author: PLY, C. J.

text:
    CHILDS v. JUENGER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Bills and Notes (§ 110) — Attorney’s Pees — Validity of Provision.
    A provision in a promissory note that, if it be placed with an attorney for collection, the maker agrees to pay 10 per cent, additional on the principal and interest as attorney’s fees should be enforced, in the absence of a showing that the amount stipulated is unreasonable.
    [Ed. Note. — Por other cases, see Bills and Notes, Cent. Dig. § 221; Dec. Dig. § 110.]
    2. Vendor and Purchaser (§ 269) — Vendor’s Lien — Foreclosure—Right to Enforce.
    The transferee of secured lien notes given for land could, in an action of trespass to try title against himself and his transferror, who had conveyed to plaintiff’s grantor, have the lien enforced for the attorney’s fees stipulated for in the notes and other sums due thereon; such transferee having filed a cross-action to protect his interest and foreclose his lien.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 759-763; Dec. Dig. § 269.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Action by J. D. Childs against Joseph Juenger, B. E. Witte, and others, in which defendant last named filed a cross-action. Prom a judgment for plaintiff against all of defendants except Witte, and in favor of Witte foreclosing a vendor’s lien, plaintiff appeals.
    Affirmed..
    R. L. Edwards and Jas. W. Brown, both of San Antonio, for appellant. Cordon Bullitt, of San 'Antonio, for appellees.

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

   PLY, C. J.

Appellant instituted an action of trespass to try title to a portion of lot No. 13, New City, block No. 2,877, on Barbe street in the city of San Antonio, against Joseph Juenger and wife, Thomas B. Went and wife, J. H. Frost, and B. E. Witte. Appellant alleged that he bought lot 13 aforesaid, of which the land in question is a part, from Went and wife; that he executed and delivered to them his note for $2,350, without interest, secured by a lien on the land, which note was placed with J. H. Frost by Went as collateral security for $400 borrowed by said Went; that Went had executed two notes, for $500 each to Joseph Juenger, and by him they were transferred to B. E. Witte, said notes having been executed by Went to Juen-ger for part of the purchase money of said lot 13, a lien being reserved to secure them; that Witte and Frost were claiming equities in the land; and that Juenger and wife were claiming a part of the lot in question. The cause was tried by jury, and resulted in the following verdict:

“We, the jurors, find that the plaintiff is entitled to the entire lot 13, 50 feet by 125 feet, and that the plaintiff carried out his contract in good faith, and payments should be carried out as originally made.”

Upon the instruction of the court the following further verdict was returned: “We, the jury, find in favor of defendant B. E. Witte, against plaintiff J. D. Childs and against defendants T. B. Went and Anna Juenger, personally and as community survivor of the estate of herself and her husband, Joseph' Juenger, deceased, and against defendants Joseph J. Juenger, Mrs. Ida Juen-ger Tyler, L. Tyler, Cecilia Juenger Kock, William Kock, Wilhelmina Juenger Hoffman, Herbert Juenger, Albert Juenger, and Joe H. Frost, foreclosing the vendor’s lien evidenced by the two notes for $500 each with 8 per cent, interest per annum thereon from July 22, 1009, and 8 per cent, interest on past-due interest and 10 per cent, on the principal and interest as attorney’s fees. We also find in favor of said defendant B. E. Witte against defendant T. B. Went personally in the sum ! above mentioned, and we find that said defendant B. E. Witte is entitled to a foreclosure for said amounts on that certain lot or parcel of land situated in San Antonio, Bexar ' county Tex., and more particularly described as lot No. 13, block 2, New City, block 2877 of Barbe subdivision.”

Upon those verdicts judgment was rendered in favor of appellant as against all the defendants, except B. E. Witte, for the land sued for, and all costs of court, and in favor of B. E. Witte against Thomas B. Went for $1,433.73, the same being the principal of the two $500 notes and interest and attorney’s fees, and the vendor’s lien was foreclosed on the land as against appellant and all the. other parties. It was provided that appellant would pay off the amount of the judgment, and that the amount so paid should be placed as a credit on his $2,350 note to Went. There were other provisions in the judgment not necessary to notice. Appellant made a I motion to reform, by striking out of the judg-1 ment against him $130.24 attorney’s fees and $24.72 interest on past-due interest, which was overruled by the court. The only question involved in this appeal is the action of the court in overruling the motion to reform the judgment as indicated.

It is provided in each of the notes that “all past-due interest on this note shall bear interest from maturity thereof until paid, at the rate of eight per centum per annum.” It is further provided in each of the notes “that if this note is placed in the hands of an attorney for collection, or if collected by suit agree to pay ten per cent, additional on the principal and interest then owing thereon as attorney’s fees.” In his cross-action on the notes B. E. Witte alleged that he had obligated himself to pay his attorney 10 per cent, on the principal and interest of the notes, and prayed for judgment for such attorney’s fees.

The first assignment of error assails the judgment for attorney’s fees, and, while followed by at least two propositions not germane to the subject-matter of the assignment, it will be considered as a proposition in itself. The assignment is not well taken. The authorities cited by appellant to sustain the assignment have b.een overruled by the Supreme Court, not only by refusing writs in Adams v. Bartell, 46 Tex. Civ. App. 349, 109 S. W. 779, and Davis v. Kuehn, 119 S. W. 118, decided by this court, but directly in Bank v. Robinson, 104 Tex. 166, 135 S. W. 372, and Lanier v. Jones, 104 Tex. 247, 136 S. W. 255. In the Robinson Case the court said: “Clearly it seems to us by the terms of the note that the provision for attorney’s fees is treated, and by the parties considered, as in the nature of costs, and such promise to pay attorney’s fees is fixed as a contract of indemnity. So considered, it contains an obligation to the maker of the note to pay the cost of collection, and at the same time fixes the amount thereof at 10 per cent, of such obligation. In such case, in the absence of plea and proof that such a per cent, is unreasonable and unconscionable, the court is authorized to act upon the amount of such fees as agreed upon by the parties, and enter judgment accordingly. * * * Tim record shows that suit had been instituted on the note, and the same contains a clear statement of the amount agreed by the parties to be - paid, and no other or further proof was required.” That language was approved in the cited ease of Lanier v. Jones, and it was further held: “In this case the record showed that suit had been instituted on the note which is the foundation and basis of the judgment. It contained evidence of the sum agreed to be paid for and as attorney’s fees. There was no evidence introduced or issue made that such sum was unreasonable. In this state of the record judgment was properly rendered for the attorney’s fees named in the note sued on.” In other words, that part of the note as to attorney’s fees, In the absence of attack, proves itself just as the other parts of the note do. No pleadings were filed attacking the reasonableness of the attorney’s fees, and no evidence introduced in relation thereto.

Witte was compelled to institute the cross-action to protect his interests, and the lien was properly foreclosed for the attorney’s fees as well as other sums due on the notes. Neese v. Riley, 77 Tex. 348, 14 S. W. 65; Garrett v. Bank, 79 Tex. 133, 15 S. W. 224.

The judgment is affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    LOFTUS v. ZIER.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 4, 1913.
    On Rehearing, Jan. 15, 1914.)
    1. Appeal and Error (§ 760*) — Assignments of Error — Bill of Exceptions.
    An assignment of error complaining of a ruling on evidence will not be considered, where the .brief of appellant does not refer to any bill of exceptions covering the matter.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.*]
    2. Appeal and Error (§ 1033) — Questions Reviewable — Errors Favorable to Party Complaining.
    An error favorable to appellant is not reversible.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    On Rehearing.
    3. Evidence (§ 253) — Conspiracy—Declaration of Conspirators — Admissibility.
    Where, in an action for fraud inducing plaintiff to become a lessee of a business, the petition charged a conspiracy between the owner and a third person, alleged to have been in possession under a prior lease for a term which had not expired, and the existence of the conspiracy was shown, statements made by the third person as to the cause of the owner and of the third person ceasing to operate under the lease were admissible against the owner.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 994-1002; Dec. Dig. § 253.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Harry Zier against T. F. Loftus and another. From a judgment for plaintiff, defendant named appeals.
    Reversed and remanded.
    Fisher, Campbell, Amerman & Sears, of Houston, for appellant. W. J. Johnson and Edward S. Boyles, both of Houston, for ap-pellee.

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

   HIGGINS, J.

The nature of this suit, as stated by the appellee in his brief, is as follows: “Plaintiff, Harry Zier, sued defendants, T. F. Loftus and Frank McKenzie, by filing his original petition on April 20, 1911, and for trial pleading used his second amended original petition. This suit is for damages for the procuring of a lease contract, wherein T. F. Loftus was lessor and Frank McKenzie and Harry Zier were lessees, because of the vice of fraudulent acts, statements, and concealments, on the part of said Loftus and McKenzie, in the conception, inception, consummation, continuation, and forcing of a breach of said lease contract, and because said vice was with premeditation, was willfully and maliciously done, for exemplary damages. The allegations are that in August, 1910, Zier got into communication with defendants by having read an advertisement, bearing McKenzie’s name, published August 3-9, 1910, in a daily newspaper circulated in Harris county, Tex.; that the initial communications were by mail, bearing McKenzie’s name, and later in person; that upon Zier personally inquiring, McKenzie informed him that he was the lessee in a valuable lease from Loftus (obtained under a prior lease renewal option clause), with an unexpired term of nearly two years, on two moving picture places and paraphernalia used therein, both located in the city of Houston, Harris county, Tex.; that said shows were then producing plenteous profits, but, through a personal entanglement, he, McKenzie, became indebted to his landlord, Loftus, and had his note as an evidence thereof; that said business had not only supported his family, but also paid off all but $500 of said debt, which sum was now past due, and therefore Loftus was harrassing him, in that he,. McKenzie, had turned over to Loftus said lease and the controlling management of the picture show business to assure payment of said debt; that Loftus thus learned this to be a profitable business, and was now about to dispossess McKenzie of same, but, in order that he might save a portion thereof for himself, he, McKenzie, advertised as appellee had read; that the price asked for a one-half interest in said lease or business was $650, to be paid in this wise: $500 to Loftus to clear said debt and lift said partly paid partly past-due note, and $150 to Loftus for rent for one week in advance for said theaters under the terms of the purported Loftus-McKenzie lease; that Zier requested sight of the lease and truthful book proof of the allegations in respect to the profit-ableness of the business, to which McKenzie replied that, Loftus having possession and control of the lease and business, he also had the books and kept the accounts therein, and for further information he would be compelled to call upon Loftus; that Zier was conducted to Loftus’ office, where he met Lof-tus, who then reiterated and confirmed McKenzie’s statements concerning McKenzie’s indebtedness and the business profits, and, in addition thereto, Loftus stated that the original amount of the said debt and note was $2,000, exhibited the note with payment indorsements on the back thereof, showing a balance due of $500; that Loftus — not McKenzie — exhibited the lease; that both said it was a valuable lease on a profitable business, and that be, Loftus, held it as security for bis loan to McKenzie; that Zier could not do better elsewhere; that, being then unable to locate the expense account books, Zier could rely on his, Loftus’, word that the joint expenses outside of rent never exceeded $250 per week; that Loftus exhibited two purported receipt account books and entries thereon, which Loftus stated to be the actual earnings of said business; that both told Zier, as said advertisement stated, that no experience was necessary on Zier’s part to successfully conduct the picture show business; that Loftus stated he would permit his personal security electric light and power bond, with the light and power company, to stand for the benefit of Zier and McKenzie as a part of the general (tri-party) transaction; that Zier examined^ said receipt entries, and they showed a handsome profit then being made out of said business, with the expenses as stated by Loftus; that Zier, trusting the defendants, particularly Loftus, to be honest, upright business men, believing and relying upon them and their exhibits, etc., purchased said advertised one-half interest in said lease or business by paying to McKenzie $5 earnest money, $495 to Loftus (balance of $500) to pay said debt claim of Loftus against the business and lift said note, Loftus then destroying the note, plus $150 in advance, for the first week’s rent, totaling $650; that Loftus then executed a new lease, with McKenzie and Zier as his lessees, for a period of 260 weeks, at a rental of $150 per week — not month. That under this lease, Zier, having gone into possession August 22, 1910, paid a further $150 to Loftus for the second week’s — not two week’s — rent, thus paying a total of $800 directly to Loftus; that all of said representations, etc., of both defendants were, with precognition, false, in that said advertisement carrying McKenzie’s name was the product of and was placed and paid for by Loftus; that said letter to Zier, bearing McKenzie’s signature, was the product of and was written in Loftus’ hand; that said purported Loftus-McKenzie lease or leases were fictitious, McKenzie being only a hired employe of Loftus; that he did not owe Loftus any amount as the balance due on his note, which was also fictitious; that the figures and accounts which Loftus exhibited to plaintiff were not the true receipts and expenses of said showhouses, and were fraudulently prepared by Loftus; that while Zier was operating said shows, Loftus, contrary to his declarations, canceled his light and power bond without notice to Zier, and maliciously intermeddled with Zier’s performers and employes, causing the best of them to quit Zier’s employ; that McKenzie deserted Zier; that Loftus, with others, harrassed and threatened Zier to force him out; that said business was not a money-making, but worthless, business, all resulting in plaintiff being forced to abandon said business before the expiration of two weeks, ‘and that plaintiff did not make enough money out of said business to pay the salaries of the employés and performers’; that all of these representations and acts of both defendants were made and done as a part of the general plan and scheme to deceive and defraud the public generally (naming several similarly defrauded) and plaintiff in particular. Tliat as a continuation of said general fraudulent scheme and conspiracy, Loftus, in order to retain said moneys, entered into further machinations with McKenzie and his wife, Maggie McKenzie, in that, when Loftus learned that McKenzie had confessed or admitted' the intrigue and cabal of himself and Loftus herein, he, Loftus, paid McKenzie and wife to leave, and did procure their absence from the jurisdiction of all the courts of Harris county, Tex.; that this variety of fraudulent conduct on the part of defendants was willful and malicious, conceived by Loftus, and carried out primarily by him and McKenzie. Plaintiff asked to recover as actual damages only his $800 paid direct to Loftus, with interest thereon, and for $10,000 exemplary damages.”

Appellee’s contention, as stated by him, is: “That Loftus owned and operated said theaters for and in his own benefit; that upon their proving a financial failure (both now dismantled and abandoned), he sought to reimburse himself by means of making McKenzie a fictitious lessee, a fictitious debt- or, maker of a fictitious promissory note or notes to evidence the debt, a fictitious vendor of a half interest in said fictitious lease, by having McKenzie tell a fictitious hard-luck story as a plausible reason for selling an interest in a purported moneymaking business, by declaring said business to be a money-making enterprise, using fictitious indorsements of payments on the back of said note, and fictitious expense and earning accounts, together with defendant’s statements that Loftus held these various purported assets as good and sufficient security for said debt so as to substantiate their said declarations of the profitableness of said enterprise; that having thus induced an unsuspecting individual, plaintiff being one such, to purchase the purported interest, they next set about to force out the old or young, woman or man, who purchased and paid their money for such interest, so they could repeat the process ad infinitum; that Loftus received these moneys, including plaintiff’s, except for a $50 commission paid McKenzie for each ‘sale’; that in the interim, McKenzie was general caretaker of the theaters, while Loftus hired, discharged, bought, sold, and paid for all necessities in the conduct of said business, McKenzie turning over the earnings to Loftus every morning; that while the receipt account books showed a steady and unbroken income from said theaters, one or the other theater was closed part of tlie time covered by said unbroken entries, and that said books also contained entries for a certain period when neither Loftus nor McKenzie bad possession of, nor access to, the earnings of said theaters, and that, for that period, the figures shown by Loftus were in excess of what was actually earned by said theaters, and that these padded figures were among those shown to plaintiff Zier; that the representation that said business was a moneymaker was false; that ‘the business’ was worthless; that the receipts of said business under plaintiff’s and McKenzie’s joint management were not enough to pay the expenses, employés, and performers, so that, with other causes, Zier was forced to abandon said business, at a loss additional to the $800 paid to Loftus, and he was therefore entitled to recover the entire amount 'which he had paid out to defendant Loftus, together with exemplary damages; that as a continuation of this conspiracy, Loftus procured his codefendant, co-conspirator, McKenzie, together with McKenzie’s wife, to leave the jurisdiction of Harris county courts, so their testimony in reference to the facts of this and other similar transactions could not be used; Lof-tus, in the meantime, however, getting McKenzie under the influence of intoxicating liquors, and then procuring his perjuring of himself while in that condition — thus making doubly certain of preventing or ruining McKenzie’s testimony, and keeping them out of Texas.”

Appellant’s contention, as stated in his brief, was: “That said lease contract from himself to McKenzie was genuine, and that McKenzie was conducting said business on his own account; that the note of McKenzie held by him was a bona fide note; that the figures and accounts of the receipts and disbursements of said business, which he showed to the plaintiff, were those which he kept of the receipts and disbursements made in said business by McKenzie, as given to him by McKenzie, and that he made no other representations to the plaintiff in reference to the nature and character of said business, but that the plaintiff- dealt with McKenzie, and got all of his information from McKenzie, and finally bought from McKenzie a one-half interest in said business; that McKenzie took up from Loftus his note, with part of the purchase money paid to him by plaintiff, and paid one week’s rent with the balance of the purchase money; that the transaction was one entirely between the plaintiff and McKenzie, - and that the only thing that Loftus did in reference to the transaction was to execute to plaintiff and McKenzie a new lease contract, after plaintiff and McKenzie had made their trade. The defendant Loftus denied that he had made any effort to procure McKenzie and his wife, or either of them, to leave the jurisdiction of the court, and also denied that there was any collusion between Mm and said McKenzie.”

Upon trial before a jury a verdict in favor of the appellee was returned for $800 actual and $500 exemplary damages, upon which judgment was accordingly rendered, from which this appeal is prosecuted by the defendant Loftus.

The first, second, and third assignments relate to the action of the trial court in overruling special exceptions directed against the petition, upon the grounds that same was prolix, redundant, filled with surplusage, and contained irrelevant, immaterial, improper, and prejudicial allegations. The petition covers 40 pages of typewritten matter, and is abundantly subject to each and every one of the objections urged against it, and the exceptions should have been sustained.

The fourth assignment complains of a ruling upon the admission of evidence. The record in this case is voluminous in the extreme, containing 47 bills of exception alone, covering 48 pages of typewritten matter. The brief does not refer us to any bill of exception taken to the action of the court upon the matter here presented, and tMs court will not search the record for the purpose of ascertaining if a proper bill was taken. In the absence of reference to bill of exception covering the matter, this assignment cannot be noticed.

For a like reason we cannot consider the eighth assignment.

There are approximately 40 assignments, complaining of rulings of the court upon evidence. To undertake to discuss each of these assignments in detail would prolong this opinion to unconscionable length, and the same will therefore not be done.

There is a vast amount of improper, irrelevant, immaterial, hearsay, and incompetent testimony, the admission of wMch is assigned as error in the sixth, ninth, seventeenth, seventeenth and a half, eighteenth, nineteenth, and twenty-first to forty-second assignments of error, both inclusive. Some of the evidence objected to is admissible, but the greater portion is improper. The assignments are therefore sustained.

Assignments 7, 12, 15, 16, and 20 are regarded as being without merit and are overruled. Part of the testimony referred to in the eleventh, tMrteenth, and fourteenth assignments is subject to the objection urged against it, but the material testimony therein objected to seems to be admissible in this state under the rule announced in Compagnie, etc., v. Victoria, etc., 107 S. W. 651, and Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 99. Upon the authority of the cases mentioned and the cases therein cited, we overrule the assignments of error last mentioned.

The materiality of the testimony referred to in the tenth assignment is not apparent, and in any event its exclusion does not present reversible error.

The error complained of under the forty-third assignment was favorable to appellant, and therefore does not present reversible error.

Considering the charge as a whole, the error assigned in the forty-fourth and forty-fifth assignments is likewise harmless.

The forty-sixth to fifty-second assignments, inclusive, are regarded as being without merit and are overruled.

Reversed and remanded for the errors indicated.

On Rehearing.

By inadvertence there was a failure to pass upon appellant’s fifth assignment in the original opinion rendered herein.

It complains of testimony of plaintiff as to certain statements made to him by McKenzie. A conspiracy between McKenzie and Loftus was pleaded, and the fact of its existence raised by the evidence. Therefore the statements made by McKenzie relating to the alleged cause of the actors ceasing work was admissible; but, as to the remaining statements made by him, they were improper and inadmissible upon any theory.

The position originally assumed regarding the eleventh, thirteenth, and fourteenth assignments is adhered to. As an original proposition, we would not be disposed to regard the testimony referred to in the assignments as admissible, but in the two cases cited, it has been otherwise decided, and we are not disposed to dissent from the conclusion there reached. The assignments are overruled solely upon the authorities cited.

Appellant in his motion for rehearing requests that we indicate specifically the testimony regarded as admissible in the numerous assignments of error discussed in the original opinion, and that which is deemed inadmissible. To do so would protract the opinion to a wholly unreasonable length, and we see no necessity for so doing, since the trial court should readily be able to determine the irrelevant, immaterial, and incompetent testimony as distinguished from that which is relevant, material, and competent.

The motion for rehearing is overruled.


author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. v. BURTON.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 20, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Master and Servant (§ 221) — Injuries to Servant — Assumption op Risk.
    Where a servant requested his foreman to fix the valve on a steam boiler so that the pressure would not be dangerous in operating a steam drill, and the foreman promised to remedy the defect, the servant by continuing in the work did not assume the risk of injury; for, the work not being so dangerous that it would be against the policy of the law to permit the servant to continue, the master was liable for an injury occasioned by excessive steam pressure; the defect not having been remedied.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. § 221.]
    2. Master and Servant (§§ 203, 227) — Injuries to Servani>-Deeenses.
    Contributory negligence and assumption of risk are separate defenses.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543, 668, 669; Dec. Dig. §§ 203, 227.]
    3. Master and Servant (§ 234) — Injuries to Servant — Promise to Repair.
    While the promise of a master to repair a defective appliance casts the liability for injuries upon the master, it does not relieve the servant from the duty to exercise reasonable care for his safety.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec. Dig. § ¿34.]
    4. Trial (§ 191) — Instructions—Weight oe Evidence.
    In a personal injury action by a servant who was burned by steam when the hose conducting the steam to a drill blew oil owing to the excessive pressure and the failure of the safety valve to work, it was not improper for the court to assume in its charge that the master was guilty of negligence in failing to keep the safety valve in order.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    5. Appeal and Error (§ 1064) — Instructions — Harmless Error.
    In a personal injury action by a servant, a charge that if the appliances with which the servant was at work were not reasonably safe, and if the servant failed to inform the master of that fact, or the master did not promise to repair them, “and” a person of ordinary care with knowledge of the defect would not have continued in the service, is not prejudicially erroneous, in the use of the word “and” instead of the word “or,” as casting on the master a greater burden than the law requires by making it a condition precedent to recover that, in addition to the other circumstances, the danger must have been such that a reasonably prudent person would not have continued in the service.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. i 1064.]
    Appeal from District Court, Grayson County; W. J. Mathis, Special Judge.
    Action by James W. Burton against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. S. Coke, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Wolfe, Wood & Haven, of Sherman, for ap-pellee.

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

   TALBOT, J.

This is an action brought by the appellee to recover of appellant damages for personal injuries. The defenses pleaded were a general denial, assumed risk, and that appellee’s injuries, if any, were proximately caused and contributed to by appellee’s own negligence and want of ordinary care and by that of his fellow servants. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment in favor of appellee for $4,000, and, appellant’s motion for a new trial having been overruled, it appealed.

Appellee was in the employ of appellant, and on the 8th day of February, 1912, while working as a driller in appellant’s rock quarry at or near Rich, in the state of Oklahoma, received the injuries of which he complains. Appellant had provided a boiler in which steam was generated and which by an iron pipe was conveyed to a point near where the work of drilling was being done. A rubber hose, several feet long, connected this iron pipe to the drill with which appellee was working, and while appellee was engaged in the performance of his duties the end of the rubber hose next to the drill blew off and appellee was scalded by the hot steam or water escaping therefrom and otherwise seriously injured, substantially as alleged in his petition. Appellant had permitted what is called the blow-off or pop-valve, attached to the boiler in question, to become so defective while in use that it would not properly operate, and would permit the steam in said boiler to gain a much higher pressure than was safe to work with. It was not safe to work with the drill when there was a steam pressure of over 90 or 95 pounds, ánd at the time the accident occurred the pressure was about 140 pounds. On the morning of and shortly before the happening of the accident, appellee discovered there was a steam pressure on the boiler of about 140 pounds. He believed this rendered the continuance of his work dangerous, and went to appellant’s foreman in charge of the work and called his attention to the high pressure of steam and defective condition of the boiler and blow-off or pop-valve. The foreman assured appellee that it was not dangerous and directed him to proceed with his work, but promised appellee that he would have the boiler and blow-off or pop-valve repaired, and appellee, relying upon the superior knowledge of the foreman and his promise and assurance to repair the defective condition of the boiler and blow-off or pop-valve, returned to and continued to work with the drill. The defective valve was not repaired, and by reason of its condition and the excessive pressure of steam the rubber hose was caused to be blown off and disconnected from the drill and appellee injured.

There are but two assignments of error, and they complain of certain paragraphs of the court’s charge. The first is that the court erred in charging the jury as follows: “Now bearing in mind the foregoing instructions, if you believe from the evidence that on or about February 8, 1912, plaintiff, while engaged in the discharge of his duties under his employment, was using a drill which was then and there propelled by steam generated by a boiler, and the blow-off or pop-valve attached to said boiler was defective and out | of repair, and that by reason thereof plaintiff was injured, as alleged in his petition, and that such injuries, if any, were proximately caused by the defective blow-off or pop-valve, if you find from the evidence same was defective; and if you further believe from the evidence that said blow-off or pop-valve was not a reasonably safe appliance for plaintiff to do the work required of him under his employment, and that plaintiff, prior to his alleged injuries, informed defendant’s foreman, R. M. Thacker, of the defective condition of said blow-off or pop-valve, and that the said R. M. Thacker, as such foreman, was charged with the duty of repairing said blow-off or pop-valve, or causing same to be repaired, and that he promised plaintiff to repair said blow-off or pop-valve or have same repaired, and that plaintiff, believing that said R. M. Thacker would have same repaired, continued to work at said employment, relying upon said promise to repair, if any, and that said R. M. Thacker failed to repair said blow-off or pop-valve; and if you further believe from the evidence that under all the circumstances a person of ordinary care would have contin-gaged with the knowledge of the defect and danger; and if you further believe from the ued to do the work in which plaintiff was en-evidence that the defective condition of said blow-off or pop-valve (if you find it was so defective as that it was not a reasonably safe appliance for plaintiff to use in the performance of his work) was the direct and proximate cause of plaintiff’s injuries, if any he received — then you will find for the plaintiff and assess his damages under instructions hereinafter given you, unless you find for defendant under other instructions that will be given you in charge by the court.”

It is asserted that this charge is erroneous because: (1) It permits a recovery by appellee if his injuries were caused by reason of the blow-off or pop-valve being defective and not reasonably safe, regardless of whether this condition was due to any negligence on the part of appellant; (2) it permitted appellee to recover, regardless of whether appellant knew, or .by the exercise of ordinary care could have' known, of the defective or unsafe condition of the blow-off or pop-valve in time by the exercise of ordinary care to have remedied the defect, and regardless of whether appellant could have reasonably anticipated that an employé might be injured by the use of the appliance in its then condition; (3) the charge is on the weight of the evidence, in that it virtually instructs the jury that, if the blow-off or pop-valve was defective, the same would constitute negligence on the part of appellant.

We are of opinion there was no material error in the charge. Where the servant complains to the master of a defect in the tool or implement furnished for his use and receives a promise, upon which he relies, that it will be removed, it is generally held that there is no assumption by the servant of the risk by a mere continuance of the use of the defective implement or appliance. This is so at least until a reasonable time for the removal of the defect has elapsed after the promise. Our decisions, and it seems the weight of authority, treat the promise of the master to repair as an implied request to the servant to continue in the service until the necessary repairs can be made, and as an assumption of the risk. Some, however, seem to regard the promise as tending to relieve or exempt the servant from the charge of contributory negligence in exposing himself to a known danger. The reason why a promise to repair modifies the rule which ordinarily charges the servant with risks arising or resulting from defects of which he has knowledge is that the complaint and promise to repair “leave the risk where the duty is, upon the master. As the risks to be incurred by the servant, under such circumstances, are not assumed by him but by the master, the loss must fall upon the latter, unless the danger to the servant is so great that the policy of the law will forbid persons even under such a promise to take it and then seek compensation in the courts, or unless, having taken it, the servant, by his own carelessness in performing his work, has increased the risk and contributed to his own injury.”

Contributory negligence and the assumption of risk are regarded and treated in this state as distinct defenses, and, although the promise to repair may be given and the risk from the use of the defective appliance thereby assumed for a reasonable time by the master, yet the law does not relieve the servant of the duty resting upon men generally of using reasonable care for his safety. Railway Co. v. Bingle, 9 Tex. Civ. App. 322, 29 S. W. 674; Railway Co. v. Korn, 100 S. W. 971. But where the master has promised to remove the defect and no definite time is named in the promise for so doing, the assumption of the risks by the master continues for a reasonable time. In treating of the subject in Railway Co. v. Holman, 90 Ark. 555, 120 S. W. 146, the Supreme Court of Arkansas, speaking through Mr. Justice Wood, said: “The effect of a promise to repair by the master, and the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation whereby the master assumes the risks independent during the time specified for the repairs to be made. Where no definite period is specified in which the given defects are to be remedied, the suspension of the master’s right to avail himself of the defense of assumption of the risk by the servant continues for a reasonable time. 1 La-batt, Master & Servant, §§ 424, 425, and notes thereto.” It is further said, in the case re-ferred to, that “the promise of restoration by the master to secure the continuation of the service of his employés is a confession of a breach of duty which rests solely with him, and which he alone can and should correct. Out of this contractual relation the law declares that, for a reasonable time, the burden of the assumption of risks and the responsibility for any injury resultant to the careful servant by reason alone of the defective conditions is on the master, where it belongs, for he is in the wrong.” In Brouseau v. Kellogg Switchboard & Supply Co., 158 Mich. 312, 122 N. W. 620, 27 L. R. A. (N. S.) 1052, the rule is expressed in the following language: “If the employs, after notifying the employer of a dangerous defect, is induced to continue his work by the employer’s promise to remove the defect, his implied contract to assume the risk of such defect is suspended for a reasonable time, and the employer impliedly contracts to assume the risk of injury therefrom himself.” Likewise, in Greene v. Minneapolis & St. L. Ry. Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785, it is said: “If the emergencies of a master’s business require him temporarily to use defective machinery, we fail to see what right he has in law or natural justice to insist that it shall be done at the risk of the servant and not his own, when, notwithstanding the servant’s objection to the condition of the machinery, he has requested or induced him to continue its- use, under a promise thereafter to repair it.” Some of the many other cases announcing the rule stated and illustrative thereof follow: Dalhoff Const. Co. v. Luntzel, 82 Ark. 82, 100 S. W. 743; Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S. W. 535; Hough v. Texas & Pacific Ry. Co., 100 U. S. 225, 25 L. Ed. 612; Altman v. Schwab Mfg. Co., 54 Mise. Rep. 243, 104 N. Y. Supp. 349; Holmes v. Clark, 6 Hrl. & N. 349; 30 Law J. Exch.' 135; Eureka Co. v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152.

It is said the rule is a necessary corollary of the doctrine that the defense of assumed risk rests on contract, and that the most logical reason for the rule is that, under such circumstances, it must be taken as understood between the master and servant that the continued use in the then condition of the instrumentality, being for the convenience and purposes of the master, is to be at his risk, and not at the risk of the servant (Schlitz v. Pabst Brewing Co., 57 Minn. 303, 59 N. W. 188); that when the master has knowledge of the defects, and promises to repair the same, he impliedly requests the servant to continue to work; and that he (the master) will take upon himself the responsibility of any accident that may occur during the period (Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, 36 N. E. 572). It seems to follow, therefore, as contended by appellee, that when a servant is put to work with an appliance or instrumentality which, from any cause, becomes so defective as not to be reasonably safe, and such condition is by him reported to the master, who induces the servant to continue to use the appliance in its defective condition by a promise to repair, and the servant is injured by reason of such defective condition within a reasonable time and before such repairs are made, the real question is not whether the master has been guilty of negligence in furnishing or failing to keep the appliance in repair, but it must be taken as having been understood between them that the continued use of the appliance in its then condition being, as is said in one of the decisions cited, for the purpose and convenience of the master, is to be at his risk and not at the risk of the servant. Mr. Cooley, in his work on Torts (page 1156), says: “It is also negligence for which the master may be held responsible, if, knowing of any peril which is known to the servant also, he fails to remove it in accordance with assurances made by him to the servant that he will do so. * * * If the servant, having the right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good.”

The essential or controlling feature of appellee’s case was the defective condition of the blow-off or pop-valve, the report of its condition to appellant, and its promise to repair. It was undisputed that appellee knew of the defective condition of the valve, and his continued use of it in that condition without appellant’s promise to repair would doubtless have been an assumption of the attendant risk regardless of whether it was negligent for him to do so or not. Railway Co. v. Bingle, supra. The charge of the court under consideration does not, as will be observed, specifically require, as must be done ordinarily in a personal injury suit, that the jury find, in order to return a verdict in favor of the appellee, negligence on the part of the appellant. The jury were required to find, however, that the blow-off or pop-valve in question was defective; that it was not reasonably safe for use; that ap-pellee informed appellant’s foreman, R. M. Thacker, of such condition of the valve; that said foreman was charged with the duty of repairing the valve and promised appellee that he would repair it; that appellee, believing and relying on said promise, continued to work; that said foreman failed to make the repairs; that, under the circumstances, a person of ordinary prudence would have continued to work with the defective valve; and that the defective valve was the proximate cause of appellee’s injuries. The verdict of the jury necessarily embraces findings to the effect that all of the foregoing facts existed, and such findings include, it occurs to us, every fact necessary to be found to entitle appellee to a recovery. The authorities from which we have quoted and cited establish the law, under the facts of this ease, to be that appellant, by promising to repair the defects which were called to its attention by appellee, impliedly contracted to and did assume the risk of injury therefrom. The question was not then whether or not appellant had failed to exercise ordinary care to furnish appellee an appliance which was reasonably safe for the use he was required to make of it or had failed to use such care to keep it in a reasonably safe condition, but the question was whether or not appellant had been informed by appellee that the blow-off or pop-valve furnished was defective and unsafe; that it had promised to repair it and had failed to do so, and had thereby impliedly contracted with appellee to assume the risk of his being hurt by the use of the blow-off or pop-valve pending a reasonable time for the repairs to be made. That appellant did so contract is affirmed by the verdict. There is no contention that the danger to appellee from the continued use of the appliance “was so great that the policy of the law would forbid him even under the promise to repair to take it and then seek compensation in the courts.” Nor is it contended that the appellee, by his own carelessness in performing the risk in which he was engaged, increased the risk and contributed to his own injury. Therefore, as the risks to be incurred by the appellee in undertaking to perform the service required of him with the defective pop-valve were not assumed by him, but by the appellant, the loss sustained by appellee should fall upon the former, and the court’s charge in authorizing a verdict in favor of appellee for the damages sustained by him, in the event the jury found the facts enumerated therein to exist, wq.s, we think, correct. It presented, it seems to us, the theory of the case relied on by appellee and which the evidence tended to establish. Appellee’s right to recover was not, as we understand the theory upon which the case was tried, claimed upon the proposition that the blow-off or pop-valve attached to the boiler was defective and dangerous when first placed in appellee’s possession for use, but upon the charge that the valve, after appellee began to operate the drill, became defective and appellant failed and neglected to repair it after complaint and a promise, upon which appellee relied, to do so. The issue arising upon this phase of the case was, in the charge under consideration, fully and fairly submitted and the issue determined in favor of appellee.

In so far as negligence on the part of appellant in failing to exercise ordinary care to keep the valve in a reasonably safe condition may be involved, the same was so apparent and so conclusively established that the assumption of it in the court’s charge was authorized, or the failure to submit it as an issuable fact to the jury under the circumstances of the case resulted in no harm to appellant. We shall not undertake to detail the evidence. It was somewhat -conflicting upon the issues as to whether or not appellee complained to appellant’s foreman of the defective condition of the blow-off or pop-valve and as to whether or not appellant promised to remove the defect, but that the valve was out of fix, defective, and would not register properly, and that by reason thereof the boiler was carrying too much steam and was dangerous, and that appellant’s foreman, Thacker, was aware of all of these things in time to have repaired the valve and failed to do so, and that as a consequence thereof appellee was injured, appears beyond controversy. As has been seen, however, from the above quotation, Mr. Cooley says that “if the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care (italics ours), unless or until he makes his assurances good:”

The second assignment of error complains of the following paragraph of the court’s charge: “On the other hand, if you find and believe from the evidence that the machinery and appliances with which plaintiff was at work were reasonably safe for the plaintiff to discharge the duties required by him, or if you so believe that the machinery and appliances with which plaintiff was at work were defective, out of repair, and not reasonably safe for plaintiff to perform his work because of the blow-off or pop-valve being defective or out of repair, but if you do not believe that plaintiff informed defendant’s said foreman of the condition of said blow-off or pop-valve, or, if he did, that defendant’s foreman did not promise to repair said blow-off or pop-valve, and if you do not believe that a person of ordinary care would have continued in the service with the knowledge of the defect and danger, then you will find for the defendant.”

All of the propositions advanced under this assignment have been disposed of by what we have already said, except the first This proposition is that the charge here complained of “announces an incorrect doctrine and places upon appellant a greater burden than the law requires, in that it instructs the jury, in substance, that, in the event they should find the blow-off or pop-valve defective and unsafe, they must further find that a person of ordinary care, knowing the defect and danger, would have continued in the service, before they can return a verdict in favor of appellant.” If this charge is subject to any criticism, it is in the use of the conjunctive “and,” instead of the disjunctive “or,” in the last clause of the paragraph. The error, however, if error, is not believed to be an affirmative one. Railway Oo. v. Hill, 95 Tex. 629, 69 S. W. 136; Railway Oo. v. Haberlin, 104 Tex. 50,133 S. W. 873. If we are mistaken in this, the error is not of such a character as probably influenced the jury in arriving at their verdict to the prejudice of appellant.

Our conclusion upon the whole record is that the trial court committed no material error in instructions given the jury, and that the evidence sustains the verdict.

The judgment is therefore affirmed.


author: HALL, J.

text:
    KEENON v. BURKHARDT et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1913.
    On Motion for Rehearing, Jan. 10, 1914.)
    1. Trespass to Try Title (§ 35) — Plea of Not Guilty — Evidence—Admissibility.
    Under Rev. St. 1895, art. 5257, providing that under the plea of not guilty defendant in trespass to try title may show any lawful defense to the action, except limitations, he may prove under the plea of not guilty that he is a bona fide purchaser.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.]
    2. Appeal and Error (§ 931) — Harmless Error — Erroneous Admission of Evidence.
    Where a cause was tried by the court without a jury, and there was sufficient legal evidence to establish a fact, the court on appeal will presume that the trial court disregarded improper evidence to show the fact, and will not disturb the findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, ¿762-3771; Dec. Dig. § 931.]
    3. Trespass to Try Title (§ 41) — Evidence —Sufficiency.
    In trespass to try title, evidence held to sustain a finding that the grantors in a deed under which defendant claimed were the same persons named as beneficiaries in the will of a testator, who was the common source of title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    4. Death (§ 4) — Evidence—Presumptions.
    The probating and recording in Texas of a foreign will devising land to the grantors in a deed under which defendants in trespass to try title claimed title was presumptive evidence of the death of the testator, so as to support the title under the deed.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 5, 6; Dec. Dig. § 4.]
    5. Wills (§ 426) — Foreign Wills — Probate —Passing of Title.
    Where a foreign will properly probated has been duly recorded, as required by Rev. Civ. St. 1911, art. 7875, the title to the property of testator passes under article 7877 to the dev-isees, and no proof of the death of testator, heirship, or any other thing than to establish the identity of the devisees is necessary, except in case of a contest within four years, under article 7876.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 915; Dec. Dig. § 426.]
    6. Vendor and Purchaser (§ 233) — Bona Eide Purchaser — Failure to Record — Purchaser erom I-Ieirs.
    An innocent purchaser from heirs of a deceased owner may; where he pays full value, hold the land against an unrecorded deed executed by decedent.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 563-566; Dec. Dig. § 233.]
    7. Vendor and Purchaser (§ 223) — Bona Fide Purchaser — Notice.
    Where a deed was prepared and accepted by the grantee under the impression that it contained a covenant of warranty, the omission from the deed of such a covenant was only. a circumstance on the issue of the grantee’s claim of innocent purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 467, 468; Dec. Dig. § 223.]
    8. Vendor and Purchaser (§ 229) — Foreign Wills — Registration—Eeeect.
    Since the act which provides for the recording of a foreign will does not include the registration of the schedule of property, the failure to file the schedule does not put a purchaser from the devisees, on inquiry, and where he purchases without notice of a prior unrecorded deed executed by testator, and pays full value, he is a bona fide purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477-494; Dee. Dig. § 229.]
    9. Vendor and Purchaser (§ 235) — Bona Fide Purchaser — Consideration.
    The giving of negotiable notes as a consideration for a conveyance of real estate is such payment as supports a title of one claiming to be a bona fide purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 567-569, 571-576; Dec. Dig. § 235.]
    Appeal from District Court, Dallam County; D. B. Hill, Judge.
    Action by Ellen Keenon against C. F. Burkhardt and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Tatum & Tatum, of Dalhart, for appellant. Moore, Harrington & Powell, of Dal-hart, for appellees.

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

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

   HALL, J.

This is an action in trespass to try title, brought by appellant against C. F. Burkhardt, W. H. Jackson, D. B. Coleman, and'W. M. Stewart, in the district court of Dallam county, for the recovery of a certain section of land. The original petition was filed the 12th day of August, 1911. On the 5th day of August, 1912, the appellees answered by general denial and a plea of not guilty. There was a trial before the court, resulting in a judgment which recites that the defendants were purchasers for a valuable consideration in good faith, without notice of the land in controversy, and decreed that the plaintiff take nothing by her suit, and that the defendants be discharged with their costs.

There was an agreement of counsel that Herman Greve was the common source. The appellant introduced in evidence warranty deed from Herman Greve and wife, Mary Greve, conveying the land in question. This intrument was dated April 11, 1878, was defectively acknowledged, and was filed for record the 26th day of September, 1910, and duly recorded on the 28th day of September, 1910, in the deed records of Dallam county. She further introduced a correction deed from the same grantors, conveying the same land, dated November 24, 1880, filed for record September, 26, 1910, and recorded on the 28th day of September, 1910. The acknowledgment is in statutory form. The ap-pellees, in addition to the agreement as to common source mentioned above, introduced the following documentary evidence:

(1) A deed from Josephine Oppenheim and husband, Ansel Oppenheim, Sarah W. Kal-man and husband, Arnold Kalman, Sophia Greve Kenyon and husband, George M. Kenyon, and Doretta Dupuy and husband, Raymond Dupuy, to E. S. Collins, conveying the same land and bearing date January 22, 1909. This instrument was filed for record in Hartley county, February 22, 1909, and duly recorded and was filed for record in Dallam county on February 24, 1909. This instrument contains no warranty clause, and has the following granting clauses: “Have granted, sold and conveyed, and by these presents do grant, sell and convey qnto the said E. S. Collins, all that certain tract or parcel of land lying and being situated in the counties of Dallam and Hartley, in the state of Texas, and more particularly described as being all of section No. 41, in block No. 2, surveyed by virtue of certificate 372, issued to Brooks & Burleson, and patented to John W. Maddox and brother, assignees of said Brooks & Burleson, and by said Maddox and brother conveyed to said Herman Greve.” The habendum clause is as follows: “To have and to hold the above-described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the said E. S. Collins, his heirs and assigns forever.” In this conveyance the vendor’s lien is expressly retained to secure the payment of four notes of even date therewith, executed by the grantee Collins, and payable as follows: One on or before one year from date, payable to the order of Doretta Dupuy, in the sum of $375, one on or before one year from date, payable to the order of Josephine Op-penheim, in the sum of $375, and one on or before two years from date, payable to Sophia Greve Kenyon, in the sum of $375, and one on or before two years from date, payable to the order of Sarah W. Kalman for $375. Said notes bear interest at the rate of 8 per cent, per annum, interest payable annually.

(2) Release of the vendor’s lien from Arnold Kalman to E. S. Collins, dated April 30, 1909, filed for record May 21, 1909, and duly recorded in Dallam county, reciting that tlie grantor is the owner of all the notes described above, and releases the lien retained in the deed to secure the payment thereof.

(3) A deed from E. S. Collins to R. S. Rogers, dated April 14, 1909, and duly recorded in the deed records of Hartley county and in Dallam county, conveying the land in suit, and expressly retaining a vendor’s lien to secure the payment of five notes of even date with the deed. The first note being for $1,500, due on or before 90 days, with interest at 8 per cent., and the remaining four notes for $975, due in one, two, three, and four years, respectively, with interest at 6 per cent, per annum from date.

(4) Release of the vendor’s lien from Collins to Rogers, dated May 11, 1909, filed for record in Hartley county May 22, 1909, acknowledging the payment of the $1,500 note, described in the foregoing conveyance.

(5) Warranty deed from R. S. Rogers to appellees Burkhardt, Jackson, Coleman, and Stewart, dated May 7, 1909, filed for record May, 22, 1909, and duly recorded in both Hartley and Dallam counties. This'deed recites the consideration of $5,700, $3,500 cash, and three notes, executed by the grantees, in the sum of $733.33 each, payable to R. S. Rogers, with 6 per cent, interest, retaining a vendor’s lien on the land in controversy to secure their payment, and due one, two, and three years after date, respectively. These notes are made subject to four notes executed by Rogers to Collins.

(6) The last will and testament of Herman Greve and probate thereof. Clause 5th of the will bequeaths unto his wife, Mary Greve, “an equal undivided one-third part of all the rest and residue of my real estate and personal property of every nature, kind and description wheresoever situated.” This is made Upon condition that she accepts under the will, in lieu of any interest she may have under the laws of the state of Minnesota, or of any other jurisdiction where any of the property may be situated. The sixth clause is as follows: “All the rest and residue of my estate, real and personal, of every nature, kind and description, wheresoever situated, whether in the state of Minnesota, Iowa, Texas or Wisconsin, or in the territory of Dakota or wheresoever same may be situated, I give, devise and bequeath unto my four children Josephine Oppenheim, Sarah W. Kalman, Doretta and Sophia Greve, to be equally divided between them, share and share alike. To have and to hold the same unto them, their heirs and assigns forever. If any one or more of the said daughters shall have deceased before my own death, without legal issue, then the share of such child shall be equally divided between the survivors of them, share and share alike, and unto their heirs and assigns forever.” The seventh clause appoints his two sons-in-law, Ansel Oppenheim and Arnold Kalman, as executors and trustees, with the right of the survivor to nominate a successor in the event one should die, said appointment'to be with the written approval of the testator’s wife and children. The executors would act without bond. Ansel Oppenheim was given full power to sell and convey, either alone or jointly, with his coexecutor, any and all real estate wherever situated, either for cash or upon credit, with or without covenants of' warranty, for the purpose of paying debts or making investments or reinvestments at his option and discretion.

(7) A certificate from the probate court of Ramsey county, Minn., duly certified, dated November 18, 1885, and showing the date of the will to be the 21st day of November, 1884. A certified copy of the will and proceedings probating it were filed for record in Hartley county, December 6, 1888, and in Dallam county soon thereafter.

(8) The will of Marie Greve and probate thereof, filed for record February 23, 1909, in Hartley county, .and March 22, 1909, in Dallam county. The fourth clause of this will gives to testatrix’s “children Josephine Oppenheim, wife of Ansel Oppenheim, Sarah W. Kalman, wife of Arnold Kalman, Doretta Dupuy, wife of Raymond Dupuy, and Sophia Greve,” all of the testatrix’s real and personal property wherever situated, to be equally divided between them, and nominates the two daughters, Doretta and Sophia, or the survivor of them to execute it, and provides that they shall not be required to give bond. The certificate of probate from Ramsey county, Minn., recites that the will dated May 18, 1895, together with the codicil, was duly proved and recorded, and decrees as follows: “It is further ordered, adjudged, and decreed that all and singular of the real estate of decedent above described be and the same is hereby assigned to and vested in the said Josephine Oppenheim, Sarah Kal-man, Doretta Dupuy, and Sophia Greve Kenyon, in equal shares, as tenants in common, to have and to hold the same unto them, their heirs and assigns forever. It is further ordered, adjudged, and decreed that all other estate of the decedent not herein particularly described, whether the same be real, personal, or mixed, -and wheresoever same may be situated, be and the same is hereby assigned to and vested in the said Josephine Oppenheim, Sarah W. Kalman, Doretta Du-puy, and Sophia Greve Kenyon, in equal shares.”

The appellees testified, in substance, as follows: E. S. Collins: “I bought said section of land. In payment for same I gave my notes as follows: Four notes for $375 each, total $1,500, and the same was paid in cash by me at the time I sold the land or soon after. I had no knowledge at the time I purchased the land that the plaintiff! was claiming the land. The parties who I bought the land from did not refuse to give me a warranty deed. I did not pay any cash, but expected to pay the notes I gave in payment for the land when they fell due, whether I sold the land or not. It is not a fact tliat I believed the title was not good. It is not a fact that the parties refused to give me a warranty deed. It is my recollection that I had the deed prepared here, and sent to these parties for their signatures. It is my recollection that I paid these notes after I gave Mr. Rogers the deed to the land. It is not a fact that the parties I got the deed from did not give me a warranty deed.” The other appel-lees, except Burkhardt, testified that they had no knowledge from any source whatever of the plaintiff’s claim to the land. It was shown that at the time Burkhardt, Jackson, Coleman, and Stewart purchased from Rogers, they procured an abstract of the land, which was examined by an attorney at Dal-hart, Tex., and at Effingham, Ill., and that both attorneys approved the title, and that in the purchase they assumed the payment of the four notes for $975 each, described above. In rebuttal appellant offered an inventory of property filed in the probate court of Ramsey county, Minn., purporting to be a schedule filed by the executors with their petition for discharge and final account on the 9th of November, 1886. With this inventory there was introduced orders of the probate court of Ramsey county, Minn., dated January 5, 1887, showing that the executors had filed due proof of the publication of the order for the hearing of said account and petition, and allowed the same, and postponing further the consideration of the petition for the assignment of said estate.

Further orders introduced contain this recital: “And it further appearing to the satisfaction of the court that the said deceased left surviving him Marie Greve, his widow, and Josephine Oppenheim (the wife of Ansel Oppenheim) and Sarah Kalman (the wife of Arnold Kalman), Doretta Greve, and Sophia Greve, his only children. That said four children are all of lawful age; that they all reside in said Ramsey county, and that said deceased left surviving him no other children nor the child nor children of any deceased child, and that the said Marie Greve, Josephine Oppenheim, Sarah Kalman, Doretta Greve, and Sophia Greve, are the sole heirs at law of the said deceased, and the sole legatees and devisees named in the said last will and testament.” The order then distributes the real estate in accordance with the will of Herman Greve. Appellant then offered the following note of the abstractor in the abstract, identified as one furnished appellees, and examined by their attorneys before purchasing the land: “There are long schedules of property attached to and following the foregoing proceedings, as well as the manner of the division of said property under the provision of said will, but, the property herein abstracted being neither mentioned in either schedule or division, and not being especially set out in any manner, the said schedules are not deemed pertinent to this abstract.”

The appellants first, second, third, fourth, fifth, sixth, eighth, ninth, and thirteenth assignments of error are all predicated upon the failure and refusal of the court to hold that appellees were not entitled to introduce evidence upon the issue of bona fide purchasers pf the land because their only pleading consisted of a general denial and plea of not guilty. The case of North v. Coughran, 49 Tex. Civ., App. 101, 108 S. W. 165, decided by the Court of Civil Appeals, holds that in trespass to try title defendant may prove under a plea of not guilty that he is an innocent purchaser. This is the only case we have been able to find squarely upon this question. R. S. 1895, art. 5257, provides that under the plea of not guilty the defendant may give any evidence in lawful defense to the action except the defense of limitation. McKamey v. Thorp, 61 Tex. 648. These assignments are overruled.

Under the seventh assignment, appellant complains of the action of the court in permitting the deed from Josephine Oppen-heim and others to be introduced in evidence, and especially the recital that the grantors were sole heirs of Herman Greve and Mary Greve, deceased, because it was incompetent to prove that the grantors were heirs of either Herman or Mary Greve, because the recitation was a conclusion, the ex parte statement, and not binding upon any one of the several parties to 'the instrument and their privies. Since the trial was before the court, and there was other evidence tending to establish that these parties were the heirs of Herman and Mary Greve, deceased, we will not presume that the court considered this testimony to prove heirship or death of Herman Greve and his wife. Reference to the record discloses that the court so qualified the bill. ♦

It is insisted under the tenth assignment that, the defendants having endeavored to prove themselves to be bona fide purchasers through the sole heirs of Herman and Mary Greve, and having failed to show that the grantors in the conveyance to them were the only children surviving Herman and Mary Greve, there being no evidence to identify Sophia Greve Kenyon as the Sophia Greve named in the wills and probate proceedings, appellees at most would have been entitled to only three-fourths of the land in controversy, and the plaintiff entitled to one-fourth. The judgment in the probate proceedings recites that the parties named are the only children and heirs of Herman and Mary Greve, and the question of the personal identity of Sophia Greve Kenyon, with the Sophia Greve named in the wills and probate proceedings, was a question Of fact, to be determined by the court from all the evidence before him. We think the record contained sufficient testimony to sustain him in his finding.

If is contended under the twelfth assignment that there is no evidence in the record of the death of Herman and Mary Greve, or either of them. We think that the probate proceedings and the fact that the wills executed by Herman Greve and his wife were probated and duly recorded in Texas show by presumption, if not directly, their death.

And articles 7875 to 7878, Rev. Oiv. St. 1911, provide for the record of wills probated in a foreign jurisdiction, and that such record shall be valid and effectual as a deed of conveyance of the property, and when so recorded shall have the same force and effect as the record of deeds or other conveyances to land from the time when such instrument was delivered to such clerk to be recorded. When it was shown that the foreign will properly probated had been duly recorded as required by article 7875, then under article 7877 the title to the property of the testators rested in the devisees in fee simple, and no proof of any conditions precedent was required. The statute was, we think, intended to relieve them of the burden of proving the death of the testator, heir-ship, or anything further than to establish their identity, unless in the event of a contest within four years under article 7875.

That Collins paid value is uneontro-verted. If so, he was an innocent purchaser from the heirs, and could hold the land against the unrecorded deed of their ancestor. Taylor v. Harrison, 47 Tex. 456, 26 Am. Rep. 804; Slayton v. Singleton, 72 Tex. 20.9, 9 S. W. 876; Ryan v. T. & P. Ry. Co., 64 Tex. 239; Meyer v. Hale, 23 S. W. 990; Holmes v. Johns, 56 Tex. 41. In the last case it is said: “The deed from Stewart to Hancock was not a mere quitclaim deed. It purported to convey the land, and not merely his right, title or claim to it. It contained a special warranty, it is true, but that warranty was against all the world except the government. It is not perceived why the defendants could not claim under it as an innocent purchaser, if the other incidents to support that claim existed.” In Richerson v. Moody, 17 Tex. Civ. App. 67, 42 S. W. 317, it was held that where a purchaser claims under a deed containing no warranty, information that the land is the homestead of a person other than his grantor is sufficient to put such purchaser upon inquiry.

The deed in the instant case conveys the land, and not the interest of the heirs therein, to Collins, but contains no covenant of warranty. Collins’ uncontradicted testimony shows that he had the deed prepared, and was under the impression that it contained the covenant of warranty. Hence we conclude that the omission from the conveyance of such covenant was not because the grantors refused to warrant the title. It is held in the Richerson Case that a deed which contains no warranty is not controlling but can be considered as a circumstance only on the issue of the vendee’s claim of innocent purchaser.

Appellant insists that the failure of the inventory of property filed by the executors under the will of Herman Greve to show that the land in question was part of the property of the estate was a sufficient fact to put appellees upon inquiry. The act which provides for the record of a foreign will does not include the registration of the schedule of property. Riling the schedule was merely the act of the executor in part performance of his duties. It was no part of the proceedings relating to the probate of the will and tended in no way to establish the validity thereof. Since it was not an instrument required or permitted by the statute to be recorded it was not constructive notice to appellee of anything, and no actual notice has been shown. Burck v. Taylor, 152 U. S. 651, 14 Sup. Ot. 696, 38 L. Ed. 585.

It has been frequently held in this state, and the rule is now established, that the giving of negotiable notes as consideration for the conveyance of real estate is such payment as will support the title of one claiming to be a bona fide purchaser. Dodd v. Gaines, 82 Tex. 429, 18 S. W. 618; La Page v. Slade, 79 Tex. 473, 15 S. W. 496; Tillman v. Heller, 78 Tex. 597, 14 S. W. 700, 11 L. R. A. 628, 22 Am. St. Rep. 77; Watkins v. Spoull, 8 Tex. Civ. App. 427, 28 S. W. 356; Perkins v. Frank, 64 S. W. 236; Whittaker v. McWhorter, 129 S. W. 370.

What is here said disposes of appellant’s remaining assignments of error, and the judgment is affirmed.

On Motion for Rehearing.

In an exhaustive motion for rehearing, appellant first insists that we erred in holding that the defense of bona fide purchaser was admissible under a plea of not guilty, because the statute says that any lawful defense may be proven under the plea of not guilty, and the defense of bona fide purchaser is purely an equitable one. In addition to the case cited in the original opinion, we refer appellant to the holding of the Supreme Court in Kauffman v. Brown, 83 Tex. 41, 18 S. W. 425, and Chamberlain v. Pybas, 81 Tex. 511, 17 S. W. 50.

We have carefully reviewed the various grounds set up in the motion for rehearing, and are confirmed in our opinion that the original disposition of the case is correct.

The motion for rehearing is overruled.


author: FLY, C. J. R. N.

text:
    McINDOO et al. v. WOOD et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 17, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Homestead (§ 131*) — Conveyance — Suits to Set Aside — Evidence—Admissibility.
    A grantor suing to set aside a conveyance procured by the frafid of the grantee may show that the property conveyed was his homestead and so describe it when testifying concerning the transaction.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 235-243; Dec. Dig. § 131.]
    2. Appeal and Eeroe (J 216) — Pbesentation op Geounds — Instbuctions — Requests — Necessity.
    A party complaining of an omission in a charge must request a special • charge to supply the omission or he cannot complain on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 627.]
    3. Teial (§ 251) — Instbuctions—Mislead - ino Instbuctions.
    Where the petition, in a suit to set aside a deed, was based on a fraudulent concealment of facts, an instruction submitting the issue as to concealed facts was not misleading, whether the word “concealment” was used in the petition or not.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    4. Teial (§ 205) — Instbuctions—Bubden op Pboop.
    Where, in an action to set aside a deed on the ground of fraud, the court charged that plaintiff had the burden of proving the material allegations of the petition by a preponderance of the evidence, a charge directing a recovery for defendant if certain facts were not established was not objectionable as leading the jury to believe that defendant had the burden of proof.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 496; Dec. Dig. § 205.]
    5. Exchange op Peopebty (§ 5) — Fbaud — Acts Constituting — Concealment.
    One exchanging his stock of merchandise for real estate, who, to induce the exchange, represented that there were no debts against the stock but said nothing about numerous debts against it, was guilty of concealing facts constituting fraud, authorizing a rescission at the suit of the former owner of the real estate.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. § 5.]
    6. Fbaud (§ 58) — Evidence — Ciecumstan-tial Evidence.
    Fraud may be proved by circumstances. [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. § 58.]
    7. Teial (§ 260) — Instbuctions—Refusal op Instbuctions Coveeed by the Chaege Given.
    It is not error to refuse requested charges embodied, as far as correct, in the instructions given.
    [Ed. Note. — For other’cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]
    8. Appeal and Ebeob (§ 742) — Assignments op Ebbob — Statements—Requisites.
    An assignment of error complaining of the rulings on evidence will not be considered where the statement does not give the substance of the testimony with correct references to the pages in the transcript.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    9.Exchange op Peopebty (§ 5) — Rescission —Fbaud—Conditions Pbecedent.
    Where a grantor of real estate, in consideration of a stock of merchandise, sought to set aside the conveyance on the ground of fraud, based on the fact that the stock was incumbered, and testified that the money he had taken in for goods sold had been used to purchase goods which he left in the store when he returned the same to the grantee, the grantor did all that was required of him to obtain relief.
    Lilia. JNo.... Property, Cent. Dig. 5.*] -n or otner cases, see jnxcnauge vCiOvtJ) DUw U* 5, 6, 8-10; Dec. Dig. § 5.

    10.Appeal and Ebeob (§ 742) — Questions Reviewable — Assignments op Ebbob — Sufficiency.
    An assignment that the court erred in not granting a new trial because of errors pointed out in the amended motion for new trial is too general to be considered when unaided by proposition or statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    11. Exchange of Peopebty (§ 8) — Rescission — Laches.
    One exchanging his real estate for a stock of merchandise, who seeks a cancellation of the transaction within two days of the discovery of the fraud of the adverse party, who by stealth obtained possession of the deed of the real estate, acted promptly, and his right to relief could not be denied on the ground of laches; the adverse party not being placed in any worse condition by the delay.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. § 8.]
    12. Cancellation of Instbuments (§ 22)— Deeds — Demand—Necessity.
    A grantor seeking to set aside his deed, because induced by fraud, need not make a formal demand for rescission where, on discovering the fraud, he complained of it and asked to be protected by the grantee.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 30; Dec. Dig. § 22.]
    13. Cancellation of Instbuments (§ 24)— Deeds — Condition Pbecedent.
    Where a grantee obtaining a deed by fraud paid interest on an incumbrance on the land long after the institution of the suit by the grantor to set aside the conveyance, the sum paid was not in equity connected with a rescission, and the grantor was entitled to relief without paying to the grantee that sum.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 33-38; Dec. Dig. § 24.]
    Appeal from District Court, Jim Wells County; W. B. Hopkins, Judge.
    Action by R. N. Wood and others against Mettie Mclndoo and another. From a judg-
    ment for defendants, plaintiffs appeal.
    Affirmed.
    Suttle & Todd, G. R. Scott, and. Boone & Pope, all of Corpus Christi, and L. Broeter, of Alice, for appellants. W. R. Perkins, and J. E. Leslie, both of Alice, for appellees.

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

   FLY, C. J. R. N.

Wood and his wife, S. M. Wood, instituted suit against Mettié Mc-Incloo and. W. 0. Melndoo to cancel a certain deed to 25 acres of land, near the town of Alice, Jim Wells county, which, it was alleged, was obtained by fraud and deception on the part of appellants in misrepresenting the value of certain groceries, and that there were no debts against them. The cause was tried by jury and resulted in a verdict and judgment in favor of appellees.

It was shown by the evidence that appel-lees owned the land in question and appellants owned a stock of groceries in Corpus Christi; that the land was of the value of $2,500, upon which land there was a vendor’s lien in the sum of $800, and it was agreed beween the parties that appellees would give the land for the groceries and $800 which was to be paid by appellants on the vendor’s lien note. Appellants represented to appel-lees that the groceries were free from all in-cumbrances, stating that they did not owe anything whatever. After the trade was made, appellees ascertained that all the goods were not paid for and that there were a number of outstanding debts due by appellants, and there was a mortgage on the fixtures included in the trade. There was a judgment in force against appellants. Appellants admitted owing a number of debts but denied making the representations to appellees that they owed nothing. As soon as appellees discovered the existence of the debts, they delivered possession of the goods to the agent of appellants. Appellees were in possession of the goods about two days. The goods were attached by a creditor of appellants after the exchange with appellees. Appellants were greatly involved at the time they represented to appellees that they owed nothing. The facts clearly showed that appellees were deceived by appellants and overreached in the exchange of the properties. The deed had not been delivered to appellants by ap-pellees but was secured by fraud by appellants and the land taken possession of.

The petition, while more prolix than was necessary, stated a cause of action and was not open to the attacks made upon it by appellants. It clearly appears from the petition that appellants had perpetrated a fraud on appellees and thereby induced them to make a conveyance to their homestead. We see no reason why they should not call the place in controversy their homestead, if it held that character, and describe it as the only property they had when testifying about it. There is nothing in the record that indicates that the jury were prejudiced by that testimony or any other. The evidence amply sustained the verdict. The first, second, and third assignments of error are therefore overruled.

The fourth assignment complains of some matter contained in the first paragraph of the charge of the court, but it is not stated in the assignment or the propositions what the specific objections to the charge were. If the complaint was about a matter of omission, as seems to be the contention in the first proposition, then appellants should have sought to correct the charge with a special charge. The second proposition seems to have in view that an issue was submitted as to concealed facts about which it is stated there was no allegation in the petition. The proposition is not clear, and it is not illuminated by the statement, but we will state that the charge is not open to the objections urged to it. The whole petition was based on fraud, in the concealment of certain facts, whether the word “concealment” was used in the petition or not. The language of the charge could not have misled the jury.

The charge complained of in the fifth assignment of error does shift the burden of proof from appellees to appellants. It negatively presented the defenses, but of that appellants do not complain. In another paragraph of the charge the jury were instructed to find for appellees if they found the same facts, negatively presented, had been proved by them, and the paragraph of which complaint is made instructed the jury that if those facts were not established, naming them, then they should find for appellants. In a succeeding paragraph the burden was placed on appellees to prove the material allegations by a preponderance of the evidence. In a similar case the Court of Civil Appeals of the Second District held: “In view of the first paragraph of the court’s charge, submitting the issue in an affirmative sense, and of the fifth paragraph imposing the burden specifically upon the plaintiff, we do not think that the jury could reasonably have understood this paragraph to impose the burden of proof upon the defendant instead of upon the plaintiff. Logically the instruction complained of was to the effect that the jury would return a verdict for the defendant, if they should fail under the evidence to find the facts referred to.” Crutcher v. Schick, 10 Tex. Civ. App. 676, 32 S. W. 75.

The concealment of facts was raised by pleading and proof, and there was no error in the first special instruction requested by appellees and given by the court. Appellants not only represented to appellees that there were no debts, but if, as alleged and testified by them, they said nothing about the many debts hanging over the goods, they were guilty of concealing facts which constituted fraud. It was admitted in the answer and shown by the uncontroverted facts that the property was incumbered with numerous debts. Of course it cannot reasonably be contended that fraud cannot be proved by circumstances. The sixth and seventh assignments of error are overruled.

The law of the case was given in the charge of the court and in special charges, and, the requested charges, so far as they contained the law, having been given, it was not error to reject the requested charges. We therefore overrule the eighth, ninth, tenth, and eleventh 'assignments of error.

The trade between the parties upon the basis that the goods were worth at least $1,700, and if appellants knew of the existence of debts against the property or for which it could he held liable, they knowingly perpetrated a fraud upon appellees, whether they remained silent about the debts or falsely represented that there were none. In either case they should not be permitted to profit by their fraudulent conduct. It flies in the face of reason and common sense to imagine that appellees would have traded their home of the value of $2,500 for groceries worth $1,700 and loaded with debts amounting to $600 or $700. If appellants had desired to act in a fair and honest way, they would have disclosed the existence of the debts so that appellees could have dealt with them on equal terms. On the other hand, they concealed them.

The twelfth and thirteenth assignments of error are overruled. If appellees took any of the proceeds of any sale of groceries made while they were in possession, the statement of appellants fails to indicate what the amount may have been. Reference to the transcript of the evidence on pages “16-42” and “101-144” does not conform to the rules. The statement should have given the substance of the testimony with a reference to the page on which it could be found. There is nothing on pages 16, 42, 101, or 144 about the appropriation of the proceeds of sales by appellees. This court has neither the time nor inclination to read 75 or 80 pages of the transcript of the evidence to discover testimony that should have been specifically pointed out by appellants. The substance of the rejected charges, contained in the two assignments under consideration, was given in the eighth special charge requested by appellants.

Appellees remained in charge of the goods long enough to fully ascertain that they were incumbered with debts, a judgment, and mortgage liens, and Wood swore that there was no money that he had taken in for the goods to be turned over to appellants except a few cents. What money he received he used to purchase goods which he left in the store when he returned the goods to appellants. He did all that was required of him, in connection with the goods. The fourteenth and fifteenth assignments of error are overruled.

The sixteenth assignment of error is as follows: “The court erred in not granting defendants a new trial herein, because of the errors pointed out in the amended motion for a new trial.” It is. too general to be considered and is not aided by proposition or statement.

The cancellation of the deed and rescission of the contract were asked before the deed was delivered, or rather stealthily obtained by appellants, and within two days of the time the fraud was discovered. They could not have acted more promptly, and appellants were not placed in any worse condition by the two days’ delay, one of which was Sunday. Railway v. Cade, 93 S. W. 124.

Appellees acted as soon as they discovered the existence of the debts, which was on Friday, the first day they were in possession of the goods. No formal demand for rescission was necessary, because appel-lees, as soon as they discovered the fraud, complained of it and asked to be protected by appellants. Cabaness v. Holland, 19 Tex. Civ. App. 383, 47 S. W. 379.

If appellants paid interest on the debt of $800, a part of the purchase money on appellees’ land, they did it long after this suit was instituted, and the sum paid by them was not an equity connected with the rescission of the exchange of property. Ap-pellees are no doubt indebted to them in any sum paid as interest on the debt, but it is not a matter connected with the rescission.

The judgment is affirmed.