as originally amended ■ — was added as a limitation, for the purpose of requiring the husband’s joinder in her execution as a joint maker of the notes of other persons, or their bonds or obligations as a surety. The notes, bonds and obligations thus referred to were clearly not those of the husband. Her authority to sign his obligations, either as joint maker or surety, had already been amply conferred by the first clause of the amended article, and there could be no occasion for further conferring it in this clause. Such was not the object of the clause. It was incorporated purely as a proviso to restrict the larger powers already granted.

Before the bill was acted upon by the Governor, it was by joint resolution recalled from his hands. *He accompanied its return to the House with a message in which emphatic objection was urged to the first clause of the amendment of Article 4624, conferring broadly upon the wife the power to contract as a feme sole. The bill was thereupon reconsidered; that clause was stricken out; and the bill was finally passed in the form of the present act.

The bill was thus, in a large measure, devitalized, since the powers conferred upon the wife by the stricken clause were its principal feature. The provision, however, that “the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her. husband with her in making such contract,” in its identical language, remained in the bill as finally passed. With its language the same in both bills, its meaning is the same. It had no reference to the husband’s obligations in the act as originally passed, and in no wise authorized the wife to join in their execution, either as a joint maker or a surety. It has no different meaning in the present act.

The broad terms of the title of the act in respect to the wife’s authority to contract are thus accounted for. They were intended as a part of a title of an act as broad as their general import, but which, as finally passed, left her in that particular with only restricted powers. The title of an act is of influence in its construction. An act is to be interpreted in the full light of its title. Railway Company v. Mahaffey, 105 Tex. 394, 150 S. W. 881. But the title, of itself, has no enacting force, and cannot confer powers not mentioned in the act. Sutherland on Statutory Construction, Sec. 339.

It was urged in the argument, as having an important bearing upon the construction to be given this act, that our system of marital rights is not founded in the common law and such rights are not governed by its doctrines. This, in a large sense, is true. It was so announced by this court at an early time. Bradshaw v. Mayfield, 18 Tex. 21. The dominant feature of our system is its recognition of the separate identity of the wife and her capacity to hold a separate estate. Such principles were unknown to the common law. Our laws upon the subje’ct are in the main but a continuation of the rules of Spanish jurisprudence, which until the Act of 1810 prevailed in the Republic. But it is also true that by the rules of our system the wife, in respect to her power to contract, rests under the same disabilities, except as modified by statute, that her cover-ture entailed at common law. This was announced as the law of the State as early as Kavanaugh v. Brown, 1 Tex. 481. It has been reaffirmed by repeated decisions. Graham v. Stuve, 76 Tex. 533, 13 S. W. 381; Wadkins v. Watson, 86 Tex. 194, 24 S. W. 385, 22 L. R. A. 779; Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51. It has been expressly recognized in decisions where the court has taken occasion to emphasize the distinction in other particulars between our rules on the general subject and those of the common law. Barkley v. Dumke, 99 Tex. 150, 87 S. W. 1147. Nothing else could well be the law, as pointed out by Judge Stayton in Graham v. Stuve, in a State where the common law, generally, prevails as the rule of decision. Even under the Spanish law, the wife was prohibited from becoming a surety for her husband. Cartwright v. Hollis, 5 Tex. 152; Shelby v. Burtis, 18 Tex. 645.

The act as has been stated, by implication- authorizes the wife, when joined by her husband, to become the joint maker of a note of another and a surety upon another’s bond or obligation. This was the conferring of an original power — one with which she was not theretofore invested. In such cases, the maxim, “expressio unius est exclusio alterius,” has marked application. Sutherland on Statutory Construction, Section 491. It excludes any authority under the act for her joining in her husband’s obligations or becoming his surety.

We feel it our- duty to respectfully direct the Legislature’s attention to the fact that Article 4624 was so amended by this act as to leave the wife without express statutory authority to contract debts for the benefit of her separate property — a power she had possessed since the Act of 1848- and one vitally in her interest. We cannot but believe that this was an inadvertent omission. Whether she would possess this authority as a means of protecting and preserving her separate property and as incident to her power of ownership, is a question upon which it is needless here to express an opinion. It is adverted to in Cartwright v. Hollis, 5 Tex. 152.

Our conclusions upon the question decided are supported by the decision of the Court of Civil Appeals in the present case, 192 S. W. 1088; those of the Court of Civil Appeals for the Second District in Aikin v. Nat. Bank, 194 S. W. 610; and for the Ninth District in Bank v. Tinkham, 195 S. W. 880; also by the decision of the Circuit Court of Appeals of the United States in Grosman v. Trust Co., 228 Fed. 610, 143 C. C. A. 132, Ann. Cas. 1917B, 613, and of the United States Supreme Court in the same case, Union Trust Co. v. Grosman, 245 U. S. 412, 38 Sup. Ct. 147, 62 L. Ed. 368.

The judgments of the District Court and Court of Civil Appeals are affirmed.

HAWKINS, J.

(concurring). I concur in the disposition of the cause and also in most of the reasoning supporting the conclusion announced in the opinion by our Chief Justice. However, I do not desire to be understood as joining in the expression:

“If his own obligation was intended Ms join-der with the wife in her execution of the instrument-entailing a double execution on his part— would be an entirely superfluous requirement.”

To my mind the idea of a double execution by the husband seems, in any event, utterly foreign t'o the statute. I cannot believe that even if the proviso were held to authorize the wife to make herself personally liable upon her husband’s obligations the language of the act should be construed as contemplating “a double execution on his part.”

In lieu of the quoted portion of the opinion I prefer to say this: As related to an obligation primarily that of the husband, any requirement that he “join” the wife in the execution thereof would be inapt and superfluous; hence the Legislature probably did not intend the proviso to embrace obligations of that kind.

Fortunately the point of difference is merely abstract, and will remain so unless, contrary to the design of said opinion, the idea of “a double execution” may react on R. S. articles 1114, 1115, wherein both husband and wife are required to “join” in conveyances of the wife’s separate realty and of the homestead. Under those statutes one execution by each, whether contemporaneous or not, has been considered sufficient to pass title.
      &wkey;3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    FIRST STATE BANK OF TOM BALL v. TINKHAM et ux.
    (No. 3059.)
    (Supreme Court of Texas.
    Dec. 2, 1918.)
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Suit by the First State Bank of Tom Ball against George F. Tinkham and wife. Judgment, giving plaintiff partial relief, was affirmed by the Court of Civil Appeals (195 S. W. 880), and plaintiff brings error.
    Affirmed.
    Thos. H. Ball, of Houston, for plaintiff in error.
    Fisher, Campbell & Amerman, of Houston, for defendants in error.
   PHILLIPS, C. J.

The main question in this ease is that determined in Red River National Bank v. Ferguson, 206 S. W. 923. The ease is accordingly ruled by that decision.

The judgments of the District Court and Court of Civil Appeals are affirmed.


author: PHILLIPS, O. J.

text:
    FIRST NAT. BANK OF BRIDGEPORT v. AIKEN et ux.
    (No. 3076.)
    (Supreme Court of Texas.
    Dec. 2, 1918.)
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by the First National Bank of Bridgeport against W. J. Aiken and wife. Judgment for plaintiff by default was reformed and affirmed by the Court of Civil Appeals (198 S. W. 1017), and plaintiff brings error.
    Affirmed.
    McMurray & Gettys, of Decatur, and H. E. Lobdell, of Bridgeport, for plaintiff in error.
    Bumpass & Crumbaugh, of Terrell, for defendants in error.
   PHILLIPS, O. J.

This case is ruled by the decision in Rod River National Bank v. Ferguson, 206 S. W. 923, the question presented being the same.

The judgment of the Court of Civil Appeals is affirmed.


author: MONTGOMERY, P. J.

text:
    POPE v. BEAUCHAMP et al.
    (No. 25-2647.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. VENDOR AND PURCHASER <&wkey;>253 — VENDOR’S Lien-Nature.
    The vendor’s lien reserved by a purchase-money note is substantially a mortgage.
    2. Lis Pendens <&wkey;24(3) — Notice—Persons Charged — Vendor’s Lienholder.
    Vendor’s lien reserved by -purchase-money note being substantially a mortgage, purchaser of the note is, as to the lien, charged with notice of recorded lis pendens in suit to cancel conveyances for fraud.
    3. Lis Pendens <®=»17 — Description of Land.
    Lis pendens notice required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6837, to contain “a description of the land affected,” held, in view of description in deeds and petition, to sufficiently identify the land by its description.
    4. Lis Pendens <&wkey;18 — When Effective-Filing and Indexing.
    To render lis pendens notice effectual, it need not be indexed by the clerk as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6838; it being expressly provided by article 6840 that it shall be effective from time of its filing.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by J. B. Pope against D. M. Beauchamp and others to recover on a note and to foreclose a vendor’s lien. Judgment for plaintiff for part of the relief asked was, on appeal by plaintiff to the Court of Civil Appeals (159 S. W. 867), affirmed in part, and in part reversed and remanded, and writs of error were granted to plaintiff and defendant J. D. Rutherford.
    Reversed, and judgment of trial court affirmed.
    V. K. Wedgworth, of Ft. Worth, for plaintiff in error.
    R. T. Wilkinson, ef Mt. Vernon, and Owsley & Owsley, of Denton, for defendants in error.
   Statement of the Case.

MONTGOMERY, P. J.

On the 17th day of January, 1910, J. L. Rutherford was the owner of the Delgado survey in Titus county, Tex., and on that day C. T. Wright," by means of certain fraudulent representations, procured from J. L. Rutherford a conveyance of said land, to him. Rutherford’s deed to Wright recited that he had received in payment therefor two vendors’ lien notes executed by one G. P. Holford to C. C. Hutcher-son. Without -going into the details of this transaction, it is sufficient to say that the notes were worthless, and while they purported to be secured by a vendor’s lien on certain lands in El Paso county, Tex., no such lands in fact existed. The fraud of Wright was found by both the trial court and the Court of Civil Appeals, 159 S. W. 867. After procuring said deed, on the 20th day of January, 1910, C. T. Wright made a warranty deed conveying the land to D. M. Beauchamp, reciting a cash consideration of $7,000 and the execution of three notes, one for $3,000 due January 20, 1911, and two for $2,000 each, due January 20; 1912 and 1913, respectively.

In fact, Beauchamp did not pay the $7,000 cash, but at Wright’s suggestion signed the notes and gave them to him. Beauchamp evidently had knowledge of the fraud, or at least is not in the attitude of an innocent purchaser in good faith. After receiving said notes from Beauchamp, Wright, by written transfer, conveyed the same, together with the vendor’s lien, to J. W. Maxwell. This transfér is dated January 20, 1910, but according to the testimony of Maxwell, which is not disputed, the transfer was actually made, acknowledged, and delivered about February 12, 1910. This transfer was filed for record on the 20th day of September, 1910. On March 31, 1910, J. W. Maxwell, by written transfer, conveyed, the $3,000 note and one of the $2,000 notes executed by Beauchamp to Wright to Mrs. Dora Stephens, and this instrument was filed for record July 11, 1910. On October 1, 1910, Stephens and wife, by written transfer, conveyed an undivided one-fifth interest in said $3,000 note to V. K. Wedgworth, his attorney; the consideration being to pay Wedgworth for services to be rendered in collecting said note. This transfer was filed for record October 31, 1910. On December 15, 1910, Wedgworth borrowed from plaintiff in error J. B. Pope, the sum of $1,500 and executed to him a note for the amount due one year after date. On December 16, 1910, Mrs. Dora Stephens, joined by her husband at the instance of Wedgworth, for a recited consideration' of $850 and a conveyance by Wedgworth to Stephens of 20 acres of land valued at $1,700, conveyed the $3,000 note to the plaintiff in error, J. B. Pope.

The Court of Civil Appeals finds that this note was conveyed to Pope by direction of AVedgworth in order that Pope might hold the same as collateral security to the note given by Wedgwortn to Pope for the $1,500 borrowed, and the evidence also conclusively shows that Pope accepted such security, and after receiving the same paid to Wedg-worth the $l;500.

There was no contention in the case that Maxwell was in the attitude of an innocent purchaser for value of the note, but the contention is that Stephens and wife, Wedg-worth, and J. B. Pope were all innocent purchasers for value and without any notice of the fraud of Wright.

On the 22d day of January, 1910, being only five days after the execution of the deed by Rutherford to Wright, Rutherford filed suit in the district court of Titus county, Tex., against Holford, Hutcherson, and Wright to cancel the deed executed by Rutherford to Wright, and to recover the M. Y. Delgado survey, being the same land conveyed by Rutherford to Wright, and on the 24th day of January, 1910, Rutherford filed an amended petition making Will O. Geers and D. M. Beauchamp parties to the suit, and at the same time procured to be issued in said cause a -writ of injunction restraining Wright and Geers from disposing of the notes executed by Beauchamp, and on the 24th day of January, 1910, filed in the office of the district clerk of Titus county a notice of lis pendens showing the pendency of said suit. On the 11th day of October, 1910, judgment was rendered in said cause for Rutherford for the land and canceling the deed which he had executed to Wright and the deed from Wright to Beauchamp, and revesting in him the title and possession of the land. This suit was instituted by J. B. Pope on February I, 1911, as the assignee of the $3,000 note above referred to, against D. M. Beauchamp as maker, and J. W. Maxwell and O. T. Wright as indorsers, and also making J. L. Rutherford a party. Judgment is asked against D. M. Beauchamp as maker and Maxwell and Wright as indorsers, for the amount of the note, with interest and attorney’s fees, and for foreclosure against all of the defendants. The petition alleges that the defendant J. L. Rutherford is asserting some right to the premises adverse to the plaintiff. All the defendants were served except Wright, and the plaintiff entered a nonsuit as to him. Rutherford answered, among other things, by pleading fraud by which Wright secured from him the deed referred to in these findings, and in addition thereto set up the entire proceeding in the case of Rutherford v. Wright and Others in Titus county, and pleaded the judgment in that case as a bar to the plaintiff’s suit in so far as it sought a foreclosure against him. He also pleaded the filing of the lis pendens notice in said suit.

The case was tried in the district court by a jury, and on a verdict of the jury the court rendered judgment in favor of the plaintiff, J. B. Pope, against D. M. Beauchamp as principal, and J. W. Maxwell as indorser, for the sum of $4,225.92, being the amount of said note, principal, interest, and attorney’s fees, and rendered judgment in favor of the defendant J. D. Rutherford, refusing the plaintiff any foreclosure on the land. From this judgment J. B. Pope alone appealed, and the Court of Civil Appeals for the Seventh District, to which the case had been transferred, affirmed the judgment as between J. B. Pope and D. M. Beauchamp and J. W. Maxwell, but reversed the judgment in favor of Rutherford, and rendered judgment foreclosing the vendor’s lien on the land in question to the extent of $1,500, with interest thereon from December 17, 1910, at the rate of 6 per cent, per annum. Both Pope and Rutherford made motions for rehearing in the Court of Civil Appeals, which were overruled, and both applied to this court for writ of error (165 S. W. xvi). Both writs were granted, and the whole case is now before us.

Opinion.

The application of the plaintiff in error, Pope, in this case, was granted by the Supreme Court for the reason that the court was of opinion that there was probable error in the holding of the Court of Civil Appeals to the effect that under the facts found by the Court of Civil Appeals the burden of proof was on the plaintiff, Pope, to show that Stephens and wife were good-faith purchasers of the note. The Supreme Court indicated in granting the writ that under the facts found this holding was probably in conflict with the decision in the cáse of Prouty v. Musquiz, 94 Tex. 87, 58 S. W. 721, 996. Tha petition of Rutherford for writ of error was also granted, and we therefore have the whole case before us.

As applied to negotiable notes, the rule announced in the case of Prouty v. Musquiz, supra, is the accepted rule in this state. We do not think it necessary to analyze the facts surrounding the purchase of the note by Stephens and wife for the purpose of determining whether or not there “were any circumstances in the evidence tending to show bad faith in the transaction on the part of” Stephens and wife so as to east the burden of showing good faith on the plaintiff, Pope, who claimed through Stephens and wife.

The view we take of the case is that Maxwell, and Stephens and wife, and Pope in so far’ as the right of foreclosure of the lien on the land is concerned, were all charged as a matter of law with notice of the pendency of the suit of J. L. Rutherford v. C. T. Wright et al., in the district court of Titus county, Tex., and are therefore purchasers pendente lite and are not in position so far as the lien is concerned to claim as innocent purchasers or innocent lienholders.

The Court of Civil Appeals found, and in fact were bound to find from the testimony, that the conveyance from Rutherford to AVright was procured by the grossest character of fraud, and that Rutherford in fact received no consideration for the conveyance.

Prom our statement it is evident that Beauchamp was not an innocent purchaser of the land, and in fact no claim to that effect is made. The notes given by Beau-champ to Wright were evidently owned by Wright and in his possession on January 24, 1910, when Rutherford filed his suit in the district court of Titus counts', Tex., to recover the land and rescind the fraudulent transaction. A lis pendens notice of this suit was filed in the office of the county clerk of Titus county on January 24, 1910. This notice charged all persons claiming the land, or any lien thereon, through either Beauchamp or Wright, with notice of the pendency of the suit, and all such persons are bound by the judgment in that ease.

Maxwell, to whom Wright transferred the vendor’s lien note, according to his own testimony did not acquire the same until February 12, 1910, and therefore took with notice of the suit brought by Rutherford.

The purchase by Stephens and wife, or by Pope, of the vendors’ lien notes under such circumstances as to make them Innocent purchasers for value as to the pecuniary obligation of Beauchamp, the maker, and Wright and Maxwell, as indorsers, does not necessarily place them in the attitude of innocent lienholders on the land. The assignees of mortgages on land for the purpose of securing negotiable instruments may be, and frequently are, innocent purchasers for the value of the notes, and yet are charged with notice of the defect or lack of title to the land in the mortgagor or person under whom the lien is claimed. The doctrine of innocent purchaser of negotiable instruments has application only to the rights of the parties to the instrument — in this ease the maker and indorsers thereof. Rutherford was no party to the instrument, and his rights are therefore not to be measured by the law applicable to negotiable instruments. He asserts title to the land, and, as between him and Pope, the question is whether Pope acquired the lien on the land under such circumstances as to make him an innocent purchaser for value of the land as against the claim of Rutherford.

Under registration laws, mortgagees of land are in the same category as purchasers, and the validity of' their lien or claim as against adverse claimants to the land is governed by the rules applicable to purchasers. See 27 Cyc. 1183, and note; Jones on Mortgages, § 456; Steffian v. Bank, 69 Tex. 517, 6 S. W. 823.

A note retaining a vendor’s lien is substantially a mortgage, as mortgages are regarded in this state. Moran v. Wheeler, 87 Tex. 183, 27 S. W. 55.

In the case just cited, Justice Brown, referring to the rights of the holder of a vendor’s lien note as against an adverse claimant of the land, not a party to the note, said:

“Its (meaning the note’s) negotiable quality does not govern as to the lien, but the law of notice becomes the controlling rule for determining the rights of the parties.”

Before Wright transferred the vendor’s lien note to Maxwell, Rutherford had filed a suit against both AVright and Beauchamp to recover the land and to cancel the conveyance. His attorney had executed what we think is a sufficient notice of the filing of the suit to comply with article 6837, Sayles’ Revised Statutes. This lis pendens notice was on record in the proper county when Maxwell, Stephens, and wife, and plaintiff in error, Pope, acquired the note sued on. Under these circumstances, none of said parties were innocent purchasers without notice of the fraud of Wright, and therefore the plaintiff is not entitled to foreclose against Rutherford.

It is urged by plaintiff in error, Pope, that the lis pendens notice does not comply with the statute, for two reasons: First, because it does not contain a sufficient description of the land; and, second, because it was not shown to have been properly indexed. The statute is as follows:

“Art. 6837. During the pendency of any suit or action, legal or equitable, involving the title to real estate, or seeking to establish any legal or equitable estate, interest or right, present or future, vested or contingent, therein, or to enforce any lien, charge or encumbrance against the same, any party plaintiff, as also any party defendant seeking affirmative relief therein, may file with the county clerk of each county where such real estate, or any part thereof, is situated a notice of the pendency of such suit, to be signed by the party filing the same, or his agent or attorney, setting forth the number and style of the cause, the court in which pending, the names of the party thereto, the kind of suit and a description of the land affected.
“Art. 6838. The county clerk shall record such notice of pendency in a well-bound book, to be styled, ‘Lis Pendens Record,’ and at the same time index the same, both direct and reverse. under the names of each and all parties to the suit. Por such performance of duty, the clerk shall be allowed a fee of fifteen cents per hundred words recorded, not to be less than fifty cents.
“Art. 6839. The pendency of such suit or action shall not prevent effective transfers or encumbrances to a third party for a valuable consideration and without other notice, actual or constructive, by a party to the suit of any such real estate as against a subsequent decree for the adverse party, unless such notice shall have been properly filed under the name of the party attempting to transfer or encumber in the county or counties in which said land is situated.
“Art. 6840. ISueh notice of pendency shall not be deemed constructive notice, but merely a memorandum that shall refer all intending purchasers and encumbrancers to an examination of the court records and pleadings to determine whether there is in fact a lis pendens concerning the real estate in question, and it shall be effective for such-purpose from the timé of its filing.”

The lis pendens notice filed and recorded in the office of the county clerk of Titus county, Tex., is as follows:

“J. L. Rutherford, Plaintiff, v. C. T. Wright et al., Defendants. (No. 969.)
“Suit Pending in the District Court of Titus County, Texas. Date of filing: January 24, 1910.
“The names of all parties of said suit are as follows: J. D. Rutherford, C. T. Wright, C. C. Hutcherson, G. P. Holford, D. M. Beauchamp and Will Greer.
“Kind of suit: To recover the M. V. Delgado survey of the land in Titus county, Texas.
“Description of land affected: Situated in Titus .county, Texas, 631 acres of the M. V. Delgado survey of land in Titus county, Texas, and situated on Sulphur river and on Timber Date about fourteen or fifteen miles N. W. from Mt. Pleasant. Texas.
“[Signed] R. T. Wilkinson,
“Attorney for Plaintiff.”

This instrument was filed for record the 24th day of January, 1910, and recorded on the 25th day of January, 1910.

The description of the land in the deed from Rutherford to Wright and in the deed from Wright to Beauchamp is substantially as follows:

“All that certain tract or parcel of land in Titus county, Texas, on Sulphur fork of Red river about 15% miles N. 17 W. from Mt. Pleasant known as the M. V. Delgado headright survey, beginning,” etc. (setting out boundaries).

In the petition in the suit of Rutherford v. Wright et al., the land is described in identically the same way as in the deeds above referred to. We think the description in the lis pendens notice is sufficient to identify the land, and that the requirement of the statute that it should contain “a description of the land affected” was complied with. We also think that it was not necessary for Rutherford to show that the lis pendens notice was indexed, as required by article 6838 in order to render the notice effective. Article 6838 does require the clerk to index the notice both direct and reverse under the name of each and all parties to the suit. The effect, however, of the notice, is provided for by article 6840, and it is there expressly provided that the notice “shall be effective for such purpose from the time of its filing.” There is nowhere in this statute any provision requiring the index to be made as a condition precedent to the validity of the notice, and, in the absence of such statute, we think that the plain provision of article 6840 requires that ] the notice shall be given effect from the time it is received and filed by the clerk.

The plaintiff in error, Pope, insists that the statute which we have considered shall be. given the same construction as the statutes with reference to the filing and recording of abstracts of judgment in order to acquire judgment liens. We do not think it necessary to go into this question further than to call attention to the fact that article 5616, relating to judgment liens, expressly provides that—

“When any judgment has been recorded and indexed as provided in the preceding article, it shall from the date of such record and index operate as a lien upon all of the real estate of the defendant situated in the county where such record and index are made, and upon all real estate which the defendant may thereafter acquire, situated in said county.”

The difference between these two statutes is apparent. The statute with reference to lis pendens notices provides that the notice shall be effective from and after the filing of the same, while the judgment lien statute provides that the judgment shall attach when the judgment has been recorded and indexed.

The only issue in this case as between J. B. Pope and J. L. Rutherford was as to the right of Pope to foreclose a lien on the land, and what we have said disposes of that issue.

We therefore are of opinion that the judgment of the Court of Civil Appeals should be reversed, and that the judgment of the trial court should be affirmed.

PHILLIPS, O. J. The judgment recommended by the Commission is adopted and will be entered as the judgment of the Supreme Court.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: STRONG, J.

text:
    GAMMEL STATESMAN PUB. CO. et al. v. BEN C. JONES & CO.
    (No. 9-2572.)
    (Commission of Appeals of Texas, Section A.
    Dec. 11, 1918.)
    1. Appeal and Erbob <3&wkey;1185 — Supplemental Motion eob Rehearing of Motion to Vacate Judgment — Authority to Act— “Motion foe Rehearing.”
    Court of Appeals was without authority to act on supplemental motion of appellant for rehearing of motion to vacate judgment of af-firmance, in substance a “motion for rehearing,” within Rev. St. 1911, arts. 1633, 1641, not filed within time for motions for rehearing, and not acted on at term at which original judgment was rendered; Supreme Court having denied writ of error.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Motion for Rehearing.]
    2. Appeal and Erbob <&wkey;l216 — Enforcing Mandate — Supervisory Jurisdiction — Control of Court of Civil Appeals.
    Supreme Court has jurisdiction to review action of Court of Civil Appeals in granting supplemental motion for rehearing of motion to vacate judgment of affirmance, made after Supreme Court had refused writ of error, thus affirming original judgment of affirmance of Court of Civil Appeals and trial court.

      Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by Ben C. Jones & Co. against the Gammel Statesman Publishing Company and others. From judgment for defendants, plaintiff appealed' to the Court of Civil Appeals, which affirmed (141 S. W. 1048), and thereafter, on plaintiff’s supplemental motion for rehearing of motion to vacate judgment, set aside its former judgment of af-firmance and all other orders and decisions subsequent, and reversed and remanded the cause for new trial (156 S. W. 317), and defendants bring error.
    Motion to dismiss application for writ of error overruled, and order and judgment entered by Court of Civil Appeals setting aside and vacating its former judgment, and reversing and remanding for new trial, declared void and of no effect, on recommendation of the Commission of Axjpeals.
    Gregory & Botts and Hart & Patterson, all of Austin, for plaintiffs in error.
    R. H. Cousins and V. A. Fenner, both of Austin, for defendant in error.
   STRONG, J.

The judgment of the trial court in this cause was affirmed by the Court of Civil Appeals for the Third Supreme Judicial District on May 24, 1911. 141 S. W. 1048. On June 6, 1911, defendants in error filed their original motion for rehearing in said cause. The court adjourned without acting on this motion, but overruled same at its next term on December 6, 1911. On January 4, 1912, defendants in error filed their application for writ of error to the Supreme Court, and the same was denied on February 7, 1912. On February 24, 1912, defendants in error filed in the Supreme Court their motion for rehearing on the refusal of their application for writ of error, and said motion was overruled on February 28, 1912. On March 25, 1912, defendants in error filed in the Supreme Court an application for mandamus against the judges of the Court of Civil Appeals for the Third Supreme Judicial District to require the latter court to grant a rehearing and reopen the case, and this was refused on April 3, 1912. Defendr ants in error next filed in the Supreme Court an application for mandamus against the judge of the trial court, and same was refused. On May 28, 1912, defendants in error filed in the Court of Civil Appeals a motion styled “motion to vacate judgment.” This motion was refused by the court on October 12, 1912. On October 23, 1912, defendants in error filed in the Court of Civil Appeals what they termed “motion for rehearing of motion to vacate judgment,” and this was overruled on January 8, 1913. On January 15, 1913, defendants in error filed in the Court of Civil Appeals a motion designated “supplemental motion for rehearing of motion to vacate judgment.” The Court of Civil Appeals on February 19, 1913, granted this motion, and entered judgment, setting aside its former judgment rendered May 24, 1911, affirming the judgment of the district court and all other orders and decisions made by it subsequent to that time, and reversed and remanded the cause for a new trial.

Plaintiffs in error contend that the Court of Civil Appeals was without authority to grant the motion, because same was filed and acted upon at a subsequent term of the court to that at which its original judgment was rendered and after the Supreme Court had denied a writ of error in said cause. This is the only question presented for review.

We conclude, after a careful examination of the motion in connection with the record, that while not so designated, it is in substance a motion for rehearing within the meaning of that term as used in articles 1633 and 1641, Revised Statutes 1911. The Court of Civil Appeals so held in granting the motion. 156 S. W. 317.

The motion was not filed within the time allowed for the filing of motions for rehearing, and was not acted upon at the term of the court at which the original judgment was rendered. This being true, the court was without authority to take any action on the motion, and the judgment entered granting the motion and setting aside and vacating the original judgment rendered by said court in said cause and reversing and remanding the case to the trial court must, we think, be held to be void and of no effect. Articles 1633 and 1641, R. S. 1911. McGhee v. Romatka, 92 Tex. 241, 47 S. W. 520. The original judgment of affirmance stands just as if the motion had not been filed.

It is contended that under the holding in the ease of McGhee v. Romatka, supra, this court is without jurisdiction to review the action of the Court of Civil Appeals in granting the motion.

The motion in the case before us was filed and acted upon by the Court of Civil Appeals after the Supreme Court had refused a writ of eiTor in said cause, and by such action affirmed the original judgment of the Court of Civil Appeals and that of the trial court. The judgment of the Court of Civil Appeals entered in granting the motion, not only set aside and vacated its judgment rendered at a former term, but also in effect set aside and vacated the judgment of the Supreme Court in denying the writ of error in said cause. It is well settled that, when the Jurisdiction of the Supreme Court attaches, the court has full control of the cause, and can make such orders concerning it as may be necessary to preserve the rights of the parties and enforce its mandates. Its jurisdiction continues until the case is fully determined by the court and its judgment is completely executed by the court below. For the purpose of enforcing its mandates, it may make any order, and, if necessary, may resort to the writ of mandamus or any other appropriate writ known to our system of jurisprudence. Wells v. Littlefield, 62 Tex. 28. The action of the Supreme Court in refusing a writ of eimor in this cause was binding on the Court of Civil Appeals. The Court of Civil Appeals at the time the motion under review was filed and acted upon was without jurisdiction of the case and had no power to enter any order or judgment therein. To hold otherwise would he to deny to the Supreme Court its power as a court of last resort. The question of the power of the Supreme Court to enforce its own jurisdiction was not before the court in the case of McGhee v. Romatka, supra.

We are of opinion that the motion to dismiss the application for writ of error should be overruled, and that the order and judgment entered by the Court of Civil Appeals setting aside and vacating its former judgment and reversing and remanding the cause for a new trial should be held to be void and of no effect.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the question discussed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McCSLENDON, j.

text:
    JAMES v. ROBERTS TELEPHONE & ELECTRIC CO. et al.
    (No. 8-2571.)
    (Commission of Appeals of Texas, Section B.
    Dec. 11, 1918.)
    1. Receivers <&wkey;57 — Objection to Appointment — Waiver.
    The objection to the appointment of one who is cashier and stockholder in plaintiff bank as receiver of the defendant debtor corporation because disqualified for interest, where not seasonably urged, was waived.
    2. Receivers <&wkey;196 — Compensation — Disqualification.
    Where a bank cashier and stockholder, although disqualified for interest, was appointed receiver for a corporation, the appointment was not void or voidable under Rev. St. 1911, art. 2129, and, where he performed the receiver’s duties in good faith without objection benefiting creditors and stockholders, he was entitled to compensation from the corporate funds.
    3. Receivers &wkey;»48, 196 — Qualification —Validity—Compensation.
    Rev. St. 1911, art. 2129, providing no person interested in an action shall be appointed receiver, and making such appointment voidable, is declaratory of the laws applied by courts of equity, and the compensation of such a receiver should be determined by the same equitable principles.
    4. Receivers <&wkey;55 — Effect of Invalid Appointment — Compensation.
    Although one appointed as a receiver was not a citizen of the state, as required by Rev. St. 1911, art. 2130, the court could lawfully without abuse of discretion compensate him for services and expenses by allowance to his coreeeiver.
    E'rror to Court of Civil Appeals, Sixth Supreme Judicial District.
    Suit by* the Farmers’ & Merchants’ National Bank of Abilene against the Roberts Telephone & Electric Company and others. From a judgment of the Court of Civil Appeals (155 S. W. 629) reforming and affirming a district court decree directing distribution of assets of the defendant Telephone Company in the hands of the receivers, the receiver, Henry James, brings error.
    Judgment of Court of Civil Appeals reversed, and the judgment of the trial court affirmed.
    A. H. Kirby, S. P. Hardwieke, and K. K. Legett, all of Abilene, and Theodore Mack, of Ft. Worth, for plaintiff in error.
    Sayles, Sayles &i Sayles, of Abilene, for defendants in error.
   McCSLENDON, j.

Two questions are presented for our determination: (1) Whether a receiver who is interested in the receivership can legally be allowed remuneration for his services; and (2) whether compensation can' be lawfully allowed a receiver for services and expenses of a coreceiver who is a noncitizen of this state. Both questions are of first impression in our Supreme Court, and both have been answered in the negative by the Court of Civil Appeals. Roberts Telephone & Electric Co. v. Farmers’ & Merchants’ Nat. Bank of Abilene, 155 S. W. 629.

The following statement is necessary to a clear understanding of these issues:

Statement of the Case.

The Roberts Telephone & Electric Company was indebted to Stromberg-Chrlson Telephone Manufacturing Company in the sum of about $6,500, and to the Farmers’ & Merchants’ National Bank of Abilene in the sum of about $26,500, which sums were secured by liens upon all the property of the debtor company. These parties will be referred to respectively as the Telephone Company, the Stromberg Company, and the Bank. There was a controversy between the Bank and the Stromberg Company relative to the priority of their liens, and the latter instituted suit in the federal court at Abilene against the Bank and the Telephone Company and applied for a receiver. The Telephone Company was in straitened financial circumstances, and an understanding wds reached among the three named companies, whereby the federal court suit was dismissed and a receivership was to be had in the state court. The Bank shortly thereafter, on October 10, 1907, filed this suit in the district court of Taylor county making the Telephone Company and the Stromberg Company parties defendant, setting out the facts concerning the controversy between itself and the Stromberg Company relative to their conflicting claims and praying for a receiver. On the same day the Stromberg Company answered, and joined in the prayer for a receiver, and the court immediately appointed as receivers Henry James, who was cashier, and a large stockholder in the Bank, and Charles P. Speed, who at the time was an. agent of the Strom-berg Company and a citizen of Arkansas; the order of appointment reciting that all parties at interest were given notice. No objection was made to the receivership or to the appointment of either of the receivers, and the order of appointment is silent as to the residence or citizenship of either of tho receivers. The receivers at once took charge of the property, which consisted of a local telephone exchange at Abilene and several toll lines, and adjudications were made upon the controversy between the Bank and the Stromberg Company and upon various interventions of creditors. Small portions of the property were from time to time sold by the receivers under orders of court, and finally, in April, 1910, the local exchange and all the property remaining in the hands of the receivers were sold for $13,000. It appears that Speed was a practical telephone man, and attended to the matter of rehabilitating and repairing and superintending the actual operation of the plant, as well as from time to time auditing the books. James attended to the financial matters of the company. He was experienced in these matters, but had no practical knowledge of the telephone business. Speed continued to be agent of the Stromberg Company until early in 1909-, when his connection with that company ceased. Various efforts were made to sell the property, but no purchaser could be found; and Speed, after he had severed his connection with the Stromberg Company, finally succeeded in working up a sale, which under all the testimony was pronounced to be the best and most advantageous one that could be had. During their administration as receivers the plant was enlarged from about 450 telephones up to something over 900, and in a general way the plant was rehabilitated and put in better condition. Something over $100,000 passed through the hands of the receivers, and the record shows that their duties were faithfully performed. They operated the property from the 10th of October, 1907, until it was finally sold in April, 1910. Speed, from time to time, drew amounts as salary and commissions and was paid expenses which he incurred aggregating $3,048.35, of which amount $565 was expense and the balance compensation for his services. The receivers filed their final account on February 16, 1911. On October 7, 1911, the Telephone Company and certain stockholders and creditors filed objections to the account, among them objections to the allowance of any compensation to James and Speed by reasoh of the interest of James in the suit and by reason of Speed’s interest and his disqualification as a nonresident of the state.

The trial court held that James was entitled to be paid for his services and allowed him $2,483.35, but disallowed all fees and expenses of Speed by reason both of his interest and noncitizenship, and ordered the repayment of these sums to receiver James. By a further order the court found that the services performed and expenses incurred by Speed were reasonably worth $1,000 to the estate, and allowed said sum to James.

Opinion.

We will first consider the action of the Court of Civil Appeals in holding as a matter of law that James was not entitled to any compensatio'n for his services as receiver because of his interest in the receivership.

Article 2129, Revised Statutes 1911, provides that no party, attorney, or person interested in any way in an action for the appointment of receiver shall be appointed receiver therein. That the appointment of a receiver who is interested in the receivership is not void, but voidable, is held in Railway v. Adams, 11 Tex. Civ. App. 198, 32 S. W. 733.

Objection to the appointment of James, not being seasonably urged, was waived. 34 Cyc. 149. The Court of Civil Appeals, while recognizing this doctrine, holds, however, that:

“The prohibition in the statute should be observed, and perhaps there is no more effectual way to enforce its observance than to deny compensation to one whose appointment as receiver is procured in violation thereof.”

The effect of this holding would be to penalize one who, in good faith and without objection, has performed all the duties of receiver, and who, but for the statute, might be held to be entitled to compensation irrespective of his interest in the subject-matter. We see no stronger reason for penalizing the receiver under these circumstances than for penalizing those who have stood by without complaint and permitted him to perform valuable services of which they are beneficiaries.

Irrespective of statute, it is generally held that no party interested in a receivership should be appointed receiver. The reasons are obvious, and it is not deemed essential to enumerate them. 34 Cyc. 142.

The statute is therefore but declaratory of the law as applied generally by courts of equity. And since it does not make void, but merely voidable, the appointment as receiver of an interested party, we think the question of compensation should be determined by the same principles of equity that have been applied by the courts, independently of the statute.

The following quotations, taken at random, the former from England, and the latter from Illinois, we think, correctly summarize the result of the adjudications upon this question:

“The authorities only go to this, that the court does not generally appoint a trusteee to be receiver at all, and that generally he will not receive remuneration if he is appointed. But there is no inflexible rule. * * * Mr. Justice North has allowed what he thought reasonable. He had a discretion whether he would allow anything, and I think we ought not to interfere with that discretion, nor as to the. amount he has thought it right to allow.” Bignell v. Chapman, 1 Ch. 59 (1892).
“The general rule in such eases seems to he against the allowance of any compensation, hut when the appointment is made without determining that the service shall be witho'ut compensation, whether an allowance shall be made or not, is generally left to the discretion of the chancellor, and is to be controlled by the circumstances of each particular case.” Meissler v. Meissler, 101 Ill. App. 256.

For further authorities see 34 Cyc. 468 and notes 3 and 4.

In cases where a partner is appointed receiver of the partnership property, or a trustee or executor of the trust estate from which he receives compensation in his trust capacity, and perhaps in some other classes of cases, compensation is denied the receiver as a matter of law. But this doctrine has its foundation in considerations peculiar to the special relation of the receiver to the property he administers. Slater v. Slater, 78 App. Div. 449, 80 N. Y. Supp. 363; Berry v. Jones, 11 Heisk. (Tenn.) 206, 27 Am. Rep. 742; Bartelt v. Smith, 145 Wis. 31, 129 N. W. 782, Ann. Cas. 1912A, 119-5. We are of opinion that the interest of James in the receivership was not such as to deprive him of fair compensation for his services as a matter of law. He was not himself a party to the suit, and only indirectly and partially interested, in the Bank’s claim, which claim was not relatively large; the receivership extended over a considerable period of time; the telephone plant was improved and enlarged and its patronage doubled; the receiver handled over $100,000 in the aggregate, and his' responsibility was correspondingly great; and, in the end, he disposed of the property to great advantage., No act of his appears to have been complained of until he had completed his duties and filed his final account. We conclude that there was no abuse of discretion in making the allowance to James as compensation for his own services as receiver.

Passing to the question of the allowance to James of $1,000 as the reasonable value of the services and expenses of Speed in making the sale, we have reached the conclusion that the trial judge did not abuse his discretion in making such allowance.

Article 2130 provides that, if any person should he appointed receiver of property situated in this state who is not at the time a bona fide citizen of this state and entitled to vote, all such appointments shall be absolutely null and void in so far as the property situated within this state is concerned.

But the order of appointment did not show on its face that Speed was disqualified by reason of being a nonresident, and we doubt whether, after he had acted under the appointment and had fully administered the property, his acts could be collaterally attacked on that ground. However, under the view we take, that question is not necessary to decide. The services and expenses for which the allowance was made were performed after Speed’s interest in the property had determined; and, giving full effect to the statute, and construing the appointment as absolutely void, still we think it was within the discretion of the trial judge to allow to James remuneration, measured by the actual value of the services and expenses of Speed in making the sale. The receivership ■was valid, and- the property in the court’s custody, and the coreceiver, James, was acting under an appointment which, as we have held, must now be considered valid. It was not necessary for James to personally perform all of the labor necessary in the operation of the property or in its sale. He could employ the services of others, and where such services were actually performed and came properly within the province of the receiver and benefited the property which was in custody of the court, we see no valid reason why compensation should be denied, even though the services were performed by a person who, under the law, was disqualified from acting as receiver. If James had himself incurred the expenses and obtained the purchaser for the property, no sound objection to his receiving compensation commensurate with the services could be legally urged. That he did not perform these services in person, but accepted the labor of his co-receiver, does not, in our opinion, lessen his right to have compensation awarded him. The trial court seems to have carefully scrutinized this item and placed upon these services and expenses a valuation which in his .opinion was fair and reasonable.

It is our opinion that the judgment of the Court of Civil Appeals should be reversed, and the judgment of the trial court affirmed, and that the costs of appeal, both in the 'Supreme Court and in the Court of Civil Appeals, should be assessed against the -defendants in error.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
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author: PRENDERGAST, J.

text:
    PIERCE v. STATE.
    (No. 5233.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    1. Ckiminai. Law <&wkey;1104(4), 1105(1) — Appeal — Record — Copying Statement oe Pacts in Transcript.
    On appeal in misdemeanor cases, if there is a statement of facts, it must be copied in the transcript of the record, and certified, like. all other orders and proceedings, and the original must not be sent up, but kept on file in the lower court; sending up original being permissible only in cases of felony,
    2. Criminal Law <&wkey;1099(ll) — Appeal — Purported Statement oe Eacts — Approval.
    Where the term at which conviction of misdemeanor occurred adjourned August 3d, a separate paper, not filed in trial court until October 18th, though indorsed as a statement of facts, being unapproved by the trial judge, cannot bo considered by the Court of Criminal Appeals for any purpose.
    3. Criminal Law <&wkey;1097(l) — Appeal—Absence oe Statement of. Pacts.
    In absence of statement of facts, and no error appearing on the face of the record, nothing is presented .which can be reviewed.
    Appeal from Lamer County Court; Tom L. Beauchamp, Judge.
    Clem Pierce was convicted of aggravated assault and battery, and he appeals.
    Affirmed.
    Sturgeon & Sturgeon, of Paris, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an aggravated assault and battery upon his wife, and fined 850.

In misdemeanor cases the statute requires that, if there is a statement of facts, it shall be copied in the transcript of the record and certified, the same as all the other orders and proceedings therein. The original must not be sent, but kept on file in the lower court. It is only in felony convictions that the original is authorized to be sent to this court instead of copied in the transcript. Branch, An. P. C. § 594.

There is no statement of facts in the record herein. There is what' is indorsed as a statement of facts — a separate paper — but it is in no way approved by the trial judge. Besides, the record shows that the term ofj court at which the conviction occurred adjourned August 3d. This document was not filed in the lower court until October 18, 1918. Hence for all these reasons it cannot be considered by this court for any purpose. There is nothing presented which can be reviewed, in the absence of a statement of facts. McGee v. State, 78 Tex. Cr. R. 638, 182 S. W. 309; Sorrell v. State, 79 Tex. Cr. R. 453, 186 S. W. 336; Branch An. P. C. p. 306.

The judgment is affirmed.
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author: DAVIDSON, P. J.

text:
    CARTER v. STATE.
    (No. 5236.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    Homicide <@=230 — Assault to Murder — Evidence — Intent to Kill.
    In prosecution for assault to murder, evidence held sufficient to sustain jury finding that accused, in shooting, intended to kill.
    Appeal from District Court, Cherokee County; Daniel Walker, Judge.
    Tim Carter was convicted of assault to murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder, and given two years in the penitentiary.

The facts show that Singletary and Shaw were playing dominoes. Appellant was requested to keep count of the game, which he did. Singletary lost three games, and accused appellant of keeping a wrong statement, by which Singletary was unjustly declared the loser. This brought sharp words between them, in which Singletary called appellant a son of a bitch, and other opprobrious and indecent language was used, which we deem unnecessary to state. Singletary followed appellant out of the house. Appellant went to his place of residence a short distance away, secured a shotgun, and returned. Singletary was outside of the house in the street, with two other parties, as appellant approached. The testimony is iu conflict as to whether Singletary approached appellant with his hand in his pocket or not. Singletary swears that he did. He is corroborated in this statement by another witness. As Singletary approached appellant, appellant raised his gun, and Single-tary ran, and when he had gone about 25 or 30 steps appellant shot, striking him in the side, knocking him down. The shot were small. Singletary recovered, being in bed only a few days.

There are no bills of exception incorporated in the record. The motion for a new trial was based upon the insufficiency of the evidence to sustain the conviction for assault to murder; the contention being that the facts warranted no higher verdict than aggravated assault and battery. We are of opinion this contention cannot be sustained. The distance between the two parties varied according to the evidence from 10 to 30 steps; the weapon used being a shotgun loaded with small shot. Appellant testified he did not intend to kill. There is no exception to the charge. We are of opinion the evidence was sufficient to justify the jury in coming to the conclusion that appellant did intend to kill. The jury solved the matter, under the charge of the court, against appellant, and we think the testimony justified them in so deciding.

The judgment will be affirmed.


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

text:
    REED v. STATE.
    (No. 5234.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    1. Intoxicating Liquors &wkey;>40(3) — Sales Without License — Statutes.
    Acts 35th Leg. Fourth Called Sess. cc. 5, G, amending Pen. Code 1911, arts. 611 and 612, prescribing punishment for selling intoxicating liquor without a license, does not apply to local option territory.
    2. Intoxicating Liquors &wkey;>42 — Local Option Laws — Power oe Legislature.
    Where the local option law has been placed in effect by a vote of the people, it must so remain until the people of the same territory repeal it by a vote at another election, and the Legislature has no power to do so.
    Prendergast, J., dissenting in part.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Lizzie Reed was convicted of violating a local option law, and she appeals.
    Affirmed.
    See, also, 200 S. W. 843.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, her punishment being assessed at a fine of $100 and 60 days’ imprisonment in the county jail.

The evidence presented the issue of fact between the state’s witness and defendant’s testimony .as to the sale. The jury decided in favor of the state’s evidence. They had a right to solve the question, and this court would not feel justified in interfering with the conviction for that reason.

The question presented, however, for revision, arose on the prpposition that, inasmuch as the Legislature had amended articles 611 and 612, P. C., it therefore repealed the local option law in Lamar county. The articles amended will be found in the Acts of the Fourth Called Session of the Thirty-Fifth Legislature, pp. 9, 10. This act of the Legislature prescribes punishment against parties who sell without first obtaining a license for that purpose. This law does not apply to local option territory. The Legislature has no authority to repeal the punishment in local option territory where it has been voted upon by the people. The uniform line of decisions is to the effect that, where the local option law has been placed in effect by a vote of the people, it shall so remain until the people of the same territory see proper by another election to repeal it by their vote. The Legislature is powerless to do this. This question came up for decision in the case of Dawson v. State, 25 Tex. App. 670, 8 S. W. 820, and it was held that the Legislature was powerless to add to or change the effect of the local option law in the territory where it was put into operation by a vote of the people. The Dawson Case was followed by the Robinson Case in 26 Tex. App. 82, 9 S. W. 61, and Lawhon v. State, 26 Tex. App. at page 102, 9 S. W. 355. There are other decisions, but the question came again for review in the Love Lewis Case, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656, where the question was again decided and the authorities fully reviewed. The Lewis Case was thoroughly considered, the opinion having been written by Judge Ramsey. All of the authorities in Texas are to the same effect. Mr. Branch, in his Annotated P. C., collates a number of authorities on page 698, under section 1235. Quoting froin his annotations:

“When local option is adopted in a particular locality, the penalty attached to the first violation which was submitted to and adopted by the voters will remain in force until such election is repealed by the voters of the same territory.”
“An act of the Legislature increasing the penalty will be in force and operate in such localities only as since the passage and taking effect of such amendment may, by election, adopt its provisions.”

In this section Mr. Branch cites Robinson, Lawhon, and Lewis, supra; also, Doyle v. State, 59 Tex. Cr. R. 60, 127 S. W. 815; Guzman v. State, 59 Tex. Cr. R. 353, 128 S. W. 1198; Pointer v. State, 60 Tex. Cr. R. 355, 132 S. W. 136; Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782. These authorities are clear and distinct in 'their enunciation of the proposition that the punishment under the local option law will remain as voted by the people until.the people in the same territory see proper to hold another election and place the territory under the increased punishment enacted by the Legislature, where the Legislature so enacts. The Legislature cannot enact a punishment or change the provisions of the local option law so as to affect its operation in territory where the people have once voted upon it. The Legislature has no power to repeal the local option law as voted by the people and substitute any other law in its place. This is one question about which the courts of Texas have been in thorough accord. It will be further noticed that article 612, P. C., as' amended does not apply to local option territory, and could not apply. That is a punishment sought to be imposed upon parties who sell without license. This can apply in territory where license will issue. So from any viewpoint the position of appellant is not well taken.

The judgment will be affirmed.

PRENDERGAST, J.

(dissenting in part). The original articles, 611 and 612, applied solely to wet or now prohibition territory. The recent amendment of these articles also applies exclusively. Therefore the judgment herein is correctly affirmed. I do not concur in what is said otherwise in the opinion.
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