text:
    HENDERSON v. DAVIS.
    (No. 1704.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 1, 1917.
    On Motion for Rehearing, Jan. 11, 1917.)
    1. CONTRACTS <&wkey;346(12) — Pleading—Proof.
    One cannot plead an express contract and recover upon proof of facts which show an implied contract, nor plead an express contract to pay a fixed sum or specified commodity and recover what the services were reasonably worth, where there has been only a breach in the stipulation of payment.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. § 1748; Dec. Dig. <&wkey;>346(12).]
    2. Wills &wkey;>68 — Contract to Devise — Pleading — Petition—Construction.
    In an action against the estate of a decedent, a petition alleging an express agreement by the decedent to devise to plaintiff 100 acres of land in consideration of personal services to be rendered by the plaintiff, and the rendering of such services by the plaintiff, with no alternative count, stated a suit upon an express contract.
    [Ed. Note. — For other cases, see Wills, Cent Dig. §§ 178-182; Dec. Dig. &wkey;68.]
    3. Wills <&wkey;63 — Contract to Make Bequest — Construction.
    Contracts to pay for services rendered by a testamentary bequest of money are subject to the same rules of construction as applicable to contracts generally.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 171; Dee. Dig. t&wkey;63.]
    4. Frauds, Statute of <&wkey;75 — Contract to Devise Land.
    The provision of the statute of frauds requiring contracts for the conveyance of real estate to be in writing includes contracts to devise land which to be enforceable must conform to all the legal requirements essential to a contract of conveyance inter vivos.
    [Ed, Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 132; Dec. Dig. t&wkey;> 75.]
    5. Frauds, Statute of <&wkey;137 — Contract to Devise Land — Part Performance — Services.
    The fact that plaintiff performed' personal services for the deceased is not such an execution or part performance as would take a contract to devise land in payment therefor out of the statute of frauds, since it amounts to no more than the payment of the purchase money.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 301-326; Dec. Dig. &wkey;137.]

      6. Wills <§=>68 — 'Contract to Devise Land —Breach—Damages.
    The measure of damages for the breach of a contract to devise land in payment for personal services is the same as for breach of contract to convey which ordinarily is the value of the land to which the contract related.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. @=68.]
    7. Wills @=68 — Contract to Devise — Pleading — Proof.
    In an action against the estate of a decedent, where the petition did not state whether an alleged contract to devise land in payment for personal services to be rendered was written or oral, plaintiff could prove a written contract.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. @=68.]
    8. Wills @=58(2) — Contracts to Devise Land — Evidence.
    In an action against the estate of a decedent, evidence held insufficient to establish an alleged express agreement on the part of decedent to devise land to plaintiff in consideration of personal services to be rendered during the lifetime of decedent.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 165; Dec. Dig. @=58(2).]
    9. Wills @=58(2) — Contracts to Devise Land — Evidence.
    Courts are disposed to require more satisfactory evidence to establish agreements to devise land in consideration of personal services than is usually accepted as sufficient proof of contracts generally.
    [Ed. Note. — For other eases, see Wills, Cent. Dig. § 165; Dec. Dig. @=58(2).]
    On Motion for Rehearing.
    10. Executors and Administrators @=221 (4) — Personal Services — Proof.
    In an action against the estate of decedent, evidence that personal services rendered by plaintiff during the lifetime of decedent were not rendered gratuitously, together with evidence of their value, would support a judgment for compensation for such services.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 903, 903½, 1872-1874, 1876; Dec. Dig. @=221(4).]
    11. Executors and Administrators @= 437(3) — Limitations—Actions Against Decedent’s Estate — Implied Contract for Personal Services.
    Where personal services are rendered during the lifetime of a decedent without express agreement of any kind, the bar of limitations would be determined by the law applicable to claims generally against the estates of deceased persons.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1744-1747, 1764; Dec. Dig. @=437(3).]
    12. Limitation of Actions @=46(5) — Accrual of Cause of Action — Contract to Pat for Services bt Will.
    Where personal services are rendered during the lifetime of a decedent under an express contract to pay for the services by will, without specifying what the compensation is to be, the bar of limitations does not begin until after the death of decedent.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 244; Dec. Dig. @= 46(5).]
    13. Witnesses @=159(9) — Transactions with a Decedent — Services.
    In an action against the estate of decedent on an alleged implied contract for personal services, plaintiff may testify as to what he did in the service of decedent when the latter was not present or a party to the transaction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 676; Dec. Dig. @=159(9).]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Jim Davis against John L. Henderson, administrator of the estate of James Eastridge, deceased. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Beard & Davidson, of Marshall, for appellant. Cary Abney and M. O’Banion, both of Marshall, for appellee.
   HODGES, J.

In this suit the appellee recovered a judgment in the court below against the appellant, as the administrator of the estate of James Eastridge, deceased. Omitting the formal introductory portions of the petition, it is as follows:

“The plaintiff alleges that the said James Eastridge on or about the 1st day of January, 1913, and at the time of his death, was seised and possessed of a valuable estate consisting of about 600 acres of land situated in Harrison county, Tex., certain live stock, and other personal property. Said Eastridge was on said 1st day of January, 1903, an old man in feeble health and unable to properly attend to bis business affairs and conduct his farm. Said Eastridge had never married, and had no near relatives or other persons to live with him or to assist him in his business; and, being all alone and in need of some one to care for him and assist him in the management of his affairs, said Eastridge on or about January 1, 1903, entered into an.agreement with plaintiff by the terms of which said Eastridge agreed and promised to devise to plaintiff 100 acres of said Eastridge’s land; and-in consideration, thereof plaintiff agreed to and did render cer-' tain personal services to said Eastridge, such services consisting of assisting said Eastridge in cultivating and managing his farm, caring for his live stock, marketing his crops, purchasing provisions, clothing, etc., for him, waiting on said Eastridge and caring for him when sick, and performing various and sundry acts necessary to the management of deceased’s farm and personal affairs.
“The plaintiff faithfully performed all of the acts and duties which be bad agreed to do and perform from the time he entered into said agreement until the death of said Eastridge, and said services were performed at the special instance and request of the said Eastridge in the reliance of said agreement and in reliance upon the acts and conduct of said Eastridge, which were sufficient to induce a person of ordinary prudence to believe, and plaintiff did believe, that said Eastridge would remunerate plaintiff therefor by a bequest in said Eastridge’s will. Plaintiff, so believing, did render said services in expectation of being remunerated therefor by a bequest from said Eastridge in plaintiff’s favor.
“Plaintiff avers that the reasonable value of said services was the sum of $2,000, and plaintiff has never been paid anything of value therefor, and said Eastridge, being unable to read and write, and being in feeble health, died suddenly and after having failed through inadvertence to execute the will as he had contracted to do and as he intended to do.
“Plaintiff prays judgment for said sum of $2,000, and he prays for general relief.”

According to the evidence introduced upon the trial, Eastridge was an eccentric old man, who lived practically alone. While he seemed to .possess the sense of hearing, he either could not or would not talk to any one. Notwithstanding his eccentricities and defects, he succeeded in accumulating considerable property, and at the time of his death owned a large body of land, together with some personal property and about $1,900 in cash. It appears that the appellee, a negro, was his nearest neighbor and most intimate associate.

As evidence of the agreement set out in the petition the appellee introduced three witnesses, who testified to conversations and statements made in the presence of East-ridge and to which he assented. One of these witnesses, Charlie Johnson, testified, in substance, that he was present on one occasion at the instance of the appellee; that “it was a habit of Eastridge not to talk any, but he expressed his assent by giving his hand, and when he did not assent he simply did nothing; that the appellee said to him (East-ridge) on that occasion: “Here is Charlie (referring to the witness). Are you willing to will me that 100 acres of land?” In response Eastridge extended his hand. Witness then says that he told the parties that the will should be written by some justice of the peace, notary public, or officer; that the appellee then suggested a white man; but that Eastridge did not extend his hand. Taylor, another witness, testified that he was present when the matter of making a will for the appellee was mentioned; that the appellee did the talking and asked Eastridge if he would will him that 100 acres of land; that Eastridge gave his ha'nd. This was accepted by the parties as an affirmative answer. Another witness testified to substantially the same facts.

The appellee testified, and was corroborated by other witnesses, that for several years prior to the death of Eastridge he had assisted Eastridge in the management of his business, had gone with him to market, waited on him when he was sick, and performed many other services about the premises for Eastridge. Testimony was also introduced showing the value of those services.

At the conclusion of the evidence the appellant requested a peremptory instruction in his favor, upon the ground that the testimony was insufficient to support a recovery. The refusal to give that charge is assigned as error. The sufficiency of the evidence depends upon the construction that should be given the appellee’s petition. If this is a suit upon an implied contract to pay the value of the services rendered, the evidence would probably be sufficient; but if it should be treated as a suit upon an express contract to devise land in payment for the services rendered, the plaintiff has failed to make out his case. There is no rule better settled than that one cannot plead an express contract and recover upon proof of facts which show only an implied contract. Neither can one plead an express contract to pay a fixed sum, or any specified commodity, and recover what the services were reasonably worth where there has been only a breach in the stipulation of payment. Gammage v. Alexander, 14 Tex. 414; Western Union Tel. Co. v. Smith, 88 Tex. 13, 28 S. W. 931, 30 S. W. 550; Morris v. Kasling, 79 Tex. 145, 15 S. W. 226, 11 L. R. A. 398; Townes on Pleading (2d Ed.) p. 427.

It is contended by the appellee that his petition should be construed as a suit upon an implied contract on the part of East-ridge to pay the appellee the reasonable value of the services rendered. We cannot ignore the plain terms of the petition itself. It is alleged in language that cannot be mistaken that on or about the 1st of January, 1903, the parties entered into an agreement by the terms of which Eastridge bound himself to devise to plaintiff 100 acres of land, and in consideration the plaintiff agreed to render certain personal services to Eastridge. It is further alleged with equal certainty that the plaintiff performed all of those services as he had agreed to do, and that he did so in reliance on the agreement, as well as upon the acts and conduct of Eastridge, and that he believed that Eastridge would compensate him by a bequest in his will. The reference to the bequest expected could, under the allegations, be no other than the 100 acres of land referred to elsewhere in the petition. The petition contains no alternative count. We must therefore regard this suit as one upon an express contract on the part of East-ridge to compensate the appellee by a devise of land for services rendered during the lifetime of the deceased.

Contracts to pay for services rendered by a testamentary bequest of money or other property are subject to the same rules of construction, and are to be tested by the same legal standard, applicable to contracts generally. 3 Elliott on Contracts, § 220, and the authorities referred to in the notes.

A contract to devise land is not materially different from one to convey land, and, to be enforceable, must conform to all the legal requirements essential to a contract of conveyance inter vivos. Wallace v. Long, 105 Ind. 522, 5 N. E. 666, 55 Am. Rep. 222. See, also, Elliott on Contracts, supra; 1 Underhill on Wills, § 288. Contracts for the conveyance of real estate under our statute must be in writing, and this includes all kinds of contracts which contemplate the passage of title to real estate or an interest therein. Sprague v. Haines, 68 Tex. 215, 4 S. W. 371.

The fact that the appellee performed the services is not such an execution or part performance as would take a contract to convey out of the statute of frauds. It amounts to no more than the payment of the purchase money, and it has been frequently held that this is not sufficient. Ward v. Stuart, 62 Tex. 333; Dixon v. McNeece, 152 S. W. 675.

The measure of damages for the breach of a contract to devise land is governed by the same rules which control the measure in breaches of contracts to convey. Ordinarily it is the value of the land to which the contract related. Burgess v. Burgess, 109 Pa. 312, 1 Atl. 167; Hudson v. Hudson, 87 Ga. 678, 13 S. E. 583, 27 Am. St. Rep. 270; 3 Elliott on Contracts, § 2220.

In his petition the appellee did not allege whether his contract with Eastridge was written or oral. It was therefore permissible for him to prove a written contract which corresponded to his averments. But he offered only parol evidence, and relied upon that which was wholly insufficient to sustain his averments. The courts have been disposed to require more satisfactory evidence to establish agreements of this character than is usually accepted as proof sufficient of contracts generally. The fact that one of the parties is dead, and the ease with which obligations upon his part may be shown, is regarded as a strong temptation, in some instances, to claim compensation for services where none was ever intended.

We think it unnecessary to pass upon the remaining assignments of error.

While holding that the court committed reversible error in not giving the peremptory instruction requested, we think the case nevertheless should be remanded; and it is accordingly so ordered.

On Motion for Rehearing.

In his motion for rehearing the ap-pellee asked for more specific rulings upon the sufficiency of the evidence. It is neither our purpose nor province to anticipate defenses that might be interposed to an amended original petition seeking a recovery upon an implied contract to pay the value of the services rendered by the appellee to East-ridge. We mean in this ease merely to hold that the evidence was insufficient to establish an express contract of any kind to reimburse the appellee for the services he had rendered. This, of course, does not mean that the appel-lee would not be entitled to reimbursement upon an implied agreement that he was to be paid the value of those services. Testimony sufficient to show that the services were not rendered gratuitously would, in connection with evidence of their value, support a judgment for such compensation. In applying the rules of law we must bear in mind the distinction between those eases where the parties had no express agreement of any kind and those where there was an express contract to pay for the services by will without specifying what the compensation was to be. In the former class of cases the bar of limitation would be determined by the law applicable to claims generally against the estates of deceased persons; while in the latter limitation would not begin to run till after the death of the party liable. Had the appel-lee in this suit established a contract on the part of Eastridge to compensate him for his services by some indefinite provision in his will, limitation clearly would not have commenced to run until the failure of Eastridge to comply with his agreement occurred.

In view of the probability of another trial, we deem it proper to say that the rule laid down by this court in Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. 451, should be followed in determining the admissibility of the testimony of the appellee. The rule as there announced is that he may testify as to what he did in the service of the decedent when the latter was not present or a party to the transaction.

We have carefully considered the questions raised in the motion, but feel that we should adhere to the original conclusions announced.

The motion is therefore overruled.
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source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ARRINGTON et al. v. JONES et al.
    (No. 1709.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 4, 1917.)
    1. Schools and School Disteicts <@=79— Powee to Employ and Pay Attokney.
    Yernon’s Sayles’ Ann. Civ. St. 1914, art. 2856, provides that all school districts provided for by special act of the Legislature are placed under the general laws relating to incorporated school districts. Article 2822 provides that the trustees of the school district may contract and be contracted with, sue or be sued, plead or be impleaded. Under articles 2823 and 2892, the trustees of a school district have the management and control of the public school of the district. No statute makes it the duty of the county or district attorney to represent the trustees in legal proceedings. Article 2772 provides for payment of local school funds for certain purposes and “for other purposes necessary in the conduct of the schools, to be determined by the board of trustees.” The Park independent school district of Bowie county was organized and created by act of the Legislature. Held, in a suit to restrain the trustees of that district from issuing and delivering and the treasurer of the district from paying, any check or warrant for legal services rendered in prosecuting a suit by the trustees to cancel a teacher’s contract, that although no express authority was given to trustees to employ an attorney for such purpose, such authority was implied, and also authority to pay such attorney reasonable compensation out of the special maintenance fund in the management of the trustees, as a necessary incident of the power to contract and sue and control the affairs of the school, and that the discretion of the trustees in this respect could not be restrained.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 188-191; Dec. Dig. <⅞=79.]
    2. Schools and School Disteicts <@=111— Payment of Attobney’s Fees.
    Whether or not such attorney’s fee should be paid in priority of the salaries of teachers under previously existing contracts with them was a matter that did not legnlly affect plaintiff taxpayers with a peculiar injury.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. <@=>111.]

      Appeal from District Court, Bowie County; H. P. O’Neal, Judge.
    Suit by Robert Arrington and others against W. Z. Jones and others. From judgment for defendants, plaintiffs appeal.
    Affirmed.
    The court sustained a general demurrer to the plaintiffs’ petition, and they appeal from the ruling in that respect. The Park independent school district of Bowie county, as alleged, “was organized and created by an act of the Twenty-Eighth Legislature of the state of Texas as a body politic, and is now in due and legal existence.” The purpose of the suit is to have-a writ of injunction issued, restraining the trustees of the Park independent school district from issuing and delivering, and the treasurer of said school district from paying, any check or warrant in payment of legal services rendered by Attorney J. S. Crumpton in prosecuting a suit in the district court of Bowie county, brought by the trustees of said school district against a teacher in the school to cancel her teaching contract for the year 1915-1916. The plaintiffs appear in the present suit as taxpayers and patrons of the school, claiming that the sum contracted to be paid by the said trustees to the attorney for his services were not just and legal charges against the funds of the said independent school district derived through a special maintenance tax in the district.
    Wheeler & Wheeler and Mahaffey, Kee-ney & Dalby, all of Texarkana, for appellants. L. H. Henry and J. S. Crumpton, both of Texarkana, for appellees.
   LEVY, J.

(after stating the facts as above). Article 2856, Vernon’s Sayles’ Statutes, provides that all school districts provided for by special act of the Legislature, as was here alleged, are placed under the general laws relating to incorporated school districts. It is provided that the trustees of the school district, as a body corporate, may contract and be contracted with, sue or be sued, plead or be impleaded, in any court of this state of competent jurisdiction. Article 2822, Vernon’s Sayles’ Statutes. And the trustees of the school district shall have the management and control of the public school of the district. Articles 2823 and 2892, Vernon’s Sayles’ Statutes. There is no authority expressly given to trustees to employ an attorney to bring a suit in behalf of trustees against a teacher to cancel a teaching contract. But having the power, as trustees have by the terms of the statute, to contract and to sue and be sued in the courts, the authority on the part of trustees to employ an attorney to institute and prosecute an action in their behalf would exist as a necessary incident of the powers to contract and to sue and to manage and control the affairs and interest of the public school. State v. Aven et al., 70 Ark. 291, 67 S. W. 752; 6 Thompson on Corp. (Ed. 1894) § 7361. For the statute does not make it the duty of the county or district attorney to represent the trustees in legal proceedings in which they are interested. Since the trustees have, as we think, the power to employ an attorney to represent them in legal proceedings respecting school affairs, the authority would exist to pay such attorney reasonable compensation out of the special maintenance school fund in the management and control of the trustees. Article 2772, Vernon’s Sayles’ Statutes. And; as the trustees, under the expressly conferred power of management and control, may determine the question of instituting legal proceedings respecting the school affairs, the plaintiffs may not restrain the judgment and discretion of the trustees in that respect. And whether or not the attorney’s fee should be paid in priority Of the salaries of teachers under previously existing contracts with them is a matter that does not legally affect plaintiffs with a peculiar injury.

It is believed that the court did not err in sustaining the demurrer, and that, the judgment of the court should be affirmed.
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author: LANE, J.

text:
    CITY OF HOUSTON v. RITCHIE.
    (No. 7269.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 7, 1916.
    On Motion for Rehearing, Jan. 18, 1917.)
    1. Feauds, Statute of @=*139(5) — Interest in Realty — Paeol Conteact^-Deed.
    While the owner of land, making a parol contract to convey it in consideration of care, nursing, etc., could not have been compelled to carry it out, but might defend under the statute of frauds; yet, where he executed and delivered a written deed to the promisee, no one could be heard to say that, as he could not have been compelled to execute and deliver the deed, it was void.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 340; Dec. Dig. @=*139(5).]
    2. Pleading @=*381(2) — Alteenative Count —Issues and Evidence.
    Where the third count of the petition showed on its fact that it was an alternative plea, the plaintiff was not confined to the allegations therein, but might make out a case by the proof of the allegations of the second count.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1253-1260; Dee. Dig. @=*381(2).]
    3. Deeds @**17(4) — Considebation—Suppoet and Maintenance.
    The furnishing of a home and the otherwise maintaining of the owner of land during his life is a sufficient consideration to support for a conveyance of such land.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §’33; Dec. Dig. @**17(4).]
    4. Vendos and Puechasee @**233 — Bona Fide Puechasee — Recoed—Notice.
    Where the owner of land agreed to convey it in consideration of board, nursing, etc., and did convey it shortly before his death, and where the grantee, who had fully performed her part of the contract, recorded her deed on May 21st before she had any notice of her grantor’s previously executed deed under which defendant claimed, defendant, having withheld its deed from April 15th to May 22d, by reason of its laches had no equity as against plaintiff’s title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 563-566; Dec. Dig. <§=>233.]
    5. Vendor and Purchaser <§=>235 — Bona Fide Purchaser — Extent of Right.
    Where the whole consideration of a deed was paid to the vendor by an innocent purchaser before she was apprised of the defendant’s claim under a previously executed, but unrecorded deed, the question of pro tanto protection was not in the case.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 567-569, 571-576; Dec. Dig. <§=>235.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by Cora B. Ritchie against the City of Houston. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. C. Hutcheson, Jr., of Houston, for appellant. H. E. Kahn and Jno. C. Williams, both of Houston, and V. M. Clark, of Galveston, for appellee.
   LANE, J.

This suit was originally brought by Cora B. Ritchie, plaintiff, against the city of Houston, in form of trespass to try title, claiming a certain tier of lots in said city of Houston, and known as block 2 in Jackson Hill addition to said city. Thereafter plaintiff filed an amended petition in which she pleaded in three counts: First, trespass to try title; second, specially setting out that on or about the 12th day of November, 1912, plaintiff made and entered into a contract with J. B. Chew substantially as follows: Said Chew was then in feeble and delicate health, and was in need of room, board, nursing, etc., and that he then agreed, in consideration of such room, board, care, etc., to be thereafter furnished by plaintiff, to convey to her the property. That, in consideration of said contract and agreement, plaintiff furnished Chew the room, board, and nursing until the time of his death, which occurred on May 19, 1913. That he needed and required constant care and attention, which plaintiff gave him. That on the 12th day of May, 1913, pursuant to said contract and agreement, said Chew delivered to plaintiff his general warranty deed, by which he conveyed to her the lots in question. That on the 21st day of May plaintiff caused her deed to be recorded in the deed records of Harris county. That at the time of the registration of her deed, and at the time of the execution and delivery thereof, plaintiff was without any notice of any claim of. any person to the lot that the defendant claims title to by deed purporting to be executed by J. B. Chew to John Towles, of date April 15,1913, and deed from Towles and wife to defendant, dated April 15,1913. That said deeds were not filed for record until the 22d day of May, 1913, and plaintiff was without notice or knowledge of the existence of either of said deeds. Whereby plaintiff shows that as to the claim of defendant she became a purchaser for valuable consideration and without notice of the claims of either Towles or of defendant.

Plaintiff’s third count is, in substance, as follows:

“Plaintiff shows, if it should be considered that plaintiff cannot recover on the above pleas, that on the 12th day of May, 1913, the plaintiff was a creditor of Chew, in that she had, about the 12th of November, 1912, furnished Chew board, room, etc., and that the things done and furnished by her were done upon the promise of Chew, as above pleaded, that he would pay her therefor by conveying to her the lands hereinbefore described; that on the 12th day of May, 1913, said Chew agreed with plaintiff and stated to her that the services rendered by her and the care and attention and room and board so furnished to him by her were fully worth the value of said land and much more, and thereupon, in full satisfaction and discharge of said indebtedness due by said Chew to plaintiff, said Chew delivered to plaintiff the deed as aforesaid.”

The defendant filed answer pleading not guilty, and pleading specially that no present consideration was paid for the deed, but the consideration, if any there was for the deed, was a pre-existing debt. Defendant also pleaded that the agreement pleaded by plaintiff, by which it was claimed that Chew agreed to convey to her the land in consideration of the services rendered, was within the statute of frauds. Defendant also pleaded that it purchased and paid for the land, paying $1,000 therefor, without notice of any claim of any kind which plaintiff may have ever had on the property, and pleaded that it was an innocent purchaser for value.

The court, to whom the cause was submitted without a jury, having heard the evidence, entered judgment for the plaintiff, overruling all of the demurrers of the defendant and finding for the plaintiff the title and possession of the land sued for. The court thereafter filed his conclusions of law and fact, as follows:

“Findings of Fact.
“In the month of December, 1912, J. B. Chew, deceased, was in ill health, and required some person to furnish him room and board, and to care for him and nurse him in his illness.
“In that month he entered into a verbal contract with the plaintiff, Cora Ritchie, whereby Cora Ritchie agreed to take care of him, furnish him room and board, and to care for and nurse him in his sickness, in consideration of which the said J. B. Chew promised to convey by general warranty deed to plaintiff the property in controversy. In pursuance thereof, and in said month, the said Chew went to plaintiff’s house to reside and to receive from her the attention, care, board, and room contracted for as above stated, and from that time until the time of his death, which occurred May 19, 1913, the said Chew remained in plaintiff’s home, and the plaintiff, during all of said time, provided and furnished to Mm room and board, cared for and attended him on the occasions of Ms illness, gave him medicine when needed, and waited on him in accordance with her agreement. Said Ohew was addicted to the use of intoxicants, was an excessive drinker, and his ill health, referred to herein, was occasioned thereby.
“On the 12th day of May, 1913, said Ohew, in recognition and in performance of Ms promise and agreement with plaintiff, made in December, 1912, as above stated, did execute and deliver to her his general warranty deed conveying the property in controversy, and on the 21st day of May, 1913, the plaintiff caused such deed to be filed for record in the deed records of Harris county, in which the property was situated.
“On April 15, 1913, for a recited consideration of $500, said J. R. Ohew executed and delivered a general warranty deed to John Towles, purporting to convey to him the property in controversy, and on the same date the said John Towles conveyed by general warranty deed the property to defendant', in consideration of $1,-000, which was then paid by the defendant in cash to the said Towles.
“Neither the deed to Towles nor the city of Houston was placed of record in Harris county until the 22d day of May, 1913, when defendant caused both of said deeds to be placed of record in the Harris county record of deeds.
“At the time of the execution and delivery of the deed by the said J. B. Ohew to the plaintiff, he was sober and in Ms normal state of mind, and in possession of Ms mental faculties, and knew and understood the nature of the transaction in which the conveyance was being made, and was legally capacitated to make valid conveyance of said property, and while in such state of mind and so capacitated did make, execute, and deliver to the plaintiff the deed by which said property was conveyed to her.
“The plaintiff did not know that the said Ohew had made the conveyance to Towles until such conveyance was manifested by its registration on the 22d day of May, 1913, and had no notice thereof.
“I find that the defendant purchased the lot in controversy, paying a valuable consideration therefor, without knowledge or notice that J. B. Ohew had made, or was claimed to have made, any agreement with the plaintiff with reference to said lots.
“Conclusions of Law.
“The court finds that as a matter of law the plaintiff was a purchaser of said property for value, without notice of defendant’s deed or of the deed to Towles, either actual or constructive, and that she is therefore entitled to recover said property against the defendant.”

From this preliminary statement, and especially from the conclusions of law by the court, it is made entirely apparent that the sole ground upon which the plaintiff recovered is that stated in the conclusion of law of the court:

“The court finds that as a matter of law the plaintiff was a purchaser of said property for value, without notice of defendant’s deed or of the deed to Towles, either actual or constructive, and that she is therefore entitled to recover the property against the defendant.”

Defendant’s main contention is that plaintiff could not be an innocent purchaser for value, because she advanced nothing at the time of taking her deed, and that said deed was delivered to her upon such consideration that would not support the plea of innocent purchaser.

Appellant first insists that the trial court erred in not sustaining its general demurrer to plaintiff’s petition, and in hearing evidence in support of the alleged parol contract and agreement between J. B. Ohew and plaintiff for the sale and purchase of the lots involved in this suit, because it is shown by the petition that said contract and agreement was void under, and in violation of, the statute of frauds, in that said contract rested in parol.

Had J. B. Chew refused to voluntarily carry out his part of said parol contract, he could not have been compelled to do so by the courts, as he could have pleaded the statute of frauds in defense. But we do not think that it can be seriously contended that Ohew could not, if he chose so to do, execute and deliver a written deed to appellee, as he did do, conveying to her the land in question, or that the deed so executed and delivered is void by reason of the statute of frauds. Chew has acted, and by an instrument in writing has confirmed his parol agreement, and no one can now be heard to say that, as he could not have been compelled by law to execute and deliver the deed, the same is void. Appellant’s first contention is overruled.

Appellant again insists that the trial court erred in not sustaining its general demurrer to plaintiff’s petition, because it appears from the allegations therein that the consideration paid by plaintiff for the lots in question was wholly a past consideration, and therefore could not support her plea of bona fide innocent purchaser for value. Learned counsel for appellant, in making the above contention, must not be understood by us as contending that a consideration wholly paid for land upon a parol contract of sale and purchase, prior to the actual execution and delivery of the deed of conveyance by the vendor, would not support a plea of bona fide purchaser for value by the purchaser, as against the holder of an unrecorded deed conveying the same land to him by the common vendor, prior in date to the last deed, of which said prior unrecorded deed the last purchaser had no actual knowledge, although the language used might be so construed; but we do understand that his contention is that the consideration which passed from appellee, Mrs. Ritchie, to her vendor, J. B. Ohew, wholly passed to said vendor before the execution and delivery of the deed from said Ohew to Towles and before the execution and delivery of deed from Towles to appellant of date April 15, 1913, and that therefore such consideration paid by Mrs. Ritchie does not support her plea of bona fide innocent purchaser for value, as against appellant’s said deed.

This contention cannot be sustained. It is clearly and unmistakably alleged in the second count of appellee’s petition that both the deed from J. B. Ohew to John Towles and the deed from Towles to appellant were executed and delivered on the 15th day of April, 1913, and were not recorded until the 22d day of May, 1913, and that in consideration of the contract and agreement made between her and J. B. Chew on the 12th day of November, 1912, she furnished to said Chew a room in her house and boarded him, furnished him meals at all times desired by him, and nursed and cared for him continuously from said November 12, 1912, until the time of his death, which occurred on the 19th day of May, 1913, 34 days after the execution and delivery of the deeds of Towles and appellant, above mentioned. Wherefore it is apparent that counsel is mistaken in his statement that the petition alleges that the consideration passing from Mrs. Ritchie to J. B. Chew had wholly passed prior to the execution and delivery of the deeds from Chew to Towles and from Towles to appellant.

Counsel in making such contention ignores the allegations of the second count of appellee’s petition, and apparently bases his conclusions alone on the allegations of the third count, or alternative plea of appellee, wherein it is alleged in the alternative that the consideration paid by appellee to Chew was a prior indebtedness of Chew to her.

The third count of the petition shows on its face that it is an alternative plea, and therefore appellee is not confined to the allegations therein, but may make out her case by proof of the allegations of the second count of said petition.

We do not think the court erred in overruling appellant’s demurrer.

Appellant also contends that the trial court erred in rendering judgment for ap-pellee, because the undisputed evidence shows that the consideration in support of the deed from J. B. Chew to her was an agreement upon the part of appellee to maintain, nurse, and care for said Chew during liis life, and that such agreement, under the law, cannot furnish the basis of a claim of innocent purchaser for value.

It is not contended by appellee that such agreement alone would support a plea of innocent purchaser for value, but it is contended that the fact, which is undisputed, that appellee in compliance and fulfillment of her part of the contract or agreement did furnish J. B. Chew with board and lodging, that she nursed and cared for him from the date of such contract continuously until his death on the 19th day of May, 1913, a good portion of such services having been given after appellant had received its deed on the 16th day of April, 1913, would support her said plea.

That furnishing a home and otherwise maintaining the owner of land during his life, by another, is a sufficient consideration to support a conveyance of such land, is too well settled by the decisions of this state to be now questioned. Mayer v. Swift, 73 Tex. 367, 11 S. W. 378; Freeman v. Jones, 43 Tex. Civ. App. 332, 94 S. W. 1072; Masterson v. Crosby, 152 S. W. 173; Tobin v. Benson, 152 S. W. 642; Garner v. Boyle, 34 Tex. Civ. App. 42, 77 S. W. 987.

Both the pleadings of the parties and the undisputed evidence show the contract between appellee and J. B. Chew as alleged by appellee, and the undisputed evidence further shows that appellee had fully performed her part of said contract before she had any notice or knowledge of appellant’s said deed, either actual or constructive. The undertaking of appellee to support and care for Chew was one which might have become very onerous had he lived to a great age, and one which might have greatly exceeded the value of the lots conveyed to her. Appellant having withheld its title from the record from the 15th day of April until May 22d, in which time appellee, without notice, continued the performance of the consideration of her title, the appellant, by reason of its laches, would be without any equity as against the title of appellee. In the editorial note found under the case of Western Grocery Co. v. P. B. Alleman and Wife, 27 L. R. A. (N. S.) 620, this precise question is exhaustively considered. A great many authorities are collated, and the reason for said holding is as above cited.

What has already been said disposes of all of appellant’s assignments adversely to appellant, and they are therefore overruled.

Since the submission of this cause, counsel for appellant, by permission of this court, has filed an additional argument in which he presents for the first time the proposition that, if it be held that appellee advanced any consideration at the time of or on the faith of receiving the deed from J. B. Chew, it would make her an innocent purchaser for value, such advance was only of a portion of the full consideration agreed upon to be paid and she would only be entitled to pro tanto protection, and in support thereof he cites Durst v. Daugherty, 81 Tex. 654, 17 S. W. 388, and other eases. None of the cases cited are applicable to the present ease, as they were cases in which only a part of the consideration was paid before the innocent purchaser became apprised of the prior unrecorded deeds. In the present case, the whole of the consideration was paid to the vendor by said innocent purchaser before she was apprised of the claim or unrecorded deed of appellant. While we do not think we are properly called upon to decide the question here presented, in the absence of an assignment raising such question in appellant’s brief, we have considered the question and have reached the conclusion that the question of pro tanto protection is not in this case. We therefore overrule appellant’s contention with reference to such question.

We find no error in the action of the trial court in rendering judgment for plaintiff, and we therefore affirm the judgment so rendered.

On Motion for Rehearing.

In our original opinion we made the following statement:

“Learned counsel for appellant, in making the above contention, must not be understood by us as contending that a consideration wholly paid for land upon a parol contract of sale and purchase, prior to the actual execution and delivery of the deed of conveyance by' the vendor, would not support a plea of bona fide purchaser for value by the purchaser, as against the holder of an unrecorded deed conveying the same land to him by the common vendor, prior in date to the last deed, of which said prior unrecorded deed the last purchaser had no actual knowledge, although the language used might be so construed; but we do understand that his contention is that the consideration which passed from appellee, Mrs. Ritchie, to her vendor, J. B. Chew, wholly passed to said vendor before the execution and delivery of the deed from said Chew to Towles and before the execution and delivery of deed from Towles to appellant of date April 15, 1913, and that therefore such consideration paid by Mrs. Ritchie does not support her plea of bona fide innocent purchaser for value, as against appellant’s said deed.”

We also in said opinion made the following statement:

“Wherefore it is apparent that counsel is mistaken in his statement that the petition alleges that the consideration passing from Mrs. Ritchie to J. B. Chew had wholly passed prior to the execution and delivery of the deeds from Chew to Towles and from Towles to appefiant.”

Appellant has filed his motion for rehearing, and therein calls our attention to the clauses above quoted, and insists that we have thereby misstated the contention made by its counsel.

After further consideration upon said motion, we conclude that the complaint made in said motion is correct, and we therefore withdraw said statements from the opinion; but, after withdrawing such statements, we think the original opinion correctly decides the issues presented, and we therefore overrule the motion.

Overruled.
      ®*=jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digésts and Indexes


text:
    JOHNSON et al. v. JOHNSON et al.
    (No. 1679.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 14, 1916.
    Rehearing Denied Jan. 18, 1917.)
    1.-Appeal and Error <@=>662(1) — Record— CONCLUSIVENESS — EVIDENCE.
    The appellate court is bound by the evidence in the record on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2850; Dee. Dig. <@=3662(1).]
    2. Appeal and Error <@=>150(2) — Right to Appeal — Interest in Suspect-Matter.
    Where plaintiffs in a suit for partition of their ancestor’s land alleged that one of defendants by fraud had acquired a deed from the ancestor to part of the land, and by supplemental petition averred that such defendant since suit was brought had conveyed his interest in the land, and such defendant answered that, while he had sold such portion, he had warranted title thereto, he was required to prove the fact, and without such proof he cannot complain of the judgment against him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 935-938; Dec. Dig. <@=> 150(2).]
    3. Pleading <@=>36(3) — Admission.
    Defendant’s answer that, while he had sold the land, he had warranted the title, must be taken as an admission, and he may not insist that he is the owner of the land.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 82; Dec. Dig. <@=>36 (3).]
    4. Appeal and Error <@=>151(2) — Right to Appeai^-Injury prom Judgment.
    There being no evidence in the record tending to show that the other-defendants are either purchasers from their codefendant or have any claim upon the land except a deed, for an interest for which the court gave them judgment, they show no injury from the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 947, 948; Dee. Dig. <@=> 151(2).]
    5. Trial <@=>139(1) — Question for Jury.
    The weight of the evidence is for the jury. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. <@=>139
    6. Deeds <§=>68(1½) — Validity — Incompetency.
    Each case pertaining to mental disability of a grantor must be decided by its own circumstances.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. § 151; Dee. Dig. <@=>68(1½).]
    7. Deeds <@=>78 — Evidence—Sufficiency.
    Evidence held sufficient to take to the jury the question of the extent of the mental disability of deceased at the time of executing deeds to defendant.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 648; Dec. Dig. <S=>78.]
    8. Trial <@=>350(3) — Special Issues — Mental Capacity of Grantor.
    An issue calling for a finding whether at the time the deeds were made the grantor had mental capacity sufficient to understand that she was conveying the land to the grantee was in accordance with the rule that, if the grantor has sufficient mental ability to comprehend what he is doing and to understand the nature of his act, his deed must be deemed that of a person of sound mind.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829-831; Dec. Dig. <@=>350(3).]
    9. Deeds <@=>68(1½) — Capacity of Grantor-Evidence of Incompetency.
    In order to avoid a deed executed by deceased, it would not be necessary to show that the grantor was insane, or in such a state of imbecility as to render her entirely incapable of executing a valid deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 151; Dec. Dig. <@=>68(1½).]
    10. Partition <@=>114(2) — Costs.
    If defendants contest the title or right of successful plaintiffs in a partition suit, they are liable for and to the extent of the costs incurred thereby.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 445; Dec. Dig. <@=>114(2).}
    11. Partition <@=>114(3) — Partition Among Heirs — Charges Upon Land Partitioned.
    In a suit for partition of land among heirs, court costs incurred in the administration of the estate of the intestate were properly allowed as a charge on the lands divided.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 446; Dec. Dig. <@=114(3).]

      12. Partition <®c=>85— Partition Among Heirs — Charges Upon Land Partitioned.
    In a suit for partition of land among heirs, the value of the improvements placed on the land by one of the parties was properly allowed as a charge against the land divided, since he was entitled either to his improvements or their value.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 236-245; Dee. Dig. <S=85.]
    13. Partition <®=j87 — Partition Among Heirs — Charges Upon Land Partitioned.
    In a suit for partition of land among heirs, debts of the estate paid by a party after the death of the intestate were properly charged upon the lands divided.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 253; Dec. Dig. <S=>87.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Suit for partition by Joe Johnson and others against Gus Johnson and others. Judgment for plaintiffs, and defendants appeal.
    Modified and affirmed.
    The amended petition of appellees, Joe Johnson and others, was for partition: (1) Of 164 acres of land of the K. B. Dance survey; (2) of 65 acres of land off the east half of a tract, parts of the K. B. Dance and the J. B. Evans surveys; and (3) of 108 acres of land of the N. H. Fowler survey. The petition alleges that on August 7, 1907, Henry Johnson and wife, Amy Johnson, executed a deed to Gus Johnson to their homestead of 164 acres, and to Joe Johnson to the east half of 65 acres, solely as a trust to support the grantors during their respective lives and to facilitate the settlement of their estate after their death by delivery to and partition among their respective heirs, and that each of the said grantees accepted the trust, and have never denied the trust, but admitted same. Joe Johnson alleged that he admitted the trust. The petition further alleges that on September 20, 1911, Gus Johnson, through fraud and undue influence upon the weak mind of Amy Johnson, procured her to execute a deed to him to her interest in the 164-acre tract and in the 108-acre tract. The plaintiffs also claim for rent, appropriation of timber by Gus Johnson, and reimbursements for debts of the estate paid by them.
    The defendants answered, denying the deed to 164 acres was a conveyance in trust, and denied the allegations of fraud and undue influence and mental incapacity of Amy Johnson in making the deeds of 1911, and pleaded limitation. The plaintiffs by supplemental petition averred that Gus Johnson had conveyed all interest he had in the property before and since the commencement of the suit. The defendant Gus Johnson replied “that, while he had sold the tracts of land described in plaintiffs’ petition, he has warranted the title to the same to his vendees, and is therefore a proper party to the suit.” The other defendants, except Alford, averred that they had an interest in the land, and adopted the answer of Gus Johnson, and specially pleaded limitation.
    The case was tried before a jury on special issues. The jury made the findings that the deeds of August 7, 1907, were conveyances in trust, that Gus Johnson did not disavow the trust and claim the land as his own until September 20, 1911, and that Amy Johnson did not have mental capacity sufficient to understand that she was conveying the land to Gus Johnson by deeds of September 20, 1911. There is evidence to support the findings of the jury. Suit for partition by Joe Johnson and others against Gus Johnson was filed June 6, 1914. The defendants admit that the parties in suit are entitled to their proportionate share of an undivided one-half interest in and to 108 acres, and make the claim on appeal that the other one-half interest is absolute under the deed from Amy Johnson to Gus Johnson of date September 20, 1911. There is no question of title involved in the appeal as to the 65-acre tract. As to the 164-acre tract it is the contention of the appellants that the deed to Gus Johnson to such tract dated August 7, 1907, is an absolute conveyance. It would serve no purpose to copy the deed in this statement; it is in the record and may be referred to.
    Beard & Davidson, of Marshall, and Futch & Tipps, of Henderson, for appellants. John R. Arnold and J. W. McDavid, both of Henderson, for appellees.
   LEVY, J.

(after stating the facts as above). The appellants by the first assignment of error claim that the court erred in not rendering a judgment for them for the entire 164 acres of land. Appellees in their brief insist that the appellants may not claim that they or either of them have suffered any injury respecting the 164 acres of land: First, because appellant Gus Johnson pleaded and admitted that he had sold it and warranted the title; and, second, because the other appellants failed to prove that they owned or had acquired any title to any part of this tract except the inheritable interest of Hoxie Johnson, which the court awarded them. And in view of the evidence in the record on appeal, which this court is bound by, it may not be said that the insistence of appellees is not correct. Appellees’ supplemental petition charged that Gus Johnson had sold all his interest in the property; and Gus Johnson made reply averring “that, while he has sold the tracts of land described in the plaintiffs’ petition, he has warranted the title to the same to his vendees and is therefore a proper party to the suit.” And, looking to the statement of facts, we fail to find any evidence showing or going to show that Gus Johnson had, as alleged; warranted the title to the land to any vendee. Alleging that he had warranted the title would require Gus Johnson to prove the fact; for his liability as a 'warrantor depended entirely upon proof that he had warranted the title.

So, taking the reply answer of Gus Johnson as an admission of fact of record, as we must, that he has conveyed and parted with his interest in the 164 acres of land, then Gus Johnson may not insist that he is the owner of this tract of land. And, assuming that Gus Johnson may make himself a party, as he pleads, to defend an alleged warranty of title to the 164 acres of land, there is no proof that he executed a warranty to a ven-dee so as to make himself legally liable on a warranty. And we fail to find any evidence showing or tending to show that the other defendants are either the vendees of Gus Johnson or have any conveyance to or claim upon the 164 acres, except the deed from Hoxie Johnson to his inheritable interest, and for which latter interest the court gave these defendants a judgment.

Therefore, for the want of injury appearing in the record to appellants, this assignment of error, as well as all the other assignments pertaining to the 164 acres of land, must be overruled.

The fourth assignment of error is that the evidence is insufficient as a matter of law to show that Amy Johnson at the time she executed the two deeds to Gus Johnson on September 20, 1911, did not have mental capacity sufficient to know and understand that she was conveying the lands to Gus Johnson. The evidence was conflicting respecting the mental capacity of Amy Johnson. There is evidence to show that the mind of Amy Johnson was good. And there is evidence going to show that “her mind was not very sound; she couldn’t talk intelligently, and she could not talk about one subject any length of time;” “she was mindless at times, would not know where she was or at whose house she was or anything at times;” “she did not have good mind, and we had to always keep some one with her;” “it was weak after she lost her husband, and grew worse, grew weaker and weaker, and she finally did go crazy.” It was shown that Amy Johnson was suffering from a severe disease affecting the body and mind.

The weight of the evidence is for the jury. And it is the rule that each case pertaining to mental disability must be decided by its own circumstances. It is believed that the evidence as a whole was sufficient to make an issue for the decision of the jury as to extent of the mental disability of Amy Johnson at the time Of executing the deeds, and that it was required of the trial court to submit-the issue, as he did, to the jury for finding of the fact.

Appellants predicate error, by the seventh assignment, upon the following issue submitted to the jury;

“State whether or not at the" time the deeds from Amy to Gus Johnson were made Amy had mental capacity sufficient to understand that she was conveying the land to Gus.”

And by the eighth assignment of error, presented with the seventh assignment, appellants complain of the refusal of the following:

“Did Amy Johnson at the time she conveyed to her son Gus Johnson her interest described in the two deeds of September, 1911, possess the mental capacity to so contract, deed, and dispose of said lands? Now in this connection you are instructed that all persons are presumed by law to be sane and mentally sound until the contrary shall be made to appear; and in this case the burden of proof is upon the plaintiffs to establish by a preponderance of the testimony her insanity or mental incapacity to make said deeds, and in this particular you are instructed that the mental incapacity, if any, must have existed at the particular moment of the execution and delivery of said deeds; and by the term ‘mental incapacity,’ as herein used, is meant a state of mind incapable of comprehending and understanding the effect and purpose of the act then .being done.”

Appellants maintain the proposition that the court’s charge did not, and the requested charge did, give the proper rule to determine the mental disability of the grantor, Amy Johnson. The effect of the court’s charge is to say to the jury that if, under the evidence, at the date of the deeds Amy Johnson did possess sufficient strength of mind to understand that she was transferring her title to Gus Johnson, then the mind of the grantor, Amy Johnson, was sufficiently sound to render her deed valid. This charge does not make the invalidity of the deed depend upon the finding merely of weakness of understanding of Amy Johnson, but requires a finding of weakness of understanding to the extent and degree of not comprehending and understanding the nature and consequences of her act. The court’s charge is in accordance with the rule that, if the grantor has sufficient mental ability to comprehend what he is doing and to understand the nature of his act, his deed must he deemed that of a person of sound mind. Caddell v. Caddell, 62 Tex. Civ. App. 461, 131 S. W. 433; 1 Devlin on Real Estate (3d Ed.) § 69.

It is not necessary to show that the grantor was insane or in such a state of imbecility as to render him entirely incapable of executing a valid deed. Allore v. Jewell, 94 U. S. 506, 24 L. Ed. 260.

If there was, as appears, an issue of fact for decision by the jury as to the mental capacity of Amy Johnson to make the deed to Gus Johnson for her interest in the 108 acres of land, then the court did not err, as insisted in the ninth and tenth assignments of error, in not rendering judgment for appellant Alford for one-half of the 108 acres as purchaser under Gus Johnson; for the verdict of the jury was that the deed of Amy Johnson to Gus Johnson to the 108 acres was invalid for mental disability of Amy Johnson,' the grantor.

The twelfth assignment of error complains of adjudging costs against defendants. The legal effect of the decree is to charge against the defendants the costs incurred in determining the title and the share or interest of each joint owner in the real estate sought to he divided. It does not reach to the costs that may subsequently to the date of the present decree he incurred in making and completing the final partition. If the defendants contest the title or right of the successful plaintiffs, they are liable for and to the extent of the costs thereby incurred. Johns. v. Northcutt, 49 Tex. 444; Keener v. Moss, 66 Tex. 184, 18 S. W. 447.

The court in the decree made a charge against the lands divided: (1) Of $179.40 and $75 in favor of Jerry Johnson; (2) to Amanda Smith $20.80; and (3) to Jerry to value of his improvements on the land to the amount of $75 in case the improvements made by Henry Johnson on the tract of land cannot be alloted to him without detriment to the other allottees. The $20.80 allowed to Amanda Smith as a charge on the lands divided was in payment of the court costs incurred in the administration of the estate of Henry Johnson, deceased. This claim may be made a charge against the lands. Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330. And Jerry Johnson is entitled to have the improvements, or their value, placed by him on tract No. 3. And Jerry Johnson would be entitled to have a charge made upon the lands for all the debts of the estate of Henry Johnson, deceased, paid by him after the death of Henry Johnson. The $75 was paid, it appears, after the death of Henry Johnson. But all of the $179.40 debt of Henry Johnson was not paid by Jerry Johnson after the death of Henry Johnson; $123.25 of the $179.40 was paid by Jerry Johnson during the lifetime of Henry Johnson, at the request and instance of his father, Henry Johnson. This amount was a debt against the father in favor of Jerry Johnson, and in consequence would be a debt against the estate. Being a debt against the estate, it would have to be presented and allowed as a claim against the estate and collected after allowance as claims against an estate are allowed and directed by the statute to be collected. Being a debt of the father paid by Jerry Johnson in the lifetime of the father would not authorize, in equity, the charging of such debt upon the lands divided. Rose v. England, 51 Tex. 617. To be a charge hpon the ’lands to be divided the expenditure must have been in protection of the estate or in behalf of the estate after the death of Henry Johnson. The judgment of the district court must therefore be modified to the extent of denying to Jerry Johnson a charge upon the lands to the extent of $123.25 of the $179.40, and as so modified the judgment will be affirmed.

In view of the modification of the judgment affecting only the appellee Jerry Johnson, and appellants obtained that relief against him, the costs of appeal will be taxed against Jerry Johnson.

Modified and affirmed.

      t=>For oilier eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: HIGGINS, J.

text:
    DE SHAZO et al. v. EUBANK.
    (No. 632.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.
    On Rehearing, Jan. 26, 1917.)
    1. Public Lands <@=>173(5) — School Lands— Purchase by County Surveyor — “Public Land.”
    Notwithstanding Pen. Code 1911, art. 164, making it a misdemeanor for any county survey- or to be directly or indirectly concerned in the purchase of any public land, a county surveyor could purchase title acquired by a purchaser of school land who had fulfilled the conditions of occupancy and improvement, but who had not yet filed the proof of occupancy and improvement, and to whom certificate of occupancy and final patent had not issued; for such land is not “public land” within the meaning of section 164, but the relation of the state to such land is not essentially different from that of a vendor in ordinary sales of land where the vendee has not made default.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 547, 548; Dec. Dig. <@=>173(5).
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Public Land.]
    2. Public Lands <@=>173(13) — School Lands —Objection to Sale — Collateral Attack.
    The fact that the lots on which stood a house of a purchaser of school lands as additional to private land was not private land withing the meaning of the law relating to the sale of free school land and such as to authorize such purchase under Sayles' Ann. Civ. St. 1897, art. 4218fff, or that there was an irregularity in his three years’ occupancy upon the lots, were mere irregularities which would not avoid such salo by the commissioner in good faith.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 547, 548; Dec. Dig. <@=>173(13).]
    3. Appeal and Error <@=s1051(4) — Harmless Error.
    In an action involving a deed, where the deed recited a consideration, the admission of testimony of the grantee as to the consideration paid deceased grantee therefor was harmless, in the absence of evidence impeaching the consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4168; Dec. Dig. <@=> 1051(4).]
    4. Public Lands <@=>174 — School Lands — Collusion.
    Tho issuance of a certificate of occupancy to one purchasing school lands precludes inquiry into any question of collusion.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 552-554; Dec. Dig. <@=>174.]
    5. Evidence <@=>584 — Sufficiency — “Any Evidence.”
    Testimony that raises a mere surmise or suspicion of the existence of a fact sought to be established in legal contemplation falls short of being “any evidence.”
    [Ed. Note. — Eor other eases, see Evidence, Cent. Dig. §§ 2424, 2426, 2427; Dec. Dig. <@=> 584.
    Eor other definitions, see Words and Phrases, First and Second Series, Any.] •
    6. Mortgages <@=>3S(2) — Absolute .Deed as Mortgage — Evidence.
    Where it is sought to ingraft a parol trust on an absolute deed and show that it is intended as a mortgage, the evidence must show that fact with clearness and certainty.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 109; Dec. Dig. ©=>38(2).]
    7. Mortgages ©=>36 — Absolute Deed as Mortgage — Burden of Peoof.
    One alleging that a deed is a mortgage has the burden of proving that fact.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 95, 96; Dec. Dig. ©=>36.]
    8. Evidence ©=>271(15) — Declarations of Grantor After Conveyance.
    Declarations of a grantor that he claimed the land and contemplated improving and living upon it, made after the date of his conveyance, and not in the presence of the grantee, are inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1092, 1093; Dec. Dig. ©=>271(15).]
    On Rehearing.
    9. Mortgages ©=>38(1) — Absolute Deed as Mortgage — Inadequacy of Consideration.
    Inadequacy of consideration for an absolute deed, taken alone, is insufficient to show that it was intended as a mortgage.
    [Ed. Note. — For other eases, see Mortgages, Cent. Dig. § 108; Dec. Dig. ©=>38(1).]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by J. W. Eubank against Maria De Shazo and others, in which defendants filed a cross-action. From judgment for plaintiff, defendants appeal.
    Affirmed.
    M. W. Stanton, of El Paso, for appellants. Nealon & Dorman, of El Paso, for appellee.
   HIGGINS, J.

Eubank filed this suit January 22, 1915, against Maria, Donald, and Kenneth De Shazo, to remove cloud from title to survey No. 218, S. F. No. 7088, H. M. Mundy, grantee, containing 160 acres, situate in El Paso county. Defendants pleaded not guilty, and filed a cross-action asserting title in themselves. Upon trial before a jury a peremptory instruction was given in plaintiff’s favor, in accordance wherewith verdict was returned and judgment rendered.

On May 5,1908, the land in controversy was public free school land, and by application of that date, filed in the general land office May 18, 1908, E. D. De Shazo applied to purchase the same as additional to private land. Upon this application the land was awarded September 12, 1908. By quitclaim deed dated January 17, 1912, filed for record April 7, 1913, E. L. De Shazo, for a recited consideration of $250, conveyed all of his right, title, and interest in the land to Eubank. On June 20, 1912, De Shazo made his proof of occupancy and improvements, and filed same in the general land office on June 22, 1912, and on June 24, 1912, certificate of occupancy was issued and sent to De Shazo by the land commissioner. On December IS, 1913, De. Shazo died intestate, leaving as his heirs the defendants herein, namely, his wife, Maria, and two children; Donald and Kenneth. On May 8, 1913, the land was patented by the-state to E. D. De Shazo, his heirs and assigns. At the time he applied to purchase the land De Shazo owned and resided upon lots 1, 2, and 3 in block 21 in Grand-view, an addition to and part of the city of El Paso. Grandview is a part of the Salazar grant, and is laid off into streets, lots, and blocks.' The addition is not within the corporate limits of the city of El Paso. The three lots had a 75-foot front. De Shazo continued to reside there until the date of his death. This was his home tract and the private land- referred to in his application to the state to purchase the land in controversy. Upon the dates above mentioned and long prior thereto, Eubank was county surveyor of El Paso county. In the application to purchase the description of the private land and home tract is as follows:

“Part Survey No. 119, Block -, Twp. -, Certificate -, Grantee, Salazar, in El Pazo County.”

It is insisted by appellants that appellee has failed to show title in himself. This contention is based upon the fact that Eu-bank was county surveyor at the time De Shazo conveyed to him, and it is asserted that the land at that time was public domain, title to which could not he acquired by Eu-bank in view of article 164 of the Penal Code, which makes it a misdemeanor for any county surveyor to be directly or indirectly concerned- in the purchase of any right or interest in any public land in his own name or in the name of any other person. This involves a consideration of the nature of the title acquired by a purchaser of school land who has fulfilled the conditions of occupancy and improvement, but who has not yet filed the proof of occupancy, and to whom certificate of occupancy and final patent has not issued.

In State v. Lumber Co., 106 Tex. 41, 155 S. W. 1178, the Supreme Court, .speaking through Justice Phillips, says that the relation of the state to school land sold to a purchaser in compliance with the law, whose purchase is in good standing, is not essentially different from that of a vendor in ordinary sales of land where the vendee has not made default, and it was held that, while the state holds the superior title until the purchase is completed, yet it is plainly the law that the purchaser acquired an equitable title which will support the action of trespass to try title. The' relation of the holder of the vendor’s lien is thus stated in Stephens v. Motl, 82 Tex. 81, 18 S. W. 99:

“Although he held the superior title as between himself and his vendee, Rucker [the holder of the vendor’s lien] stood in the relation of a mortgagee * * * out of possession, and not entitled to possession until default on part of the vendee and a rescission by him of the contract, or a foreclosure.”

And as to what is meant by the superior title the language in Carey v. Starr, 93 Tex. 508, 56 S. W. 324, is:

“The title that remains in the vendor in such transaction is superior in the sense that the vendee cannot assert his title against the vendor, unless he has paid the purchase money. From the time it was first announced that the reservation of lien in a deed reserved the superior title to the vendor, there has been a continuous and persistent effort to push it to the limit of executory contracts for the sale of land, but this court has steadily resisted that effort, and has uniformly limited the vendor’s title to the character of security for the purchase-money debt. * * * ”

In Insurance Co. v. Ricker, 10 Tex. Civ. App. 264, 31 S. W. 248, it was 'held that the vendee was the owner of property where a vendor’s lien had been retained to secure the payment of purchase-money notes. It says that the Supreme Court, in using the term “superior title” in cases where a vendor’s lien is retained, did not intend to give to it its full force and signification; that a party in possession under contract of purchase conceded to be in force is the owner in equity.

Under this view of the case, it would seem clear that the land at the time De Shazo sold it to Eubank was not public domain or public land, but it had become the private property of De Shazo, subject to a lien in favor of the state for the payment of the balance of the purchase money, and subject to the condition subsequent that his title would fail if he did not, within the time prescribed by law, file proof of occupancy and improvements.

Pursuing the subject further: The Montana court, in State v. Cunningham, 35 Mont. 547, 90 Pac. 755, said:

“ ‘Public domain’ is defined by Webster to be the territory belonging to a state or to the general government; public lands. This is the general significance of the words according to the approved usage of the language. The idea of public domain excludes that of private ownership.”

In Logue v. Atkeson, 35 Tex. Civ. App. 303, 80 S. W. 137, it was held that land upon wdiich proof of the three years’ occupancy had been made and accepted was subject to mortgage, and that the land was not public domain within the meaning of Lamb v. James, 87 Tex. 485, 29 S. W. 647, and other authorities cited. In Lamb v. James, the court, in declaring that a contract for the sale of public land was void, defined “private lands” as “lands the titles to which have passed, or so far passed out of the government as to be the lawful subject-matter of private contract”

If we follow the test stated in Lamb v. James that lands the title to which has passed or so far passed out of the government as to be the lawful subject-matter of private contract are private lands, and not public lands, then the land in controversy was the private land of De Shazo at the time he sold it to Eubank, and he could sell it to the county surveyor or any one else; the three years’ occupancy being complete, and no default made in the payments to the state.

In Martin v. Bryson, 31 Tex. Civ. App. 98, 71 S. W. 615, the court held that land additional to the home tract was subject to sale under execution where the occupancy of the home section was complete. In that case it was said:

“The learned judge who tried the ease, it is said in the briefs, was of opinion that the land was not subject to execution, because it was unpatented school land, and for that reason instructed a verdict for the appellee. In this we think his honor erred. The title of appellee, it is true, was a defeasible, equitable title; but, as he was an actual settler, and had resided upon the home tract for more than three years, he had the right to sell the section levied on, and the purchaser was not required to reside thereon or occupy the same. * * * We therefore conclude that, as the interest of the appel-lee, Bryson, in this section of land was such as he could sell to any person who would buy, regardless of whether such person occupied the land afterwards or not, it was a vendible interest, and was subject to execution.”

In Wilson v. Nugent, 91 S. W. 241, the court held that a purchaser whose occupancy was complete, but to whom patent had not issued, was “in effect the owner of the land, and a conveyance in writing was necessary to pass his title.”

In Day Land & Cattle Co. v. State, 68 Tex. 526, 549, 4 S. W. 865 at page 876, the Supreme Court said that the Constitution used “public land” in the same sense as “public domain,” and in referring to the clause of the Constitution referring to “vacant lands” and “vacant public domain” says this is done to show that such lands (grants to railway companies), though once severed from the public domain, should become subject to “pre-emption, location, and survey,” just as though such lands had never ceased to be a part of the public domain. “The section further, in effect, declares that lands located and surveyed by virtue of valid land claims, or to which inchoate titles have been acquired, shall not be deemed vacant and unappropriated public domain, on account of any mere informality attending the acquisition which does not affect its legality. Such lands are understood to be equitably owned before they are patented.” This case cites State v. Delesdenier, 7 Tex. 108, to the effect that:

“Appropriation of land by the government is nothing more nor less than setting it apart for some particular use; and, whenever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes Severed from the mass of public domain [etc.] * * * Having lost the character of ‘public lands,’ it could not regain that character, except by direct and express terms.”

So it would seem that the sale and award of the land to De Shazo segregated it from the public domain, and that he had, by occupancy and improvement and keeping up his interest payments acquired an equitable title, and was the owner of the land, subject to the lien in favor of the state to secure the payment of the balance of the purchase money. The mere fact that De Shazo failed to pay the balance due on the purchase price, and that the state might assert its lien and cause the land to be restored to the public domain and become once more public land, did not in any wise affect its character as private land at the time of the sale and of Eubank’s consequent right to buy. He might be punished for buying only if it was public land. It could hardly be contended that Eubank would be violating the penal statute if he bought after patent had issued. Yet there is always a possibility that the state may sue to annul a patent', and such a suit, if successfully prosecuted, would impress' upon the land the character of public land. Faulk v. Sanderson, 89 Tex. 692, 36 S. W. 403.

In Phillips v. Campbell, 146 S. W. 320, it is said:

“Upon the completion of three years of continuous occupancy, the settler, or his assignee, has a vested right in the fee-simple ownership of the land, and may demand of the proper officer a patent investing him with the legal title. * * * When Minor conveyed his interest to Campbell, he owned the land, but had not acquired the naked legal title from the state.”

In view of these authorities, we think it clear that public free school land upon which the purchaser has resided and made the improvements required by law becomes his private property, and is no longer to be regarded as public land within the meaning of the article of the Penal Code above cited. This is true as soon as the required occupancy and improvements have been made. The purchaser has a certain length of time after the expiration of Ms three years’ occupancy within which to file his proof of occupancy and improvements. The failure to file same creates a ground of forfeiture of his rights which is in the nature of a condition subsequent. He incurs the same penalty that he would incur if he failed to make his interest payments, viz. the loss of his land; but the land continues to- be his private property until he loses it by failure to pay the principal and interest or by the failure to file proof of his occupancy and improvements within the time required by the statute. The time of the issuance of the certificate of occupancy has no bearing whatever upon the respective rights of the parties. The certificate merely evidences the fact that the land has been occupied and improvements made, as required by law, and precludes inquiry into the question of occupancy and improvements, as well as of collusion. The purchaser does not lose his rights if the certificate of occupancy is never issued. So the fact that the certificate of occupancy had not been issued at the time De Shazo conveyed to Eubank does not in anywise affect the rights of the parties hereto. We conclude that Eubank had the right to buy the land at the time De Shazo conveyed to him.

It is also insisted that no title passed to Eubank by De Shazo’s deed, because the lots in Grandview addition upon which De Shazo’s home was situate and where he resided during the required three years’ occupancy was not private land within the meaning of the law relating to the sale of free school land, and that his ownership thereof and residence thereon would not authorize the purchase of school land as additional thereto.

In support of this contention reference is made to Conn v. Terrell, 97 Tex. 578, 80 S. W. 608, where it was held that the owner of and resident upon a four-acre lot in any incorporated town is not such an “owner of other lands” as would entitle him to purchase additional sections to his home place under article 4218fff, Sayles’ Ann. Civ. St. 1897. That case, however, was a direct proceeding by the owner of and resident upon the urban property to compel the commissioner of the general land office to sell and award to him a section of land as additional to his urban property. Here the commissioner actually made the sale and award to De Shazo, and we are not prepared to hold that his act in so doing was absolutely void. There is no question but that the commissioner was vested with the power to make a sale and award of the land to a qualified purchaser. It is not a case where there was an inherent want of authority to sell and award the land. The commissioner having determined that De Shazo was a qualified purchaser as the owner of and resident upon a part of the Salazar grant, and having actually made the sale and award, and De Shazo having complied with all the terms and conditions of his purchase, it is not believed that the sale and award could properly be regarded as a nullity so as to subject the same to collateral attack. Quite a different question would be presented if the land commissioner had refused to make the sale upon the ground that the lots in Grandview did not constitute a proper base or home tract and De Shazo had sought to compel him to make such sale. So far as the record discloses, both the commissioner and De Shazo acted in good faith. Under such circumstances, the sale and award of the land as additional to land which, strictly considered, may not have been a proper home tract, may have been irregular, but it was not such a fatal irregularity as would deprive the sale and award of all vitality and render it a nullity. The same is true of the irregularity of the three years’ occupancy upon the lots. We think the situation analogous to that line of cases which protects a purchaser of school land who by mistake, but in good faith', was a settler upon and resided upon the wrong tract of land. Hall v. White, 94 Tex. 452, 61 S. W. 385; Price v. Bates, 32 Tex. Civ. App. 374, 74 S. W. 608; Martin v. Marr, 26 Tex. Civ. App. 55, 62 S. W. 932; Moody v. Hahn, 25 Tex. Civ. App. 474, 62 S. W. 940.

It may be that this phase of the case is controlled by the rule, which it is held applies to patented school land, that where a patent to public land issued without the observance of all preliminary proceedings authorizing it, such patent is valid as to all persons except the state and those holding under it by superior equities. See cases cited in 14 Michie, Dig. p. 484. But there is an intimate relationship between this and the first contention made by appellants. For, if De Shazo acquired no right under the sale and award to him, and the same was a nullity, then the land remained public domain, and Eubank was inhibited from purchasing by article 164 of the Penal Code. In such event neither plaintiff nor defendants would have any title, and since Eubank must recover upon the strength of his own title, judgment should properly have been rendered that he take nothing.

It is not necessary to determine and we do not pass upon the status of the Grandview lots as a proper home tract. Our decision is based upon the ground above indicated.

There is no merit in the contention that the evidence is insufficient to show execution and delivery of the deed from De Shazo to Eubank. There is abundant evidence to that effect and none to the contrary.

There is likewise ample evidence of a sufficient consideration to support the deed. Plaintiff’s pleading was sufficient to authorize proof of a valid and sufficient consideration. In all other respects such pleading was sufficient.

The court did not err in permitting plaintiff, J. W. Eubank, to testify that the consideration of the quitclaim deed by which De Shazo conveyed the property in controversy to plaintiff was the payment by plaintiff, at the request of De Shazo, of a note for $250 and the satisfaction of two debts that De Shazo owed Eubank. Plaintiff’s testimony of transactions with De Shazo were competent as against Mrs. De Shazo, she not claiming as an heir or legal representative of decedent.

Aside from this, the deed recited a valuable consideration, there is no evidence of a want of consideration, and the testimony objected to was merely confirmatory of the recital in the deed. In the absence of any evidence impeaching the consideration, the admission of Eubank’s testimony, if erroneous, was harmless.

TVe find no evidence of probative force sufficient to warrant submission to the jury of the contentions made in assignments Nos. 9, 10, and 11 that the evidence showed: (a) An agreement between Eubank and De Shazo made immediately after the filing of De Shazo’s application to purchase, whereby Eubank was to have an interest in the land; (b) an agreement between them, made prior to the date of the award of said land or prior to the completion of the three years’ occupancy, whereby Eubank was to receive the land or an interest therein. Furthermore, the issuance of the certificate of occupancy precluded inquiry into any question of collusion. Logan v. Curry, 95 Tex. 664, 69 S. W. 129; Mitchell v. Robison, 103 Tex. 642, 132 S. W. 465. Neither is there evidence of sufficient probative force to warrant the submission of the issue that De Shazo’s deed to Eubank was intended as a mortgage. Testimony that raises a mere surmise or suspicion of the existence of a fact sought to be established in legal contemplation, falls short of being “any evidence.” Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

Furthermore, where it is sought to in-graft a parol trust on an absolute deed and show that it is intended as a mortgage, the evidence relied upon for that purpose must show the fact with clearness and certainty. Miller v. Yturria, 69 Tex. 549, 7 S. W. 206; Gazley v. Herring, 17 S. W. 17; Focke v. Buchanan, 59 S. W. 821.

The burden of proving that the deed was a mortgage rested upon appellants, and they must have shown the fact by competent evidence. Hardie v. Campbell, 63 Tex. 292; Irvin v. Johnson, 44 Tex. Civ. App. 436, 98 S. W. 405.

Tested by these well-settled rules, we think there was no competent evidence of sufficient probative force to warrant the submission of the issue made by the pleadings that De Shazo’s deed to Eubank was intended as a mortgage.

The court did not err in excluding the testimony of the witness, Thornton, and others, of declarations of E. L. De Shazo that he claimed the land and contemplated improving and living upon it, made after the date of his deed to Eubank, and not in the presence of Eubank. Bullock v. Smith, 72 Tex. 545, 10 S. W. 687; Grooms v. Rust, 27 Tex. 231; Crawford v. Hord, 40 Tex. Civ. App. 352, 89 S. W. 1097.

The plaintiff’s petition was sufficient, and there was no error in overruling the defendant’s exceptions thereto.

Affirmed.

On Rehearing.

In discussing Conn v. Terrell, 97 Tex. 578, 80 S. W. 608, it was said in original opinion that it was a direct proceeding by the owner of and resident upon urban property to compel the commissioner of the general land office to sell and award to him a section of land as additional to his urban property.

In the motion for rehearing our attention is directed to the fact that the case mentioned was a proceeding to compel the land commissioner to reinstate Conn as a purchaser of school land; a previous award to him having been canceled. The correction is now noted. The inaccuracy of statement'made in the original opinion is unimportant. The observations made upon the case are equally applicable to a proceeding to reinstate an award which had been previously canceled. In substance and effect, it was a proceeding to compel the commissioner to sell and award to Conn a tract of school land as additional to his urban property., The principle is the same whether the proceeding was to compel a sale and award in the first instance or to compel a reinstatement of a previously canceled award.

All questions presented in the motion for rehearing were fully considered and discussed in the original opinion. Our views are sufficiently indicated in that opinion, and we adhere to the view that it made a correct disposition of the various assignments.

We will add only this observation with respect to the contention that there was sufficient evidence to require submission of whether the deed to Eubank was intended ás a mortgage, namely: It may be conceded that there are some circumstances from which it might be surmised that such was the intention, notably the inadequate consideration. But inadequacy of consideration alone is insufficient. Pacts sufficient to- justify a suspicion or surmise do not at all measure up to the standard required to in-graft such a parol trust upon an absolute conveyance. See eases cited in original opinion and for facts held insufficient to show such a trust see Focke v. Buchanan, 59 S. W. 821; Muckelroy v. House, 21 Tex. Civ. App. 673, 52 S. W. 1038.

The motion for rehearing is overruled.
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