author: MOURSUND, J.

text:
    KANNER et ux. v. STARTZ et al.
    (No. 5981.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 17, 1918.
    Rehearing Denied May 15, 1918.)
    1. Pleading <@=3236(3) — Amendment — DISCRETION.
    It was not an abuse of discretion for the court to permit defendant’s trial amendment to be filed, plaintiff not claiming surprise, nor asking for a continuance, nor showing any injury.
    2. Deeds <&wkey;58(l) — Delivery—Acts Constituting.
    In an action to cancel certain conveyances forming part of an exchange of lands, where both parties left their deeds with a third party to have revenue stamps attached, such action held, to constitute an actual delivery of the deeds to the respective parties entitled to them.
    3. Escrows <&wkey;8(2) — Deeds—Revocation.
    An escrow agreement cannot be revoked by one of the parties.
    ■4. Deeds <@=348 — Effect—Failure to Affix Revenue Stamps.
    A deed otherwise complete passes title, although revenue stamps are not affixed thereto.
    5. Escrows &wkey;>l — What Constitutes — Delivery for Special Purpose.
    Delivery of a deed to a third party for the purpose of having revenue stamps affixed does not constitute a placing of such deed in escrow.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Escrow.]
    6. Deeds <&wkey;58(l) — Delivery—Delivery to Third Party.
    Where conveyances executed pursuant to an exchange of lands were placed in the hands of a third party to have revenue stamps affixed, after which they were to be delivered to the parties entitled to them, that one of the parties upon the holder’s refusal to make delivery took possession of his deeds by force, did not impair their validity; delivery of the deeds having been complete when placed in the hands of the third person.
    7. Appeal and Error <&wkey;742(l) — Assignments of Error — Form.
    An assignment of error not submitted as a proposition, so that the reasons relied on to show that the judgment is erroneous are left to surmise, will not be considered.
    8. Appeal and Error <@=31054(3) — Assignments of Error — Admission of Evidence.
    On appeal from a- judgment, an assignment of error as to tbe admission in evidence of a contract because of its uncertainty will not be sustained, where it appears that the judgment did not rest upon such contract.
    9. Appeal and Error <&wkey;1053(7) — Review-Cure of Error.
    Where a contract is introduced in evidence to support a defendant’s cross-action, error, if any, in the introduction of such; evidence, is rendered harmless, where the cross-action was dismissed.
    10. Appeal and Error &wkey;>1042(l) — Review —Harmless Error.
    In a suit to cancel conveyances of real estate given in the consummation of a land deal, wherein plaintiffs alleged that one of the deeds of trust partly covered their homestead, but failed to show boundaries of their homestead, a judgment dismissing the issue of homestead, and sustaining the conveyance, did not harm plaintiffs, where they were given another opportunity to make proof of their homestead in any subsequent proceeding to foreclose tbe trust deed.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by H. Kanner and wife against A. G. Startz and others, consolidated with an action by A. G. Startz against Kanner and others. From an adverse judgment, plaintiffs H. Kanner and wife appeal.
    Affirmed.
    R. H. Ward, J. H. Bickett, Jr., and S. C. Eldridge, all of San Antonio, for appellants. Guinn & McNeill, of San Antonio, for ap-pellees.
   MOURSUND, J.

H. Kanner and wife, Rebecca Kanner, sued A. G. Startz, J. 0. Yantis and wife, Susie Yantis, B. Jones, and Leonard Brown, on November 16, 1915, alleging that on September 8, 1915, plaintiff H. Kanner entered into a written agreement with A. G. Startz and B. Jones, whereby Startz was to sell Kanner certain cattle, personal property, and lots, and Kanner was to convey to Startz certain real estate, and Jones was to receive a conveyance from Startz of certain real estate, as his commission for negotiating the trade between Startz and Kanner, and between Kanner and Yantis; that a verbal agreement was made to the effect that the sales and conveyances heretofore mentioned were conditioned on the purchase by Yantis of tbe property Kanner was to receive from Startz; that on the same day Kanner made an agreement with defendant Yantis, acting through his agent, B. Jones, wherein Kanner was to convey to Yantis the lots and cattle to be received from Startz for $19,000, payable by conveyance of certain real estate and the execution of a note for the balance, secured by lien on the real estate to be conveyed by Kanner. The terms of the various trades were complicated, and need not be set out. Plaintiffs alleged that it was agreed that all abstracts should be brought down to date, and all papers and abstracts deposited with Leonard Brown, an attorney at law, who should draw up the instruments necessary to carry out the contracts; that about September 14, 1915, Kanner, Startz, and Jones, went to Brown’s office for the purpose of preparing the necessary instruments, but abandoned said written agreements and entered into verbal agreements with reference to the sale and trade between said parties, and agreed that the trade between Startz and Kanner, and between Kanner and Yantis, were to be conditioned upon the successful consummation of both trades. Plaintiffs then alleged the terms of the verbal contract between Startz and Kanner, and between Kanner and Yantis; that he executed,various instruments for the purpose of carrying out his part of the contracts, and that all instruments were executed except a deed by him to Startz and by Startz to B. Jones of certain real estate Jones was to receive as commission ; that it was agreed that the instruments so executed were to be held by said Leonard Brown in escrow, and not to be delivered, unless tbe deal with Xantis was consummated; that Xantis did not complete his abstracts ; that no instruments were executed either by Kanner or Xantis carrying out the agreement between them, but certain instruments had been executed and left with Brown by Xantis, which were not in conformity with the terms of the trade; that while the papers relating to the Xantis deal were still in an incomplete state, and according to the agreement of the parties no instruments in Brown’s hands could be delivered until all matters were finally determined and agreed upon, Startz went to Brown’s office, and by fraud and deceit and by force and without the consent of Brown or Kanner unlawfully took possession of the papers by Kanner to Startz and placed same on record. Plaintiff Rebecca Kanner alleged that certain real estate was her homestead at the time Kanner executed a deed of trust thereon to secure a note for $2,000 to Startz, and that said deed of trust was void. She prayed that the deed of trust b'e canceled for that reason.

The plaintiffs prayed for cancellation of all the instruments secured by Startz from Brown, and for removal of clouds upon real estate caused by the recording of the instruments relating thereto; also for the cancellation of all instruments still held by Brown.

On January 12, 1916, Startz sued H. Kan-ner, J. O. Xantis, Susie Xantis, and L. B. Randall in the district court of the Seventy-Third district, of Bexar county, and said cause was transferred to the district court of the Forty-Fifth district, and consolidated with the suit brought by the Kanners. This suit was based upon three vendor’s lien notes executed and delivered to Startz by J. C. Xan-tis, for $1,000, $800, and $1,700, respectively. Startz sought to foreclose the vendor’s liens on the various lots for which said notes had been given, and to hold Susie Xantis upon her contract of assumption of the first three notes, and H. Kanner on contracts of assumption of all of said notes. He alleged that Randall claimed under a deed of trust by Xantis, and that his liens were superior to that of Randall.

After the consolidation of the suit Startz answered the Kanners’ petition by general demurrer, special exceptions, and general denial. 1-Ie then, by way of cross-action, complained of Kanner and wife, Xantis and wife, and L. Jones, alleging the execution of the written contract between himself and Kan-ner made September 8, 1915; and that it had not been abrogated by any subsequent verbal agreement, but if any subsequent oral or written agreements had been made the same were of a minor and immaterial nature, and were embodied in the instruments thereafter executed in consummation of the contract between Kanner and Startz and deposited with Brown. He specially denied that the contract was in any way dependent or conditioned upon the contract between Kanner and Xantis. He described the various instruments which had been placed with Brown. As to the property described in Kanner’s petition as that which was to be conveyed to Startz and by Startz to Jones in payment of commissions, he alleged that it was subsequently agreed that Kanner should convey same directly to Jones. He alleged the full compliance of himself and Kanner with the terms of the contract, by the execution and delivery of the instruments, and that the instruments were left with Brown solely for the purpose of placing the necessary revenue stamps thereon, and that both parties had authorized Brown to attach and cancel said stamps and hand such instruments to the party to whom they had already been delivered, respectively; that when he returned for his instruments so executed and delivered to him by Kanner, Brown refused to hand the same to him, stating that Kanner had instructed him not to do> so; that afterwards Kanner agreed with Startz that if Startz would give him a credit of $500 on a certain note and cancel another $500 note, ho (Kan-ner) would pay Startz $500 and withdraw his instructions to Brown not to let Startz have said instruments; that Startz agreed to this in order to avoid further trouble and the expense of litigation; that such agreement was without consideration and was obtained by fraud, but Startz met Kanner at Brown’s office on September 17, 1915, for the purpose of complying therewith, and Kanner failed and refused to comply therewith and to permit Brown to deliver such other instruments; that thereupon he took possession of such instruments and placed same of record. He also pleaded that Kan-ner on the 17th and 18th of September, 1915, after such instruments were placed of record, ratified and confirmed all of the same and the former delivery thereof, and delivered possession to Xantis of the cattle and real estate purchased from Startz.

He pleaded further that he had made certain payments on notes assumed by him, and had paid taxes and interest, which under the terms of the contract Kanner was to pay; that Kanner had withheld the possession of all the properties conveyed to him; and that he (Startz) was entitled to recover $100 per month as the reasonable value of the rents and revenues therefrom. He also alleged that Kanner had represented that the premises, claimed in plaintiffs’ petition to be the homestead, did not constitute the Kanner homestead, and that Mrs. Kanner knew of such representations; that by reason thereof they were estopped to assert that the premises in fact constituted their homestead. He prayed that if the deed of trust should be canceled he have judgment against Kanner for the amount of the note. He also prayed that the instruments from Kanner to him be declared valid; that he have judgment for rents, revenues, interest, and for removal of cloud upon his title to the real estate claimed hy him under the instruments executed by Kanner. In the alternative he prayed for damages in the sum of $19,000, the alleged value of the property received hy Kanner from him, and alleged to have been disposed of.

Plaintiffs filed a supplemental petition,- in answer to Startz’s pleading, containing special exceptions, a general denial, special denials, and allegations that the real facts were as pleaded hy them. Startz filed a trial amendment alleging his willingness to comply in every respect with his agreement, and that he consented to the memoranda of agreement dated, September 17, 1915, signed by him and Kanner, by which he agreed to. cancel one note for $500 on the terms and conditions set out in the memoranda. He tendered the note into court, and withdrew his allegations that it was without consideration and obtained by fraud. He further alleged that he would at all times have been willing to cancel said note had Kanner complied with or offered to comply with said agreement. J. O. Yantis answered, and by cross-action sought specific performance of the contract with Kanner, and in the alternative the recovery of damages for its breach. As the court dismissed plaintiffs’ suit against Yantis and Yantis’ cross-action, it will not be necessary to state the allegations of Yantis’ cross-action.

B. Jones’ answer consisted of general demurrer, general denial, and a cross-action against Kanner, alleging that as the agent of Kanner and Startz he negotiated the exchange of the properties mentioned in the written contract between them, and became entitled to the usual and customary commission, and that it was agreed between Kan-ner, Startz, and this defendant that Kanner should convey him certain property in payment of the commissions due by Kanner and Startz; that Kanner failed and refused to make such conveyance. 1-Ie also alleged that Kanner owed him $812.50 as commission for procuring the exchange of Kanner’s property with Yantis, as shown by the agreement between them. He sought specific performance of the contract to convey him the property, and for the rental value thereof while it was withheld by Kanner, and in the alternative prayed for judgment for his commissions on both deals, with interest.

Plaintiffs’ answer to L. Jones’ pleading consisted of a general demurrer, a general denial, and allegations that the facts were as set out in their original and supplemental petition. Plaintiffs filed a trial amendment for the purpose of obviating various objections made by way of special exceptions. Among other things they described the various contracts and instruments they sought to annul, and stated additional details concerning the agreements they claimed were made, and the various particulars in which they contended the instruments prepared and left with Brown failed to carry out the agreements actually made. They again alleged that the trades between Kanner and Startz and Kanner and Yantis were each dependent upon the other, and that Jones’ commissions were dependent upon the closing of all of said trades. Plaintiffs filed a second trial amendment containing a general demurrer and special exceptions to Startz’s trial amendment, a general denial, a plea that if any contract was made as therein alleged, that the same was not in writing, was indefinite, lacked description - of property, and was void and contrary to the statute of frauds. They further alleged that the original contract of Startz with Kanner and h. Jones, and of Kanner with Yantis, both made September ' 8, 1915, were void for vagueness, indefiniteness, and insufficiency of description, and not sufficient to support an action for specific performance.

The consolidated cause was tried without a jury and judgment rendered that Kanner- and wife take nothing as against Brown and Jones; that they take nothing as against Startz on their plea for injunction, damages, and .the annulment of contracts, deeds, deed of trust and notes, executed or assumed respectively by Kanner in favor of Startz, and for removal of cloud upon the title to the properties (described in said instruments, but without prejudice to any rights of Kan-ner and wife to assert their defense of homestead in any subsequent suit or proceedings to foreclose the said deed of trust by Startz or the holder of the said $2,000 note, and without prejudice to any right of Startz to controvert such homestead claim. It was further decreed that instruments executed by and between Kanner and Startz, except the cattle note No. 1 for $500, are valid and binding obligations and conveyances, and that Startz recover from Kanner the title and possession of the real estate in the city of San Antonio, described as lot 17, block.8, new city block' 1800, the east 42 feet of lot 20, block 4, new city block 2209, the west 14 feet of lot 19, and east 30 feet of lot 18 in block 4, new city block 2209, lot 15, block 112, county block 4061 in San Jose addition to the city of San Antonio, in accordance with the stipulations expressed in the deeds from Kanner to Startz; also that Startz recover of Kanner $1,053 for rents on said properties, with interest from date of judgment. The cattle note No. 1 for $500 was canceled. It was decreed that the Kanners take nothing on their prayer for damages, and that Startz takes nothing against Kan-ner on that portion of his cross-action praying for damages caused by clouding of title.

The judgment awarded Jones $819 as rents on the Perez street properties, $552.50 as commission on the Yantis contract, specific performance of the contract between Kanner and Jones, and that Kanner execute and deliver to Jones a general warranty deed conveying him the parcels of land in the city of San Antonio designated as Nos. 933, 936, and 937 Perez street, said premises being fully described in the judgment, and it being provided that Jones was to be liable for the incumbrance of $2,500 against said premises, with interest thereon from September S, 1915, and that the deed should contain a stipulation that Jones assumed the payment of such debt. It was further decreed that Startz recover of Yantis $4,690, with interest, and foreclosures of liens as against Yan-tis, Mrs. Yantis, and Kanner, in accordance with his prayer in his suit consolidated with Kanner’s suit; that any cloud upon the title to said lands by reason of any interest or claim Randall may have had be annulled and removed. All causes of action asserted by the Kanners against Yantis and by Yan-tis against them were dismissed. The costs growing out of the cause of action asserted against Yantis by Startz were adjudged against Yantis. All other costs were adjudged against Kanner. The Kanners alone appealed.

Assignments 1 to 16, inclusive, except such of them as are expressly waived, relate to rulings on general demurrers and special exceptions to the pleadings of Startz and Jones. Tiie pleadings attacked were not subject to general demurrer, and if any injury was suffered by reason of the rulings complained of with respect to special exceptions, the same is not made to appear by anything contained in the statements under the assignments. The court did not abuse the discretion vested in him by permitting the filing by Startz of his trial amendment. Plaintiffs did not claim surprise, nor ask for a continuance, or show any injury sustained by reason of the ruling. Merchants’ Ins. Co. v. Reichman, 40 S. W. 831; Davis v. Farwell Co., 49 S. W. 656. The assignments mentioned are all overruled.

By the seventeenth assignment it is contended the court erred in denying all relief to plaintiffs as against Startz. Ijhe proposition submitted, and the only one relied on, raises the issue whether or not the contract between Kanner and Startz was dependent or conditioned upon the contract between Kanner and Yantis. The evidence supports a finding that the contract between Kanner and Startz was not in any way conditioned or dependent upon the contract between Kan-ner and Yantis. Plaintiffs pleaded that the agreement concerning the dependency of the contract was not embraced in the written contract, that a separate contract was made verbally to that effect, and that it was made a part of the verbal contract which he contended supplanted the written contract. These averments were contradicted by Startz, who was corroborated by several witnesses. The same proposition is submitted under assignments 24, 26, 29, and 34, but under assignments 26 and 34 certain other proposi-1 tions are urged, which will be disposed of by the following findings of fact. The trade between Kanner and Startz, as finally agreed on, was evidenced by written instruments, such as deeds, deed of trust, and notes, all of which were duly executed and ready for delivery, when the suggestion was made that internal revenue stamps were required to be 'attached thereto. Startz testified he left the deeds he got from Kanner with Brown, and that Kanner also left his with Brown for the purpose of having the necessary stamps attached.

This testimony indicates an actual delivery, and the placing of the instruments with Brown by the respective grantees, but there are statements in his testimony which indicate that when the instruments had all been properly executed, and were ready for delivery, the respective grantors, Kanner and Startz, placed all of same in the hands of Leonard Brown, with instructions to place revenue stamps thereon and cancel same, and then deliver to each the instruments he was to receive under the terms of the trade. Brown placed the stamps on the instruments and canceled the same. Startz took possession of the. instruments he was to receive, and recorded the deed and deed of trust. It is contended that he did so wrongfully and fraudulently. Kanner after making such agreement told Brown not to deliver the instruments until he gave further instructions.

An escrow agreement cannot be revoked by one of the parties, but, strictly speaking, the instruments were probably not held in escrow. The instruments were complete without affixing the revenue stamps. Ruling Case Law, vol. 8, p. 943; Watson v. Mirike, 25 Tex. Civ. App. 531, 61 S. W. 538.

If the grantor execute a deed and deposit it with a third person, until there may be an opportunity for acknowledging it, whereupon it is to be delivered to the grantee, it is not an escrow. The refusal of the grantor to acknowledge the deed will not avoid it. Devlin on Real Estate (3d Ed.) § 333; note to Wilkins v. Somerville, 130 Am. St. Rep. 957; Ruggles v. Lawson, 13 John. (N. Y.) 285, 7 Am. Dec. 375. The instruments were effective to pass title without the stamps, and if the agreement had been for Kanner to put the stamps on the conveyances executed by him, and he had refused to do so, we fail to see how he would have been in any better position than if the agreement had been that he was to acknowledge the ,same, and he had failed to do so. In this case the agreement was that Brown was to place the stamps on the instruments and cancel the same. He did so. Startz was entitled to the instruments he took. He could have secured the aid of a court of equity to compel Brown to deliver same to him. His act in taking the same could not impair their validity any more than it could give them validity, if no delivery recognized by law as sufficient bad been made.

In view of the foregoing conclusions, it.is apparent that it is immaterial as between Startz and Kanner whether the original written contract between them was sufficient under the statute of frauds. Their final contract, completed by a legal delivery, was evidenced by the instruments executed by them and placed in Brown’s hands.

Under the thirty-fourth assignment the additional proposition is made that when the court by its decree enforces specific performance in favor of Startz as to the Kanner-Startz contract, it should require Startz as a condition precedent to the granting of such relief to do all things required of him under his contract. As we understand the judgment the court did not decree specific performance of the contract, but decreed that there had been a valid delivery of the instruments in question, and declined to cancel same. The contention is that Startz did not deliver the cattle to Kanner, but the testimony supports a finding that Kanner directed Startz to deliver the same to Yantis, and that this was done. The delivery of the instruments and closing of the trade was not made dependent on the delivery of cattle, to Kanner, because he had directed that they be delivered to Yantis. The proposition does not constitute a contention that Kanner is entitled to rescind on account of the dealings of Startz with reference to the cattle, or that 1 e is entitled to damages on account thereof, nor are any pleadings pointed out in the statement wherein any such issue is raised. The assignments mentioned are all overruled.

By the nineteenth assignment complaint is made of that part of the judgment in favor of Startz declaring the instruments valid and awarding him the real estate described in the deeds from Kanner to him. The assignment is attempted to be submitted as a proposition, but it is not a proposition, and we are left to surmise what reasons are relied on to show that the judgment is erroneous. The same method of briefing is used with regard to the twentieth and twenty-first assignments of error. These assignments will not be considered.

By the twenty-second, twenty-third, and thirty-third assignments complaint is made of the judgment in favor of L. Jones. - The only proposition urged is that where the payment of commissions is dependent “upon the consummation of mutual deals, and the deals are not consummated, and the payments of commissions are further dependent on the performance of certain acts by the agent, which he fails or refuses to perform, then he is not entitled to his commission.” The so-called proposition embraces two distinct contentions. The first is that the .payment of commissions was dependent upon the consummation of mutual deals, which were not consummated, and therefore the judgment is erroneous. In the statement it is asserted that the undisputed evidence shows that the contracts were mutually conditioned on each other. The statement is not sufficient and is not aided materially by the reference to the statement under the seventeenth assignment. The testimony supports a finding that the Kanner-Startz contract was not conditioned upon the consummation of the Kan-ner-Yantis contract. There is no evidence pointed out which shows that Jones was not to receive a commission on the Kanner-Startz deal, unless the deal between Kanner and Yantis was consummated. The second contention embraced in the proposition is that when the payment of commissions is dependent on the performance of certain acts by the agent, which he fails or refuses to perform, he is not entitled to commission. In the statement it is asserted that Jones’ commission was dependent on the assumption and payment by him of a lien on certain property, and that in the deed made to Mary K. Jones by Kanner, at Jones’ request, Jones did not assume or make the payments on the houses he was to get as his commission. Jones was to assume the payment of a certain note. Kanner. did not insist on making deed to Jones, in order to recite therein that Jones assumed the payment of the note, but consented to a deed being drawn conveying the land to Mary K. Jones, subject to the lien evidenced by the note. Kanner declined on other grounds to sign the deed. It does not appear that Jones ever refused to assume the payment of the note. The judgment requires that he do so. There is no merit in the contention that Jones would be precluded from recovering a commission by reason of his failure to assume the note. The assignments are overruled.

By the twenty-fifth assignment complaint is made of the judgment in so far as it orders “that Yantis pay all costs of court growing out of the cause of action asserted against him in former suit B 11329, and that Kanner pay all costs herein.” The court dismissed Kanner’s suit in so far as it asserted a cause of action against Yantis, and dismissed Yantis’ cross-action against Kanner. The cross-action related to the identical matters covered by Yantis' answer-, and it does not appear that its filing caused the accrual of any costs. There could be no additional costs by reason of such cross-action. Appellants do not complain of the judgment of dismissal of their cause of action or Yantis’ cross-action. They, therefore, cannot expect Yantis to pay costs caused by the filing of their suit against him, and of course cannot expect him to pay the costs incurred in the trial of plaintiffs’ case against Startz and Jones. The assignment is overruled.

By the twenty-eighth assignment it is contended that the court erred in rendering the judgment in favor of Startz because the contract made September 17th between Startz, Kanner, and Yantis is null and void for want of description and on account of uncertainty of terms. The thirty-second assignment complains of the admission in evidence of said contract. The instrument in question was executed after Startz had procured and recorded the instruments executed by Kanner, and the judgment in favor of Startz does not rest upon said contract of September 17th. It is vague and uncertain, and the court was authorized to find that it was executed by Startz solely for the purpose of agreeing to cancel Kanner’s obligations to him to the extent of $500 if Kan-ner and Yantis would agree on a trade by Kanner reducing the price of the cattle $1,000, and the expression in the contract, “subject to your deeds and paper on property to J. O. Yantis,” was intended to express Startz’s condition that he was not to cancel the $500 obligation, unless the Kanner-Yantis deal was consummated. It was not consummated, but nevertheless Startz in his trial amendment offered to capcel the obligation, and the court did so in the judgment. The judgment of the court does not rest upon said instrument in so far as it is in favor of Startz, and plaintiffs suffered no injury by its introduction in evidence. The assignments are overruled.

By assignments 30 and 31 complaint is made because the contracts of September 8th between Kanner and Startz and Kanner and Yantis were permitted to be introduced in evidence. As to the Kanner-Startz contract, we need only say that the judgment is not founded upon the contract of September 8th, but upon the completed contract evidenced by the instruments prepared by Brown, as hereinbefore pointed out. As to the Kanner-Yantis contract we need only point out that Yantis’ cross-action was dismissed, so plaintiffs were not injured by the introduction in evidence of the contract. The assignments are overruled.

There is no merit in the contention that the instruments executed by Kanner to Startz should not have been admitted. Tire propositions presented have been disposed of adversely to appellants in discussing other assignments. The thirty-fifth assignment is overruled.

By the eighteenth assignment it is contended the court erred in failing to determine the issue between plaintiffs and Startz raised by their plea of homestead; the grounds stated in the assignment relied on to show error being that the property on Lakeview avenue and Pecos street was shown by the proof to be the homestead of plaintiffs at the time of the execution of the deed of trust thereon in favor of Startz to secure the $2,000 note, and therefore the note and deed of trust are void. The judgment of the court amounts to a dismissal of plaintiffs’ suit as to the issue of homestead. The statement is a mere reference to the testimony of the witnesses, and wholly fails to show that the evidence substantiated plaintiffs’ claim of homestead. It appears from appellees’ statement that there were two houses situated on the property covered by the deed of trust, in one of which the Kanners had never lived, but which they had rented out up to the time the deed of trust was executed. They moved into it after this suit was begun. This house was numbered 403 Lakeview avenue. At the time the deed of trust was executed they lived in the other house which fronted on Pecos street. This house consisted of eight rooms, divided into two apartments, one being No. 502 Pecos, and the other 507 Pecos. Kanner and wife lived in one apartment and rented out the other. Both houses were on the lot at the time they made their home in the one on Pecos street. There appears to be no doubt that the house fronting on Pecos street became their home. It is evident that plaintiffs were not entitled to hold both houses as homestead property. This is not a case involving property to which the homestead character has attached, and it is contended that there has been an abandonment in part, but is a case in which the plaintiffs established a homestead only upon part of the property covered by the deed of trust, and failed to show with sufficient certainty the extent of their exemption so that the court could decide justly and fairly the extent of the invalidity of the deed of trust. Plaintiffs did not discharge the burden resting upon them of showing the boundaries of their homestead. This being the case, it appears that they have not been harmed by the judgment of the court which gives them another opportunity to make the proof they failed to make on this trial. The assignment is overruled.

The judgment is affirmed.
      @=»For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, C. J.

license: Public Domain

text:
    NATIONAL TRUST & CREDIT CO. v. OLIVER.
    (No. 364.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 2, 1918.)
    1. Bills and Notes <&wkey;352 — Bona Fide PurchaseRS — Transfer for Collection.
    Where a corporation purchased notes from the original payee under a contract whereby it took no chance of losing on the notes, and only contracted to collect such paper as it could, it was not an innocent purchaser for value before maturity.
    2. Bills and Notes <&wkey;315 — Actions—Defenses — Failure of Consideration.
    Where a payee transferred notes to a corporation which held them as a collection agency, the uncollected notes to be returned to payee, the maker could defend against its suit on the ground that payee had failed to make good its guaranty on the piano for which the notes werq given, and still retained the instrument.
    Appeal from Harris County Court; Murray B. Jones, Judge.

      Action by the National Trust & Credit Company against C. B. Oliver. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Campbell, Myer, Myer & Freeman and Rod-man S. Cosby, all of Houston, for appellant. Warren & Conn, of Houston, for appellee.
   BROOKE, C. J.

This is an appeal from judgment of the county court at law No. 2 of Harris county, Tex., in a certain cause wherein appellant, as plaintiff below, sued on two certain promissory notes, each for the sum of $130, dated February 9, 1912, drawing interest at the rate of 6 per cent, per annum from June 9, 1912, one of said notes maturing 20 months and the other 24 months after date, respectively. The notes were executed by the appellee to the Chase & Baker Co., Buffalo, N. Y., and it was alleged by appellant that it had become, for a valuable consideration, before the maturity of each of said notes, the owner of each of said notes without any knowledge' of any vice therein as between the immediate parties thereto.

As a defense to the suit, the appellee alleged that the plaintiff was not a bona fide owner and holder of the notes sued upon for value and without notice, and, in fact, the notes belonged to the Chase & Baker Company, of Buffalo, N. Y., and that the Chase & Baker Company’s indorsement upon the notes was not genuine, and was not made by said company, or any one authorized so to do; that the plaintiff and the Chase & Baker Company had fraudulently conspired to defeat and anticipate the defendant’s defense to the notes sued upon, by pretending to assign same to the appellant; that in fact and in truth plaintiff was merely a collection agent, and was the agent of the Chase & Baker Company for the collection of said notes; that the consideration for the said notes, as well as the other four paid by the appellee, was three player pianos sold by the Chase & Baker Company to the appel-lee, and for which he had executed the notes paid, as well as the notes sued upon; that the said player pianos were warranted to be mechanically perfect, and to work well; that one of them was defective, and at the request of the Chase & Baker Company the appellee returned the same to said company in the early part of 1913; that the said company had failed and refused to make good its warranty on said piano and return the same to the appellee, and therefore the consideration for the notes sued upon had failed; that before the notes sued upon were due, the appellee notified the said Chase & Baker Company and the appellant that he would not pay the said notes because he had not received the piano for which they were given, and that same was defective and had not been repaired by the Chase & Baker Company, as they had agreed to do; that, after receiving said notice of the failure of the consideration for said notes, the appellant became indebted to the said Chase & Baker Company in a sum in excess of the amount of the said notes, but failed and refused to protect itself by deducting the amount due on the notes in controversy from said debts and remittances; that the method used by the appellant and Chase & Baker Company for the purpose of anticipating and defeating any defense to the notes and accounts of the said Chase & Baker Company was sought to be accomplished by the transfer and assignment of notes and accounts due the said Chase & Baker Company, the said Chase & Baker Company guaranteeing the payment before such notes and accounts were assigned and transferred, and upon default in the payment of such notes and accounts by the customers of the Chase & Baker Company the latter company agreed to take them up and return such money as might be advanced thereon by the said National Trust & Credit Company and to pay all costs, expenses, attorney’s fees, and protest fees, etc., as might be incurred by the National' Trust & Credit Company in the matter of collection of such notes and accounts, and the National Trust & Credit Company was merely the vehicle or agent of the Chase & Baker Company for the collection of same; that the plaintiff had ample protection in its rights to said notes, in the fact that the said Chase & Baker Company had guaranteed the payment of the notes sued upon, and authorized tho appellant to reimburse itself out of any funds in the appellant’s hands belonging to said Chase & Baker Company; that appellant, after it received notice of the defendant’s defense, continued to remit large sums of money to said Chase & Baker Company on the notes and accounts of the customers of said Chase & Baker Company, and refused and failed to reimburse itself for the money paid on the notes sued upon, if any, with the fraudulent purpose and intent to shield the said Chase & Baker Company from the defendant’s defense to said notes, and with that purpose and intent brought this suit without joining as defendant, said Chase & Baker Company.

The defense of the defendant, in other words, to the notes sued upon revolved around the following propositions: (1) The appellant had no right to maintain this suit, inasmuch as the notes were made payable to the Chase & Baker Company or order, and the evidence showed, or tended to show, that the Chase & Baker Company had never indorsed the said notes. (2) The evidence tended to show that the appellant was merely the agent of the Chase & Baker Company for the collection of the notes, and was not the owner thereof; and, it being undisputed that the consideration for the notes had failed, the appellant could not recover. (3) That there was evidence that the appellant was not a purchaser for value, and in good faith and without notice of the appellee’s defense of failure of consideration. (4) The evidence showed without contradiction that the appellee did not owe Chase & Baker Company the amount of these notes, because they were given for a player piano which had been returned by the appellee to the said Chase & Baker Company, at their request, and the appellant, seeking equity, was required to do equity, and the uncontroverted evidence showing that the appellant had a written guaranty from the Chase & Baker Company that said company would pay the said notes upon the failure of the appellee to pay the same when due, and that the appellant was indebted to the said Chase & Baker Company after they learned of the appellee’s defense, in an amount in excess of the said notes, and failed and refused to reimburse itself? therefore the appellant could not maintain this suit upon, the plea that it was a purchaser for value in good faith and without notice of the appellee’s defense.

The case was tried before the court. No conclusions of fact and law are in the record, and the cause is properly before this court for consideration.

The first and second assignments of error are-as follows:

(a) “The court erred in rendering judgment in favor of the defendant and against the plaintiff in this: The uncontradieted evidence shows that the plaintiff was an innocent purchaser for value and before the maturity of the notes, and as such, judgment should have been for the plaintiff.”
(b) “The court erred in rendering judgment against the plaintiff, for the reason that the undisputed evidence in the case showed that plaintiff bought the notes in controversy before the maturity thereof, paid value for them, and at the time of the purchase of the notes had no notice of any infirmity or vice therein, or any equities which have existed between the immediate parties to the paper and under these facts judgment should have been for the plaintiff.”

It was in evidence that the following contract had been entered into between the Chase & Baker Company, hereinafter called first party, and the National Trust & Credit Company, hereinafter called second party, said contract, among other things, providing as follows:

“This agreement, made this 7th day of October, 1911, at Chicago, Ill., by and between the Chase & Baker Co., hereinafter called First Tarty, and the National Trust & Credit Company, hereinafter called Second Party, witness-eth: That, for one dollar ($1.00) and other good and valuable consideration each to the other paid, receipt whereof is hereby acknowledged, the parties hereto have agreed and do hereby agree as follows:
“First. That said Second Party shall buy from said Fiz’st Party all acceptable accounts, tendered to it by said First Party (jt being understood that there is nothing in this contract that can be construed to obligate the First Party to sell accounts to Second Party unless it desires so to do), and pay therefor the face value thereof, less the following discounts: One per cent, on accounts that are paid within fifteen days; two per cent, on accounts that are paid within thirty days; three per cent, on accounts that are paid within sixty clays; four per cent, on accounts that are paid within ninety daj’s; subject, however, to the terms of this .and any subsequent written agreement executed by the parties hereto; that the Second Party shall pay: Seventy-eight per cent, on thirty-day accounts; seventy-seven per cent, on sixty-day accounts; seventy-six per cent, on ninety-day accounts— upon delivery and acceptance of such accounts. The remainder, less discount and deductions taken by the debtor, shall be paid immediately after the collection of the account by the Sec-. ond Party; but no payment shall be made while ' any of said accounts are in default.
“Second. The First Party shall assign and deliver to said Second Party all accounts purchased, including the right of stoppage in trans-itu and title to the merchandise named in the accounts, subject only to the rights of the purchaser therein.
“Third. That the First Party shall act as the Second Party’s agent, without compensation or cost, to collect, transmit and deliver, on the day of the receipt thereof, the original checks, drafts, note and other remittances received by said First Party in payment of or to apply on accoxmts sold pursuant to this agreement; that the first party shall cause such attention to be given to the collection of said accounts as the Second Party may require; that the Second .Party has the right to terminate this agency at any time for failure of the First Party to comply with the terms of this agreement.
“Fourth. Said First Party hereby guarantees the payment to the Second Party or its assigns of all accounts purchased hereunder according to the terms thereof, and agrees that within five days after receipt of written request so to do, the First Party shall take up, at their face value, all accounts in default or against insolvent debtors. Immediately after the purchase of every account hereunder, said First Party shall make upon its books an entry showing the sale of said accounts to said Second Party, and said Second Party is hereby given the right and privilege of auditing the books and accounts, and of inspecting the records of said First Party, including all correspondence relating to said accounts, at any time that it may see fit so to do.
“Fifth. Said First Party hereby appoints Mel- • ville N. Rothschild and John L. Little and each of them, attorney in fact, with power of substitution, to indorse the name of said First Party upon all notes, checks and other forms of exchange received in payment on said accounts and to indorse all bills of lading and shipping receipts relating to said accounts.
“Sixth. That said second party in making purchase of accounts hereunder relies upon the guaranties and covenants of said First Party herein contained and upon the written representations made to it by said First Party as to the financial responsibility of said First Party ; that said written representation heretofore made and that any hereafter be made are for the purpose of establishing the credit of said First Party with said Second Party so that sale of accounts may be made hereunder.
“Seventh. That said First Party shall execute and deliver to said Second Party, or its assigns, any document necessary or proper to carry into effect this contract, and should said Second Party employ counsel or cause legal action to be instituted to enforce the payment of any of said accounts, or any part thereof, then and in either case, said First Party shall immediately pay to said Second Party or its assigns, all court costs, expenses, attorney’s and stenographer’s fees which may be by it expended in such proceedings.
“In witness whereof, the said first party has hereunto set its hand and seal, and said Second Party has caused these presents to be executed by its president and secretary, and its corporate seal to be hereto attached.”

It will be seen by the fourth section of said agreement that the National Trust & Credit Company bought all the notes and accounts with the agreement practically to pay a certain per cent, on the amounts collected, and for the amounts not collected they would reassign the said paper to the Chase & Baker Company, and that the said Chase & Baker Company would pay all the fees necessary for collection, etc.

The view we take of this contract is that the said National Trust & Credit Company was more in the nature of a collection agency, and that it did not, in fact and in truth, become the owner for every purpose, and take the chance of losing any of the accounts or notes so bought; that they only contracted to collect such paper as they could, and upon a failure to collect the said notes or accounts should be reassigned and redelivered to the Chase & Baker Company. In other words, the National Trust & Credit Company could not be said to become the owner of the paper in every sense of the word, but that it only contracted to handle said paper for a certain per cent., and return such as were • uncollected to the real owner, the Chase & Baker Company. Therefore they were not innocent purchasers of the paper for value and before maturity of the notes in question, and that any equities that existed, in fact, between the appellee and the Chase & Baker Company could be urged as a defense in the action upon the notes. It having been shown by the appellant that the consideration of the notes sued on was a player piano, and that said Chase & Baker Company were still in possession of one of the player pianos, and that the appellee was still willing to pay the two notes that are sued upon in this case if the piano was returned to him by Chase & Baker Company, it appears that ap-pellee could plead a failure of consideration, just as if there had been no alleged transfer of the notes to the Trust & Credit Company. In other words, it is the opinion of the court that the appellant cannot be considered a purchaser for value of the notes and in good faith without notice of appellee’s defense of failure of consideration, and that, appellant not occupying that attitude, any defense that could be justly urged against the Chase & Baker Company could be urged in the present suit, and as if the Chase & Baker Company were themselves parties to the suit. The first and second assignments, therefore, are overruled.

The third assignment is as follows:

“The court erred in rendering judgment for the defendant against the plaintiff for the reason that defendant by his pleading did not put the plaintiff upon proof of the due and proper indorsement of the notes, and the validity and genuineness of said indorsement and transfer was therefore conclusively presumed as a matter of law, and for this reason judgment should have been for the plaintiff.”

We have set out the contract which was made between the Trust & Credit Company and Chase & Baker Company, and therefore it becomes immaterial to pass upon this assignment. We are not unmindful of the cases cited by appellant, to wit, Schauer v. Beitel, 92 Tex. 601, 50 S. W. 931, and Foster v. Railway Co., 176 S. W. 788, and we are persuaded that the law is as it has been announced by Judge Brown in the Schauer Case. See, also, Overstreet v. Manning, 67 Tex. 657, 4 S. W. 248; McKamey v. Thorp, 61 Tex. 648; Houston Oil Co. of Texas v. Hayden, 104 Tex. 175, 135 S. W. 1149; Sperlin v. Peninsula Loan Co., 103 S. W. 232. The third assignment is overruled.

The fourth ground of error is alleged as being in rendering judgment against the plaintiff and for the defendant, for the reason that there was no satisfactory evidence in the case that the defendant had a light to return the piano, or that the defect in the piano was one for which the Chase & Baker Company were in any way liable, and the evidence failed to show that there has been any failure of consideration in the notes, and failed to show that the notes were not valid obligations even in the hands of the original payee. The proposition under this assignment is that the evidence was not sufficient to show that defendant had become entitled to any offset or credit on the notes even had they remained in the hands of the original payee, and still less was defendant entitled to any offset to the notes in the hands of an innocent purchaser.

In our opinion, the evidence was sufficient to show that defendant had become entitled to the credit on the notes if they had remained in the hands of the original payee, and that defendant was entitled, as against the National Trust & Credit Company, who was not an innocent purchaser, as above set out, to the notes in its hands. In this connection, it may be well to quote the language of the court in the case of State Bank v. Blakey & Co., 79 S. W. 333, as follows:

“The case then comes to this: The indorser in good conscience' should pay. The bank has its funds in its hands sufficient to satisfy the demand, with a perfect right in equity to offset same in satisfaction of the bill. The pursuit of the acceptor in a foreign jurisdiction is clearly not necessary to the bank’s protection, but can only serve to allow the indorser to avail himself of the protection given by law to an innocent purchaser in order to cut the acceptor off from a just defense and compel it to pay a sum of money which in equity it should not pay. In this case the bank had the wagon company, a solvent corporation, bound as an in-dorser of the note, and; in addition, brought the suit at the instance and request of the indorser, and was given a bond indemnifying it against payment of costs, attorney’s fees, or any other loss. In fact,- it could be concluded with reason, from the facts, that the bank was a mere figurehead, and that the suit was being prosecuted for the benefit of a corporation that had defrauded appellees, and, under cover of its want of notice, prior to the maturity of the note of the failure of consideration, was attempting to force the payment of an unrighteous claim.”

So it may be said in this case that appellant was using its defense of innocent holder to protect a corporation that had defrauded appellee, and under cover of its want of notice prior to the maturity of the notes of failure of consideration was attempting to force the payment of an unrighteous claim. We have carefully considered the record in this cause, and we are of the opinion that the appellant had a fair and impartial trial in the lower court, and that its action should not bo disturbed. It is therefore in all things affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOICE, J.

text:
    HOUSTON OIL CO. OF TEXAS v. LANE et al.
    (No. 283.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 27, 1918.
    Rehearing Denied May 15, 1918.)
    1. Tebspass to Thy Title <&wkey;41(3) — Evidence.
    In trespass to try title, evidence 7ield to support a jury finding that a certain tract was located as claimed by defendants and interven-ers.
    2. Trial <&wkey;352(l) — Ambiguous Questions.
    In trespass to try title, a question submitted to the jury whether a certain tract was located as claimed by defendants and interveners was not objectionable as'ambiguous.
    Error from District Court, San Augustine County; A. E. Davis, Judge.
    Suit by the Houston Oil Company of Texas against Wesley Lane and others, in which W. T. Lakey and another intervened. Judgment for defendants, and plaintiff brings error.
    Affirmed.
    Kennerly, Williams, Lee & Hill, of Houston, for plaintiff in error, John E. McLauren and Davis & Ramsey, all of San Augustine, and Denman •& Thomas, of Lufkin, for defendants in error.
   BROOICE, J.

This is a suit brought by plaintiffs in error in trespass to try title against defendants in error for a portion of the northwest quarter of the Win. Lakey league in San Augustine county. Defendants in error disclaimed title to all the land sued for, except 100 acres and 246% acres, and as to these two tracts pleaded not guilty, and specially pleaded limitation title of three, five, and ten years. W. T. Lakey and G. W. and Mary Robertson, interveners, set up title to a two-fifths interest in the 130-acre tract of the land sued for. A trial was had by jury on special issues, and a verdict favorable to defendants in error on all issues submitted was returned, and judgment was rendered by the court on such verdict that defendants in error recover all the land they sued for, except two-fifths of the 100-acre tract, and' for the plaintiff in error for the balance of the land it sued for except one-fifth of the 130-acre tract adjudged to inter-vener Robertson, and costs were taxed against defendants in error.

The issues submitted to the jury were as follows:

“Question No. 1: Is the Troy Lakey or Mary Lakey. tract of 100 acres, more or less, located as claimed by the defendants and interveners? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered, “Yes.”

“Question No. 2: Is the Z. W. E. Lane 210 acres of land located as claimed by the defendants? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered, “Yes.”

“Question No. 3: Have the defendants, and those under whom they claim, had and held and claimed the 246% acres of land described in their pleadings, and have peaceable and adverse possession and cultivate, use or enjoy the same, claiming under deeds duly registered and paying all taxes due thereon as the same accrued for a period of five consecutive years after the plaintiff’s cause of action accrued and before the commencement of this suit? You will answer this question ‘Yes’ or ‘No,’ as you may find the fact to be.”

To this question the jury answered, “Yes.”

“Question No. 4: Did the defendants and those under whom they hold and claim have and hold peaceable and adverse possession of the 246% acres of land described in their answer, cultivating, using or enjoying the same for a period of ten consecutive years after plaintiff’s cause of action accrued and before the commencement of this suit, and taken and held under written memorandum of title, specifying and defining the boundaries of said 246%-acre tract, and such memorandum duly recorded in the office of the county clerk of San Augustine county? You will answer this question ‘Yes’ or ‘No,’ as yon may determine the fact to be.”

To this question the jury answered, “Yes.”

“Question No. 5: Did defendants, and those whose estate they claim to have and hold, have and hold the peaceable and adverse possession of the 246% acres of land described in their answer, and cultivating, using, or enjoying the same for a period of ten consecutive years after plaintiff’s cause of action accrued and before the commencement of this suit? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered, “Yes.”

The first assignment complains of the action of the court in overruling the forty-first assignment as follows:

“The plaintiff moves the court to strike out the answer of the jury to question No. 1, as being without evidence to support it.”

On the contrary, defendants in error contend:

“That is certain which may be made certain from statements contained in the description, and which may be identified from extraneous matters.”

The description objected to reads:

“Bounded on the north by Matthew Cartwright land; thence east to the Blanchard land ; thence alongside said Blanchard’s line to Carroll Lakey’s corner; thence to John Lakey corner, said tract to contain 100 acres of land.”

Its location is shown by the Whitton map and the McLanirin map.

Exhibit A — mslavrin Map.

The 100-acre tract calls for the Cartwright land, which is admitted by all the surveyors to he well established and definitely located. W. H. Whitton testified that when he surveyed off the Mary Lakey 100-acre tract, being the tract in question, that George Lakey, the brother of J. Troy Lak-ey, and the husband -of Mary Lakey, pointed out the 100-acre tract as between the Cartwright land the north line of the 210-acre tract, and east of the George Lakey tract; that Harry Polk and George and Carroll Lakey were present, and that they surveyed up to the Mary Lakey tract; and that George Lakey said that the Mary Lakey tract lay between the Cartwright land and creek. Enoch Lakey testified that he knew the Mary Lakey or Troy Lakey place; that it was east of Grandpa William Lakey’s place; that the Cartwright land was north of it, and a prong of Caney creek was south of it; that the Mary Lakey place was between a half and three-quarters of a mile east of that road, meaning San Augustine and Jasper road, that is the old house place; that that place has been recognized as her place by the Lakey family, and that he never heard of it being disputed; that Mary Lakey was the last person that he knew of that lived on the Mary Lakey tract; that she lived there until she married in 1871; also, he testified that Carroll Lakey lived south of Caney creek, and moved from there to Falls county, and that he came back and lived between the creek and the bayou; also, Uncle Noah Lakey lived there for some time; that John Lakey lived a little northeast of Grandpa Lakey’s place; that he knew nothing of the Blanchard. J. W. Robbins testified that John Lakey claimed the 246%-acre tract; that he sold to Mr. Letney, and Mr. Letney sold to Mr. Lane. A. O. Raimes also testified that Carroll Lakey lived between Big creek and the bayou.

The record shows that there is practically no dispute about the Cartwright land lying north of it; also, the John Lakey and Carroll Lakey tracts lie south and east, and also its boundaries on the south and east are circumscribed, as shown by the testimony, by Big creek and Caney creek. Thus we have three boundaries, leaving only the east boundary line not proven with absolute certainty; the east line called for in the field notes being the Blanchard land, and it is admitted that no one knew anything about the Blanchard land. In the case of Snow v. Gallup, 57 Tex. Civ. App. 572, 123 S. W. 223, it appe'ars that no lines were, in fact, proven, but by a process of elimination that is, by proof showing other tracts sold off, leaving a 500-acre tract for the court to determine that was the tract intended to be conveyed. Also in the case of Tompkins v. Thomas, 54 Tex. Civ. App. 440, 118 S. W. 581, the court supplied three lines, in order that the tract might include 400 acres and close.

There was evidence that Mr. Enoch Lak-ey, a grandson of William Lakey, positively testified that this 100-acre tract has always been recognized by the Lakey family, and that he never heard before of it being disputed. Therefore there was testimony upon which the verdict was rendered, and we are of opinion tiat it cannot now be called in question. The first assignment is overruled. '■

The second assignment challenges the action of the court as error in submitting .question' No. 1, for the reason that as the same is submitted, it is ambiguous, in that it does not ask whether the location as claimed by the defendants and intervener is the original or any established location thereof, and that it is so worded as to probably leave in the minds of the jury the idea that the court is asking them whether the 100-acre tract claimed by the defendants and interveners as the Mary Lakey tract is the location thereof made by the surveyor McLaurin. Without further discussion, we are of opinion that there is no merit in this assignment, and it is overruled.

The third assignment complains of the action of the lower court in not sustaining the forty-fourth assignment, and plaintiff moves the court to strike out and set aside the answer of the jury to question No. 2, as being without evidence to support it. It is the contention that wherever the intention of the parties is apparent from the field notes or description, the court will supply a line in order to connect up the survey. The deed from J. H. Letney and wife to Z. W. E. Lane described the 210 acres as follows:

“Beginning at a white oak on the north side of Oaney creek, known as the Doyne corner; thence up said creek with its meanders to the dividing line of said league and the Hulen survey; thence south to the south boundary line of the original line; thence west with said league line to the Ayish bayou; thence down said bayou to the mouth of Big creek; thence up said creek to the mouth of Oaney creek to the beginning, containing 210 acres of land.”

These field notes were made by W. N. Whitton for H. K. Polk in 1889, and the plaintiffs in error hold under said Polk the land it claims. The said field notes also call for and recognize the James Lakey 210 acres. The lfiats hereto attached will show the location of said 210 acres. See Tompkins v. Thomas, 54 Tex. Civ. App. 440, 118 S. W. 581; Woods v. Robinson, 58 Tex. 655; Buford v. Gray, 51 Tex. 331. It is also the contention of defendants in error that where, by the description given and by reversing the calls in the field notes, the missing call can he supplied, and the land identified, the field notes will be held to be sufficient. See Montgomery v. Carlton, 56 Tex. 431. What is said with reference to the first assignment applies also to this assignment, and it is overruled.

The fourth assignment claims that the court erred in submitting question No. 2, because it does not make clear to the jury whether the court is asking them, about that location of the land purported to be conveyed by the deed from J. H. Letney to Lane, or whether the question asks merely whether the location they claim is the location of the 210 acres surveyed by Whitton. The deed from Letney to Lane was made in 1893, and filed January 10, 1894. This deed contains a description of the land. Tax receipts from the year 1894 down to the present are shown. The testimony of Robert Lane, .J. W. Robbins, and A. O. Raimes, Joe Coleman, and Ben Miller show that the defendants in error and those under whom they hold had such possession, cultivated, and made such use and claim to the property as to mature a limitation title. There was no dispute as to this testimony. The assignment is overruled.

The fifth assignment calls in question the action of the court in submitting question No. 3, because the evidence did not show that the 210-acre tract claimed by defendant is the land described in the deed to Lane, and for that reason they have not been claiming under a deed duly registered and duly describing said land. Without further comment, and finding no merit in the assignment, the same is overruled.,

The sixth assignment challenges'the action of the lower court as error in submitting question No. 4, because same asked the jury to pass ori a question of law as to whether such possession as defendants may have had was taken and held under written memorandum of title, specifying the boundaries, as is required by the statute, when the undisputed facts show that the only character of written memorandum of title which the defendants have, defining the boundaries of said tract, consist of field notes which are neither such memorandum, as is required, nor duly registered, as is required.

The deed -from Letney to Lane, in which the first tract describes the 16% acres, which is a part of the 246% acres, and the second tract therein describes the 210 acres, and the third tract, which is the Troy Lakey, tract, which includes the 100 acres sued for by defendants in error, and also part of the 246% acres sued for by plaintiffs in error, was in the same deed. All the said tracts are consolidated in one deed. The deed which consolidated all of said tracts was filed for record in 1894, and in ovir opinion sustains defendants in error’s limitation title to all of such tracts. Therefore, without entering into a detailed discussion of the remaining assignments of error, and of the proposition that several tracts of land may be consolidated in a deed and possession thereunder by the grantee to any part extends his constructive possession to all, we are of opinion that the assignments of error from 6 to 14, inclusive, are without merit, and are therefore overruled. As to the consolidation of the tracts and possession thereunder, see 191 g. W. 345.

After a careful examination of the contentions made by plaintiff in error and by defendants in error, and an ‘ inspection of the record, we are of opinion that the lower court did not commit error in the trial of said cause, and that the plaintiffs in error have had a fair and impartial trial, and that the judgment of the lower court must be affirmed.

HIGHTOWER, C. J., was disqualified, and did not sit.
      <&wkey;&or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    TURNER et al. v. GREGORY.
    (No. 6003.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 17, 1918.
    Rehearing Denied May 22, 1918.)
    1. Mortgages &wkey;>319(3) — Payment — Evidence— Sufficiency .
    Evidence held to sustain judgment for cancellation of deed of trust securing note on the ' ground that the note was paid either to the bank which owned it or to the agent of the bank authorized to receive payment.
    2. Mortgages <&wkey;345 — Limitations—Powers oe Sale.
    Where note secured by trust deed with power of sale matured in July, 1908, the right to a sale was barred after July, 1912, in view of Rev. St. 1911, art. 5693, providing that no- power of sale under trust deed can be enforced after four years from the maturity of the indebtedness, such statute having been passed in 1911, so that the holder of the trust deed had a reasonable time after its enactment in which to exercise the power of sale.
    3. CONSTTUTIONAL LAW <&wkey; 107 — LIMITATIONS —Powers of Sale.
    Rights of grantee of trust deed to exercise power of sale having become completely barred under Rev. St. 1911, art. 5693, four years after the debt matured, and before enactment of article 5095, such article, providing for extension of time to exercise the power of sale, did not extend his time; the rights of the grantor in the b^r having become vested.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Suit by William Gregory against D. McN. Turner and' others. Judgment after trial without jury for plaintiff, and defendants appeal.
    Affirmed.
    Henry M. Holden, of Corpus Christi, for appellants. G. R. Scott and Boone & Pope, all of Corpus Christi, for appellee.
   SWEARINGEN, J.

This suit was instituted by Wm. Gregory, the appellee, against Clark Pease and D. McNeil Turner, appellants, for the purpose of having canceled a certain deed of trust. Several vendees and lien claimants, whose claims arose subsequent to the record of the deed of trust were parties to the suit. The execution of the deed of trust and its record were admitted. The right of cancellation alleged by appellee was that the note secured by the deed of trust had been paid in full, and that, if not, the right to recover on the notes as well as the right to exercise the power of sale contained in the deed of trust was barred by the statute. The cause was submitted to the court without the intervention of a jury, and judgment rendered'in favor of appellee on the issue between him and appellants.

No complaint is made by assignment of any part of the judgment except the cancellation of the aforementioned deed of trust. The pleadings clearly and fully presented th,e issue that the note had been paid and the alternative issue that, if not, the note and remedy given in the deed of trust were both barred by the statute.

The facts are undisputed, except as to payment, and on the question of payment there-is a conflict in the testimony. This testimony will be stated in onr consideration of the assignment. The question of limitation is determined by a construction of articles 5693 and 5695, Rev. Stats. Tex., and application thereof to the undisputed dates of the note and deed of trust forming the foundation of this cause.

All of the six assignments present the general proposition that the court erred in rendering the' judgment canceling the note and deed of trust for the reasons that there is ¡ no evidence of payment, and the power of sale contracted in the deed of trust is not barred. It is admitted that the judgment of the trial court cannot be disturbed if there is evidence that the note was paid or if the power of sale was barred at the time of the judgment.

We thipk there is evidence that the note was paid, and we also believe the power to sell, given in the deed of trust, was barred. The testimony to prove payment is not without conflict, and perhaps in every respect is not as direct and conclusive as it might be, but still is sufficient to sustain the trial court’s judgment.

Mrs. Julia Spiro and her husband made the note and executed the deed of trust in July, 1907. The note matured in July, 1908. In July, 1910, Mrs. Spiro’s attention was called to this note and deed of trust by Mr. McNeil Turner, and she requested her broth-ei’-in-law to pay it. The brother-in-law did draw a check for the amount stated by McNeil Turner, after inquiry of the bank to which it was payable by indorsement. This check was delivered to McNeil Turner, or to the bank, by the brother-in-law of Julia Spiro, and was paid. The amount of the check was paid to the brother-in-law by Julia Spiro. The evidence shows that Julia Spiro, the maker of the note, actually paid the amount of the note. But whether or not she paid it to the owner or holder of the note, or an agent of the holder authorized to receive it, is the question that depends somewhat upon circumstances instead of direct testimony.

This latter question may be made to stand out clearer by two questions: First. Was the amount of the note paid to the bank while it was the holder of the note? Second. If the payment was made to D. McNeil Turner, was he the agent of the bank authorized to receive the payment for the bank? There is evidence that will sustain an affirmative answer to both interrogatories.

The testimony relative to the first is substantially the following: The witness George was present with Julia Spiro, Laulom, the brother-in-law, and Turner the last of July, 1910, in Corpus Christi. At that time Turner suggested the payment of the note. Julia Spiro thereupon requested Laulom to pay it for her. Mr. Turner phoned the bank to ascertain the balance due at that time on the note. After the phone conversation between the bank and Turner, Turner wrote out a check payable to the bank for $291.65 in payment of the amount of the note, which check Laulom afterwards, on August 1. 1910. mailed to Turner from Brownsville to Cor-' pus Christi. This check was paid by the! bank on which it was drawn and the canceled check returned to Laulom. It will be recalled that witness George testified that Turner filled in the blank check after a phone conversation with the bank, and made the chock payable to the bank. The evidence shows that' the note was made payable to Clark Tease, one of the appellants, but that Clark Pease, by his indorsement, made the note payable to the bank of which lie was president, and added to the indorsement the words “without recourse on me.” Wo presume the indorsement transferred title to the note to the bank, and that this was done before maturity of the note in July, 1908. The evidence does not show when Clark Pease again became the holder of the note. Ilis testimony conveys the inference that he never again became the owner of it, but merely holds it for the purposes of this suit. It follows that at the time Mrs. Spiro made the payment through her brother-in-law, Laulom, the bank was the owner and holder of the note. Because the bank owned the note at that time is the reason Mr. Turner phoned the bank to ascertain the amount and is the reason Mr. Turner filled out the blank check and made it payable to the bank. Mr. Turner testified that he never received the check for $291.65. It is therefore probable that the check was delivered to the bank in whose favor it was written and which owned the note. There is no evidence that the bank did not receive the payment as above indicated. The only evidence of nonpayment is that of Clark Pease, who testified that he had never been paid the amount of the note nor any part thereof. If we are correct in finding that the bank owned the note prior to its maturity until the time of the filing of this suit, then Clark Pease would not have received any payment on the note, but this does not prove that the payment was not made to the owner of the note .at the time of payment in August, 1910. The long delay In demanding payment of the note and in exercising the power of sale is a strong circumstance corroborating the proof of payment to the rightful owner of the note. The note matured in July, 1908, was unpaid in July, 1910. This two years’ delay is partially explained by the fact that the land conveyed by the deed of trust was in litigation between Julia Spiro and her sister, Mrs. Laulom, on one side and their father, 'Win. Gregory, on the other. This litigation was settled in July, 1910, and at the same time payment of the note was suggested by Mr. Turner. The failure of the bank thereafter to demand payment until suit was brought to cancel the deed of trust, more than six years afterwards, strongly indicates that the payment which Julia; Spiro actually made had reached the bank.

There is evidence that Turner was in fact the 'agent authorized by the bank to make this collection. Mr. Turner represented Mr. Pease in drawing the note originally and in preparing the deed of trust. . He was the agent of Pease in making the loan for which the note and deed of trust were given. He requested the payment of the note in 1910. He telephoned the bank to ascertain the amount of the note in August, 1910. He filled out the check for Laulom and promised to send the canceled note. The transaction of paying the note did not stop there, but Julia Spiro actually made payment of the note in accordance with Turner’s directions given to Laulom. The long delay in demanding payment is again a forceful circumstance indicating that Mr. Turner did apply the check to the payment of the 'note, which is an indication that he had the authority to collect it.

The evidence is sufficient to sustain a finding that tliei note was either paid to the bank while it owned it, or to Turner who was authorized by the bank to receive it. This finding will sustain the judgment for appellee on fhe issue of payment, for which reason all the assignments- should be overruled.

Again, the judgment should be sustained because the facts show that the power of sale was barred at the time of the trial. By article 5693 of the Statutes of 1911 no power of sale created by any deed of trust could be enforced after the expiration of four years from the maturity of the indebtedness secured thereby. The note matured in July, 190S. Four years after that date was July, 1912. The said article 5693 was passed in 1911; hence appellant had a reasonable time after the enactment of the statute of 1911 in which to exercise his power of sale, about one year. This statute did limit the time in which the remedy, by sale by the trustee, could be exercised by the holdqr of the note, and after July, 1912, that right ceased.

Article 5695 for the extension of time in which to exercise the power of sale, did not revive the power of sale in this case, because on July 30, 1913, this power was already destroyed by article 5693, and being completely barred at that time, which it was, for it became barred in July 1912, four years after the maturity of the indebtedness in July, 1908, the rights of appellee, given him by article 5093, became vested, and could not be revived.

"VVe therefore are of the opinion that the right to'exercise the power of sale was barred at the time of the suit and that the right to foreclose the lie'n given in the deed of trust could not be enforced; for the extension statute, article 5695, is forbidden by the Constitution to revive the expired lien. Cathey v. Weaver, 193 S. W. 490; Tullos v. Mayfield, 198 S. W. 1073; Key v. Jones, 191 S. W. 736.

All of the six assignments are overruled, and the judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    HOUSTON ELECTRIC CO. v. SCHMIDT.
    (No. 7580.)
    (Court of Civil Appeals of Texas. Galveston.
    April 24, 1918.
    Rehearing Denied May 16, 1918.)
    1. Appeal and Error <&wkey;1002 — Review-Verdict — Sufficiency of Evidence.
    In considering the sufficiency of evidence, the appellate court is limited to a determination of the legal sufficiency of the evidence to support the verdict and findings, and has no concern with contrary evidence rejected by the jury.
    2. Street Railroads <&wkey;117(35) — Collision witi-i Automobile — Discovered Peril — Question fob Jury.
    Evidence that plaintiff, injured by the collision of his automobile and defendant’s street car, mot the car where the track was 2 feet from the ditch at plaintiff’s right; that plaintiff was blocked from turning to the left by two automobiles coming with and abreast the street car, which was stopped 10 feet past the place of collision; that the motorman and the conductor 'saw plaintiff 'coming a block away — requires submission to the jury of the question of the motorman’s negligence after discovery of plaintiff’s peril.
    3. Street Railroads &wkey;114 (19) — Collision with Automobile — Discovered Peril — Negligence — Weight and Sufficiency of Evidence.
    Evidence that the motorman of defendant’s street car saw plaintiff’s automobile a block away and stopped 10 feet after colliding with it 2 feet from the ditch at plaintiff’s right, when plaintiff’s way to left was blocked by other cars, held sufficient to sustain a verdict that the motorman was negligent after discovering .plaintiff’s peril.
    4. Street Railroads <&wkey;103 (3) — Collision with Automobile — Duty of Motorman— Discovered Peril.
    A street car company does not have the exclusive right to the use of the street, and its operatives are bound to prevent a collision with automobiles, if possible, after discovering peril.
    5. Damages &wkey;>132(l) — Excessive Damages —Permanent Injuries — Inability to AVork.
    Where plaintiff was 33 years old and earning about $90 per month at the time of injury, after which he was helpless and unable to work at all, an award of $3,000 will not be set aside as excessive.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Action by John Schmidt against the Houston Electric Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C.. R. Wharton and R. C. Patterson, both of Houston, for appellant. Ward & Ward, of Houston, for appellee.
   GRAVES, J.

This appeal is from a $3,-000 judgment awarded John ¡Schmidt on a jury’s verdict for personal injuries received in a collision between the automobile he was driving and one of appellant’s street cars. The accident happened at night on the Harrisburg road within the city limits of Houston, the automobile being out-bound toward Harrisburg, the street car in-bound toward Houston. The car track was laid in that portion of the street customarily used by vehicles and the public generally, the outside rail being within about 2 feet of the ditch bordering the street on its south side. This placed the street car moving toward Houston on the left side of the center of the driveway, and the automobile going toward Harrisburg on the right side. In response to special issues submitted to them, the jury found the collision was caused by the motorman’s failure to use due care after discovering the appellee’s perilous position upon the track in front of the moving car. Upon other issues involving alleged negligence in the speed of the street car and in having an insufficient or defective headlight thereon, the findings were in appellant’s favor.

The judgment is first assailed upon the contention that there was no evidence justifying the submission of the case to the jury, and consequently appellant’s request for a peremptory instruction in its favor should have been granted. After examining the statement of facts, we are unable to agree with this position, but think that, not only was the evidence sufficient to take the question of whether the motorman was negligent after discovering appellee’s position upon the track to the jury, but amply supported their finding that he was.

It is next insisted the judgment has no support, in that there is no evidence that the motorman saw the automobile on the track in front of his car and realized a collision would occur unless the car was stopped, because, it is said, the uncontroverted proof shows the motorman either fully stopped, or so materially slackened the speed of the car, that it was almost at a stop when Schmidt’s automobile ran into it. The argument is the motorman had a right to assume that Schmidt would leave the track in time to avoid a collision, and there is no evidence that he realized Schmidt would not do 'so at any time before it actually occurred. These assignments assume facts not found by the jury. The theory of appellant upon the trial there evidently was that the street car was standing still, and Schmidt, while under the influence of liquor, ran his automobile headlong into it. It offered much evidence tending to support this theory, including the direct testimony of both the motorman and conductor of the car, and was given full benefit of it in the issues submitted, but the jury saw fit to reject it, and consequently this court has no proper concern with it; our province being limited to a determination of the legal sufficiency of the evidence to support the contrary findings the jury did make. In answer to questions properly embodying them, these were that the car was in motion at the time of and for a distance of 10 feet after the collision, and that the motorman, not only saw the automobile on the track in front of his car, but realized, within a sufficient time to have stopped or slackened the speed of the car and have thereby-prevented it, that a collision would occur unless one or the other were done. Appellant insists that there was no evidence to authorize the submission of this issue of discovered peril to the jury, or to justify the entry of judgment upon this finding thereon. The question, therefore, practically resolves itself back into the same as first referred to, the sufficiency of the evidence to raise the issue and support the finding as to the motorman’s negligence after discovering Schmidt’s position upon the track. While our finding upon the question has already been stated, it may not be amiss to here briefly summarize some more of the material facts upon which it is based.

Schmidt was driving his automobile slowly along the street car track, going less than 18 miles per hour, having just met a number of other automobiles on the street, when the street car approached from the same direction he was going. The car track was too close to the ditch on that side to permit him to turn to the right of the car, and when he got to where he must turn to the left to avoid it, and was about to do so, he was blocked by another automobile. Two automobiles were likewise coming from the same direction as and nearly abreast with the street car, one of them 2 or 3 feet and the other 10 or 12 feet north of the car track. Both the motorman and conductor in charge of the car not only saw 'Schmidt’s automobile on the track in front of them for a whole block before striking it, but no effort was made either to stop or slow the car up until after the collision, when the motorman stopped within a distance of 10 feet. The condition of the automobile itself indicated that it had been struck from without on the right side, not that it had run into the car head-on. While the testimony was sharply in conflict in many features, taken as a whole, we think it was sufficient to justify the findings made. In these circumstances it cannot be justly said, we think, that the jury’s finding that the motorman had discovered the peril of appellee and did not stop, or attempt to stop, the street car was without support in the evidence. The admission of both motorman and conductor that they had first seen the automobile a block away; their total failure to even slow down before the actual impact; the lack of room for Schmidt to pass to the right of the car; the two other automobiles running abreast with it and preventing ■ his free passage to the left without at least the apprehension of a collision with them; and, finally, the demonstrated ability of the operatives, from the fact that they did subsequently do so, to stop the street car -within a distance of 10 feet — all these facts considered together were, not only sufficient to raise the question of whether the motorman, within time to have prevented the injury by reasonable use of tlie means at hand, realized that Schmidt was in a position of peril, but also that he did so realize and thereafter failed to use due care. Under authorities applicable to this state of ease appellant neither had the right to exclusive use of the street nor could its operatives ignore appellee’s presence there. Galveston Electric Co. v., Antonini, 152 S. W. 841. In that case this court states the rule:

“If the manner in which the boy was driving was such as to reasonably indicate that he intended to cross in front of the car, it was the motorman’s duty to at once use proper care to jn'event the collision. Ho had no right to take any chance on the boy’s getting across before the car reached him, nor could he speculate on whether he would stop or turn aside before he reached the track; there being nothing in the boy's action to indicate any such intention. In such circumstances we think ordinary prudence required that the motorman should -act on the reasonable appearance of danger or peril to the appellee, and not wait until the danger was manifest and the injury unavoidable. Railway Co. v. Wear, 33 Tex. Civ. App. 492, 77 S. W. 272: Gehring v. Galveston Electric Co., 194 [134] S. W. 291; Railway Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S. W. 1111.”

Applying that rule to the facts here, it passes comprehension that this motorman could have failed to realize that Schmidt was in a position of actual peril, and that, in all reasonable probability, a collision would occur if he did not stop or slacken the car. To say the least, it was clearly a question for the jury. Railway Co. v. Rosenbloom, 107 Tex. 291, 173 S. W. 216, 177 S. W. 952; Railway Co. v. Scarborough, 104 S. W. 408; Railway Co. v. Milburn, 142 S. W. 626; Railway Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442.

Through several further assignments it is claimed there was an irreconcilable conflict between the jury’s findings upon special issues 1 to 6, inclusive, and those upon issues 7, 8, and 9. After carefully examining the record in this respect, however, we conclude that no such conflict appears. One to 6 required a finding as to speed; 7 to 9 as to manner of operation. Nor was the question as to speed and manner of operation of the car submitted under the first two of these special issues in the disjunctive form, mistakenly used by appellant in its assignments, but in such conjunctive manner as, in our opinion, did not preclude the later separation of the two alleged elements of negligence, and the requirement of a distinct finding as to the manner of operation alone. The assignments raising the question are accordingly overruled.

The last assignment complains of the verdict as being excessive. But under the evidence we cannot say that it is. At the time of his injury the appellee was 33 years old, earning about $65 to $70 per month at the shops, besides about $1 per day working at night as a shoemaker. After the accident, he was' helpless and unable to labor at all. While there was a decided conflict in the expressed opinions of the physicians who testified respectively for the opposing litigants, as so often happens, there was evidence sufficient to justify a further finding that Schmidt was seriously and permanently injured as a result of the accident; that any heart trouble he may have had previously had been aggravated thereby; that he had suffered much pain and would continue to; and that his future ability to perform manual labor had been destroyed. Under this showing, it cannot be properly said that an award of $3,000 would so shock the conscience of an appellate court as to justify it in setting aside a jury’s finding.

The conclusions stated require the overruling of all assignments and an affirmance of the judgment, which order has been entered.

Affirmed.
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