author: SPEER, J.

text:
    FIRST STATE BANK OF ARCHER CITY et al. v. POWER.
    (No. 7822.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 7, 1914.
    Rehearing Denied April 11, 1914.)
    Evidence (§ 459) — Parol Evidence Affecting Weitings — Construction of Instrument — Identification of Parties.
    Where a contract for the sale of a bank was signed by two-thirds of the stockholders in order to bind the bank, reciting that it was executed by M. and others acting for the bank, “and hereinafter called second party,” and it was evident that the term “second party” was sometimes used therein to refer to the bank and sometimes to the stockholders, there was such an ambiguity in the instrument as. to authorize the admission of parol evidence to show whether the term “second party” in .a provision requiring the “second party” to redeem the real estate, furniture and fixtures, was intended to refer to and bind the stockholders or, only the bank.
    [Ed. Note. — For other cases, see Evidence Cent. Dig. §§ 1722, 1906-1910, 2109-2114; Dec. Dig. § 459.]
    Appeal from District Court, Archer County; P. A. Martin, Judge.
    Action by F. M. Power against the First State Bank of Archer City and others. From a judgment for plaintiff, the defendants appeal.
    Reversed and remanded.
    A. A. Hughes and Mathis & Kay, all of Wichita Falls, for appellants. W. E. Forgy, of Archer, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

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

   SPEER, J.

This suit was instituted by F. M. Power against the First State Bank of Archer City, a private banking corporation, and L. F. Gragg, P. P. Langford, Joe W. Kimball, and C. E. Goodwin, based upon a written contract hereinafter set out; plaintiff contending that the defendants, other than the First State Bank, were personally and individually liable upon such contract for their failure to comply with the latter part of section 9 of the contract, wherein it is stated: “And the second party will on or before the first day of January, 1912, redeem said real estate and furniture and fixtures at the said book value price.” These defendants denied that they were individually liable on such contract, but contended that they, along with other shareholders in the bank, had merely signed the contract in order that the assent of the bank might be evidenced by the signatures of a majority of its stockholders. There was a trial before the court without the intervention of a jury, in which judgment was rendered for the plaintiff against all of the defendants as prayed for, and the individual defendants named have appealed.

The contract upon which plaintiff’s suit is based is as follows:

“State of Texas, Archer County.
“Know all men by these presents: That this contract made and entered into by and between F. M. Power of Archer City, Texas, and hereinafter called first party, and Lon Morris, of Archer City, Texas, and such other parties as may fix their signatures here below and acting herein for the-First State Bank of Archer City, Texas,- and hereinafter called second party, witnesseth:
“(1) The first party will on January 25th, 1911, and subject to the limitations and conditions hereinafter mentioned, take over the entire business, including both assets and liabilities of the said First State Bank of-Archer City, Texas, and will pay therefor the book value of the capital stock of said bank as shown by the books of said bank at the close of business on January 25th, 1911, subject, however, to the following conditions:
“(2) All notes and accounts that may be bearing interest from any date prior to the 25th day of January, 1911, to be computed and valued at the amount due on such notes and accounts on that date, including principal and interest and such interest due shall be added to the said book value or purchase price. And all notes and accounts bearing interest from any date subsequent to the said January 25th, 1911, to have deducted therefrom. the amount of the unearned interest from that date and such unearned interest shall be deducted from the said book value or purchase price. That is to say, the purchase price of said bank is the book value of the capital stock thereof, plus the accumulated interest and less the unearned interest and all interest calculations to be made at the rate of ten per cent, per annum to and from January 25th, 1911.
“(3) Immediately after January 25th, 1911, the first party will pay to any and all the shareholders of the said bank 50 per cent.' of one-half of the value of such stock, provided that the stock certificates are presented and have the amount of such payment indorsed thereon and the remaining portion of the said purchase price to remain on deposit in the Power State Bank of Archer City, Texas, to secure the payment of all notes and accounts included in said purchase and to secure and guarantee that the books and accounts are correct and show the true condition of such notes and accounts.
“(4) The first party will renew, extend and carry over any and all notes and accounts received by him in said purchase that may be desired by second party to the first day of January, 1912, but will not renew, extend or carry over any notes or accounts unless requested to do so in writing by second party, and in doing so will accept such notes and accounts as his own and second party will be discharged from any liability thereon, and second party will furnish request in writing for such extension or renewals from time to time and at any time demanded.
“(5) The first party will do and perform any and all things concerning said business, including, keeping the books and looking after the collecting the notes and accounts and will use his best endeavor to get any and all of said business and keep it in proper form without charge of any kind against second party. And will institute and defend all suits and foreclosure proceedings that may be demanded by second party, the second party to pay the court cost and attorney’s fees thereof. And the first party will not charge any shortage or default against said, escrow account before January 1st, 1912.
“(6) The first party will pay the taxes due against second party and will pay all accounts for stationary and expenses due against second party, not to exceed the sum of two hundred dollars and charge the same to said escrow account as a proper charge against second party.
“(7) It is however understood and agreed that first party does not assume the payment of said taxes or expenses on his own account nor does he assume the payment of any money except such as is shown on the said books of said bank.
“(8) The first party will early in the morning of January 25th, 1911, place a credit deposit on the books of the Power State Bank to the credit of each and every depositor of the First State Bank as shown by their books at the close of the business on January 24th, 1911, an amount equal to such deposits and will pay to any and all of said depositors on demand any portion or all of such deposits and will issue to Lon Morris a duplicate slip showing the credit of each of said depositors.
“(9) The first party will not sell or otherwise dispose of any of the real estate or furniture and fixtures included in this purchase except on such terms and conditions as may be agreed upon by second party, but the second party may sell or dispose of any of the same at any time during the life of this contract, provided the sale is for cash and the proceeds left in the aforesaid escrow account and provided if the sale should be for any other thing than cash, it will require the approval of the first party so that the securities obtained therefor will be available in said escrow account. And the second party will on or before the first day of January, 1912, redeem said real estate and furniture and fixtures at the said book value price.
“(10) The rents and revenues collected for the use of the real estate and furniture and fixtures will be the property of second party, but first party may use so much thereof as may be necessary to reimburse the escrow account for taxes and expenses paid out by first party out of said escrow account.
“(11) It is distinctly stipulated that this contract is binding on the said F. M. Power and Lon Morris, but will have to be acquiesced in by the shareholders or owners of at least two-thirds of the shares of capital stock of said First State Bank before it can bind said bank, and that in the event the required acquiescence of said two-thirds of the capital stock is not secured by their signatures, together with the amount of capital stock owned respectively by January 25th, 1911, then this contract shall be of no effect. But if the required two-thirds are secured by or before said date then and in that event, if either the said Lon Morris or F. M. Power should for any reason fail to fully keep and perform any portion of this contract, then the defaulting party shall pay to the other party by or before February 15th, 1911, the sum of one thousand dollars as liquidated damages.
“(12) The second party, by the appearance of their respective signatures hereto, do hereby sell, transfer and assign unto the first party the aforementioned business according to the aforementioned terms and will not any of them use the house or furniture and fixtures for banking purposes in Archer City, Texas, for the term of five years from this date.
“(12a) The second party do hereby appoint Lon Morris of Archer City, Texas, as their agent to do and perform any and all things necessary or incident to the complete winding up of this contract and the affairs of the said First State Bank and do hereby enter into voluntary liquidation of the said First State Bank.
“(13) The real estate herein mentioned is described as follows: Two lots or parcels of land situated in Archer City in Archer county, Texas, and being a resident place and a business place, and more particularly described as follows: The business place being a part of lot No. five (5) in .block No. two (2) according to the plot of said Archer City and being twenty-three and one-half (23%) feet wide fronting south by one hundred and thirty (130) feet deep and being the house and lot upon which the said First State Bank now has its business located. The resident place being lots Nos. two (2), four (4) and fourteen (14), all In block No. three (3), all in Hillside addition to the said town of Archer City, Texas, as shown, by the Deed Ree-. ords of Archer county and known as the R. S. Morrison place.
“[Signed] F. M. Power,
“First Party.
“Signatures of second parties:
Name. No. of Shares Owned.
Don Morris.54 shares.
L. E. Gragg •..10 “
Fredd Gragg . 5 “
M. A. Finley .10 “
Clark Melugin.10 “
J. C. Tandy./.40 “
F. L. Rhodes. 5 “
P. P. Langford.20 V
Joe W. Kimball.10 “
C. E. Goodwin .10 “
“State of Texas, Archer County.
“Before me, the undersigned authority, a notary public in and for Archer county, Texas, on this day personally came J. C. Tandy, president, and Lon Morris, cashier, of the First State Bank of Archer City, Texas, each of whom are known to me to be the persons whose names are subscribed to the foregoing instrument and each acknowledged to me that they had signed the same for the purposes and considerations therein expressed and in the capacity therein mentioned.
“Witness my notarial hand and seal this January 25th, 1911.
“W. I. Singleton,
“Notary Public, Archer Co., Tex.”

Upon the trial of the case the court excluded and refused to consider evidence of various witnesses offered by appellants which tended to support their defense; that is, to show that, at the time of the execution of the contract, it was clearly understood between the parties to it that the same was not the individual undertaking of these appellants and was not to be binding on them in respect to appellee’s present contention, but that the same was the undertaking solely of the bank. This testimony, when offered, was objected to and excluded upon the ground that it served to contradict the legal contract, and the court sustained the objections and excluded the evidence, holding that the contract above set out was unambiguous, and bound these appellants as individuals, and rendered judgment accordingly against each of them, as already stated.

The contract is not very artistically drawn, and we ourselves have had much difficulty in determining upon the proper interpretation to be placed upon it. In some parts of the contract “the second party” evidently refers to the bank,, while in other parts it is equally obvious that the expression refers to the individual signers. It is not clear to our minds that the “second party’’ referred to in the last clause of the ninth paragraph, upon whom was imposed the obligation to redeem the real estate, furniture, and fixtures, refers to appellants, as held by the trial court. On the contrary, considering the lax use of that expression in other parts of the contract, the matter is involved in such doubt as to create an ambiguity in the instrument which would authorize the introduction of oral evidence to show the real intention of the parties. We think the court erred in excluding the evidence tendered by appellants, and for this error the judgment is reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    ALLEN et ux. v. FRANKS et al.
    (No. 7889.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 14, 1914.
    On Motion for Rehearing, April 11, 1914.)
    Fixtures (§ 5) — Title to Buildings — Ejection on Land Conveyed Subject to Conditions.
    Under Rev. St. 1911, art. 2822, providing that the trustees of school districts may receive gifts, grants, donations, or devises for the use of the public schools, article 2844, authorizing them to contract for the erection of school buildings and superintend their construction, article 2845, providing that no mechanic, etc., or other person can contract for .or in any manner have or acquire any lien on a schoolhouse or the land upon which it is situated, article 2847, providing that schoolhouses shall be under the control of the district trustees, and article 2849, providing that all conveyances, devises, and bequests for the benefit of public schools shall when not otherwise directed by the grantor or devisor vest in the county judge or the trustees as trustees for those to be benefited thereby, and when not otherwise directed shall be administered by such officers under rules established by the state superintendent, where land was conveyed to school trustees upon the condition that it should revert to the grantors when it ceased to be used for school purposes, and a school building was erected thereon from -contributions made by citizens of the community, the building did not become a part of the land so as to revert to the grantor and could be removed by the trustees when the land ceased to be used for school purposes, though the contributors and the trustees contemplated that the building should remain on the land permanently, since the contributors were chargeable with notice of the statutory provisions giving absolute control of the building to the trustees and prohibiting liens, while the trustees had no power to vest title to the building in the .grantors without consideration or to bind their successors by such act, as this would be a breach of their trust and contrary to public policy.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. § 4; Dec. Dig. § 5.]
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge:
    Suit by W. M. Allen and wife against J. A. Franks and others. From an order dissolving a temporary injunction, plaintiffs appeal.
    Affirmed.
    Ramsey & Odell, of Cleburne, for appellants. J. K. Russell, O. T. Plummer, and W. E. Myers, all of Cleburne, for appellees.

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

   DUNKLIN, J.

W. M. Allen and wife executed a deed to certain land to the trustees of school district No. 31 in Johnson county, and their successors, containing covenants of general warranty of title, but with the following stipulation contained in the deed, to wit: “Conditioned that, when the above-described land ceases to be used as school purposes, the same shall revert to us.” The school trustees procured the erection of a sehoolhouse upon the land which was thereafter used for school purposes. Later, J. A. Franks, W. W. Wilson, and J. H. Yarbrough, successors to the former trustees to whom the deed was executed, decided to abandon the land upon which the house was originally built, to relinquish any further claim to that land, and to move the building to another location which had been selected by them for that purpose: W. M. Allen and wife instituted this suit to enjoin the removal, alleging that the building erected upon the land was a part of the realty; that the land had been abandoned by the trustees; and that by reason thereof the building, as well as the land, had reverted to them. A temporary writ of injunction was granted, but later was dissolved, and from the order of dissolution this appeal has been prosecuted by Allen and wife.

Appellant has cited many authorities, such as Brown v. Roland, 92 Tex. 54, 45 S. W. 795, Hutchins v. Masterson, 46 Tex. 551, 26 Am. Rep. 286, and Jones v. Bull, 85 Tex. 136, 19 S. W. 1031, announcing the general rule that a house erected upon land becomes a part of the freehold, in the absence of any intention by the parties erecting it that the same shall not become permanently annexed to the land. The evidence shows that the money with which the building was erected consisted’ solely of contributions by the citizens of that community. Upon the hearing of ap-pellee’s motion to dissolve the writ, many affidavits were introduced of persons who contributed to the building fund. Allen was one of those contributors, and he and many others testified that the contributions were made with the distinct understanding with the trustees that the building was to remain upon the land permanently. Some of the same persons, including Allen and wife, testified that there was a further understanding with the trustees that the building should also be used as a place' for public worship, as well as a sehoolhouse. Two of the trustees who were acting as such at the time of the execution of the deed also testified that it was their intention at the time of the erection of the building that the same should remain upon the land permanently, while another trustee testified that it was his understanding and intention that the building should remain upon the land so long only as the trustees of the district might desire, and that they would have the right to remove the same to any other location whenever they thought it was necessary to the best interests of the sehool district to do so. The-present trustees also testified that it was not the intention of the former trustees at the time the building was erected that the same should remain a permanent fixture upon the land, and that the present trustees now deemed it advisable to consolidate the .district with another district and to move the house upon another location for the convenience of all the patrons of the school. They further testified that, while they made no further claim to the land upon which the building had been erected, they had never abandoned the building and had no intention of doing so. Other witnesses testified that the house was not built for church purposes at all, but strictly for school purposes, and that the use of the same as a church was an afterthought.

Following are articles of our Revised Statutes :

“Art. 2822. The trustees of sehool districts provided for in the preceding articles of this chapter, and their, successors in office, shall be a body politic and corporate in law, and shall be known by and under the title and name of district trustees of district number -, and county of -, state of Texas; and as such may contract and be contracted with, sue and be sued, plead or be impleaded, in any court of this state of. proper jurisdiction, - and may receive any gift, grant, donation or devise made for the use of the public schools of the district. All reports and other official papers shall be headed with the number of district and name of county.”
“Art. 2844. The trustees of a school district shall contract for the erection of the buildings and superintend the construction of the same; and the county superintendent «hall ' draw his warrant or warrants upon the sehool fund so appropriated only upon the accounts first approved by them.
“Art. 2845. No mechanic', contractor, ma-terialman, or other person, can contract for, or in any other manner have or acquire, any lien upon the house so erected or the land upon which the same is situated; and all contracts with such parties shall expressly stipulate for a waiver of such lien.”
“Art. 2847. All schoolhouses erected, grounds purchased or leased for a school district, and all other property belonging thereto, shall be under the control of the district trustees of such district.”
“Art. 2849. All. conveyances, devises and bequests of property for the benefit of the public schools made by any one for any county, eity or town, or district, shall, when not otherwise directed by the grantor or de-visor, vest said property in the county judge of the county, or the board of sehool trustees of the city or town, or the trustees of the school district, or their successors in office, as the trustees for those to be benefited thereby, and the same, when not otherwise directed, shall be administered by said officers Tinder such rules as may be established by the state superintendent.”

When the funds were donated for the construction of the building, the title thereto passed to the trustees, and the building erected with such funds became subject to the provisions of the statutes above quoted. When the contributions were made for the erection of the building, persons making such contributions must be held to a knowledge of the statutory provisions giving absolute control of the building to the trustees and prohibiting the fixing of a lien of any character upon the building. If they could control the location of the building and prohibit its removal, then they could set aside article 2847, which expressly provides that all schoolhouses shall be under the control of the district trustees. If no lien of any character could be placed upon the house, as provided by article 2845, then for a more cogent reason parties donating contributions to be used in the construction of the building would have no right to claim a forfeiture of title to the building, when the ground upon which it is located is abandoned, because of their understanding that at the time they made the donations the building was to remain upon its original location. See Rhodes v. Maret, 112 S. W. 433.

We are of the opinion that the judgment was correct, and it is affirmed.

On Motion for Rehearing.

Appellants insist that we were in error in holding that the schoolhouse did not become a part of the freehold and that the title thereto did not revert to them when the land upon which the building was erected was abandoned for school purposes. In other words, it is insisted that as appellees neither alleged in their answer to plaintiffs’ petition, nor in their motion to dissolve the injunction, that it was not the intention of the trustees at the time the house was erected that the same should become affixed to the land as a part of the freehold, the general rule recognized in the original opinion that, in the absence of such intention, the house does become a part of the realty, would apply. No contention is made that it was one of the considerations for the conveyance by appellants of the land upon which the building was erected that the building should become a part of the realty and revert to them when the land should cease to be used for school purposes. Hence, if appellants are entitled to the schoolhouse erected thereon, such right is solely by virtue of the rule of law noted above. If, at the time of the erection of the house, the trustees could make it a part of the realty by their intention to make it a permanent improvement upon the land, or by erecting the same without forming any intention at the time that they or their successors in office might remove it from the land in the event of a decision to abandon the land for school purposes, then they could control the title to the house indefinitely. Under express provision of the statutes title to the house became vested in the trustees and their successors in office as trustees for those to be benefited thereby “under such rules as may be established by the state superintendent.” To give appellants’ deed the construction insisted upon would, in effect, be to say that the trustees who received the deed would have the authority themselves to vest in appellants title to the schoolhouse without receiving any consideration therefor and would have authority to bind their successors in office to do the same. Clearly, this would not be in the interest of the patrons of the school and thus deprive them of title to school property would be a breach of trust and contrary to public policy. Midland Co. v. Slaughter, 130 S. W. 612; Sanders v. Cauley, 52 Tex. Civ. App. 261, 113 S. W. 560; Jay County v. Taylor, 123 Ind. 148, 23 N. E. 752, 7 L. R. A. 160; Shelden v. Fox, 48 Kan. 356, 29 Pac. 759, 16 B. R. A. 257, and notes; Millikin v. Edgar Co., 142 Ill. 528, 32 N. E. 493, 18 L. R. A. 447, and decisions there cited. In Jay County v. Taylor, supra, it was held that a contract by a board of county commissioners employing a legal adviser for a period of three years beginning three months subsequent to the expiration of the term of office of one member of the board and extending beyond the terms of office of all the members of the board was against public policy and void, and in that case the following language is used: “In Craft v. McConoughy, 79 Ill. 346 [22 Am. Rep. 171], the Supreme Court of Illinois said: ‘Whatever is injurious to the interest of the public is void, on the ground of public policy.’ This language is quoted and approved in the recent case of People v. Chicago Gas Trust Co. [130 Ill. 268, 22 N. E. 798], decided by the same court in a learned and exhaustive opinion. In Wiley v. Baumgardner, 97 Ind. 66 [49 Am. Rep. 427] whatever is injurious oO public interest is recognized as contrary to public policy. It is evident that the contract involved in this litigation is of that character. It ties the hands of the board of commissioners, and is' prejudicial, to the free exercise of its power and functions for the public good. In West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 600, 46 Am. Rep. 527, the court says: ‘The common law will not permit individuals to oblige themselves by contract either to do or not to do anything, when the thing to be done or omitted is in any degree clearly injurious to the public’— citing Chappel v. Brockway, 21 Wend. [N. Y.] 169. See People v. Chicago Gas Trust Co., supra.”

Certainly it was' not within the spirit or intention of the statute that those who were beneficially interested in the building could be deprived of title thereto without receiving any consideration therefor by any arbitrary act of the trustees who erected it, when the purpose of such act was not to subserve any interest of the beneficiaries.

The motion for rehearing is overruled.


author: CONNER, C. J.

text:
    CITY OF FT. WORTH v. CHARBONNEAU et ux.
    (No. 7855.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 14, 1914.
    Rehearing Denied March, 1914.)
    1. Eminent Domain (§ 202) — Evidence as to Compensation.
    In condemnation proceedings, where, upon the issue of damages, the owner had testified as to the quality and character of the land condemned, and given his opinion of its value, the jury could properly consider the fact of plaintiff's long residence upon the land as bearing upon the weight of the testimony.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 541; Dec. Dig. § 202.]
    2. Eminent Domain (§ 202) — Evidence as to Compensation.
    In condemnation proceedings, upon the issue of the value and character of the property condemned, the jury could properly consider the fact that the owner had raised his family upon the land as showing its adaptability to homestead uses.
    [Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. § 541; Dee. Dig. § 202.]
    3. Evidence (§ 142) — Value of Band — Sales of Other Lands.
    While it is permissible, on the issue of the value of lands sought to be condemned, to show sales of similar lands in the vicinity at about the time of the condemnation, the court properly rejected testimony of a witness that he had sold 139 acres for §40 per acre, where no similarity of condition was shown.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. § 142.]
    4; Evidence (§ 142) — Value of Property-Sale of Other Land.
    Upon the issue of the value of lands in condemnation proceedings, the court properly permitted a witness to testify as to the gross receipts from tracts of land, which, though located at different points, were similar to the land in controversy.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. § 142.]
    5. Appeal and Error (§ 978) — Review—Discretion of Lower Court —New Trial — Misconduct of Jury.
    Since Rev. St. 1911, art. 2021, providing that, where the ground of motion is misconduct of the jury, etc., the court shall hear evidence thereof, and may examine the jurors, etc., and if the misconduct, etc., be material, a new trial may, in the discretion of the court, be granted, changes the common-law rule, the appellate court will not disturb the discretion of the, trial court in denying a new trial asked on that ground, unless there was clearly an abuse of discretion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.' Dig. §§ 3866-3870; Dec. Dig. § 978.]
    6. New Trial (§ 102) — Grounds — Newly Discovered Evidence.
    The trial court, in condemnation proceedings, properly refused to grant a new trial on the ground of newly discovered evidence; no legal excuse being presented why such evidence was not offered at the trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    Appeal from Tarrant County Court; Chas. T. Prewett, Judge.
    Condemnation proceedings by the City of Ft. Worth against William Charbonneau and wife. From a judgment fixing the value of the property, plaintiff appeals.
    Affirmed.
    MeCart, Bowlin, Terrell & McCart and A B. Curtis, all of Ft. Worth, for appellant Bell & Milam and Flournoy, Smith & Storer, all of Ft. Worth, for appellees.

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

   CONNER, C. J.

This was a condemnation proceeding instituted in the county court by the city of Ft. Worth against William Charbonneau and his wife to condemn 298 acres of land described in the plaintiff’s petition for the purpose of establishing thereon a water reservoir. The land sought to be condemned was situhted in the valley of the West fork of the Trinity river near the city of Ft. Worth, and constituted a part of a tract of about 1,100 acres upon which the defendant and his wife had resided as a home for many years. Upon the trial the jury returned a verdict in favor of the defendants for $22,686 as the value of the land actually appropriated by the city, and the further sum of $3,000 as the damage to the remainder of the defendants’ tract

The fifth ground of appellant’s motion for a new trial, which is presented as appellant’s first assignment of error, complains of the action of the court in refusing the following instruction, viz.: “You are further instructed that, in estimating damages to the plaintiff by reason of the property’s being taken and by reason of the damages, if any, to the remaining property, you will not consider, for any purpose, the fact that plaintiff has lived upon the property a long time, that the same is his home, or that he has raised his family upon said property.” Appellant’s contention is that it was entitled to this charge so as to exclude from the consideration of the jury, in assessing damages, any sentimental value of the lands involved in the controversy. In the court’s charge on the subject, no sentimental value was authorized, and we think the spfecial charge requested was properly refused on the ground, if for no other reason, that it required the jury to wholly disregard the fact that plaintiff had lived upon the property a long time and that the same was his home. A relevant inquiry, to which evidence pro and con was directed, went to the value and character of the land sought to be condemned. The defendant Charbonneau testified that it was bottom land; that it was susceptible to irrigation ; that he uniformly raised good crops thereon; that in many years there had been but two overflows thereof; and gave his opinion of its value. He further testified that his other land was principally adapted to grazing to which it was applied, etc.; and, as bearing upon the weight of his testimony in these particulars, we think the jury could properly consider the fact of the plaintiff’s long residence, and his consequent familiarity with the subjects about which he testified. Even the fact that the defendant had raised his family upon the property tended to show the adaptability to homestead uses. But if immaterial, and as such should have been excluded, the charge required the exclusion of other facts recited, which we think were admissible and proper for the jury’s consideration.

Appellant’s twenty-eighth ground of the motion for new trial, also presented in its first assignment of error, complains of the defendant Charbonneau’s testimony to the effect that the lands in controversy had been for about SO years his home, and • that he reared his family there and did not wish to part with it. This is also complained of as admitting the consideration of a sentimental value. We, however, conclude that nothing prejudicial has been pointed out in these respects. The objection to the evidence was to the whole, and, as we have pointed out, we think it was relevant for the defendants to show their long-continued residence and the adaptability of the land to homestead uses; and the court specifically instructed the jury that they should disregard his statement that he did not wish to part with it. Moreover, the very nature of the suit is such as to show that it was not a voluntary severance of his homestead. We see nothing in the charge, the evidence, or the argument, in relation to these matters, that justifies the, conclusion that the jury in fact attached any sentimental value to the land in controversy.

Objection was made to the exclusion of the evidence of J. F. Cook to the effect that he had sold a tract of land, about 139 acres, for cash, about the time of the institution of this suit, for the sum of $40 per acre. While it is held that it is permissible on the issue of the value of lands sought to be condemned to show sales of similar lands in the vicinity at and about the time of condemnation, no such similarity was shown in the present instance as to make the rejection of Cook’s testimony reversible error. The witness was permitted to give his opinion of the value of the Charbonneau land, and, in the testimony offered and rejected, it appeared that, of the 139 acres so sold by Cook, but 40 to 50 acres was bottom land, and that the rest was broken. It further appears that the tract was sold as a whole and located some three miles down the river from the Charbon-neau land. It was not made to appear whether the bottom land was susceptible of irrigation, or whether it was in cultivation, or even susceptible of cultivation. So that, as stated, - we cannot say that the court committed reversible error in the rejection of the testimony. Newbold v. I. & G. N. Ry. Co., 34 Tex. Civ. App. 525 78 S. W. 1079; Dennis v. Dallas, etc., Ry. Co., 94 S. W. 1092; Ft. W. Improvement Dist. v. Weatherred, 149 S. W. 550; Chaney v. Coleman, 77 Tex. 103, 13 S. W. 850.

What we have said in disposing of the testimony of the witness Cook applies as well to the testimony of E. S. Hill and others, which we need not, therefore, particularly discuss.

Appellant’s fourth assignment is as follows: “The court erred in allowing the witnesses Seyster and Germany to testify, over plaintiff’s objection, as to the gross receipts from small tracts of truck land located many miles from the land in controversy, and -not similarly situated; said witnesses not having testified as to the net receipts, and the same being an incorrect measure of damages.” The witness Seyster testified that he had examined the Charbonneau land sought to be condemned, and that it could be irrigated by pumping water from the river; that he had had experience with lands irrigated in the same manner from the Trinity river; that he was at the time cultivating land near Randall’s mill, located in the Trinity river bottoms some eight or ten miles below the land in controversy, upon which he had raised last year 200 bushels of potatoes per acre, and also $105 worth of beans on one acre. The witness Germany testified that he owned some bottom land on the West fork of the Trinity river several miles west of Ft. Worth; that he irrigated four acres by pumping water put of the river and made on it $250 per acre- gross; that he made about $500 per acre on pepper, $200 per acre on cucumbers and beans, $300 per acre on- .onions—-these prices being realized on the Ft. Worth, market. He was not able to state his exact expenses, but testified that the net profit was about one-half the gross income. We think this evidence was admissible. It tended to show the uses to which the Charbonneau land could be put, and was relevant on the issue of its value, irrespective of the costs of crop production. While located at different points, the land mentioned by the witnesses was shown to be similar to the Charbonneau land and, like the Charbonneau land, susceptible of irrigation, and we see no reason why the jury, in determining the value of the Charbonneau land, might not reasonably consider, among other things, its agricultural possibilities.

In the fifth assignment complaint is made of alleged misconduct on the part of the jury, but we are not inclined to attach much importance to this, and for that reason will not set out in detail the long statement following the assignment. In substance we think it amounts to no more than mere argument on the part of the jurors relating to evidence actually before them, such a Char-bonneau’s having lived on the place a long tíme and that it was Ms Rome; that, with the bottom land segregated from the rest, he would be deprived of timber, of which, in part, the bottom land was covered; that the natural gas might some time become exhausted, etc. Some of the statements were denied, and we feel no disposition to disturb the discretion exercised by the trial court in overruling the motion for a new trial on tMs ground. Article 2021 of the Revised Statutes provides that: “Where the ground of the motion is misconduct of the jury or of the officer in charge of same, or because of any communication made to the jury, or because the jury received other testimony, the court shall hear evidence, thereof; and it shall be competent to prove such facts by the jurors or others, by examination in open court; and, if the misconduct proven, or the testimony received, or the communication made be material, a new trial may, in the discretion of the court, be granted.”

Prior to the act of 1905 (Acts 1905, e. 18), of which the article of the statute referred to is a part, such grounds of relief were not available. For manifest reasons our Supreme Court adopted the broad rule that jurors should not in civil cases be allowed to attack their verdict by testifying to misconduct, irregularities, or impropriety on the part of themselves and their fellows occurring in the privacy of their deliberations, and this was said to be in accordance with the great weight of authority. See St. L. S. W. Ry. Co. v. Ricketts, 96 Tex. 68, 70 S. W. 315. While the old rule was evidently regarded by our Legislature as too rigid, the reasons therefor would seem still to exist, and the Legislature, in enlarging the rule, has distinctly committed it to the “discretion” of the trial court who hears the matter. We therefore think that, to constitute a ground for reversal, it should be made plainly to appear that the misconduct of the jury was not only material, but such as to show an abuse of the trial court’s discretion in declining to grant a new trial on such ground. See Whitaker v. Browning, 155 S. W. 1197; Foley v. Northrup, 47 Tex. Civ. App. 277, 105 S. W. 231; M., K. & T. Ry. Co. v. Blalack, 128 S. W. 708; City of Ft. Worth v. Lopp, 134 S. W. 825; Kalteyer v. Mitchell, 102 Tex. 390, 117 S. W. 792, 132 Am. St. Rep. 889; H. & T. C. Ry. Co. v. Gray, 137 S. W. 731; M., K. & T. Ry. Co. v. Brown, 140 S. W. 1172.

After the trial court had overruled appellant’s original motion for a new trial, it filed a supplemental motion to the effect that, as shown by the opinion of a resident engineer in charge of the construction of the reservoir, the reservoir would fill up with sediment or silt in the course of 30 or 35 years, after which the reservoir would have to be abandoned. The contention is that, this being true, the land would revert to Charbonneau, and that it would be manifestly unjust to now allow Charbonneau the full value of the land, as was evidently done by the verdict of the jury.

Chapter 11, § 3, p. 53, of the charter of the city of Et. Worth, gives the city power “to condemn property in any court of competent jurisdiction whenever deemed expedient within or without the limits of the city upon compensation duly paid, for any public or municipal use or purpose, and shall be governed in such proceeding by the general laws of the state relative to condemnations.” Articles 1003, 1005, 6518, and 6519 of the Revised Statutes provide the method or procedure under the state laws. Article 6519 specially provides that, when “the whole of a person’s real estate is condemned, the damages to which he shall be entitled, shall be the market value thereof in the market in which the same is located”; and this was the measure of damages authorized by the court’s charge for defendants’ land actually taken, to which, on this subject, no exception has been made. The engineer’s statement is to the effect that: “In the course of years such silt will fill or nearly fill the storage capacity of the reservoir. * * * Although purely a matter of opinion, I am inclined to the belief that 30 or 40 years is the probable length to the life of the West fork reservoir for a water supply for the city of Ft. Worth.” To now reverse the judgment and award a new trial upon any such assumption would, it seems to us, be contrary to the statute and manifestly unjust to the defendants. Moreover, if in any event it could be said that evidence of the character indicated in the affidavit of the engineer was relevant on the issue of damages, no legal excuse whatever is presented why such evidence was not secured and offered in due course of the trial. While the verdict and judgment seem large, it is not complained of as excessive, nor indeed could it well be; ■ The evidence of 'the value of the land actually taken varied from $30 to $300 per acre. The verdict shows that the jury allowed $75. There was ample evidence also that the damages done to the defendants’ remaining tract was in excess of the $3,000 allowed by the jury. So that, on the whole, it cannot be said that the verdict and judgment is not 'amply supported. No reversible error having been pointed out, we conclude that the judgment should be affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    LESTER v. GATEWOOD et al.
    (No. 594.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 11, 1914.)
    1. Pleading (§ 8) — Facts and Conclusions.
    An allegation that a judgment was void because altered by the parties before being recorded is a statement of a conclusion, which is not sufficient to authorize an injunction to restrain the enforcement of the judgment, without allegations of facts which overcome the presumption of the validity of the judgment.
    [Ed. Note. — Eor other eases, see Pleading, Cent. Dig. §§ 12 2Sy2, 66; Dec. Dig. § 8.]
    2. Judgment (§ 21) — Validity—Certainty of Amount.
    A judgment for the “sum of $-, being the amount of” a replevy bond, was not void for uncertainty, if the bond was in the record and the amount thereof was fixed, under the rule that a judgment is certain which can be made certain.
    [Ed. Note. — For' other cases, see Judgment, Cent. Dig. §§ 7, 8; Dee. Dig. § 21.]
    3. Judgment (§ 495) — Equitable Relief-Pleading — Presumptions.
    Where it was alleged that a certain judgment, execution upon which was sought to be restrained, was upon a replevy bond, and that it stated it was for the amount of the bond, it will be conclusively presumed that the bond was a record in the cause in which the judgment was rendered.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 549%, 933, 934; Dec. Dig. § 495.]
    4. Judgment (§ 504) — Equitable Relief-Issues — Erroneous Judgment.
    In a collateral suit to restrain execution upon a judgment for the amount' of a replevy bond, the question whether the judgment should have been for the amount of the bond or for the value of the property replevied cannot be considered.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 944-947; Dec. Dig. § 504.]
    5. Execution (§ 171) — Equitable Relief-Grounds — Alteration.
    Where a judgment was rendered ’for “8-, being the amount of” a replevy bond, the filling in of the blank with the amount of the bond would not affect the rights of the parties to the judgment, and therefore would not be a material alteration which would authorize an injunction to restrain execution on the judgment.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.]
    6. Execution (§ 171) — Equitable Relief-Presumptions — Alteration.
    Where a petition to enjoin the execution of a judgment alleged that the judgment originally read for “8-, being the amount of” a replevy bond, but had been altered by the insertion of the figures 15,000 in the space left blank, it will be presumed, in the absence of allegations to the contrary, that the bond was for a fixed amount, and that the amount thereof was the same as that inserted in the judgment.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 497-518; Dee. Dig. § 171.]
    7. Judgment (§ 455) — Equitable Relief-Venue.
    Rev. St. 1911, art. 4653, requiring injunctions to stay proceedings on a judgment to be returnable to the court in which the judgment was rendered, and Rev. St, 1911,' art. 1830, subd. 17, requiring suits to enjoin the execution of a judgment to be brought in the county in which the judgment was rendered, do not apply to a void judgment, provided the nullity appears upon the face of the judgment or the record, but do apply where the ground of nullity is an alleged alteration which is not shown to be such a material change as to invalidate the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 869-862; Dec. Dig. § 455.]
    8. Venue (§ 46) — Chan&e of Venue.
    A suit was brought in the county where plaintiff’s land was situated to enjoin the enforcement of a judgment rendered in another county, and to remove the cloud cast upon plaintiff’s title by the recording of an abstract of the judgment lien in the county where the land was situated, which suit was based upon an alleged alteration of the judgment prior to the recording of it, but the petition contained no allegations of facts to sustain the conclusion that the judgment was materially altered. Held, that the suit should be transferred in its entirety to the court where the judgment was rendered, under Rev. St. 1911, art. 4653, and article 1830, subd. 17, fixing the venue of suits to restrain execution upon a judgment, and not retained as to the removal of the cloud in the county where the land was situated, under the provisions of article -1830, subd. 14, fixing the venue of suits to remove a cloud upon title.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 68; Dec. Dig. § 46.]
    9. Dismissal and Nonsuit (§ 55) — Jurisdiction and Venue.
    Where a suit to enjoin the execution of a judgment was not brought in the county in which the judgment was rendered, as required by Rev. St. 1911, art. 4653, and article 1830, subd. 17, the objection is one of venue, and not of jurisdiction, and it was proper to transfer a suit to the proper county, instead of dismissing it.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 115, 116; Dec. Dig. § 55.]
    Appeal from District Court, Randall County; James N. Browning, Judge.
    Suit by L. T. Lester against W. W. Gate-wood and others. From an order of the district court granting a change of venue, the plaintiff appeals.
    Affirmed.
    A. S. Rollins and Reeder & Dooley, all of Amarillo, and G. W. Bareus, of Weatherford, for appellant Knight & Slaton, of Hereford, and W. Boyce, of Amarillo, for appellees.

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

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

   HENDRICKS, J.

We quote from appellant’s brief as follows: “The appellant filed his suit in the district court of Randall county, Tex., in which he set up that the appellees were acting under and by virtue of a judgment of the district court of Deaf Smith county, which judgment was void by reason of the fact that it had been altered materially by the appellees, in vacation and without notice to the court or to the appellant.” He further alleged that “subsequent to the fraudulent alteration of said judgment by appellees, that some one of them with full knowledge that said judgment was void procured an abstract of same and placed it of record in Randall county, Tex., thus making same a lien on all the real estate owned by the appellant in the said county.”

Quoting from appellees’ brief, the petition of appellant in this cause exhibits: “That on the 6th day of May, 1910, W. W. Gatewood and Knight & Slaton recovered a judgment in the district court of Deaf Smith county against various parties defendant for various sums of money on certain promissory notes executed by such, persons, with foreclosure of a chattel mortgage lien on 600 head of steers. It is shown (in said petition) that the cattle had been sequestered by the plaintiffs in that suit (in Deaf Smith county) and replevied by one E. F. Brown, and the present suit grows out of an attack on that part of the judgment which has reference to the replevy bond” and rendered in that cause, as follows: “And it further appearing to the court that the defendant Fulton Brown, by name of E. F. Brown, had replevied the cattle seized under writ of sequestration issued in thé cause by giving a replevy bond conditioned as required by the statutes of Texas, with L. T. Lester and G. L. Abbott as sureties, and payable to W. W. Gatewood,- Wm. M. Knight, and John P. Slaton, plaintiffs, and it further appearing that said cattle have been by the jury in their verdict valued at $35 per head, it is therefore ordered, adjudged, and decreed by the court that the plaintiffs, W. W. Gate-wood and Wm. M. Knight, and John P. Slaton, do have and recover of and from the defendants E. F. Brown, L. T. Lester and G. L. Abbott, jointly and severally the sum of $-, being the amount of said replevy bond, for which execution may issue in favor of the respective plaintiffs to the amount of the several respective judgments.”

The petition for injunction presented to the district judge of Randall county also alleged the issuance of an execution upon the judgment rendered by the district court of Deaf Smith county, by virtue of which the sheriff of Lubbock county, Tex., was levying upon certain bank stock owned by appellant as a stockholder of a national bank in the town of Lubbock, also upon certain real estate situated in said city. The district judge of the Forty-Seventh judicial district, in which Randall county is situated, ordered a “temporary writ of injunction, * * * as prayed for, restraining the defendants * * * from proceeding further with the sale advertised, or from making further levies or doing anything further under the said execution or judgment until final hearing,” etc.

As stated by appellant in his brief: “Other allegations were made in the petition which it is not necessary to set out in order to arrive at the matters involved in this appeal” — the appellant abandoning, as we understand his brief, on account of his positions in this court, all other allegations stating additional grounds for injunction, except those directly germane, briefed, and assigned in this appeal. The district court sustained án exception to appellant’s petition when the case was called for final hearing at a regular term of the district court of Randall county, and changed the venue of the cause, under the statute, to the district court of Deaf Smith county.

As stated, the judgment assailed is against the appellant on a replevy bond, and it is noted that the judgment recites that the plaintiffs, in the proceeding in the district court of Deaf Smith county, “do have and recover of and from the defendants, E. F. Brown, L. T. Lester and G. L. Abbott, jointly and severally the sum of $- — , „5 eing the amount of said, replevy bond, for which execution may issue in favor of the respective plaintiffs to the amount of the several respective judgments”; limiting the recovery, as indicated, to the amount of the other judgments recovered by plaintiffs against the various parties, and which judgments, we assume in this proceeding only, the judgment upon the replevy bond covered.

In this ease, as in any other proceeding for injunction, the consideration of the equities is referable to the allegations of fact, and not of conclusions, for the purpose of invoking the relief prayed for. The conclusion pleaded — that the judgment is void because of the alteration — is unavailable, if, upon consideration of the petition, sufficient allegations of fact are not made negativing its validity and overcoming the presumption ordinarily incident to the rendition of every judgment.

Appellant also alleges that the judgment for the sum of “$-,” as quoted herein, rendered against him as an obligor on the replevy bond in the other proceeding, was, by the appellees, or some one of them, fraudulently altered by writing in said blank space the figures “15,000,” making the judgment as to him read for the sum of “$15,-000.” The appellant, however, does not inform us whether the correct amount, or an incorrect entry as to the real amount of the judgment, was inserted in the blank space.

Evidently, the judgment, as it reads, was for “the amount of said replevy bond”; and appellant’s allegation that it was a judgment upon a replevy bond, conclusively presumes it to be a record in that cause. Neither does the appellant inform us of the amount of the replevy bond which he signed as surety in the other cause in Deaf Smith county.

It will be remembered that, in this collateral proceeding, we are not concerned with the question whether the district court of Deaf Smith county pronounced an erroneous or correct judgment in decreeing the amount recovered by the plaintiffs against appellant. upon said replevy bond as the amount designated in the bond, or that such judgment should have been for the amount of the value of the cattle, or some other amount. In this proceeding, under the allegations in plaintiff’s petition, the judgment for the amount in the replevy bond is to us a correct amount, and, whatever the amount, could not be questioned by us, if the decree is to be regarded by us as sufficiently certain, viewing the petition, as the rendition of a judgment for any specific sum.

The case of Luter v. Rose, 16 Tex. 52, 53, was one upon appeal from the justice court to the district court, where the cause was tried de novo. The justice court judgment was for the plaintiff for $73, and costs of suit. The district court judgment was as folio Vs: “In this case it is ordered that the judgment of the court below (the justice court)' be affirmed, with 10 per cent. dam-, ages,” etc.- — without any statement whatever in figures or letters of any amount rendered in the district court, except by reference to the justice court judgment, which did state the amount. That proceeding also involved the title to real property under a sheriff’s sale,' based upon the district court judgment, and, when the claimant, under the judgment above recited, introduced said judgment, the execution thereupon, and the deed by the sheriff, the trial court excluded all of the same, on the ground that the judgment was null and void. With this judgment, execution, and sale thereunder before the Supreme Court, Justice Wheeler said that, while the judgment was not as “full and formal as it might have been, * * * it is not, therefore, necessarily void. Though it does not specify the sum for which it was rendered, yet that may be readily ascertained by reference to the judgment of the justice, which was before the court (the district court) when it gave judgment, and remains there of record; and, though it is not, in itself, certain as to the amount, it may thus be rendered certain.” Justice Wheeler in that ease further quotes from another case: “That the plaintiff recover of the defendant according to specialty, with 6 per cent, interest and costs, on a verdict for the plaintiff according to specialty, with 6 per cent, interest, the ad damnum being left blank in the declaration, but laid in the writ, is valid.”

The case of Roberts v. Landrum, 20 Tex. p. 474, decided by Justice Roberts, was an action of debt upon a certain judgment previously rendered, for the purpose of reviving said judgment, in which revival, the amount was left blank, and which also seemed to be the condition of the original judgment, with no reference whatever to any record for a correct amount as to the recovery intended to be reinstated. The Supreme Court held the judgment void for the reason: “First, there is no amount specified; second, there is no reference to papers of record in the injunction suit by which the amount could be fixed, and there are blanks which leave undetermined what amount or interest was intended to be given; and, third, the clerk could not issue execution on it without reference to other records.” The injunction suit mentioned in the findings of the court was the suit in which the previous judgment was originally attempted to be rendered. This case, although negatively presenting the principle, infers that, if there had been some record in the particular cause definitely stating an amount, and referred to in the decree attempting to pronounce the amount, the judgment would have been sufficient.

Black on Judgments, vol. 1, § 118, in commenting upon the maxim “That is regarded as certain which can be made certain,” says: “We are unable to discover any good reason why this maxim should not apply to the amount of a judgment as well as in any other ease. An obscure or ambiguous designation of the parties, or the subject-matter involved, may be construed, as we have seen,, with reference to the other parts of the record. And, if the pleadings, or the verdict, show the actual amount of the recovery, without any doubt or room for mistake, it would seem that the judgment shbuld not be considered invalid, at least as between the parties, for its failure to specify the sum awarded with precision.” Black cites the case of Ellis v. Dunn, 3 Ala. 632, where it is said that: “A justice judgment ‘that the plaintiff recover the sum as claimed in the above ease’ will be sustained, notwithstanding its informality, when the record shows that the action was assumpsit for $81, and defendant appeared and contested the claim.” This author does say (section 118): “It must be admitted that the authorities hardly go to the length of sanctioning the rule here suggested, although the general principle of construing a judgment by the record is not disputed; but the cases certainly justify the statement that, if the judgment entry itself, without naming the amount of recovery, contains data which permits its calculation, a sufficient degree of certainty is attained.” We think the authorities in this-state, as well as of other states, clearly vindicate the rule, even stated as broadly as Mr. Black expresses it. Also Martin v. Teal (Civ. App.) 29 S. W. 691; Posey v. Green, 78 Ky. 162.

The replevy bond, to which the judgment referred as the amount of rendition, as well as the amount intended to be inserted in the blank space, we are entitled to presume, designated a definite figure, for which the obligors in that bond were bound; otherwise the pleader would have informed us it also was blank. If $15,000 was the amount of the replevy bond, which appellant claims was inserted in the blank space, then, under the decisions and the authorities cited and quoted from, holding that a judgment is certain which can be made certain from the - record, that is the amount of the judgment.

If $15,000 was the amount of the replevy bond, and the real amount of the judgment, was the insertion of such amount in words by the appellees, or by any other person at their direction, a material alteration of the judgment? assuming that appellant could analogize as to this insertion the principles of alteration of ordinary contracts, and declare the judgment void, because a contract, under similar circumstances, would likewise be void. It is true it is held by the Supreme Court (Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56) that the change in a note by the payee so as to make it bear interest from date, instead of from maturity, as recited in the note, in order to make it conform to an oral agreement of the parties, when altered without a fraudulent intent, invalidates the note, although the debt exists. Judge Brown said that the change for the purpose of making the note correspond to the real agreement “releases the case of any fraudulent intent”; and in this ease appellant does not inform us that the judgment was altered from one amount to another. If a note should read that it was a promise to pay $-, “the amount expressed on a certain deed,” which was a consideration for land, would not the amount in the deed, by reference, constitute the amount of the note? And, if the payee should insert in the note the amount expressed in the deed, would the insertion be a material alteration? Justice Williams, when on the Court of Civil Appeals, in the case of Marx v. Luling Association, 17 Tex. Civ. App. 408, 43 S. W. 596 (writ of error denied), held that the legal effect of the signature “T. W. Pearce, Mgr.,” was not materially altered by the erasure of the word “Mgr.” He said: “The legal effect of the guaranty was the same after the erasure as it was before.” If this judgment was corrected to the extent of an insertion in the blank space ,by the appellees of the figures “15,000” and that figure was the amount of the replevy bond, upon which the judgment was rendered, the legal effect of the judgment was not changed, and the insertion, if you could even call the same an alteration, was an immaterial one; as between the parties the legal effect of the judgment was the same.

Appellant may say we are assuming when we use the figures and the hypothesis as indicated. As stated before, the statement of the conclusion in an equitable proceeding that this judgment is void is not an equity, but the question of its invalidity is solely referable to the allegations constituting its nullity. If the decisions and authorities are as we construe them, and if the record in this case states an amount certain and fixed, to which the judgment refers, in order to make a full disclosure to a court of equity, and present a material alteration of the judgment, that record should be shown; or, if it does not exist, should be negatived; otherwise we must assume that such averments cannot be made and sworn to.

The provisions of article 4653, R. S. 1911, requiring that writs of injunction, when granted to stay proceedings or execution on a judgment, shall be returnable to and tried in the court in which such judgment was rendered, and subdivision 17, art. 1830, of the Revised Statutes, providing that suits brought to enjoin the execution of a judgment shall be brought in the county in which such judgment was rendered, do not mean-a void judgment; but in a collateral proceeding, we understand the rule to be it must be shown that the nullity of the judgment sought to be enjoined in another court must appear from the judgment, or from the face of the record itself, and must not depend upon the establishment of facts aliunde the record. Cotton v. Rea (Sup.) 163 S. W. 2; Ketelsen v. Pratt Bros. & Seay (Civ. App.) 100 S. W. 1172; Moore v. Vogt (Civ. App.) 127 S. W. 234; Wheeler v. Powell (Civ. App.) 114 S. W. 689; Adoue v. Wettermark, 22 Tex. Civ. App. 545, 55 S. W. 513; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 579; Seligson v. Collins, 64 Tex. 315. Hence, if the allegations with reference to the alleged change in the judgment are not such as to show that a material change was made as to Invalidate the judgment, the court in which the record was made is the one that has jurisdiction to inquire into the fact by a direct proceeding brought for that purpose.

Appellant however, contends that the abstract of judgment lien of record in Randall county, Tex., based upon the character of judgment exhibited in his pleadings, constitutes an incumbrance and a cloud upon the title to his property in that county, and could be, and should be, removed by the district court of that county.

The case of Leachman v. Capps, 89 Tex. 690, 36 S. W. 250, was an injunction suit to prevent the execution of a judgment rendered in another jurisdiction: First, because the party whose property the officer was commanded to seize and sell was not named in the writ; and, second, because the property seized by the officer was exempt from, and not subject to, the execution. The Supreme Court, by Chief Justice Gaines, said that, if it be conceded that the court granting the writ were without power to restrain such execution because issued from another court, on account of the statute requiring injunctions to be tried by the court where the judgment was rendered, an exception to so much of the petition as sought that relief should have been sustained, “or the court should, of its own motion, have declined to try such issues, and should have dismissed so much of the cause.” However, “when a petition states two causes of action,” in so far as the plaintiff sought to restrain the sale of the exempt property, the district court granting the injunction did have jurisdiction, and “the court is not deprived of jurisdiction over one because it may have no jurisdiction over the other.”

The Supreme Court of the state, in the case of Cotton v. Rea, 163 S. W. 3, by Justice Phillips, considered a cause to some extent similar in status to that considered in Leachman v. Capps, supra, except in the latter case the injunction in the district court was an attempt to restrain the enforcement of a judgment of another court because of inherent invalidity, and, as in the Leachman-Capps Case, also because of the seizure of exempt property. The challenge in the petition for the injunction in the Cotton-Rea Case questioning the judgment was unvailable, because the pleading failed to show a void judgment; but the Supreme Court again said that, with reference to the other alleged cause of action, based upon the exemption of the property from forced sale, the same was sufficient to invoke the jurisdiction of the court granting the injunction; and rather significantly said, as applicable here, that a “determination that it (the property) was not exempt, while decisive of the right to the relief, would not affect the court’s power to entertain and hear the cause”; and further declared that “this power, which constitutes the jurisdiction of a court, may exist, though the pleading under which the suit is instituted is insufficient to sustain the action” — clearly holding in that character of case the insufficiency of the proof or pleading must not be “confused therefore with that of jurisdiction.” The court has jurisdiction of such an issue, and the same is severable from the other, whether the pleading and proof is sufficient or insufficient. The troublesome question in this cause is upon the following consideration: Appellant seeks two grounds of injunction: First, an attempt to restrain the enforcement of an execution upon property, issued upon a judgment rendered in another jurisdiction, which, according to our view, is not void, and with inference to which the district court of Randall county has no jurisdiction; second, he alleges that such judgment, which, under the pleading, is not invalid, is insufficient to support an abstract of judgment lien recorded in Randall county, and that the same constitutes a cloud upon his real estate in that county.

We have a statute (subdivision 14 of article 1830, R. S. 1911) which is also a venue statute, and which provides, that “suits for the recovery of lands or * * * suits to remove encumbrances upon the title to land, suits to quiet the title to land * * * must be brought in the county in which the land, or a part thereof, may lie.”

In this case, when the appellant alleges that the abstract of judgment lien, based upon the judgment rendered in the cause litigated in the other jurisdiction, is a cloud upon the title to his property, though assuming that the allegations may not be sufficient upon the merits for the purpose of invoking the aid of a court of equity to remove the alleged incumbrance from his title, however, the question remains: Does the statute last quoted afford the criterion of jurisdiction applicable to these pleadings, or does some other statute or rule of law deny the jurisdiction to Randall county upon that issue, and require that part of the ease, with the other, to be returned to the district court of Deaf Smith county, where the judgment was rendered? In accordance with the principles enunciated in the Leachman-Capps Case and the Cotton-Rea Case, supra, if the allegations to remove cloud from title, based upon the alleged invalidity of the judgment rendered in the cause in Deaf Smith county, were of a nature to give Randall county original jurisdiction, it would be the duty of that court to retain jurisdiction, as to that feature of the cause, and also disregard the feature of the cause attempting to enjoin the execution and levy upon the property of appellant seized in Lubbock county, notwithstanding appellant resides in Randall county. Conceding, though not specifically deciding it, for the reason that the lower court has never decided it germane to the particular proposition, that the allegations upon the question of removing the in-cumbrance as a cloud are insufficient upon the merits for that purpose, if, however the district court of Randall county had jurisdiction for that purpose, its duty would have been, unless appellant had elected, to have held the case for the demurrers to the merits and sustain the same, and to have disregarded the other features of the cause. The court first obtaining jurisdiction, if the petition shows jurisdiction for any purpose, is the one that holds the cause. Justice Stayton, in the case of Bender v. Damon, 72 Tex. 92, 9 S. W. 747, touched somewhat upon the question. The pleadings there involved, referred to in the opinion, are obscure. We infer that the action was for the purpose of annulling the sale and sheriff’s deed, made by virtue of a judgment rendered in a proceeding in another county. The trial court, in that case, sustained a general demurrer to the petition of the appellant, Bender. He had alleged that the judgment against him was a void judgment, because he was never cited to appear, and did not appear in person or by attorney in the other proceeding in which the judgment was rendered, and that he was a nonresident of the state, and that the judgment was void; for that reason — the void judgment — the district court of Ellis county had jurisdiction. He also “sought !to remove cloud from his title, * * * and, to obtain this relief, he undertook to show that appel-lees were claiming under a sheriff’s sale and deed under an execution issued from the district court of Navarro county,” and Justice Stayton further said: “Some of the facts which he alleged to show the invalidity of that judgment, execution, and sale were such as might entitle him, by a proper proceeding, to have had them vacated, but not such as to render them void.” Again the Supreme Court said: “The fact that appellant may have sought specific relief that could not be given to him by the district court of Ellis county furnishes no reason why that court should not adjudicate the question of title to land situated in that county, without reference to the fact that the defendants were not residents of that county.” It is noted that in that case the allegations seeking to remove the cloud from the title were for the purpose of canceling a deed, we presume upon record, in Ellis county. We know from the briefs of counsel, reported in that cause, that the Supreme Court had under consideration the statute giving the jurisdiction to remove in-cumbrances upon the title to the district court of the county where the land lies; and it held that the allegations of fraud, for the purpose of impeaching the judgment and thereby attempting to remove the deed as an incumbrance, did not give the jurisdiction to the county in which the land was situated, but that the jurisdiction was referable to the county in which the judgment was rendered. The attempt to cancel the deed in that cause as a cloud upon the title to the land is somewhat analogous to the attempt in this cause to cancel the abstract of judgment lien of record. It has always been the rule, without the necessity of citing any authorities upon the particular subject, that, where a judgment has been obtained by fraud, and where there are irregularities in the process under which a sale of property has been made, the jurisdiction of the court rendering the judgment is the one to invoke, when the judgment is not absolutely void, and not so shown upon the record.

In this cause the plaintiff prays for a writ of injunction restraining the “defendants from proceeding further with the sale advertised, and enjoining them from making any further levies or doing anything further under the said judgment or execution until final hearing hereof, that the injunction be made permanent, and that said judgment be declared void, and that the cloud upon the title of the real estate of the plaintiff located in Randall county by virtue of the record of the abstract of judgment be removed, and said abstract of judgment be declared void”; and a further prayer for general relief. The court, in granting the temporary writ met this prayer in full, as noted in the order of the court heretofore quoted by us.

The statute of injunctions (article 4643, subd. I) provides: “Where it shall appear that the party applying for such wilt is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.” The comprehensive prayer and the broad order of the court in granting the temporary writ would have restrained the appellees from bringing an action on the judgment to foreclose the abstract of judgment lien, or issuing an execution upon such judgment to sell land in Randall county, divesting the lien by virtue of the recorded judgment. We presume, however, although a prayer is a very essential part of a petition for injunction, that appellant would contend that the “cause of action, under our system of pleading, depends upon the facts stated in the petition that. are appropriate for a recovery, rather than upon the particular breach laid or the specific relief prayed, where there is a general prayer for relief, * * * whether the specific relief as specially prayed be granted or not.” Lee v. Boutwell, 44 Tex. 151. Whether we regard the allegations alleging the abstract of judgment lien as an incumbrance, to be removed as a cloud upon the title, disassociated from the injunction and prayer, or whether we regard this whole suit as one of injunction, we think the district court was correct in sustaining the ap-pellee’s exception, and in changing the venue to the district court of Deaf Smith county.

We do not agree with appellee that this cause sounds in jurisdiction as contradistin-guished from venue, and that the district court of Randall county should have dismissed the cause instead of transferring it to Deaf Smith county; and, upon the record, the order of the district court is affirmed.