author: JENKINS, J.

text:
    STATE et al. v. DAYTON LUMBER CO. et al.
    (Court of Civil Appeals. Austin.
    Oct. 30, 1912.
    On Motion for Rehearing, Jan. 29, 1913.
    Rehearing Denied June 4, 1913.)
    1. Boundaries (§ 37) — Survey—Evidence.
    In a suit to determine the location of certain boundaries, circumstantial evidence held to show that the surveyor who located a certain survey in controversy did not make an actual survey on the ground in whole or in part.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.]
    2. Public Lands (§ 175) — Subvey — PRESUMPTION.
    In the absence of evidence to the contrary, it will be presumed that a surveyor in locating an original survey of state land actually ran and established all the lines and corners as called for in 'his field notes, but this presumption may be rebutted.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    3. Boundaeies (§ 10) — Survey — Field Notes — Calls.
    Where the evidence showed that certain surveys of state land were not actually run on the ground, calls in the field notes, other than calls for courses and distances from the corners on the bank of a river called for, could not be located and relied on for the determination of the boundaries of the surveys.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 90, 91; Dec. Dig. § 10.]
    4. Evidence '(§ 121) — Boundaries — Field Notes oe Subvey — Res Gestas — At the “Same Time.”
    Field notes of surveys made at the same time by the same surveyor are admissible as res gestae, and the term “at the same time” does not necessarily mean on the same day, but that the work has been continuous from day to day or connected as a part of the series of surveys, though the work may have continued for many days, weeks, or months.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. § 121.

    For other definitions, see Words and Phrases, vol. 7, p. 6326.]
    5. Evidence (§ 318) — Hearsay — Field Notes oe Sueveyoe.
    Field notes of a subsequent surveyor wherein he calls for the lines or corners of pri- or surveys amount only to a declaration that he found such lines or corners at the places indicated by his calls, and are hearsay, unless it appears that the surveyor was acting in an official capacity, and is dead when the evidence is offered.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1193-1200 ; Dec. Dig. § 318.]
    6. Boundaries (§ 36) — Surveys — Subsequent Surveys — Field Notes.
    Field notes of surveys made from 20 to 58 years after the original surveys were located by surveyors not shown to have had any knowledge of the location of the original lines or corners are inadmissible to show by their calls for the original surveys, the location of the lines and corners thereof.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 160-162, 164, 166-176; Dec. Dig. § 36.]
    7. Boundaries (§ 35) — Location oe Lines and Coenees — Reputation.
    Reputation as to the location of lines and corners of original surveys beginning some 40 years after the surveys were located, and which appears to have originated from a survey made by a surveyor not shown to have had any knowledge as to the location of the surveys, is inadmissible.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 153-155, 157-159, 163, 165, 177-183; Dec. Dig. § 35.]
    On Motion for Rehearing.
    8.Public Lands (§ 173) — Lands of State— School Lands — Actions—Statutes—“Interest” — “Therefor.”
    Acts 26th Leg. (1st Ex. Sess.) c. 11, § 8 (Rev. Civ. St. 1911, art. 5468), entitled “An act to define the permanent school fund of the state, to partition public lands between that fund and the state, and to adjust the account, and providing for suits in T. county against any person claiming any of the lands belonging to the school fund, or any other funds,” declares that the Attorney General may bring suit “therefor” in that county, when the state or school fund has an “interest” in the land in question. Held, that the word “interest” as so used meant an interest which would entitle the state to recover the land; the word “therefor” meaning “for the land,” and hence, where the state had sold the land in controversy on credit and the sale was in good standing, the fact that the land had not been paid for did not authorize the state to sue nor confer jurisdiction on the court of T. county to act with reference to land located in another county.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 581-587; Dee. Dig. § 173.

    For other definitions, see Words and Phrases, vol. 4, pp. 3696-3702; vol. 8, pp. 6950, 6951, 7691.]
    Error to District Court, Travis County; Geo. Calhoun, Judge.
    Action by the State and others against the Dayton Lumber Company and others. Judgment for defendants, and plaintiffs bring error.
    Reversed on rehearing, with directions to transfer the cause to Liberty county.
    See, also, 155 S. W. 1178.
    Jewel P. Lightfoot, Atty. Gen., John L. Terrell, Asst. Atty. Gen., L. B. Moody and L. R. ¡Blryan, both of Houston, and N. A. Rector, of Austin, for appellants. Gregory, Batts & Brooks, of Austin, Stevens & Stevens, of Liberty, and A. D. Stone, of Belton, for appellees.

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

   Findings of Fact.

JENKINS, J.

This suit was brought upon the theory that the land covered by the Shattue surveys at the date of the location of said surveys (August, 1904) had not been appropriated by prior surveys, and therefore belonged to the school fund. There is no controversy as fco the location of the lines and corners of said Shattue surveys. Said surveys call to be bounded on the east by the Jose Martinez surveys Nos. 6 and 9, and on the west by the I & G. N. surveys Nos. 38 and 39. There is no controversy as to the location of the lines and corners of said I. & G. N. surveys, they being fixed by a call for a corner of the James Dowell survey, which is found and identified on the ground by its bearings; and also fey their calls for the east line of the Thos. Newman league, the location of which is not called in question. The Shattuc surveys do not conflict with the I. & G. N. surveys as thus located; they do not conflict with the Martinez surveys, as those surveys are claimed by appellants to be located, but do conflict with and are entirely covered by said Martinez surveys as the same are claimed by appellees to be located. So the issue in this case is as to the true location of the western boundary lines of said Martinez surveys.

The Martinez surveys were located in 1833, and their field notes are as follows:

“No. 6. League No. six is situated on the western side of the Trinity river adjoining in the middle of the river with the S. W. corner of a league occupied by a colonist named Phillip Miller, commencing from a laurel, 12 in. dia. upon the margin of the river, from which there is an ash, 14 inches in diameter, south 4% varas, and a cottonwood 30 inches in diameter to the N. 82 deg. W. 17 varas, which is the first corner; from thence to the west 10,609 vrs. to a stake, from whence there is a magnolia 8 inches in diameter to the N. 59 deg. E. 14% vrs., and a gum 2 inches in diameter to the N. 24' 30" 11 vrs., which is the second corner. Erom thence to the south 2500 varas to two very small trees, from whence there is a mulberry 5 inches in diameter to the N. 46 deg. 30' E. 8% vrs. and a white oak 12 inches in diameter to the north 70 deg. W. 2 vrs. which is the third corner. Erom there to the east 9S95 varas to a stake on the margin of the above mentioned river, which is the fourth and last corner, and from there following the turns of the same river upwards until arriving at the point of commencing, league No. 6 was completed.”
“No. 9. League No. 9 is on the western side of the Trinity river, in front of the league occupied by Phillip Miller, commencing from an ash tree 18 inches in diameter on the margin of the same river, from which there is a gum tree 15 inches in diameter to the S. 30 deg. W. 9% varas, and an ash 8 inches in diameter to the north 16 deg. 30' W. 13% vrs., first corner. Erom there to the west 10,088 vrs. to a white oak 6 inches in diameter, from which there is a red oak 24 inches in diameter to the N. 35 deg. 30' W. 13 vrs.; and a white oak 10 inches in dia. to the south 27 deg. 30 E. 9% varas, which is the second corner. Eiom there to the south 2500 vrs. to two small oaks 3 inches in diameter, from whence there is a pine 8 inches in diameter to the S. 47 deg. E1. 11% vrs. and a black oak 6 inches in diameter to the N. 44 deg. W., 7 vrs., which is the third corner. From thence to the east 9246 varas to the first corner of league No. 6, which is the fourth and last corner of this league. And from there following the turns of the river upwards until arriving at the point of com-’ mencing, league number nine was completed.”

It will be observed that the field notes of these surveys do not give the meanders of the river. The meanders on the east boundary of No. 9 are shown by the record as appears in the sketch next below. A map accompanying the title issued to Martinez in 1833 shows the river to be as indicated by the dotted lines on said sketch.

The following sketch and explanation of the same show the location of surveys Nos. 9 and 6 according to the two theories advanced in this case:

If survey No. 6 be begun opposite tbe southwest corner of tbe Phillip Miller league, and survey No. 9 begun opposite tbe northwest corner of said Miller survey, as called for in their field notes and contended for by appellees, and run out according to their calls for course and distance, the corners of said surveys will be as indicated by circles (thus O) on said sketch. If survey Ño. 6 be begun on the west side of Horseshoe Lake, and run west and south the distances called for in its field notes, making reasonable allowance for error in measurement, and thence east to the river, and survey No. 9 be begun at the same point, and run west ’and north the distances called for in their field notes, making reasonable allowance for errors in measurement, and thence east to the river, such being the contention of the appellees, the corners of surveys Nos. 6 and 9 will be as indicated by crosses (thus X) on said sketch.

The Shattuc surveys are bounded on the west by the I. & G. N. surveys, on the north by the Cdy survey, on the south by the James Dowell, the Williamson and the B. B. B. & O. R. R. survey, and their east lines are coincident with the west lines of Nos. 6 and 9 as the same are claimed to be located by appellants, bnt are included in said surveys 6 and 9, as the same are claimed to be located by appellees. Said sketch also shows the Trinity river, Horseshoe Lake, two other lakes on the north line of No. 9, Davis bayou, Gaylor’s Lake, Gaylor’s creek, and Gross bayou, as found on the ground. None of these Objects are called for in the field notes of the Martinez surveys Nos. 6 and 9. The lakes on the north line of No. 9 are one 70 and the other 79 varas wide, waist deep and impassible for horses; Davis bayou is from 10 to 30 varas wide, and about waist deep; Gaylor’s Lake is about iy2 miles long, 85 varas wide, and very deep. Gaylor’s creek is described by witnesses as a large creek. None of the bearing trees called for in the field notes of either survey No. 6 dr No. 9 can be found, and no line of either of said surveys can be identified by any tree marked when such surveys were made. If the upper and lower lines of the Phillip Miller survey be extended to the west bank of the Trinity river, they will reach the point claimed by appellants for the northeast corner of survey No. 9, and the common corner of Nos. 9 and 6; and, if the south line of said Miller survey be extended, it will reach the point on the west bank of Horseshoe Lake claimed by appellees to be such common corner. If the common line between Nos. 6 and 9 be extended west from the common corner of said surveys, as the same is claimed to be located by appellees, it will reach Horseshoe Lake at 1,078 varas, and will run in said lake for a distance of 1,725 varas, making the west bank of said lake 2,303 varas west of the west bank of the river. Horseshoe Lake was probably once the bed of Trinity river, and might now be mistaken for such by one who did not know that it was-not, as shown by the testimony of surveyors for appellants and for appellees.

Opinion.

1. As stated in the foregoing findings of fact, the location of surveys Nos. 6 and 9 cannot be determined by any marked trees for either corners or lines. Looking to the field notes of said surveys, we find that survey No. 9 is described as being in front of the league occupied by Phillip Miller. Its lower corner is the same as the upper corner of No. 6, which is described as being “adjoining in the middle of the river with the southwest corner of a league occupied by a colonist named Phillip Miller.” As both the Phillip Miller survey and the Martinez No. 9 were leagues that were required by law to be .of the same width fronting on the river, it would appear from this description that by the words “in front of the league occupied by Phillip Miller” would mean that the lines of the Phillip Miller, if extended across the river the distance called for in the field notes of No. 9, would trace the upper and lower lines of said survey No. 9. The above statement of facts assumes that these corners of the Phillip Miller survey are known. There is nothing in the record to indicate that there has ever been any dispute as to the location of such corners; the lines of said survey are plainly marked, and there is a fence on the south line of said survey. The original bearing trees of the Phillip Miller survey cannot now be found, but there can be no question as to its true location, from the fact that this survey called for the meanders of the river, and, as shown by the record, it fits such meanders as it is now located. Such is the variety in the natural course of streams that perhaps no other place on the Trinity river could be found which would answer to the description of the meanders given in the Phillip Miller field notes. Survey No. 9, if it be run from the corners of the Phillip Miller course and distance, as called for in its field notes, will be located as claimed by appellees. Appellants insist that the call for the Phillip Miller should be disregarded for the alleged reason that said survey was not made until 1835 two years after the Martinez surveys were located. They are not borne out in this contention by the record. There is, in the record a certified copy from the Land Office of the field notes of the Phillip Miller survey. Underneath these field notes is written “May 13th, 1835, S. O. Hirams.” There is no statement in connection with these field notes that they were made in 1835, nor when they were made; nor is there any explanation of what is meant by May 13, 1835, nor any statement nor explanation as to who S. G. Hirams was. It does not appear that he was the surveyor who made this survey. These field notes may have been filed in the Land Office by Hirams at that date, but the indorsement “May 13th, 1835, S. O. Hirams,” is not proof that these field notes were made by Hirams nor any one else at that date. On the other hand, there is strong evidence in the field notes of Nos. 6 and 9 that the Phillip Miller survey had been made prior to the making of these surveys, otherwise the surveyor making them could not have known that he was beginning survey No. 6 at the southwest corner of the Phillip Miller league, as he declares in said field notes that he did.

It is contended by appellees that the surveyor who located No. 9 did not begin on the bank of the Trinity river opposite the northwest corner of the Miller survey, for the reason that to so begin said survey, and run it west as called for in its field notes, it would cross the Trinity river twice, and no such call is made in said field notes. We think this can be accounted for by the fact that the surveyor who located said survey No. 9 never in fact ran the north line of said survey; and for reasons hereinafter set forth we think it probable that he never ran any of the lines o£ either survey No. 9 or No. 6. We think that the surveyor located upon the ground the northeast corner of No. 9, and the common corner between Nos. 9 and 6.

Appellees argue, as we think with much force, that neither the north line of No. 9 nor the south line of No. 6 were run by the surveyor who made such locations. We quote from appellees’ brief upon this point as follows: “It is perfectly clear in this case that.the surveyor who located the two Martinez leagues did not run all their lines. * * * The fact that he called for no bearing trees on the river at the southeast corner of No. 6, though he was in a heavily wooded country; the fact that in running it he would have passed through Gaylor’s Lake (it being a deep lake as wide as the Trinity river, about 85 varas wide and a mile and a half long) and did not call for it, the fact that he would have crossed a large creek seven times and did not call for it, and would have crossed a bayou four times and did not call for it, all these things clearly indicate that the south line of No. 6 was not actually run upon the ground.” Speaking of the north line of No. 9, appellees say: “It is clearly evident that the surveyor who made this location * * » called to run east (from the northwest corner of No. 9) without actually running the distance. * * * It is perfectly clear that if the south line of No. 9 ran to the river, as it now is, it was a longer line than the north line of No. 9, which would be in direct conflict with the field notes of No. 9, which makes the north line 10,088 varas and the south line 9,246 vrs.” This is upon the assumption that the north line of No. 9 running east from its northwest corner stops upon the west bank of the river where it first reaches the same. “As additional proof that the surveyor did not run the north line of No. '9, the court’s attention is called to the fact that in doing so he would have crossed one large creek and two lakes in running the •distance called for in the field notes, whereas he calls for no such creeks or lakes.”

2. It is the contention of appellees that the surveyor established the common corner •of Nos. 6 and 9 on the west bank of Horseshoe Lake, mistaking the same for the river, and that he ran thence west the distance called for in the field notes of No. 9; and thence north 2,500 varas, and returning to the southwest corner of No. 9, extended the line •of No. 6 west the remainder of the distance called for that line, and thence ran south 2,500 varas “the rest of the work being paper work.” With these contentions as to the failure to run the north line of No. 9 and the south line of No. 6 we agree. We also think that the common line between said surveys was never run for the following reasons: As above stated, beginning at said common •corner, opposite the southwest corner of the Philip Miller survey, and running thence -west as called for in the field notes of No. 6, Horseshoe Lake would have been entered at about half a mile, and the line would have run in sdid lake for about that distance, and Davis bayou would have been crossed three times. No mention is made of these objects in the field notes. Even assuming that the surveyor mistook Horseshoe Lake for the Trinity river, and began upon the west bank of said lake and ran west as called for in his field notes, still he would have crossed Davis bayou three times. His field notes did not call for this stream.

It has been frequently stated, and correctly so, that, in the absence of .proof to the contrary, the presumption will be indulged that the surveyor actually ran and established all of the lines and corners of the survey as called for in his field notes. This upon the general proposition that officers are presumed to have done their duty; but we know from experience that this presumption does not always hold true, and especially so as to surveyors actually running the lines and establishing the corners as called for in their field notes. Bacon v. State, 2 Tex. Civ. App. 708, 21 S. W. 152. Such a presumption is a very proper one to be indulged in the absence of evidence to the contrary, but it is to be indulged in the absence of evidence and not against it. The evidence against such presumption need not be positive. In many cases the circumstances are so strong as to entirely overcome such presumption, and we think such is the case in reference to these surveys, basing our conclusion upon the facts above stated. There is nothing in the record to rebut the presumption that the surveyor actually located upon the ground the northeast corner of No. 9 and the common corner of Nos. 9 and 6. If he did so, and did no other work on the ground, but constructed the other lines and corners of said survey by protraction, then the location of said surveys must be determined by the courses and distances called for in the field notes; there being no calls for the lines or corners of any other surveys and no calls for bearing trees which can now be found.

There is an additional reason for presuming that the surveyor did not run the north line of survey No. 9 in this: Accompanying his field notes is a sketch of No. 9 which shows that immediately below the northeast corner of said survey the river bends far to the east, as shown by the dotted lines on the sketch hereinabove set out, whereas in fact it bends far to the west. Had it bent to the east, as the surveyor supposed it did, his line running west would not have crossed the river as in fact it is found to do, which fact he would have discovered had he actually ran said line.

The meanders of the river on surveys Nos. 9 and 6 are not given, but the length of the upper and lower lines of No. 9 shows where the river should be with reference to the termini of said lines; that is, it shows that the river at the northeast corner of No. 9 is 842 varas east and 2,500 varas north of said riv>er at the southeast corner of said survey. 'The evidence in this case shows that these corners are so located with reference to each ■other. As said with reference to the meanders of the Phillip Miller survey, it would be difficult to find any other place on the Trinity river where the outgoing and returning lines ■of survey No. 9 would reach the river at the distances called for in the field notes of said survey. The relative location of the northeast and southeast corners of survey No. 9 ■could have been ascertained by beginning at the northwest corner of the Phillip Miller survey, and running thence south 2,500 varas to the south line of same, and thence west to the river.

3. As above stated, it is appellees’ contention that the surveyor who located the Martinez surveys made the common corner of said surveys upon the west bank of Horseshoe Lake, either for the reason that the same was at that time the channel of the Trinity river, or said surveyor mistook the same for said river. This presupposes that he did not find and identify the southeast corner of the Phillip Miller survey. If he did so, he would not have made said common corner on the west bank of Horseshoe Lake, even though, in fact, it may have been the Trinity river at that time, for in so doing he would not have located said common corner “adjoining in the middle of the river with the southwest corner of the league occupied by a colonist named Phillip Miller,” but would have located the same more than a mile west of said corner. If he did not find and identify the southwest corner of the Phillip Miller survey, the inquiry naturally arises: How did it happen that he located a corner on the west bank of Horseshoe Lake more than a mile distant and exactly west of said Phillip Miller corner, and on a continuation of said line to the west of the river? Again, the field notes of No. 9 show that its northeast corner is 842 varas east of its southeast corner. If the southeast corner of No. 9 be located upon the west bank of Horseshoe Lake, and it be run thence west 9,246 varas and north 2,500 varas, and thence east to the west bank of the river opposite the northwest corner of the Miller league, the northeast corner of No. 9 will be located 3,145 varas east of its southeast corner; and if said northwest corner of No. 9 be located upon the west bank of the river, where said line would first reach the river, it will still be east of its southeast corner 1,875 varas, instead of 842 varas, as called for in its field notes. These facts, together with the fact that if the southeast corner of No. 9 be located at the southwest corner of the Phillip Miller, and the northeast comer of No. 9 be located at the northwest corner of the Phillip Miller, said corners will occupy their correct relative positions as indicated in the field notes, are to our minds conclusive evidence that the surveyor did not begin upon the west bank of Horseshoe Lake. On the contrary, by the facts above set forth, we are convinced that the common corner of surveys Nos. 6 and 9 was not located upon the west bank of Horseshoe Lake, but that said corner was located on the west bank of the Trinity river, as it now runs, opposite the northwest and southwest corners of the Phillip Miller league.

4. Appellees contend that their theory as to the proper construction of surveys Nos. 6 and 9 is supported by the fact that the James Dowell survey calls to corner with the southwest corner of survey No. 6, and that the W. K. and W. L. Williamson surveys and the B. B. B. & C. R. R. survey calls to be located upon the south line of said survey No. 6, and that the I. & G. N. Railway surveys Nos. 38 and 39 and the Brown-rig survey, an abandoned survey which formerly covered the same ground now covered by I. & G. N. surveys Nos. 38 and 39, called for the west line of said surveys Nos. 9 and 6. Appellants objected to the introduction of the field notes of these surveys upon the ground that the lines and corners of the senior survey could not be established by the calls in the field notes of junior surveys. These objections shouldthave been sustained. The James Dowell survey was made in 1853, 20 years after surveys Nos. 6 and 9 were located. The B. B. B. and 0. Railway survey was located . in 1860; the Williamson surveys were located in 1895; the Brownrig survey was located in 1860; and the I. & G. N. surveys were located in 1875.

The field notes of surveys made at the same time by the same surveyor are admissible as part of the res gestae. “At the same time” does not mean on the same day, but that the work was continuous from day to day, and connected as a part of the series of surveys, though such work may have continued for many days, or even weeks and months.

But the field notes made by'a subsequent surveyor, wherein he calls for the lines or corners of prior surveys, amount to no more than a declaration by him that he found such lines or corners at the places indicated by his calls. Such declarations are hearsay, and cannot be put in evidence, unless it be shown, not only that the surveyor was acting in his official capacity, but that he is dead at the time such evidence is offered. The party against whom such evidence is offered ought to have the privilege of cross-examining the witness, and ascertaining from him how he found and located such lines or corners. The testimony of such surveyor may furnish very strong evidence that the lines and corners of the senior surveys are located as called for in his field notes. On the other hand, a cross-examination' may show that he located such lines and corners on a false theory, or upon mere-supposition or hearsay, and that his evidence is entitled to no weight as- to such location. As illustrative of this, let us suppose that the surveyor who located the Dow-ell survey 20 years after the Martinez surveys were made was upon the stand and a cross-examination should show that he located the southwest corner of survey No. 6 by beginning the same upon the west bank of Horseshoe Lake, and running course and distance west and south for the southwest corner of said survey No. 6. This would have brought him to about where he -located the corner of the Dowell survey, and called for the same to be the southwest corner of survey No. 6. But if it should be made to appear, and we think such is the fact, that the northeast corner of No. 6 is not on the west bank of Horseshoe Lake, then it will be seen that he called for the southwest corner of said survey No. 6 upon a mistake of fact as to the true location of said corner. We think that the fact that the other junior surveys called for surveys Nos. 6 and 9 to be located about as appellees contend they are is to be accounted for from the fact that these junior surveys tie onto the Dowell survey, and adopted the calls in said survey as to the location of the west line of surveys Nos. 6 and 9.

5. Appellees also contend that their theory as to the true locations of surveys Nos. 6 and 9 is supported by the calls in a deed from Jas. M. Lewis and wife to M. M. Bingham and Geo. W. Bradford for 1,000 acres of land, and from Bradford and wife to said Bing-ham for their interest in said tract. These deeds were made in 1875. The deed from Lewis and wife contains no intelligible description of any land. Its calls are as follows: “All that tract or parcel of land being situated in Liberty County, State of Texas, and out of a large grant of land made by the Mexican Government to Jose Dolores Martinez in the year 1833, and to be surveyed so as to commence at the north corner of league granted to William Hardin in said county [the number of the Martinez league is not given, and there is nothing in the record to show the location of said Hardin league] commencing at the north corner of said league, and running west on the outer or back line of said league 1,640 varas, more or less; thence east on the dividing line of said league 375 varas, more or less; thence south 1,640 varas, more or less; thence north 375 varas more or less to the place of beginning, to be surveyed out of the north corner as to contain 1,000 acres in a square or as near as possible, taking and keeping the outer or back line as the, base or main line of this tract of 1,000 acres as aforesaid.”

It will thus be seen that the survey begins at the north corner of a league location, unknown so far as this record shows, and runs west 1,640 varas and east back over the same line 375 varas; thence south 1,640 varas, and thence north over the same line 375 varas, describing the same as a square “as near as possible.” The deed from Bradford and wife describes the land conveyed as being a part of the Martinez league, surveyed by James Winter, county surveyor, on the 7th and 8th days of December, 1876. Beginning at the southwest corner of the upper Martinez league, and then describes a parallelogram, the north and south lines of which are 2,258 varas running east and west, and the east and west lines are 2,500 varas in length, running north 30 east and south 30 west. If the outer or west line of this tract conforms to the west line of survey No. 9, then said line runs south 30 west, instead of south, as called for in the field notes. How the surveyor arrived at the conclusion that this was the proper way to locate the west end of survey No. 9 we are at a loss to determine. Appellants objected to the introduction of this deed, and this objection should have been sustained for the reason that the calls in the field notes were hearsay, irrelevant, and immaterial to the issue in this case.

6. Appellants further contend that they have shown the location of the west lines of surveys Nos. 6 and 9 by general reputation from the testimony of Mr. Lum. The testimony of this witness as to reputation goes no further back than in the early 70’s and the lines and corners about which he testifies were evidently lines and corners of the 1,000-acre tract, the location of which, by reputation or otherwise, does not tend to establish the true location of surveys Nos. 6 and 9.

7. We will briefly restate our conclusions of law applicable to the facts of this case as embodied above in this opinion.

(1) In the absence of evidence to the contrary, it will be presumed that the surveyor actually made the survey on the ground as described in his field notes. Stafford v. King, 30 Tex. 269, 94 Am. Dec. 304; Gerald v. Freeman, 68 Tex. 204, 4 S. W. 257; Phillips v. Ayres, 45 Tex. 605.

(2) That the surveyor did not make an actual survey on the ground, in whole or in part, may be shown by circumstantial evidence. Jones v. Burgett, 46 Tex. 292; Phillips v. Ayres, supra.

(3) The evidence in this case is not sufficient to show that the surveyor who located the Martinez surveys did not find the northwest and southwest corners of the Phillip Miller survey and establish the northeast corner of No. 9 and the common corner of Nos. 9 and 6 with reference to said Miller corners, as stated in his field notes.

(4) The circumstantial evidence in this case is very strong that none of the lines of the Martinez surveys were actually run upon the ground.

(5) If said surveys were not actually run upon the ground, then there is no call in their field notes by which they can be located, except the calls for courses and distances from their corners on the west bank of the river.

(6) If said surveys were actually made upon the ground to the extent of making the northwest and southwest corners of said surveys, then inasmuch as the objects called for in the field notes to identify said corners cannot now be found, and there is no one who pretends to know where such corners were actually made, there is no evidence in the record, except course and distance from their river front corners, by which said surveys can be located.

(7) The field notes of surveys made from 20 to 58 years after the Martinez surveys were located by surveyors who are not shown to have had any knowledge as to location of the lines or corners of said Martinez surveys are not admissible for the purpose of showing by their calls for said Martinez surveys the location of the lines and corners of same. Mill Co. v. Lumber Co., 96 S. W. 68; Goodson v. Fitzgerald, 40 Tex. Civ. App. 619, 90 S. W. 901.

(8) Reputation as to the location of the lines and corners of the Martinez surveys beginning some 40 years after said surveys were located, and which appears to have originated from a survey made by a surveyor who is not shown to have had any knowledge as to the location of said surveys, is not admissible.

(9) If the field notes of the prior surveys above referred to had been admissible in evidence, they are' not of sufficient weight to overcome the presumption that the surveyor who located the Martinez surveys made the corners of same on the west bank of the river adjoining the Phillip Miller survey, as stated in his field notes, and either actually surveyed the lines or projected them from said corners the courses and distances called for in his field notes.

8. The trial court correctly held that it had jurisdiction of this cause. The land in controversy was sold .by the state for $2,009.50; and, should it have been held that said land was" included within prior surveys, the school fund would have been loser to that amount. Besides this, title to the land is still in the school fund, and will continue to be until the full purchase price is paid, and the patents issued, for which reason the state is interested in the result of this suit, and it was properly brought in Travis county. Section 8, Acts of 1900, p. 29, article 5468, Rev. Stat. 1911.

Believing, for the reasons hereinbefore given that the trial court erred in rendering judgment for appellees, the judgment of said court is here reversed and judgment is rendered for the appellants, and the lines and corners of the Jose Martinez survey No. 6 are here established as follows: Beginning at a point on the west bank of the Trinity river opposite the Phillip Miller league; thence west 10,609 varas; thence south-2,500 varas; thence east to the west bank of the Trinity river; thence up said river with its meanders to the place of beginning. And the lines and corners of the Jose Martinez survey No. 9 are here established as follows: Beginning at a point on the west bank of the Trinity river opposite the northwest corner of the Phillip Miller league, thence west 10,088 varas; thence south 2,500 varas to the north line of survey No. 6; thence east. 9,246 varas to the northeast corner of said survey No. 6 on the west bank of the Trinity river; thence up said river with its meanders to the place of beginning.

Reversed and rendered.

On Motion for Rehearing.

The field notes of the Martinez survey No. 6 call to begin at the southeast corner of a league “occupied by a colonist named Phillip Miller.” -It is a reasonable presumption, in the absence of evidence to the contrary, that his official survey, whenever made, ran to this corner; hence it is immaterial whether the official field notes of the Miller league copied in the statement of facts herein were made before or after the Martinez surveys were located. In the original brief herein the location of the Miller corners was not called in question by either side. Assuming that these corners were identified, there being no better evidence as to the location of the Martinez surveys, the proper method of locating them would be to protract the north and south lines of the Miller, survey to points on the opposite bank of the river for the upper corner of No. 9, and the common corners of Nos. 9 and 6, and from such corners run out said surveys, courses, and distances as called for in their field notes, and we so held in the original opinion herein.

On the original submission of this ease, our attention was not called to any evidence which we thought was sufficient to rebut this theory. On the contrary, it was strongly supported by a map filed by plaintiffs in error, as a part of their argument, the correctness of which was not then questioned by defendants in error, and which was adopted by us, as appears from our findings of fact herein. This map showed the river at the northwest corner of the Miller survey to run south, so that an extension of the north line of the Miller survey would place the northeast corner of No. 9 immediately across the river from the northwest corner of said Miller. On the supposition that the north line of said survey No. 9 was not actually run, as both parties to this suit assert, and as we believe to be true, it is immaterial that the extension of said line west would cross the river. The only effect of this would be that said survey No. 9 would lose the land included within its boundaries lying east of the river.

The map above referred to further showed that the Trinity river was platted thereon from the 20 meander calls of the Miller survey, and that the river was so found on the ground. On motion for rehearing, defendants in error show by a plat of the calls for the meanders of the river in the Miller field notes, that said map is not correct, and counsel for plaintiffs in error admit this to be true. Eor reasons not necessary to state, the mistake in said map does not reflect upon the integrity of the attorneys for plaintiffs in error, and counsel for defendant in error do not charge that it does, but the fact remains that we were misled thereby. The calls for the meanders in the Miller field notes show that, instead of said river running south at the northwest corner of the Miller survey, it runs nearly west and then turns north, west, and south, so that an extension of the north line of the Miller west from its northwest corner would not cross the river .until it reached the point designated on said map as “N. E. Corner No. 9, as defendants contend.” Prom this it will be seen that to locate said survey No. 9 “in front of the Miller survey,” as called for in its field notes — that is, to place it exactly opposite the Miller survey so that its north line will be an extension of the north line of the Miller — its northwest corner would be as claimed by defendants in error. There is, however, no satisfactory evidence as to the location of either corner of the Martinez No. 6. Instead of the southwest corner of the Miller being as indicated on said map, its calls for the meanders of the river would place it 981 varas further west, which would be near the east bank of the Horseshoe Lake.

We have reached the conclusion that we were in error in holding that the district court of Travis county had jurisdiction to try this case. If venue was properly laid in Travis county, it was by virtue of Acts 1900, p. 29, the eighth section of which appears in the Revised Statutes of 1911 as article 5468. Said article authorizes the Attorney General to bring suit when the state or school fund has an interest in the land, and we held that, inasmuch as the state had sold this land upon a credit, the school fund had an interest therein. Upon further consideration, we are of the opinion that the “interest” mentioned in said article must be such interest as would entitle the state to recover the land. A subsequent portion of said article says that the Attorney General shall bring suit “therefor,” which we construe to mean for the land. The state having sold the land in controversy, and said sale being in good standing, it was not authorized to recover the land. The fact that the land had not been paid for would not give it such right. Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; Carey v. Starr, 93 Tex. 514, 56 S. W. 324.

If said article admits of a different construction, the title of the act should be looked to in aid of its construction. Mining Co. v. South Carolina, 144 U. S. 550, 12 Sup. Ct. 689, 36 L. Ed. 537. Reference to the title of said act discloses the fact that the only mention of bringing suits in said caption is in the following language: “And providing for suit in Travis county against any person claiming any of the lands belonging to the-school fund or any other funds.” The lands-in controversy do not belong to the school fund, nor to any other fund. The purpose of said act, as thus expressed in its caption,, confirms the construction that the Attorney General is authorized to bring suit in Travis: county only in such cases as the state is. authorized to recover the land.

Por the reasons above set out, we are of' the opinion that this ease should be reversed with instructions to the district court of Travis county to transfer the same to Liberty county, and it is so ordered.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    FIRST STATE BANK OF SEMINOLE v. SHANNON.
    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1913.
    Rehearing Denied June 7, 1913.)
    1. Banks and Banking (§ 119) — Geneeal and Special Deposits — Relation oe Bank to Depositors — '“Debtor and Creditor”— “Debt.”
    A bank deposit of money is a “debt” owing by the bank to the depositor. When a general deposit is made, it is not contemplated that the identical money shall be returned, but-the relation of “debtor and creditor” arises on-, an implied contract between the parties, whether the deposit is general or specific; the only difference being that the money specially deposited cannot be used for a purpose other-than that for which the bank holds it, and if' such purpose fails the bank is liable .to a depositor for a return of the funds.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 289-292; Dec. Dig. § 119.

    Por other definitions, see Words and Phrases, vol. 2, pp. 1864r-1886, 1891-1893; vol. 8. p. 7628-.]
    2. Banks and Banking (§ 126) — Deposits —Drafts.
    Where plaintiff sent his draft to defendant bank to pay for bank stock which was not issued, and the draft, after collection, was deposited in the name of its president as trustee, the bank by so doing acknowledged its indebtedness to plaintiff, and the proceeds became a credit in favor of plaintiff, subject to check as a general deposit; the fact that the conduct of the bank was also tortious not defeating plaintiff’s right of action upon the implied contract to pay, and the fact that the fund appeared in the name of the president as trustee not changing the bank’s contractual relation or lessening its obligation to pay on demand.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 305, 309; Dec. Dig. § 126.]
    3. Banks and Banking (§ 129) — Deposits —Title to Money Deposited.
    Money, when deposited in a bank, becomes the property of the bank.
    [Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. §§ 312-315, 326, 388; Dec. Dig. § 129.]

      4. Limitation of Actions (§, 66) — Demand and Notice.
    Where the relation of debtor and credit- or existed between defendant bank and plaintiff by reason of plaintiff’s general deposit, plaintiff had no cause of action upon the bank’s implied contract to repay until after demand for the debt or notification from the bank that his claim would not be paid; and hence the statute of limitations did not begin to run until such demand or notice.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 358-375; Dee. Dig. § 66.]
    5. Limitation of Actions (§ 95) — Deposi-to»’s Action fob Conversion — Notice of . Conditions.
    In an action for the amount of a draft sent to defendant bank and by it indorsed, collected, and allowed to remain in the name of its president as trustee, who thereafter cheeked out the entire amount to his own use, which fact was purposely concealed from plaintiff by the bank, treated as an action for conversion, the statute did not begin to run until he learned the condition of the fund.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 337, 473, 474; Dec. Dig. § 95.]
    6. Banks and Banking (§ 154) — Action by Depositor — Sufficiency of Evidence — Banks — Knowledge of Purpose of Bank.
    Evidence, in an action against a bank to recover the amount of a deposit, held sufficient to sustain a finding that the bank’s officers knew or should have known the purpose for which the amount collected on plaintiff’s draft was received by the bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518-533; Dee. Dig. § 154.]
    7. Banks and Banking (§ 116) — Officers and Agents — Liability for Wrongful Acts.
    Where defendant bank received plaintiff’s draft for <¡>5,000 and collected it, leaving the amount as a deposit in another bank in the name of its president, as trustee, its cashier and president were engaged in the bank’s business, within the apparent scope of their authority, and their knowledge that the draft was intended by the sender as payment for stock in the bank was imputable to the bank, and the president, created a trustee by the bank, was trustee for it, and his acts and conduct were its acts and conduct; and the fact that he afterwards misappropriated the funds did not relieve the bank from liability, since there was a privity between plaintiff and the bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §,§ 282-287; Dee. Dig. 116.]
    Appeal from District Court, Gaines County; S. J. Isaacs, Judge.
    Action by J. M. Shannon against the First State Bank of Seminole. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. H. Kirby, of Abilene, F. E. Shell and D. J. Thomas, both of Séminole, and Theodore Mack, of Ft. Worth, for appellant. C. E. Dubois, of San Angelo, and Chas. E. Davidson, of Ozona, for appellee.

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

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

   HUFF, C. J.

The appellee, Shannon, brought suit in the district court of Gaines county against the appellant, the First State Bank of Seminole, Tex., for $5,000. The ease was tried before the court without a jury, and judgment was rendered for appel-lee against appellant for the amount sued for, with interest thereon from the 5th day of July, 1910, at the rate of 6 per cent, per annum. As part of our findings of fact, we adopt the court’s findings of fact, as follows:

“From the evidence given in the above styled and numbered cause, I find:

“(1) On or about the 8th day of November, 1909, the First State Bank of Seminole, Texas, was a banking corporation, organized under the laws of the state of Texas, and doing a banking business in the town of Seminole, Texas, at which time Ed Ramsey was its president, H. B. Ramsey was its cashier, and L. L. Cobb was its active vice president; all of said officers named being active in the discharge of their duties in said banking business.
“(2) On said date the plaintiff in this cause purchased from the First National Bank of San Angelo, Texas, a draft for the sum of five thousand dollars on the American National Bank of Ft. Worth, Texas, making the said draft payable to the First State Bank of Seminole, Texas, and sent same to the First State Bank of Seminole, Texas, addressed to Ed Ramsey, or to E’d Ramsey, president.
“(3) The purpose for which the plaintiff sent said draft for five thousand dollars to the defendant was to purchase fifty shares of capital stock in the defendant bank; Ed Ramsey, its president, having represented to the plaintiff that the capital stock of said bank would be increased.
“(4) The draft, aforesaid, was received by the defendant, the First State Bank of Seminole, by it indorsed, and through regular banking channels was collected by the defendant and placed to its credit in the First National Bank of Ft. Worth.
“(5) The proceeds of said draft were made a special deposit in the First State Bank of Seminole, in the name of Ed Ramsey, trustee.
“(6) Immediately after making such deposit Ed Ramsey wrote plaintiff a letter, which letter plaintiff received, advising him of the receipt of the five thousand dollar draft, and advising him that same was placed to the credit of Ed Ramsey, trustee, and further advising' him that ‘as soon as the boys can get ready and get together I will mail your bank stock for that amount.’
“(7) At the time of receiving the five thousand dollar draft the officers of the defendant, to wit, its president, cashier, and active vice president, knew, or should have known, in the performance of their duties as such officers, the purposes for which the five thousand dollar draft was received by the defendant bank.
“(8) Within a few days after the receipt of the five thousand dollar draft by the defendant bank, Ed Ramsey began cheeking on said account, and within fifty days from the date of the receipt of same had checked out of the bank the entire deposit of five thousand dollars for his own use and' benefit.
“(9) The plaintiff made no demand for the return of the five thousand dollars prior to the 28th day of June, 1910, at which time he made demand on the First State Bank of Seminole for five thousand dollars, which demand was refused, and afterwards he drew a draft on the defendant bank for five thousand dollars, which draft the defendant bank refused to pay.
“(10) At tile time the plaintiff remitted to the defendant the sum of five thousand dollars, to wit, November 8, 1909, nor before that time, had the defendant bank done any of the things required by law preliminary to increasing its capital stock.
“(11) At no time after the receipt of the five thousand dollars by the defendant bank did the plaintiff authorize said bank to turn said five thousand dollars over to Ed Ramsey; nor did he authorize Ed Ramsey to use same for his own use and benefit; nor is there any competent evidence showing that the plaintiff ratified the use of same by the said Ed Ramsey.
“(12) The said Ed Ramsey, in soliciting plaintiff for a subscription to an increase of the capital stock of defendant, was acting without authority of the board of directors of said bank, and without knowledge of the board of directors of the defendant bank.
“(13) Plaintiff did not know that Ed Ramsey had checked out the five thousand dollars until after June 28, 1910, when he made demand on the defendant for the return of the five thousand dollars.”

Conclusions of Law.

“The draft received by the defendant bank, being payable to its order, could only be collected by being indorsed by defendant. It thereby came in possession of the five thousand dollars with knowledge of plaintiff’s intention in remitting it, and became indebted to plaintiff in that amount. Plaintiff is therefore entitled to recover said amount, with interest thereon from the date demand was made for saíne.”

In addition to the above, the following letters were introduced in evidence:

Letter from Ed Ramsey to appellee, dated October 20, 1909:

“I returned last night from Fort Worth, where I have been with a consignment of cattle, and found your letter awaiting me. In regard to the stock in our bank I will say that we are about ready to take it all up now. A good many have sent in their money and have it here ready, while others are waiting to market some cattle stuff. I would suggest that you send a draft for $5,000.00 on Fort Worth and there would be no exchange. By doing this there would be no delay when the others get ready, and we will at once forward you your stock.”

Letter from Ed Ramsey, dated at Seminole, Tex., November 12, 1909, to appellee at Ozona, Tex.:

“J. M. Shannon, E'sqr., Ozona, Texas— Dear Mr. Shannon: I received your letter written at San Angelo, with draft on American National Bank of Fort Worth, for $5,-000.00, which was placed to the credit of Ed Ramsey, trustee, and just as soon as the boys get ready and get together, I will mail your bank stock for that amount.”

The customers’ draft, remitting to the bank the $5,000, with the indorsement thereon, is as follows:

“Customers’ Draft. No. 40654.
“The First National Bank.
“San Angelo, Texas, Nov. 8, 1909.
“- Pay to the order of First State Bank of Seminole, Texas, $5000.00 five thousand dollars, value received, and charge to account of
“Not over five thousand $5,000$
“C. H. Powell, Cashier.
“American National Bank, Ft. Worth, Texas.”

Stamped twice on face: “Paid, American National Bank, Fort Worth, Texas, Nov. 15, 1009.”

Written across face in red ink three times: “Copy.”

Written on back: “Pay to the order of any bank or banker. (All prior indorsements guaranteed.) The First State Bank, Seminole, Texas, H. B. Ramsey, Cashier. Paid Nov. 15, 1909, First National Bank, Fort Worth Clearing House.”

This draft was sent to the First National Bank of Ft. Worth by appellant for collection, which was collected by that bank and the amount placed to the credit of appellant, the First State Bank of Seminole, Tex. The First National Bank of Ft. Worth was appellant’s correspondent at Ft. Worth at the time of the collection. Ed Ramsey was the president of appellant bank at the time* this money was deposited in the bank. Previous thereto Ramsey had represented to appellee, Shannon, that the bank would increase its capital stock about $25,000, and induced appellee to subscribe for 50 shares of the stock, represented at the value of $100 per share, and upon receipt of the letter above set out forwarded to appellant bank the customers’ draft above set out, and afterwards received a letter, notifying him that the stock would be issued, but that the money had been deposited in Ramsey’s name as trustee. He did not authorize Ramsey to draw out the money and to apply it on his (Ramsey’s) debts, or for any other purpose, and had no knowledge that he had done so until some time in June. He demanded from appellant, in June, 1910, payment of the §5,000 so deposited, which it refused to ' do, and thereupon brought suit, which was filed February 6, 1912.

H. B. Ramsey, the son of Ed Ramsey, was cashier of the bank at the time of the transaction in question. The appellee lived in Crocket county, more than 100 miles from Seminole, at the time he forwarded the money and up to the bringing of this suit.

H. B. Ramsey, cashier o.f the bank, testified that: “The First State Bank of Seminole collected the draft in controversy in this suit, indorsed it, and deposited it to the credit of Ed Ramsey, trustee. Ed Ramsey, trustee, checked out the proceeds of said draft. That is all there is to it. Ed Ramsey was president of the bank and L. L. Cobb vice president of the bank when the check was paid; that is, when the proceeds about which I have testified were withdrawn from the bank by my father.”

The appellant urged in the court below the two-year statute of limitation, and in this court, by assignment, complains of the action of the court, in refusing to sustain his plea of two-year statute of limitation, because it is urged the facts show that appellee’s cause was barred by the two-year statute of limitation. As we understand the contention, appellant asserts that if the bank placed the $5,000 to the credit of Ed Ramsey, as trustee, that such act was a conversion of the money, or, if not, then when checked out by Ramsey, and that appellee’s cause of action then accrued. This deposit was made about November 15, 1909. The suit was instituted February 6, 1912. It is well recognized that a bank deposit is a debt owipg by the bank to the depositor. Van Winkle Gin Co. v. Citizens’ Bank, 89 Tex. 153, 33 S. W. 862; Baker v. Kennedy, 53 Tex. 200. When a general deposit is made, it is not contemplated that the identical money shall be returned; but the relation of debtor and creditor arises between the parties. Templeman v. Hutchings, 24 Tex. Civ. App. 1, 57 S. W. 868; Hoskins v. Velasco National Bank, 48 Tex. Civ. App. 246, 107 S. W. 598. Whether the deposit is a general one or for a specific purpose, as our courts sometimes say a special deposit, we do not understand that the relation of debtor and creditor is changed. The only difference is that the money so deposited cannot be used for a purpose other than that for which the bank holds it. There is no practical difference between such deposit and a general deposit, and it seems clear that the bank should be held to the same liability as for a general deposit. If the purpose for which this specific deposit was made fails, the bank is liable to the depositor for the return of the funds. Morse on Banks and Banking, §§ 207, 208, and 210; Ellis v. National Exchange Bank, 38 Tex. Civ. App. 619, 86 S. W. 776. If, in this case, the relation of debt- or and creditor is found to exist between appellant and appellee by reason of the deposit of the $5,000 with appellant, then the ap-pellee had no cause of action until demand was made for the debt, or notification from the bank that his claim would not be paid; and therefore the statute of limitations .did not begin to run until such demand or notification. Morse on Banks and Banking, § 322, D and E, and the entire section. Arnold v. Penn, 11 Tex. Civ. App. 325, 32 S. W. 353. The evidence clearly indicates the purpose of appellee in sending the draft was to pay for the bank stock. This was not issued, and the bank deposited the amount with .its funds in the name of Ed Ramsey, trustee. Having so deposited the funds, it made that sum a credit in favor of appellee and subject to check as a general deposit, Although appellant selected Ed Ramsey as trustee, it nevertheless recognized appellee as the beneficiary whose money was deposited, and which appellant had collected on his draft in its favor, and by so doing acknowledged that it was indebted to him in that sum. The bank devised that method of keeping the deposit, and the fact that it kept the money in the name of its president, as trustee, did not change the fact that it had appellee’s money on deposit and was due him that amount when the time came for the demand.

As stated above, a deposit with the bank created the relation of debtor and creditor. This arises as upon an implied contract. First National Bank v. Greenville National Bank, 84 Tex. 40, 19 S. W. 334; Baker v. Kennedy, 53 Tex. 200; Dunkin v. Magette, 25 Tex. 245. This deposit must be in money, and when so made implies the obligation to repay in money of equal value upon demand. Money, when so deposited, becomes the property of the bank. This is so well established that the citation of authorities is unnecessary. This being a suit for a debt due upon demand and upon an implied promise to pay, the fact that the conduct of the appellant bank was also wrongful or tortious, and that it may have so conducted itself with its president as to have given appellee a right of action for such wrongdoing, ought not, and we do not'believe will, defeat his right of action upon the implied contract to pay. If we are correct in our position, the statutes of limitation did not begin to run until demand and refusal to pay.. In sending the $5,000 to appellant by appellee, and appellant in placing that amount with its correspondent at Ft. Worth, thereby increasing its assets, created an obligation on appellant’s part to pay appellee the amount so received when called for. That obligation does not rest on the ground of conversion or tort, but on a simple contract to pay a debt. This will be true,, we think, whether Ed Ramsey was acting as the agent or trustee for appellant or appellee, or for both. The fact that the deposit appeared in his name as trustee did not change the contractual relation existing between appellant and appellee or lessen tbe appellant’s obligation to pay the same on demand. The case of El Paso National Bank v. Fuchs, 89 Tex. 197, 34 S. W. 206, cited by appellant, we do not think contrary to the general proposition stated by us. In that case Judge Brown held that the cause of action alleged against the president of the bank was one sounding in tort, and therefore an attachment against his property would not lie under our statutes. The case of Bank v. Bernard, 30 S. W. 580, was a suit for conversion of money, and not to recover on an implied contract to pay.

But if this should be treated as an action for conversion, the facts show that the appellee did not learn of such conversion until less than two years before the filing of the suit. The evidence is sufficient to show that the bank purposely concealed from him the true situation; that it knew, or should have known, for what purpose the money was sent to the bank — that is, to purchase bank stock which the bank knew it had not issued and did not intend to issue. It knew that the $5,000 had been appropriated to Ed Ramsey’s private use and debts, and that the appellee was the beneficiary of the same so deposited in its bank. The appellee lived more than 100 miles from Seminole, and had to depend largely upon what he could learn through the bank officials. We do not think the statute ought to begin to run until he learned the condition June 28,-1910, as found by the court. Oldham v. Medearis, 90 Tex. 506, 39 S. W. 919; Mortgage Co. v. Pace, 23 Tex. Civ. App. 222, 56 S. W. 377; Cooper v. Lee, 1 Tex. Civ. App. 9, 21 S. W. 998.

The appellant does not assign error upon the action of the court in overruling its special exception to the petition, to the effect that appellee’s cause of action is barred by the two-year statute of limitation. The court sustained other special exceptions of appellant, and his action thereon left for consideration only the question of appellant’s liability in receiving the $5,000 on deposit. The conclusions filed by the trial court evidence the fact that he considered the case upon that question only.

It is urged by appellant, in various assignments, that the court was not warranted in finding that the officers of the bank knew, or should have known, in the performance of their duties as such officers, the purpose for which the $5,000 draft was received by defendant bank. We think the facts sufficient to support the findings of the trial court.

It is also contended that Ed Ramsey was engaged in an independent fraudulent act, and that the bank would not be bound by such acts of Ramsey. As we understand, the learned trial judge so held, and only held the bank on the proposition that it received the draft, payable to its order, and collected it in the usual and customary way, and thereby came into possession-of the $5,000, which it deposited in its bank, and by such act became indebted to the appellee. We think this is a sound proposition. The court did not hold the bank for the false representations made by Ramsey in order to sell bank stock, but for receiving appellee’s money on deposit and refusing to pay the same upon demand. The bank, when it received the draft, payable to its order, indorsed it by its cashier, collected the money, and placed the same in the vaults as an asset of the bank, and thereby it became liable to appellee for the amount so held. In receiving the money, payable to a bank, and placing the same on deposit, the cashier and president of a bank are certainly engaged in the business of the bank, their principal, and were, in so receiving the money, acting within the apparent scope of their authority; and the knowledge of the officers of the purpose of the sender of the money and of having it deposited must be imputed to the bank. The knowledge so obtained was acquired while in the transaction of the business of the principal, the bank. This draft was not payable to Ramsey, but it was payable to the bank. The bank was made the agency for holding this money by appellee, and not Ramsey. The bank, after securing the money, created Ramsey a trustee. In doing so we think it should be held that he was trustee for the bank, or its agent, and that his acts and conduct were the acts and conduct of the bank. The mere fact that he notified appellee how the money was deposited and held did not make Ramsey the agent of appellee. When the deposit was made, the money became that of the bank, with an implied contract to pay its value upon demand. In the reception of the draft and in the deposit thereof the cashier and president were acting in behalf of the bank and within the apparent scope of their authority, and the fact that they afterwards wrongfully appropriated the funds cannot relieve the bank from liability. City National Bank v. Martin, 70 Tex. 643, 8 S. W. 507, 8 Am. St. Rep. 632; Bank v. Greenville Cotton Oil Co., 24 Tex. Civ. App. 645, 60 S. W. 828; Smith v. Bank, 1 Tex. Civ. App. 115, 20 S. W. 1119. The bank, having held out to the public that its officers were honest and worthy of trust, ought to suffer for their defalcation, rather than the person induced to deposit with it. We think a sound public policy dictates such a rule. It was said by the Supreme Court in the case of Merchants’ Bank v. Bank, 77 U. S. (10 Wall.) 604, 19 L. Ed. 1008: “Where a party deals with the corporation in good faith, the transaction is not ultra vires, and he is unaware of any defect of authority or other irregularity on the part of those acting for the corporation, and there is nothing to excite suspicion of such defect or irregularity, the corporation is bound by the contract, although such defect or irregularity in fact exists. If the contract can be valid under any circumstances, an innocent party in such a case has a right to presume their existence, and the corporation is estopped to deny them. * * * The principle has become axiomatic in the law of corporations, and by no tribunal has it been applied with more firmness and vigor than by this court. * * * Corporations are liable for the acts of their servants, while engaged in the business of their employment, in the same manner and to the same extent that individuals are liable under like circumstances. * * * Those who created the trust, appointed the trustee, and clothed him with the powers that enabled him to mislead, if there were any misleading, ought to suffer rather than the other party.”

We do not think the facts in this case fall under the rule announced in the cases of Coleman v. Bank, 94 Tex. 605, 63 S. W. 867, 86 Am. St. Rep. 871, and Interstate National Bank v. Claxton, 97 Tex. 569, 80 S. W. 604, 65 L. R. A. 820, 104 Am. St. Rep. 885. Ramsey was not aeting for appellee in making the deposit. As stated heretofore, appellee did not trust him personally with the money, but sent it direet to the bank. The bank must have known the purpose of such draft; and when it chose to select its president in a fiduciary relation to that fund, and thereafter paid out the money on his obligation and on his own checks, it would be doing violence to common knowledge in the banking business to hold that it did not participate in the misapplication of the funds. In this case there existed a privity between the bank and appellee, and in passing the deposit to the account of Ed Ramsey the bank was guilty of participating with Ramsey in a fraudulent conversion of the money. Bank v. Jones, 18 Tex. 811.

We are of the opinion that the lower court correctly disposed of the case, and that the judgment should be affirmed. The case is therefore affirmed.


author: HALL, J.

text:
    WOOLLEY et al. v. CANYON EXCH. CO.
    (Court of Civil Appeals of Texas. Amarillo.
    May 24, 1913.
    Rehearing Denied June 14, 1913.)
    1. Pleading (§ 193) — General Demurrer.
    The petition, seeking to recover half the profits of a transaction, though praying that a defendant be ordered to convey to plaintiffs an interest in lands in another state, which the court has no jurisdiction to do, is not subject to general demurrer; there being an alternative prayer that, if the property had been converted, and it was inequitable to do so, plaintiffs have judgment against defendants in a certain sum, and also a prayer for all equitable relief.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437-443; Dee. Dig. § 193.]
    2. Pleading (§ 398) — 'Vabiance—Evidential Mattek.
    Mere evidential matters pleaded in the petition may be treated as surplusage, so that variance between such allegations and the proofs, by which defendants could not have been surprised, are immaterial.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 1338; Dee. Dig. § 398.]
    3. Joint Adventures (§ 5) — Profits—Evidence.
    The profits of a sale, half of which defendant agreed to pay plaintiff, may he shown by evidence of the value of land which constitute such profits, though it has not been sold.
    [Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. § 7; Dec. Dig. § 5.]
    4. Appeal and Error (§ 1033) — Harmless Error — Instructions.
    One may not complain of error in an instruction favorable to him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. §. 1033.]
    5. Trial (§ 203) — Necessity op Instructions — Nature op Issue.
    That there was an agreement to waive all commissions under the agreement sued on — agreement of defendants to divide with plaintiffs all commissions or profits on sale by defendant of M.’s land — and to look to M. for commissions, is not matter of affirmative defense, but admissible under a general denial, as regards right to a special charge thereon.
    [Ed. Note. — For other cases, see Trial, Cent, Dig. §§ 477-479; Dee. Dig. § 203.]
    6. Parties (§ 25) — Stakeholder—Joinder as Dependant.
    Where G. is only a stakeholder, and the question is whether defendant W. is entitled to all G. is holding, or whether plaintiff under his contract with W. is entitled to half of it, plaintiff may join both as defendants, and have judgment against both; garnishment not being necessary.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 31, 36-40; Dec. Dig. § 25.]
    Appeal from District Court, Randall County; J. N. Browning, Judge.
    Action by the Canyon Exchange Company, a partnership, against C. Y. Woolley and another. Judgment for plaintiff, defendants appeal.
    Reformed and affirmed.
    A. S. Rollins, of Amarillo, and Martin & Zimmerman, of Tulia, for appellants. J. C. Hunt, of Canyon, and B. Frank Buie, of Canyon, for appellee.

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

   HALL, J.

This suit was instituted by ap-pellees, a firm composed of J. E. Winkle-man, O. I. Smith, and H. H. Cassles, against C. V. Woolley and H. H. Gillham, substantially alleging that Woolley and plaintiffs were engaged in the real estate business in the city of Canyon, in Randall county, and that plaintiffs, acting through O. I. Smith, made a contract with appellant Woolley, whereby it was agreed that plaintiffs would procure for sale a certain half section of land known as the “Martin land,” and that they would have said land listed with them as agents, that Woolley would thereafter secure a purchaser for such half section, and that plaintiffs were to receive one-half of all the commissions or profits received by Wool-ley from his purchaser in the sale thereof. It is alleged that appellees did secure the listing of such land, and that one Franks was secured by Woolley as a purchaser, the said Franks agreeing with Martin, the owner thereof, to pay $35 per acre, payable $1,-000 in 30 days, the execution of a vendor’s lien note for $5,900, and as a remainder of the consideration would convey to the said Martin a certain 80 acres of land lying in Williamson county, Ill., which was to be taken in at a valuation of $4,300; that after this agreement the appellant Woolley in connection with H. H. Gillham, entered into an agreement to defraud appellees out of their interest in the profits, and induced the said Martin to make the deed to said land to Gillham, and that Gillham would convey the same to Franks, and that the $1,000 should be payable to the said Gillham; the note for the deferred payment should also be made payable to Gillham, and the 80 acres of land in Illinois should be conveyed to him; that all the profits arising from said sale should be contracted in Gillham’s name, and he should account to Woolley alone therefor and defeat plaintiffs of their rights. Judgment was prayed for in the sum of $1,970. The defendants each answered by general demurrer and general denial. The demurrers were overruled, and judgment resulted in favor of plaintiffs against both defendants, in the sum of $3,000.

Appellants filed separate briefs, which submit, with some exceptions, the same questions for consideration.

The appellant Woolley urges under his first assignment that according to the allegations in the petition the appellees were entitled to one-half of the property in Illinois received by Gillham, and since the district court of Randall county would have no jurisdiction to adjudicate a claim to land in another state, there should have been an instructed verdict against plaintiff. It is true that plaintiff’s’ petition prays that appellant Gillham be ordered to convey an interest in the Illinois land to appellees, but there is an alternative prayer that if the property had been converted, and it was inequitable to do so, then that plaintiffs have judgment against the said Woolley and Gillham jointly and severally for the sum of $1,970; there is also a prayer for all equitable relief. We think the court was correct in overruling the general demurrers filed by both parties.

By his second assignment the appellant Woolley insists that the court should have peremptorily instructed the jury to find for the defendants. The propositions submitted under this assignment are not germane to the matters contended for in the assignment itself, but since the same questions are raised in another portion of this brief, as well as in the brief of his codefendant Gill-ham, we will consider them here. The first contention is that, the appellees having failed to prove that a trade was made between Martin and Franks for the land in question, there was a fatal variance between the proof and the allegations, and the peremptory instruction should have been given. The fact which is alleged in the petition is that Martin’s land had been sold by Woolley to Franks for a profit of $12 per acre, and the further statements as to the terms of the sale, the amount to be paid in cash, notes, and lands are allegations merely of evidence, proof of which would tend to sustain the fact, and may be treated as surplusage. This suit was not based upon the contract in writing made between Gillham and Franks. Gillham is setting up no claim whatever to any part of the profits arising from the transaction, but by his evidence shows that he occupies merely the position-of a stakeholder. The statement of facts discloses that Gillham had sold the land to Martin, and there was due him something qver $3,000, evidenced by two vendor’s lien notes, executed by Martin, payable to him; that without the knowledge or consent of appellees, Wool-ley phoned Gillham to come into town, and by an arrangement between them the land was conveyed from Martin to Gillham, and from Gillham' to Franks, instead of being conveyed directly from Martin to Franks, ft is evident from the record that this indirect method of transferring the title was for the purpose of concealing from Martin the fact that $12 profit was being realized in the sale. It seems that plaintiff’s petition was framed without actual knowledge of the terms of this contract, and notice is given in the petition to the defendants to produce it upon the trial, and we must presume that it was produced in obedience to the notice.. Appellants could not have been surprised by its production in evidence, and the variance, if any, is therefore immaterial.

The second contention under this assignment is that under the testimony Woolley was not to receive any money until Gill-ham had first realized $1,400 out of the Illinois land, and it having been shown that the land had not yet been sold, appellee was not entitled to a verdict. This contention is fully answered by the evidence of Gillham himself. He admitted upon the stand that the land was worth $25 per acre, and that the profits arising from the transaction amounted to $600. This must be held to be a definite ascertainment of the amount due Woolley and appellees under the contract.

What we have said in disposing of the second assignment also disposes of appellant’s contention under his third assignment.

The fourth assignment attacks the the charge of the court. The fifth paragraph of the general charge in part is: “That you must further find from the evidence that the plaintiffs were the procuring cause in securing the Martin land for sale, and if you do not so find, you will return a verdict for the defendant.” If there was error in this charge, it is decidedly in favor of appellants. The question of procuring cause was only incidentally an issue in this case, as we view it, under the pleadings and evidence. Appellant Gillham did not deny that $600 profit had been realized from the transaction, and that it was due some one. The issues between appellant Woolley and appellees rest upon an express contract that one should procure the land for sale and the other should procure a purchaser, and there is sufficient evidence in the record to sustain the finding of the jury that both parties have fulfilled the obligation resting upon them under this agreement. Upon this issue the court charged the jury: “Before you can find for the plaintiffs under any aspect of this case, you must find and believe that the plaintiffs, through O. I. Smith, actually made an oral contract and agreement with defendant C. V. Woolley that he wbuld pay or allow them one-half of the proceeds of the sale of the Martin land to his purchaser, who afterwards proved to be George Franks,’’ etc. The further charge that the jury must find from the evidence that the plaintiffs were the procuring cause in securing the Martin land for sale was clearly in appellant’s favor, and, if error, was harmless.

What is here said also disposes of this appellant’s fifth assignment of error, complaining that the court refused to give special charge No. 1. It is further insisted under the fifth assignment of error that the court should have submitted to the jury the issue whether there was an agreement to waive all commissions under the first arrangement and look to Martin for all commissions. This proposition is not germane to the assignment, but is settled adversely to appellant’s contention in the case of Winn v. Gilmer, 81 Tex. 845, 16 S. W. 1058. No affirmative defense has been pleaded by either of the appellants. In the case above cited it is said: “During the trial the defendant Gilmer testified, over the objections of plaintiff’s counsel, that he proposed on one occasion to the plaintiff that if he, the plaintiff, would furnish a purchaser for the ranch of defendant and the other property for the sum of $42,500 or more, plaintiff could have all in excess of that sum for which the property sold as compensation for finding a purchaser, but that if the property sold for a less sum than $42,500 the plaintiff would receive nothing. The objection to this testimony was that the defendant had set up no such fact or facts in his answer. The objections were overruled, and the evidence admitted. This action of the court is assigned as error. Appellant’s proposition' under this assignment is that ‘A party defendant cannot avail himself of an affirmative matter of defense not alleged and set out in his pleading,’ ” and the court expressly holds that such testimony did not constitute an affirmative defense; that it was admissible under a general denial. While it is true that appellants were entitled to a special charge submitting any affirmative defense, they were not entitled to the special charge requested in this instance.

The seventh assignment has already been disposed of by what we have said in disposing of the second assignment.

The eighth and ninth assignments are without merit, and are overruled.

The appellant Gillham insists that no right of action has been shown against him, and the court erred in permitting a recovery against him to stand, for the reason that no writ of garnishment or other lien had been fixed by appellees upon the fund or property in his hand. If Wooley had instituted this suit against Gillham to recover the $600 admitted to be due, Gillham would have had the right to interplead the appellees and' settle the question of their right to the fund in his hands. Suit having been filed by appellees, we think it is clear they had the right, not only to sue Gillham as a stakeholder, but to make any and all claimants of the funds parties to such suit. We cannot assent to the proposition that a writ of garnishment was necessary. A portion of paragraph 3 of the general charge is as follows: “It would make no difference if the transfer of the land was made from Martin to Gill-ham and Gillham consigned the contract of sale to Franks, if the same was done for the purpose only of facilitating the trade, and if you so find, you will find for the plaintiffs against Woolley in the proportion and for the amount stated above.” A careful perusal of the entire paragraph from which this excerpt is taken convinces us that the charge is not subject to the criticism, but is a concise and fair representation of the ease from the appellee’s standpoint. The testimony showed without controversy that the transfer from Martin to Gillham and from Gillham to Franks was simply a matter of convenience, and to enable Gillham to protect himself in the amount due him from Martin. The further fact that the purpose of so consummating the sale was to conceal from . Martin the amount received is unimportant since Martin himself is not here complaining.

The fourth paragraph of the charge is: “You cannot find for the plaintiffs against defendant H. IL Gillham unless you find from the evidence that he has received more money on sale than was due him from Martin on the land, but if he received the full price by said Franks for the land, and he had notice of plaintiffs’ interest, if they had any, in the net profits, or the net amount over the sum of $23 per acre, then he is liable to plaintiffs for such amount as would equal one-half of such net profits, and it would be your duty to find such sum for plaintiffs against Gillham as you find from the evidence he is liable under this paragraph of the charge.” The evidence having shown that of the $600 admitted to be due as profits $400 of said amount had already been paid by Gillham to Woolley, the court should have limited the amount of appellee’s recovery against Gillham to the balance of $200 remaining in his hands and to that extent the judgment of the lower court will be reformed, which cures the error in this part of the charge.

As we have heretofore held, the fifth and sixth assignments are without merit, and are overruled.

Appellant reguested a special charge, to the effect that plaintiffs must recover, if at all, on the special contract alleged by them in their amended petition, and, unless the contract had been proved as alleged, to return a verdict for the defendants. As heretofore stated, the suit was not founded on this contract. We think the contract as alleged has been substantially supported by the evidence. The matters of evidence as set up in the petition were not reproduced from the witness stand, but the facts are fully sustained.

We have already disposed of the eighth, ninth, and tenth assignments of error by what we have heretofore said in disposing of this appellant’s first assignment.

Upon a review of the entire record, it is our. opinion that the judgment, below, as hereinbefore reformed, is the judgment which should have properly been rendered in the case, and because of some technical errors pointed out in the briefs, we are not willing to reverse and remand the cause.

The judgment, as reformed, is therefore affirmed.