author: PLEASANTS, C. J.

text:
    RICHARDSON et al. v. HOUSTON OIL CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Galveston.
    April 1, 1915.
    Rehearing Denied April 29, 1915.)
    1.Appeal and Error <&wkey;7-12 — Assignments op Error — General Assignment.
    Assignments of error which do not distinctly specify the error relied on, and which are so indefinite as not to direct the court’s attention to the particular errors, and the propositions under which are simply that the court erred in giving the judgment it did, are too general to require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.J
    2. Trespass to Try Title <&wkey;22 — Title to Support Action — Prior Possession.
    Where the court found that a cross-complainant in trespass to try title had no title, such complainant is not entitled to judgment because of his prior possession, against the plaintiff, though plaintiff had no title; since the rule that prior possession entitles plaintiff to recover in trespass to try title against a mere trespasser is a rule of evidence only, and does not apply where the presumption of title arising from prior possession is rebutted.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 48-65; Dec. Dig. c&wkey; 22.]
    3. Landlord and Tenant <&wkey;63 — Estoppel oe Tenant — Claimant Under Tenant.
    Where a claimant of land who in fact had no title leased it to a tenant, who expressly agreed to hold possession thereof for the claimant, or to give notice of intention to surrender such possession, and thereafter -the tenant at-torned to another claimant whose claim was also invalid, the landlord is entitled to recover possession from the second claimant, notwithstanding affirmative proof that he had no title; since the estoppel of the tenant to deny his landlord’s title applies with full force to those who claim possession through or under the tenant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 159-163, 165-167, 169, 172-176; Dec. Dig. &wkey;63.]
    4. Landlord and Tenant &wkey;>62 — Estoppel oe Tenant — Acquisition oe Superior Title.
    A tenant, of one who has no title may acquire the superior title and rely thereon in defense to trespass to try title, brought against him by his lessor.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 152-158, 168, 170, 189; Dec. Dig. &wkey;>62.]
    5. Landlord and Tenant <§=362 — Estoppel oe Tenant — Mistake or Fraud.
    One who is induced by mistake or fraud to become a tenant is not estopped to deny his landlord’s title.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 152-158, 168, 170, 189; Dec. Dig. &wkey;>62.]
    6. Appeal and Error <&wkey;722 — Assignments oe Error — Sueeiciency—Rules.
    Assignments of error not presented in accordance with the rule are not entitled to consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. <§=> 722.]
    Error from Distinct Court, Hardin County; J. Llewellyn, Judge.
    Trespass to try title by J. W. Richardson and others against the Houston Oil Company of Texas, in which the defendant filed a cross-petition. Judgment for the defendant on its cross-petition, and plaintiffs bring error.
    Affirmed.
    B. L. Aycock and B. A. Coe, both of Kountze, for plaintiffs in error. H. O. Head, of Sherman, and Parker & Kennerly and John L. McMeans, all of Houston, for defendant in error.
   PLEASANTS, C. J.

This is an action of trespass to try title brought by plaintiffs in error against defendant in error to recover an undivided one-half of the T. R. Edmond-son 1,476-acre survey in Hardin county. The original petition -was filed on September 12, 1909, and the second amended petition, upon which the case was tried, on October 11, 1911. By its first amended answer, filed on May 22, 1912, defendant, in addition to a general demurrer, special exception, and general denial, sought by a cross-action to recover of plaintiffs and of Annie Brackin, James Brack-in, J. D. Jordan, and B. L. Aycock the title and possession of the whole of said Edmond-son survey. On July 14, 1913, after the trial of the cause began and all the evidence had been introduced, the plaintiffs were allowed to take a nonsuit, and thereafter, at the request of defendant, the further hearing of the case was postponed until July 23, 1913, on which date defendant, by permission of the court, filed what is termed “a trial amendment,” in which it dismissed its cross-action as to all of the land in controversy except a tract of 493% acres, which it described in said amendment by metes and bounds. The cause then proceeded to trial without a jury, and judgment was rendered in favor of defendant against plaintiffs and the parties above named for the tract of 493% acres claimed by defendant.

The evidence shows that the T. R. Edmond-son 1,476-acre survey in Hardin county was patented by the state to T. R. Edmondson on April 17, 1848. Plaintiffs are heirs of T. R. Edmondson, a native of the state of Virginia, who immigrated to Texas prior to 1849, and lived in Nacogdoches county, where he died or was killed many years ago. The defendant has conveyances to the land from the heirs of T. R. Edmondson, who was a native of the state of Indiana, and moved to Texas in 1S30. The trial court filed conclusions of fact which contain the findings that neither the Virginia T. R. Edmondson, under whom plaintiffs claim, nor the Indiana T. R. Ed-mondson, through whom defendant claims, was the person to whom the land in controversy was granted, and that the T. R. Ed-mondson who was grantee of said land never parted with his title thereto. No question is made as to sufficiency of the evidence to sustain these findings. The court also made the following fact findings:

“I find further from the evidence that on June 6, 1907, the defendant James Brackin and Annie Brackin, his wife, by written contract of tenancy with the Houston Oil Company of Texas, contracted and agreed to occupy and hold for the Houston Oil Company of Texas the tract of 493% acres of land which has been awarded by the judgment herein to the Houston Oil Company of Texas, said written contract stipulating that the said Brackins acknowledged the said Houston Oil Company of Texas to be the legal and equitable owner of said tract of land, and further stipulating that the said Brackins were to hold the same as tenants for said Houston Oil Company of Texas until the 1st day of January 1911, that said tract of land was to be used by the said Brackins for farming purposes only, and that in consideration of their occupying the same, and protecting the same from trespassers, etc., that they were to use and occupy the same without further charge, said contract of tenancy further providing that, in the event said Brackins should at any time during said period mentioned in said contract conclude not to longer occupy said premises as the tenants of said Houston Oil Company of Texas, they would surrender possession of the samé to the Houston Oil Company of Texas, and give notice by registered letter deposited in the United States mail, addressed to the Houston Oil Company of Texas, at Houston, Tex., that they no longer desired to hold said land, or occupy the same as tenants of said Houston Oil Company of Texas, said written contract further providing that, in the event said Brackin and wife should remain and be in possession of said tract of land or continue to occupy the same after January 1, 1911, then their said possession and occupancy of same should, at the election of the Houston Oil Company of Texas, be considered and construed by said Houston Oil Company of Texas as an acknowledgment on the part of said Brackin and wife that they were still continuing to occupy and hold said tract of land as the tenants of said Houston Oil Company of Texas,- and said contract further providing that, in the event the said Brackin and wife should, while occupying said premises, acquire, or attempt to acquire, any title or interest of any kind or character in or to said land from any person or persons, corporation or individual, such title or interest so acquired, or attempted to be acquired, should inure to, and he held for, the benefit of the said Houston Oil Company of Texas. Said contract of tenancy was introduced in evidence, and is too lengthy to set out in detail, but I refer thereto for its terms and provisions more in detail.
“1 find from the evidence that the said James Brackin and wife, under said written contract of tenancy with the Houston Oil Company of Texas, did, in fact, occupy, fence, and cultivate a portion of the tract of land of 493% acres, which by the judgment herein is awarded to the Houston Oil Company of Texas, and that the said Brackin and wife continued in the actual -occupancy and possession of same as the tenants of said Houston Oil Company of Texas, and continued to use and cultivate the same for farming purposes, and never at any time surrendered possession thereof to the Houston Oil Company of Texas, or agreed to do so, and that they never at any time or by any means notified the Houston Oil Company of Texas that they no longer desired to occupy and hold said tract of land as its tenants, and, if they ever intended to repudiate their said contract of tenancy, they never at any time gave notice to the Houston Oil Company of Texas of their intention so to do.
“But I further find that about the - day of April, 1912, the said James Brackin accepted a deed from the original plaintiffs in this cause, J. W. Richardson et al., conveying to him 25 acres out of the tract of land which he was then holding as tenant for the Houston Oil Company of Texas, said 25 acres being described by specific metes and bounds, and tbe said James Brackin at that time entered into a contract of tenancy with the original plaintiffs in this case by which he agreed to hold the balance of the T. R. Edmondson survey other than the said 25-acre tract, and also excepting one or two other small tracts described by metes and bounds as the tenant of said original plaintiffs. The said Brackins did not, however, occupy any portion of said survey which he agreed at that time to hold as tenant for said plaintiffs, but remained in possession and occupied the said 25-acre tract described by specific metes and bounds; the same being a portion of the 493%-acre tract which he was then occupying- as tenant of the Houston Oil Company of Texas. And I further find that soon thereafter the said-Brackins gave, or attempted to give, permission to the said J. D. Jordan to g-o upon the said 25-acre tract of land and to manufacture the timber thereon into ties and staves, etc., claiming that he (the said Brackin) was the owner of said 25 acres by purchase from the said plaintiffs herein, and that thereupon for the first time the Houston Oil Company of Texas discovered that said James Brackin was setting-up any interest or title in said land adverse to said Houston Oil Company of Texas, and thereupon said Houston Oil Company of Texas enjoined the said Brackin, Jordan, and Ayeoek from further trespassing upon said land.
“I further find that none of the original plaintiffs in this case, nor any one under them or for them, or any of them, ever had at any time possession of the T. R. Edmondson survey or any portion thereof, and I also find that the Houston Oil Company of Texas, by and through its said tenants, Brackin and wife, was in the actual possession of said 493%-acre tract of land recovered by it herein from the 6th day of June, 1907, up to and including the date of the filing of its cross-action herein, which date was May 22, 1912, by reason of the very letter of said contract of tenancy between it and the said James Brackin and wife. I therefore find that the said Houston Oil Company of Texas, plaintiff, on its cross-action herein, had and held prior actual possession of the tract of land recovered by it herein, such possession commencing as early as June 6, 1907, and continuing at least until its said cross-action was filed herein, and that such possession was prior to any possession had or claimed by any of the original plaintiffs in this cause, or any one holding under them, and that such possession by the Houston Oil Company of Texas was peaceable and continuous up to the time of the filing of its cross-action, and that during all of said time the said Houston Oil Company of Texas was claiming said land by regular chain of title down to itself, the links in which were duly recorded, and that the plaintiffs herein failed to show title to said land, or any portion thereof, superior to that under which the Houston Oil Company of Texas claimed.”

The first and. second assignments of error are not entitled to consideration, because they fail to distinctly specify the grounds of error relied on, and are so indefinite as to be insufficient to direct the attention of the court to the particular errors of which complaint is made. The only proposition under the first assignment is:

“It was error to render judgment for the 493% acres of the T. R. Edmondson survey in Hardin county for defendant in error.”

And the only proposition under the second assignment is:

“The court erred in rendering judgment for the Houston Oil Company of Texas for 493% acres of land described in the judgment.”

As interpreted by these propositions, the assignments are manifestly too general to require consideration.

As best we can understand the assignments, the first complains of the judgment on the ground that R. H. Edmondson, under whom defendant claims, was not an heir of the T. R. Edmondson who came to Texas from Tennessee, and who, defendant claims, was the original grantee of the land; and the second assails the judgment on the ground that the Tennessee ■ T. R. Edmondson was not the person to whom the land was granted by the state. From the foregoing statement of the findings of fact by the trial court it is clear that, if these assignments should be considered, they are without merit; for the court expressly finds that the T. R. Edmondson under whom defendant claims was not the original grantee of the land, and the judgment in favor of defendant was based solely upon the ground of its prior possession.

The third assignment of error, which is submitted as a proposition, is as follows:

“The court erred in overruling the motion for a new trial for the grounds relied on in the second paragraph of the motion; that the mere presumption of title from a prior possession was defeated where title as claimed has failed and was negatived.”

This assignment presents the only material question raised by the record. The evidence sustains the finding of fact by the trial court that defendant took possession of the 493'/3 acres of land in controversy by its tenants, James and Annie Brackin, on June 6, 1907, and that the written lease under which the Brackins entered upon the land contained the stipulation and covenants set out in the court’s findings above quoted. The further findings that plaintiffs were never in possession of the land, and that defendant had no notice of the fact that the Brackins had attorned to plaintiffs until shortly before defendant’s cross-action was filed on May 22, 1912, are also sustained by the evidence.

There is no assignment attacking these fact findings. The questions presented are purely questions of law.

The rule which permits' a plaintiff in an action of trespass to try title to recover against a mere trespasser upon proof of prior possession, without further evidence of title, is a rule of evidence only, and not a rule of estoppel, and, when the defendant shows affirmatively that the plaintiff has no title, and thus rebuts the presumption arising from his prior possession, it seems to be the law that the possession of the defendant, though he is a mere trespasser without any title, will not be disturbed. Robertson v. Kirby, 25 Tex. Civ. App. 472, 61 S. W. 967.

In the case of House v. Reavis, 89 Tex. 631, 35 S. W. 1063, our Supreme Court, in an opinion by Mr. Justice Brown, the question is discussed with the clearness and force which is the usual characteristic of his judicial utterances. It is said in that opinion “that there are strong reasons and good authority” to sustain the position that, when a defendant secures possession by forcibly ousting the plaintiff, he cannot defeat plaintiff’s right to recover possession by showing an outstanding title, and in support of this proposition cites the cases of Christy v. Scott, 14 How. 282, 14 L. Ed. 422; Bequette v. Caulfield, 4 Cal. 278, 66 Am. Dec. 615; and Richardson v. McNulty, 24 Cal. 348. The court in the House Case, supra, however, did not find it necessary to decide whether the defendant in that case should be permitted to defeat plaintiff’s right to recover upon Ms prior possession by-showing an outstanding title in a tMrd person, because the evidence was held to be insufficient to show such outstanding title. In the) instant case the trial court found, and such finding is not questioned, that neither the T. It. Edmondson under whom the original defendant, the plaintiff in the cross-action, claimed, nor the T. K. Edmondson under whom the original plaintiffs claimed, was the original grantee of the land in controversy, and that the T. R. Edmondson to whom the land was granted “never conveyed the same.” These findings are equivalent to a finding that the evidence shows that defendant has no title to the land, and under the general rule above stated defendant would not be entitled to recover upon its proof of prior possession.

There is another general rule, however, which we think is controlling in this case. A tenant is not permitted to dispute the title of his landlord. TMs is a rule of estoppel. In the case of Tyler v. Davis, 61 Tex. 674, our Supreme Court says: .

“That, as a general rule, a tenant cannot dispute his landlord’s title, is well established and universally admitted, and neither citation of authority, nor discussion of the principle upon which it rests, is at all necessary ; since it has been recognized at law for so great a length of time. It is applied as well in suits for rent as in those for the recovery of possession. In the action of ejectment it has always been held sufficient for a landlord who is suing his tenant to produce his lease, and that estoppel closes the mouth of the defendant to call his title in question. Jackson v. McLeod, 12 Johns. [N. Y.] 182. Our action of trespass to try title, whilst it abolishes the forms and fictions of ejectment, preserves most of its substantial principles, and this amongst others. Whilst the plaintiff must go back to the government or to a common source in other cases, yet, as to one estopped to deny his title, it is enough that he establishes the facts upon which the estoppel is supported.”

The authorities in support of this rule are numerous, and we only cite a few of the decisions of our Supreme Court in which the rule is recognized. Turner v. Smith, 11 Tex. 620; Andrews v. Parker, 48 Tex. 94; Juneman v. Franklin, 67 Tex. 411, 3 S. W. 562; Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682, 23 Am. St. Rep. 370; McKie v. Anderson, 78 Tex. 207, 14 S. W. 576; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 748, 87 S. W. 1148, 122 Am. St. Rep. 609.

It is equally well settled by the authorities that this rule of estoppel applies with full force to one who obtains or claims possession through or under the tenant of another. Flannagan v. Pearson, 61 Tex. 306; Cobb v. Robertson, supra; Sawn v. Busby, 5 Tex. Civ. App. 63, 24 S. W. 303.

To the general rule above stated there are exceptions, one of which is that a tenant of one who has no title may acquire the superior title and show title in himself in defense of a suit of trespass brought against I him by his lessor. Another exception is that one who by mistake or through fraud is induced to become the tenant of another is not estopped to deny the title of his landlord. None of the exceptions to the general rule are shown by the facts of this case. From the facts before stated it is clear that the defendants James and Annie Brackin, who obtained possession of the land under the lease from defendant, and gave no notice to defendant of the repudiation of such lease and their attornment to plaintiffs, are estop-ped from denying defendant’s title, and that plaintiffs, who show no title in themselves, and who induced said tenants of defendant to secretly attorn to them, are in no better-position than the tenants themselves, and are also estopped to deny the title of defendant.

The remaining assignments of error, are not presented in accordance with the rule, and are therefore not entitled to consideration. If they could be considered, none of them, in our opinion, present any material error, and each should be overruled.

It follows from the conclusions above expressed that the judgment of the court below should be affirmed; and it has been so-ordered.

Affirmed.
      <j&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    ZEIGEL et al. v. MAGEE et al.
    (No. 5467.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 28, 1915.
    Rehearing Denied May 19, 1915.)
    1. Limitation of Actions <@=3167 — Effect or Bar — Vendor’s Lien.
    When a warranty deed is made to lands on which the purchase money has not been paid, and no express lien is retained in the deed or the purchase-money notes, the superior title passes to the vendee, and though a vendor’s lien will be created it will become invalid when the notes are barred by limitations, and a recital in the deed or notes that the purchase money is unpaid is not sufficient.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 651-653; Dec. Dig. <@=>167.]
    2. Limitation of Actions <@=>167 — Effect of Bar — Vendor’s Lien.
    Though an absolute deed with warranty is made if a vendor’s lien is retained in the deed or in the purchase-money notes, the contract is executory and the legal title remains in the vendor, and though the debt for the purchase money is barred by limitations, the vendor can recover the land at least from the vendee or from purchasers with notice, actual or constructive, of the retention of the lien.
    [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 651-653; Dec. Dig. <@=3167.]
    3. Vendor and Purchaser <@=>230 — Bona Fide Purchasers — Constructive Notice— . Recitals in Conveyance.
    Where the notes for the purchase price of land expressly retained a vendor’s lien, and the deed to the land recited that the consideration, was a note for $600 “which said note is a vendor’s lien,” such recital put subsequent purehas-ers on inquiry as to the retention of the lien in the notes, the deed haying been recorded.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. @=>230.]
    4. Principal and Agent @=>103 — Power oe Attorney to Sell Land — Validity oe Deed.
    Where a power of attorney from 0. to M. authorized M. to sell land at such prices upon such terms as he might deem best and proper, and 0. agreed that the land should be.sold to Z. if he would pay the costs of a pending suit concerning the land, which Z. agreed to do, whereupon M. executed a deed to the land to him, the deed should have been admitted in evidence in an action involving the title.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §1 278-293, 353-359, 367; Dec. Dig. @=>103.]
    5. Trial @=>140 — Questions eor Jury.
    The jury alone could pass upon the credibility of witnesses and the weight to be given their testimony, and though the trial judge doubted the testimony he had no authority to discard it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. @=>140.]
    6. Deeds @=>15 — Consideration—Necessity.
    Where Z. deeded land to his agent, who was authorized to sell and who did sell the land reserving a vendor’s lien for the unpaid purchase price and transferred the purchase-money note to Z., no consideration was necessary for a deed from the agent to Z. transferring the superior title to Z., as it merely placed the legal title in the man to whom it belonged.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 23; Dec. Dig. @=>15.]
    7. -Limitation oe Actions @=>182 — Bar oe Debt — Foreclosure oe Lien — Necessity oe Pleading.
    In a suit in which it was sought to foreclose a vendor’s lien, the lien could be foreclosed notwithstanding the running of limitations against the debt as against defendants who did not plead the statute.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705; Dec. Dig. @=>182.]
    8. Evidence @=>219 — Admissions — Written Agreements.
    In a suit in which it was sought to enforce a vendor’s lien, an agreement between the holder of the lien and certain defendants in the nature of a compromise, and amounting to an admission that the lien was valid so far as the land of such defendants was concerned if the existence of the purchase-money note was shown, was improperly excluded.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 762-770; Dec. Dig'. @=>219.]
    9. Execution @=>272 — Sale—Rights oe Purchaser-Existing Liens.
    In a suit in which it was sought to enforce a vendor’s lien against persons claiming under a sale under execution against the C. company, the recitals in a mortgage given by the 0. company that there was a lien on the land could have no probative force, and were properly rejected.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 771, 781-788; Dec. Dig. @=>272.],
    Error from District Court, Harris County; •Chas. E. Ashe, Judge.
    Action by Ortman W. Crawford against Sarah M. Magee and others in which Catherine Zeigel and others were made parties. To review the judgment, Catherine Zeigel and others bring error.
    Reversed and remanded.
    Tharp & Tharp and Stevens & Stevens, all of Houston, for plaintiffs in error. John G. Tod and L. B. Moody, both of Houston, for defendants in error.
   FLY, C. J.

On October 5, 1906, Ortman W. Crawford instituted an action of trespass to try title to 300 acres of land out of the Tal-cott Patching survey in Harris county against Sarah M. Magee and J. P. Magee. In May, 1909, Henry W. Zeigel intervened in the suit, alleging that in J une, 1885, Ortman W. Crawford was the holder of the legal title to the land in controversy, holding it in trust for intervener; that Crawford conveyed the land to the Cattle Banch & Freehold Band Company, which executed its note for $600 to Crawford for balance of purchase money; that said note expressly retained the vendor’s lien on said land to secure its payment; that the defendants in the case held the land in controversy under mesne conveyances from said Ranch & Freehold Company, but that the superior title to the land was in Crawford; that in 1886, Crawford assigned the note to intervener in compliance with his duty as trustee, and intervener thereby became its owner and holder, and that on May 4, 1909, Crawford, acting through H. P. Mansfield, conveyed the superior- title to the land to Henry W. Zeigel. Intervener prayed for a judgment for his debt and a foreclosure of his lien on the land, and in the alternative for title and possession of the land. Henry W. Zeigel died and his heirs made themselves parties. The Plouston Land & Irrigation Company, claiming 100 acres of the land, was made a party, and answered pleading laches, and three, four, and five years limitation. J. W. Bennett, independent executor of the will of Sarah M. Magee, deceased, answered that he was willing to pay off the note if its existence was established, but ashed that in satisfaction of the vendor’s lien the 100 acres of land owned by the Houston Land & Irrigation Company be first sold.

It is the established rule in Texas that when a warranty deed is made to land on which the purchase money has not been paid, and no express lien is retained in the deed or the notes for purchase money, the superior title passes to the vendee, and although a vendor’s lien will be created it will become invalid when the notes are barred by limitation. The mere recitation of the fact in deed or note, or both, that the purchase money is unpaid does not have the effect of retaining the superior title. When an absolute deed with warranty is made the contract is an executed one and passes the superior title, but if a vendor’s lien is retained in deed or purchase-money notes, so the ■courts hold, the contract is executory, and the legal title remains in the vendor, and although the debt for purchase money is barred by limitations, the vendor can recover the land. Baker v. Compton, 52 Tex. 252; McKelvain v. Allen, 58 Tex. 383. These two decisions have been uniformly followed and never questioned, and so far as dealings between the vendor and vendee are concerned, and as to others with notice, actual or constructive, of the retention of the vendor’s lien, are no doubt sound and correct. However, when no lien is retained by the vendor in the deed, and an innocent purchaser has no notice of an admission of a vendor’s lien in the note, it is stretching the doctrine of the superior title being held by the vendor to what appears to the writer to a very unreasonable and unjust extent. Usually the deed is recorded, and if a lien is retained therein,' the world must take notice, but when the lien is merely acknowledged to be in existence in an unrecorded promissory note it would be the height of injustice to hold either that no notice is necessary to third parties, or that the contents of the note are constructive notice to third parties. While this is true, if there be recitations in the deed reasonably sufficient to put parties on inquiry as to the lien, a failure to make such inquiry would be such laches as to deprive a person of pleading a want of notice. In June, 1885, Ortman W. Crawford sold the land in controversy to the Oattle Ranch & Freehold Land Co., reciting in the deed that the consideration was a note for $600 “which said note is a vendor’s lien.” That deed was filed for record on June 29, 1885, and gave such information as to lead any one to inquire as to the terms of the promissory note, if it was not in effect a declaration that a vendor’s lien was retained in the note. It is not merely a recitation that the note was given for the purchase money, but it goes farther and declares that the note constitutes a vendor’s lien, and is in effect a statement that the vendor’s lien was retained. In the case of Anderson v. Silliman, 92 Tex. 560, 50 S. W. 576, there was no lien reserved in the deed, and it was not even recited that a note was given for any purchase money; but in a note given for the purchase money it was recited that “this note holds a vendor’s lien on the same until paid,” and the Supreme Court held that the legal title remained in the vendor. “Which said note is a vendor’s lien” is probably as strong as that quoted, but if not, it was sufficient to put any subsequent purchaser upon inquiry as to the note. One witness swore that the note in terms retained the vendor’s lien. The question of notice did not arise under the facts of the case cited.

The power of attorney from Crawford to Mansfield authorized him to sell the land “at such prices upon such terms as he may deem best and proper,” and it was proved that Crawford agreed that the land should be sold to Zeigel if he would agree to pay the costs of this suit, which was then pending. Zeigel agreed to assume payment of the costs, and Mansfield executed a deed to the land to him. The deed should have been admitted in evidence and the court erred in rejecting it.

It was shown that the title to the land was in Amelia E. Zeigel, who was holding it for her father, Henry W. Zeigel. He desired to sell the land, and in order to do so had his daughter to convey it to his agent, Ortman W. Crawford, who was authorized to sell. He sold it to the Cattle Ranch & Freehold Company, receiving $1,100 in cash and a promissory note for $600. 1-Ie failed to pay over the cash to Zeigel, but indorsed the note to him and promised to repay the $1,100 collected by him. Crawford instituted this suit in his own name, but afterwards authorized Mansfield to act as his agent and he sold the legal title that Crawford had to Henry W. Zeigel. The land was sold under execution prior to the institution of this suit, as the property of the Cattle Ranch & Freehold Company, to John Bennett, who sold a part of it to Sarah M. Eustace, afterwards Magee, and the other part to Dr. A. L. Wray and others. The common source was Amelia F. Zeigel. If the superior title was in Crawford after the sale of the land by him, it was in him when he, through Mansfield, conveyed it to Henry W. Zeigel, and that conveyance passed the legal title to the latter. The evidence made a case to go before a jury on the facts, and the court erred in instructing a verdict for appellees. The note was not shown to have been paid, and however much the trial judge may have doubted the testimony as to the transactions in connection with its contents, no authority was vested in him to discard the testimony. The jury alone could pass upon the credibility of the witnesses and the weight to be given their testimony.

In regard to the deed from Crawford, through his attorney in fact, Mansfield, to Zeigel, no consideration was necessary, as the instrument merely placed the legal title in the man to whom of right it belonged. Crawford set up no claim to the land in his own right, and did not question Zeigel’s right to it. All he sought was to get Zeigel to be responsible for the costs of the suit. He fully ratified the acts of Mansfield in making the sale.

The Magees did not plead the statute of limitations against the note, and in the absence of such plea the lien could have been foreclosed as to their part of the land.

Appellants offered in evidence a contract and agreement made by them and the Magees in regard to their part of the land, and it should not have been rejected by the court. It was in the nature of a compromise between appellants and the Magees and, as to them, was valid testimony. Ward v. Wilson, 92 Tex. 22, 45 S. W. 8. It was a valid and binding agreement. It was really an admission that the lieh was valid so far as the 200 aeres was concerned, if the existence of the note was shown.

The sixth assignment of error is overruled. The recitations in a mortgage given by the Cattle Ranch & Freehold Company to Charles Edward Hobson, in which it was admitted that there was a lien on the land for $600, could have no probative force in this suit, and it was very properly rejected.

The court seemed to be satisfied as¡ to the sufficiency of the proof in regard to Henry W. Zeigel having obtained possession of the note from Crawford and of its loss, but the evidence might be made clearer. Henry W. Zeigel is obscure, if not contradictory, as to what he did with the note, at one time testifying that he placed it in the hands of Texas lawyers for collection and at another with a lawyer of Buffalo, New York. No one claims that the note was ever paid, and on the subject of the ownership of the note the evidence is perhaps sufficient, but the loss and search for the note should be made clearer. Under the state of the testimony this court will not render judgment against the Magees, but will send the whole case back for another trial.

The judgment is reversed and the cause remanded.
      ©saFor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes-

      @s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    HOUSTON PACKING CO. v. DUNN.
    (No. 5405.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 3, 1915.
    On Motion for Rehearing, May 5, 1915.)
    1.Appeal and Erkor <@=>736 — Assignments of Error — Grouping—Unrelated Propositions.
    Assignments of error, relating to different issues not susceptible of being* presented by propositions relating to all, are improperly grouped together.
    [Ed. Note. — For other cases, see Appeal ant Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <@=: 736.]
    2. Appeal and Error <@=>1039 — Review — Harmless Error.
    In an action for damages for breach of defendant’s contract to buy cattle, the allegation of the complaint describing the quantity as two car loads, although defective as indefinite as to number, time, and general quality, was harmless, where the defendant alleged the contract as for the sale of two car loads of fat steers, which the plaintiff did not deny, and the evidence showed that 46 made two ear loads; there being no contention that such number was more than are customarily shipped in two cars.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-40S8; Dec. Dig. <@=> 1039.]
    3. Evidence <§=*508 — Opinion—Expert Testimony.
    In an action for breach of contract to buy cattle, opinion evidence of one who qualified in point of experience as to what such cattle would have weighed at a certain place was admissible; the weight of the opinion being for the jury in connection with other testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2311; Dec. Dig. <@=>508.]
    4. Sales <@=>384 — Remedies oe Seller — Action for Damages — Measure.
    In an action for breach of contract to purchase cattle, the seller’s measure of damage was the difference between the contract price and the price at the point of delivery, or the nearest available market, if no market existed at such point.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <@=>384J
    5. Sales <@=>379 — Remedies oe Seller — Action for Damages.
    In an action for breach of contract to buy cattle at so much a pound, plaintiff should have alleged what the cattle would have weighed at point of delivery, and what was their weight at the point to which the plaintiff, upon breach, was forced to send them to find a market ; such allegations being necessary as a foundation for evidence of damage.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1094; Dec. Dig. <@=>379.]
    6. Appeal and Error <@=>273 — Reservation of Grounds of Review — Necessity of Pleading — Special Exception.
    Where no special exception was taken to a defective pleading, its correctness was not open to review.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764: Dec. Dig. <@=>273.]
    7. Depositions <@=>96 — Pleading to Support Interrogatory.
    Where testimony by deposition of a witness was not material, under the allegations of the petition on file when the deposition was taken, but found support in the allegations of an amended petition thereafter filed, the rejection of the testimony was not called for, although in such case, upon showing by the adverse party that, on account of the question being irrelevant at the time of being propounded, he failed to file interrogatories, or that the new pleadings present matters upon which it is material that he should further examine the witness, he should be granted a continuance to do so.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 278, 279; Dec. Dig. <@=>96.]
    8. Appeal and Error <@=>1050 — Harmless Error — Admission of Evidence.
    Error in admitting evidence was harmless, where it agreed with the only competent evidence given as to the matter.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <@=>1050.]
    9. Sales <@=>377 — Remedies of Seller — Action for Damages — Pleadings—Damage.
    In an action for breach of contract to buy cattle, which, upon defendant’s refusal to accept, were shipped to another point and sold, where the petition alleged that the resale was made on the best available market and for the best price obtainable, it was unnecessary to allege that the cattle had no market value at point of delivery, since the allegation made necessarily implied the fact.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1092; Dec. Dig. <@=*377.]
    10. Sales <@=>384 — Breach of Contract — Duty of Seller.
    Where a buyer of live stock refused to accept the same on delivery, it was the duty of the seller to realize the best price when, he undertook to sell elsewhere.
    [Bd. Note. — Por other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <@=>3S4.]
    11. Sales <@=>384 — Remedies of Seller — Action for Damages — Measure.
    In an action for breach of contract to buy cattle at so much a pound, where, upon refusal of the buyer to accept, the plaintiff shipped such cattle to the best available market, and there sold them, the verdict for the difference between the contract price and the amount received was not excessive, because there was not deducted therefrom the amount lost by shrinkage in weight caused by the delay of the carrier in shipping from point of delivery to point of resale.
    [Bd. Note. — Por other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <@=>384.]
    On Motion for Rehearing.
    12. Trial <@=>356 — 'Verdict—Special Bindings — Pailure to Bind on Issue.
    In an action for breach of a contract to buy live stock, where the court entered judgment upon a verdict without requiring an answer to the issue whether, at the time of the inspection and rejection of the steers by defendant’s agent, the plaintiff led such agent to believe that he (the plaintiff) would retain such cattle for his own use, the action of the court was improper, since if one party to a contract makes statements to the other calculated to lead such other to believe that it is satisfactory to him that the contract be rescinded, and thereupon such other treats the contract as rescinded, he is estopped to assert that the contract has not been rescinded.
    [Ed. Note. — Por other cases, see Trial, Gent. Dig. §§ 849-854; Dec. Dig. <@=>356.]
    13. Pleading <@=>186 — Joinder of Issue — Remedies of Seller — Action for Damages.
    In an action for breach of contract to buy cattle, where the petition set out that plaintiff had told defendant he would have to reship and sell elsewhere, while the answer pleaded an agreement by the plaintiff to retain such cattle, assenting to a rescission, the petition did not constitute a joinder of issue on the plea, under Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127 (Vernon’s Say les’ Ann. Oiv. St. 1914, art. 1S29), enacted to secure joinder of issue on controvertible facts, and to eliminate those in controversy.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. § 399; Dec. Dig. <@=>186.]
    Appeal from Jim Wells County Court; W. R. Perkins, Judge.
    Action by John P. Dunn against the Houston Packing Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded.
    Hutcheson & Hutcheson, of Houston, and V. W. Taylor, of Alice, for appellant. B. D. Tarlton, Jr., and H. S. Bonham, both of Beeville, for appellee.
   MOURSUND, J.

Appellee sued appellant, alleging, in his first amended original petition filed on thq date of trial, that on or about September 9, 1913, plaintiff entered into a contract with defendant, through its duly appointed agent, whereby plaintiff sold and agreed to deliver to the defendant at Mary, Jim Wells county, Tex., two car loads of plaintiff’s cattle, to be shipped to Houston, Tex., where they were to be weighed immediately upon arrival, defendant agreeing to pay 6% cents per pound on delivery in Houston, according to said weight in Houston; that, pursuant to said contract, plaintiff, on the day set for the delivery, gathered said cattle, drove them to Mary, Jim Wells county, and tendered them to defendant, and defendant refused to receive them, and refused to perform its part of the contract, though said cattle fulfilled all requirements of said contract, thereby breaching the same; that defendant inspected the cattle on the morning of September 11th, before they were driven to Mary, and at that time was informed that, should it refuse to receive the cattle, plaintiff would be forced to ship and resell them, which would probably result in serious loss to plaintiff; that, upon defendant’s refusal to receive the cattle, plaintiff shipped them to Pt. Worth and sold them through National Live Stock Commission Company; that there was no market in Houston, and he sold the cattle on the best market available, and obtained the best price possible under the circumstances; that the shipment was seriously delayed, and was not weighed and sold in Pt. Worth until September 15th, and, as a result of the long run and delay, said cattle fell off more in weight than they would have if delivered under the contract; that they brought a less price than defendant agreed to pay for them, and plaintiff has been damaged in the sum of $540.

Defendant’s amended original answer, filed before plaintiff’s amended petition, consisted of a general demurrer, various special exceptions, and allegations to the effect that it was agreed that if the cattle, when inspected, were not fat enough to be used for the purpose desired by defendant, the defendant would have the right to reject them; that, when defendant’s agent inspected them, he found same not fat, as represented by plaintiff, whereupon, under said agreement, said agent rejected them; that then plaintiff agreed he would keep the cattle for his own uses and purposes, and recognized the right of defendant’s agent to reject said cattle, and is estopped to claim damages on account of such rejection of the cattle; that plaintiff did not insist or contend that the cattle were fat, and did not tender to defendant’s agent any bill of sale to said cattle, as required by article 7170, Revised Statutes -1911, and article 1408 of the Penal Code.

By supplemental answer filed on the date of the trial, the exceptions and allegations contained in the first amended original answer were renewed as against the first amended petition, and defendant denied notice of intention to resell, as pleaded ' by plaintiff, alleged there was a market in Houston for cattle of the class owned by plaintiff, and, by allegations of not having knowledge of sufficient facts to make answer to the other matters and things alleged by plaintiff, defendant joined issue thereon.

Plaintiff by 'supplemental petition denied that the cattle were sold subject to approval of defendant’s agent, also denied that he agreed to keep them for his own use and purposes, and alleged that his failure to tender a bill of sale was immaterial.

Defendant filed a second supplemental answer denying that the cattle fulfilled the conditions of the agreement, and asserting that, if the cattle were not sold subject to defendant’s approval and right of inspection, this was defendant’s understanding of the agreement, and, if plaintiff did not agree to keep said cattle for his own use, that he led defendant’s agent to believe that he was going to retain same for his own use, and is now estopped to deny that fact, because it will be profitable to him and injurious to this defendant.

All of defendant’s exceptions were overruled. The case was submitted upon special issues, and, upon the answers thereto, the court rendered judgment in favor of plaintiff for $419.86. The jury found as follows: That plaintiff and defendant, acting through its agent, Bennett, entered into a verbal contract for the sale of two car loads of cattle to be weighed immediately upon their arrival at Houston; that they were not sold subject to Bennett’s inspection; that they were of the grade and character represented by plaintiff to Bennett; that it was not agreed that Bennett had the right to reject the steers, if, upon inspection, they proved not to be fat; that plaintiff did not release Bennett from the contract; that there was no market price for fat steers at Mary, Jim Wells county, Tex., on or about September 10, 1913; that the average weight of the steers, had they been weighed in Houston after an ordinary run to said city, would have been 1040 pounds; that the net proceeds of the sale of the cattle at Et. Worth was $2,713.66; that there was no general market for fat steers at Houston, Tex., on or about September 10, 1913; that plaintiff exercised the care that an ordinarily prudent' man would have exercised in reselling the cattle. The jury was unable to agree upon the sixth question, reading as" follows:

“At the time of the inspection of said steers by defendant’s agent, did plaintiff lead defendant’s agent to believe that he (the plaintiff) would retain said cattle for his own use?”

In addition to the facts found by the jury, we find in support of the judgment that the two car loads of steers consisted of 46 head, and the freight to Houston would not have exceeded 20 cents per hundredweight.

Conclusions of Law.

1. The first five assignments of error complain of the overruling of defendant’s first three special exceptions, and are improperly grouped, because relating to different issues not susceptible of being presented by propositions applying to all. In fact, the fifth assignment in itself contains several distinct propositions. The propositions thereunder relate to the exception directed at the allegation describing' plaintiff’s cattle as two car loads, which description was contended to be vague, indefinite as to number, kind, and general quality. This exception should have been sustained; but as defendant alleged the contract was for the sale of two car loads of fat steers, which was not denied by plaintiff, and as the evidence discloses that 46 head of the steers made two car loads, and no contention was made that such number was in excess of the number of steers of that age customarily shipped in two cars, we think the error was not one which requires a reversal of the judgment.

2. The sixth assignment is overruled. The witness had sufficiently qualified as to experience in shipping cattle to testify to his opinion as to what the cattle would have weighed at Houston. The correctness of his opinion was a matter to be weighed by the jury in connection with the other testimony.

3. The seventh, eighth, and ninth assignments are improperly grouped. The seventh and eighth again complain of the overruling of special exceptions 2 and 3, and each of said assignments contains several propositions. The eighth complains of the overruling of defendant’s fifth special exception, which was to the effect that the allegations were insufficient to show damage because the market value at Mary or at Houston was not stated, and the damages could only be meassured by the difference in the contract price and the market value at one of said places. The only proposition submitted is to the effect that plaintiff should have alleged what the cattle would have weighed in Houston and what their weight in Ft. Worth was. This proposition is correct, but no special exception to that effect was presented. The assignments are overruled.

4. The tenth and eleventh assignments question the right of the court to receive the verdict and enter judgment, without requiring an answer to the sixth issue, hereinbe-fore copied. The action of the court in receiving the verdict, without requiring an answer to said issue, was equivalent to the withdrawal of the issue from the jury. In this we conclude there was no error, for the reason that there was no evidence raising the issue. There is not a particle of testimony to the effect that plaintiff led Bennett to believe he was going to retain the qattle for his own use; on the contrary, both parties agree that plaintiff told Bennett he was going to ship them to Ft. Worth while he had them together and sell them on the market there, if Bennett did not take them. We cannot add to the pleading or change the wording of an issue, and thus give defendant a chance to replead and ask that the issue be submitted wbicb was raised by the testimony, but must pass upon the record as we find it. The court has a right to withdraw an issue which should not have been submitted. The assignments are overruled.

The twelfth, thirteenth, and thirtieth assignments relate to a question of pleading. The defendant’s allegation to the effect that plaintiff led him to believe that he was going to keep the cattle for his own use was not denied by plaintiff in any pleading thereafter filed. Plaintiff had alleged that he told defendant that, if it refused to receive the cattle, he would be forced to ship and resell them, which would probably result in serious loss to plaintiff. He also pleaded that he denied that he agreed to keep the cattle, and denied that he recognized defendant’s right to reject them. Plaintiff failed to specifically deny the allegation that he led defendant to believe that he was going to retain the cattle for his own use. If plaintiff established the truth of his allegation, to the effect that he told defendant he would be forced to ship and resell the cattle, then the falsity of defendant’s allegation that he led defendant to believe he would retain them for his own use would necessarily follow. Defendant did not allege the facts relied upon to show that he was led by plaintiff to believe he would keep the cattle, and plaintiff, having alleged that he gave information to defendant inconsistent with and contradictory of the conclusion so pleaded, cannot be said to have admitted it. The purpose of the amendment to article 1829, made by the last Legislature, was to secure a joinder of issue upon the controvertible facts and to eliminate those not in controversy, and it was not intended that parties should keep on pleading after issue has substantially been joined by allegations which state the contrary of each other. Railway v. Pennington, 166 S. W. 461; Word v. Bank of Menard, 170 S. W. 845; Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 809; St. Louis, B. & M. Ry. Co. v. Evans, 173 S. W. 228, decided by this court but not yet officially reported. The assignments are overruled.

The fourteenth assignment presents no error. The issue which was refused was a part of the issue whether a rescission had taken place by reason of language used by plaintiff which was reasonably calculated to and did cause defendant to believe that it was satisfactory to plaintiff to keep the cattle. We do not see how appellant could have been injured by submitting special issue No. 5. Appellant raised this issue by pleading an agreement on the part of appellee to keep the cattle, and, if it objected to the defense being submitted, the court should not have submitted it, but such submission could not have injured appellant.

Assignments Nos. 16, 17, 18, 19, 25, 26, 27, and 29 are overruled.

Assignments 20, 21, 22, 23, and 24 complain of the admission of answers of the witness Crowley, in regard to matters pleaded in the plaintiff’s first amended petition, but not pleaded in the petition on file at the time the depositions were taken. This is a novel question, but, after considering the matter carefully, we conclude that the fact of want of pleading to support an interrogatory -at the time it is propounded will not require the rejection of the evidence, if material under an amended pleading. If the other party can show that, owing to the questions being irrelevant at the time they were propounded, he failed to file cross-interrogatories, or that the new pleadings present matters upon which it is material that he should further examine the witness, he should be granted a continuance so as to have an opportunity to do so. In this case no such issue was presented, the witness was cross-examined at length, and the court did not err in admitting the testimony.

The twenty-eighth assignment is sustained, but, as the inadmissible testimony agrees with the only competent testimony given in regard to the matter, the error in admitting it was an immaterial one.

The thirty-first assignment is without merit. It was alleged that the cattle were resold on the best available market, and that appellee obtained the best price possible under the circumstances. It was unnecessary to allege that the cattle had no market value at Mary, because it was alleged that the resale was made on the best available market and for the best price obtainable, which constituted a full compliance by the seller 'with his duty to the buyer to realize the best price in case he undertakes to resell. Simpkins on Contracts and Sales (3d Ed.) p. 951; Waples v. Overaker & Co., 77 Tex. 12, 13 S. W. 527, 19 Am. St. Rep. 727..

The thirty-second assignment complains of the judgment as excessive. The court did not err in assessing plaintiff’s damages at the difference between what the cattle would have brought under the contract and what was realized from the resale. The 46 head at 1040 pounds average were figured at 6% cents per pound and 20 cents per hundredweight deducted for freight. From the net result was deducted the amount of the net proceeds of the sale at Ft. Worth. Plaintiff could noi be deprived of any part of his damages on account of neglect or delay of the railroad company; he having done his duty toward obtaining for defendant the best price for the cattle. Simpkins on Contracts and Sales, p. 952.

The judgment is affirmed.

On Motion for Rehearing.

In considering the tenth and eleventh assignments of error we gave special issue No. 6 a construction not given it by either party to the suit, and overruled the assignments upon a theory not urged by ap-pellee. We gave the issue its liberal construction, but the parties themselves construed it as an inquiry whether plaintiff led Bennett to believe he was willing to retain the cattle — in other words, willing to rescind the trade. As it was admitted that plaintiff told Bennett he was going to ship the cattle to Et. Worth while he had them together and sell them on the market, it is apparent that the expression “retain the cattle for his own use” was used for the purpose of expressing the idea that Dunn was to retain the cattle and permit Bennett to rescind the contract. No objection was made by plaintiff to the submission of said issue No. 6, and both parties treated it as being properly submitted under the pleadings and evidence. The pleading raising the issue, although a conclusion, was not excepted to, and, in the absence of exception, we think must be treated as raising the issue. The evidence was so conflicting upon the issue, as it was construed by the parties, that the jury failed to agree. There can be no doubt under the law that if one party to a contract makes statements to the other which are reasonably calculated to lead the other to believe, and do lead him to believe, that it is satisfactory for the contract to be rescinded, and thereupon such other treats the contract as rescinded, the party making such statements is estopped from contending that the contract has not been rescinded. Appellee, in his brief, says that the issue, “Did Dunn lead Bennett to believe that he was released?” was superfluous, because it was included in the issue whether Dunn released Bennett from the obligations of the contract, and that, in answering that he was not released, the jury found he was not released either by agreement or estoppel. This contention is without merit, in view of the fact that two separate issues were submitted with the acquiescence of both parties, one of which covered the question of release by agreement and the other that of release by estoppel. We are stating the construction placed thereon by the parties. Appellee may be correct in his view that a general issue could have been submitted involving the sole question whether Bennett was in fact released, and appropriate instructions given as to the facts necessary to be found in order to show a release by agreement or by es-toppel ; but in this case separate questions were asked, and no instructions were required. One of these questions was never answered, and it is useless to show that it could have been dispensed with, had certain instructions been given the jury, so as to let them know that the issue thereby made was included in another question. We conclude that it would be unjust to give the issue a construction not given it by the parties and the jury, and that the said assignments 10 and 11 should be sustained.

In disposing of assignments Nos. 12, 13, and 30, we again gave the pleading upon which special issue No. 6 was based its most literal construction, and therefore concluded that the allegation that Dunn told Bennett that he would be forced to ship and resell the cattle made an issue, so that it became unnecessary to deny the pleading upon which said special issue No. 6 was based. Upon further consideration, we conclude that issue was not joined on this plea, as is required by statute.

We overruled the assignment relating to the -overruling of defendant’s application for continuance without discussing the same; and, while appellant makes a very strong argument in support of the assignment, we conclude that our former ruling was correct. At any rate, as the judgment will be reversed upon other grounds, the question becomes an immaterial one.

The judgment is reversed, and the cause remanded.
      <§^=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gz^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, O. J.

text:
    OGG et al. v. DIES et al.
    (No. 6973.)
    (Court of Civil Appeals of Texas. Galveston.
    April 20, 1915.)
    1. Counties <§=> 182 — Bonds — Sale — Validity.
    A county is not prohibited by statute from selling road construction bonds to contractors, but the statute forbids the sale of bonds for less than par and accrued interest, and where a contractor bids for both the work and bonds, but the bid for the work is not on a cash basis, but at an amount sufficiently above what the work could be done for cash to recoup him for part of the amount for which he agrees to pay for the bonds, the bids may not be accepted, for the method of selling the bonds is an evasion of the statute.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 285; Dec. Dig. <@=>182.]
    2. Counties <@=>182 — Bonds'—Sale — Validity.
    A road district authorized by vote the issuance of road construction bonds. Original specifications for bids for the road work declared that the bidders must accept bonds in payment. Subsequently, the bidders were notified that their bids for the work should be made on a cash basis, and that bids for the bonds should be made on a separate form. Bidders for the work were not required to bid for bonds. A successful bidder for the work made a separate bid for bonds on the understanding that the latter bid was optional. The bid for the work was low, and the bid for the bonds, to be issued in installments, was for not less than par and accrued interest. The bidder was required to pay into the county treasury the par value and accrued interest on each installment delivered. Held, that the sale of the bonds and the letting of the contract for the work did not evade the law forbidding sale of bonds for less than par and accrued interest.
    [Ed. Note. — For other cases, see. Counties, Cent. Dig. § 285; Dec. Dig. <@=>182.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by J. J. Ogg and others against W. W. Dies and others. From an order dissolving a temporary injunction, plaintiffs appeal.
    Affirmed.
    Goe & Coe, of Kountze, and. ft. L. Durham and McDowell & Blain, all of Beaumont, for appellants. Singleton & Nall, of Kountze, for appellees.
   PLEASANTS, O. J.

This appeal is from an order of the district judge of Hardin county, made in vacation, dissolving a temporary injunction theretofore granted by him in a suit for injunction brought by appellants, who are resident property taxpayers of road precinct No. 2 of Hardin county, against W. W. Dies, comity judge, J. S. Jackson, G. A. Anderson, J. N. Newman, and Jode Flowers, county commissioners of said county, and Hanson & Sons, a corporation, to restrain the sale by said county judge and commissioners to Hanson & Sons of bonds issued by said commissioners’ court for the construction of roads in said road district, and to restrain the execution by said county officials of a contract with said Hanson & Sons for the construction of said roads.

Plaintiffs’ petition, after alleging that bonds in the sum of $125,000 for the purpose of constructing and maintaining macadamized roads in said district were authorized by a vote of the taxpayers of the district at an election for that purpose, duly and legally held on May 14,1914, alleges, in substance, as follows: That thereafter the commissioners’ court, on the 8th day of June, at a regular session, authorized the issuing of said bonds, and entered an order to the effect that J. S. Jackson, defendant, be authorized to take and have charge of said bonds pending their investigation by the Attorney General, and that upon their approval, he, the said Jackson, should have authority to negotiate and sell and receive for the county the proceeds thereof; that said J. S. Jackson was not under bond, and was not required by said order of court to give bond to account for the money received by him from the sale of said bond; that the said Jackson, acting with consent and approbation of the other members of the commissioners’ court, had contracted to sell to the defendants Hanson & Sons the entire issue of said bonds, in such manner as the amount actually to be received by the county therefor would be greatly less than the par value of said bonds; that the said Jackson and the other members of said court are attempting to contract the building of roads in said district prior to the sale of said bonds, and that they required all persons bidding upon said work to also bid for the purchase of said bonds.

The plaintiffs prayed for a temporary injunction, restraining the said Jackson and the other members of said court from disposing of said bonds for less than their par value, and that they be further restrained from contracting for the building of the said roads until said bonds were disposed of, and the money therefor placed in the treasury of said county. The temporary injunction was granted as prayed for, on the 27th day of December, 1914, and the defendants filed an answer and motion to dissolve on the 2d day of January, 1915, which motion was heard on the 18th day of January, 1915, in chambers.

The defendants, in answering said petition, admitted that the bonds had been voted as ‘alleged, and that the defendant Jackson had been made the custodian of said bonds as alleged, but stated that the order granting him authority to negotiate and sell and receive the proceeds of said bonds had, in effect, been revoked and that the bonds were on deposit with the county treasurer, and that all sales of said bonds would be made in the manner required by law. The defendants denied that they or either of them had contracted to sell said bonds, or any portion of them, to Hanson & Sons, or ony other person, for less sum than the face value thereof, together with accrued interest from date, and alleged that they had advertised said bonds for sale, and that at the time and place stated Hanson & Sons, Incorporated, bid for $100,000 worth of said bonds at par value, together with accrued interest thereon to date of delivery, which bonds, were under the terms of said bid, to be delivered in installments. The defendant further alleged that advertisements for bids were made for said proposed road work to be done on said road district, according to plans, specifications, maps, and drawings, and that the bid of Hanson & Sons for the construction of said road work in the aggregate amounted to $25,000 less than any other bid received; that none of the proposed contracts had been executed, but were being prepared, and had been prepared for execution at the time the writ of injunction sued out in the case was served upon the defendants; that there was no agreement or any negotiation entered into by any of the defendants, neither would they, or either of them, entertain any proposition by which said bonds would be disposed of for less than their par value and accrued interest for cash, and that such cash was to be deposited in the treasurer’s office for said county, and paid out in the manner required by law. They denied that the commissioners’ court were attempting to contract for the building of said roads prior to the sale of said bonds, and that they requested all persons bidding upon the said work to also bid for the purchase of said bonds, and said that the only course contemplated by the said defendants was to provide for the sale of said bonds, as provided by law, and, after the same was effected, to enter into a contract for the work in the manner provided by law, and contingent upon the payment of the money for said bonds by the purchaser thereof, in compliance with the terms and conditions of the bid, and specially denied that there was any obligation on the bidders on said road work to purchase said bonds, or any portion thereof, and denied that there was any joint advertise-meat for the sale of said bonds and bids for .the proposed road work, but that said advertisements and offers were made separate and distinct from each other.

The motion to dissolve was beard upon the petition and answer and evidence introduced by both parties. The evidence shows that the original specifications sent out to- prospective bidders for the road work contained the statement that the bidder would be required to accept bonds of the road district in payment for the work. Subsequently the commissioners’ court decided that they were not authorized .to contract to pay for the work by exchanging the bonds therefor, and the bidders were notified that their bids for the work should be made on a cash basis, and bids for the purchase of the bonds “made on separate form, and inclosed with said bid, and will become a contract separate and distinct from •the construction of the work contemplated.”

Hr. Jackson, in whose precinct the contemplated road work is to be done, testified:-

“We did not require any bidders to bid for -the bonds. You ask what is this wording in here if it don’t require that, and I say I will explain it to you so you can understand it. We advertised one time — first time we advertised for bids —we advertised for them to take the bonds for work; we had quite a number of bids, and all turned down, and in making- of other bids and .specifications we used the same lot of old blanks, and that part of it was overlooked; at the time these blanks were sent out we did not discover this; the matter came up, and we discovered it. Mr. Bradburn, the engineer, notified all the parties in writing that had called for the specifications the bids must be separate, and the work must be let for cash.”

P. E. Hanson, manager of Hanson & Sons, who made the bid for said corporation, testified:

“I did not understand when I bid for the work that I had to bid for the bonds; that was optional with me. I have been engaged in this character of work, loading-, grading, handling-dirt, making culverts, and things like that, since I was 9 years old — about 13 years. My business is construction, and I am not a bond buyer. I would not go out and buy bonds as an investment and speculation, as that is out of my line of business. I bid for these bonds and bid for them at the same time I submitted the bid for the work. If I had not bid on the bonds at all — if the money to do this work bad been in the treasury of the county at the time I submitted my bid — I would not and could not have submitted a lower bid for the work. My statement is that my bid was submitted on a strictly cash basis. I had not done any work in this territory before, and was anxious to get in this territory, and for that purpose I was willing to assume the burden of buying $100,000 worth of bonds.”

The testimony of the engineer, who prepared the plans and specifications for the work and examined and reported to the commissioners’ court upon the bids submitted, is that the bid of Hanson & Sons is a low bid, $25,000 cheaper than any of the other bids received for the work, and 10 per cent, or 15 per cent, cheaper than was being paid for the same character of work by other counties. He also testified that said bid was within $145 of the estimate made by him of the cost of the work at the time he prepared the specifications.

The proposed contract for the sale of the bonds provides that they are to be issued in installments, of $10,000, as the money is needed to pay for the work, and required the purchaser to pay into the treasury of the county in cash the par value and accrued interest of each installment of bonds delivered to him under said contract.

It cannot be held upon this evidence that the trial judge erred in dissolving the temporary injunction. The law does not prohibit a county from selling bonds to contractors for public works for the construction of which the bonds are. issued. The statute forbids the sale of bonds of this character for less than par value and accrued interest; and, if a contractor bids for both the work and bonds, and the evidence justifies the conclusion that the bid for the work is not made upon a cash basis, but fixed at an amount sufficiently in excess of what the work could be procured to be done for cash to recoup the contractor for a -portion of the amount which he agrees to pay for the bonds, such bids should not be accepted, because this method of selling the bonds is a clear evasion of the statute, which forbids their sale for less than part and accrued interest. This was our holding in the case of Wilson v. Hebert, 174 S. W. 861, and we are satisfied of the soundness of our conclusion in that case.,

In the instant case, the evidence does not justify the conclusion that any evasion of the law will result if the contracts sought to be enjoined are carried out; on the contrary, the undisputed evidence shows that the bid for the work was made upon a cash basis and there is no evidence to justify the conclusion that the work could be procured to be done for a less amount. This being so, the county under the proposed contract for the sale of the bonds will receive in cash the par value of the bonds with accrued interest, and the execution of the contracts cannot be enjoined upon the ground upon which the holding in the Wilson Case is based.

This conclusion requires that the order dissolving the temporary injunction be affirmed; and it has been so adjudged.

Affirmed.
      cg3?>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DANE, J.

text:
    SPEIGHTS et al. v. SPEIGHTS et al.
    (No. 6822.)
    (Court of Civil Appeals of Texas. Galveston.
    April 13, 1915.)
    Appeal and Ebbor <@=>731 — Assignments op Ebbor — Sueeiciency.
    An assignment of error that findings of fact are not supported by the “preponderance” of the evidence, but are against it, presents nothing for review, as findings can be overruled on appeal only when they are without any evidence to support them, or are so against the great weight and preponderance of the evidence as to be manifestly wrong.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. <©=> 731.]
    Appeal from District Court, Sabine County; A. E! Davis, Judge.
    Action by T. G. Speights and others against Exa Speights and others. Judgment for de<-fendants, and plaintiffs appeal.
    Affirmed.
    Moss & Deals, of Memphis, and Carter & Walker, of Center, for appellants.
   DANE, J.

This suit was brought by appellants, T. G. Speights, Sr., J. W. Speights, R. A. Deak, and May Deak, to recover from Exa Speights, Mattie Speights, and Mrs. Mittie Wilson and husband, Allen Wilson, title to a one-half undivided interest in the land described in their petition, and for partition. Appellants are the children and grandchildren and only heirs of Emily Scott Speights, deceased, first wife of J. M. Speights, deceased, father of appellants, and who conveyed the lanu try question to appellees. Appellants contend that said land was the community property of J. M. Speights and their mother, Emily Scott Speights, who died intestate, and therefore they are the owners of their mother’s one-half interest therein. Appellees Exa Speights and Mattie Speights contend that said land was the separate estate of J. M. Speights; that it was conveyed to him by his brothers and sisters as his share in the estate of Rebecca Speights, deceased, the mother of said J. M. Speights and his brothers and sisters; and that J. M. Speights conveyed sadd land to them. It is conceded that, if the land was the separate property of J. M. Speights, deceased, appellees should recover, but, if it was the community property of J. M. Speights and his deceased wife Emily Scott Speights, appellants should recover one-half interest therein.

The ease was tried before the court without a jury, and judgment was entered for appellees Exa and Mattie Speights. The trial court adjourned on the 25th day of April, 1914. On the 27th day of April, 1914, the trial judge filed his finding of facts and conclusions of law, as follows:

“Finding of Facts.
“(1) I find that the land in controversy was titled to Matthew Parker, and was transferred by Matthew Parker and his wife, Elizabeth, to Rebecca Speights December 4, 1847.
“(2) I find as a fact that Rebecca Speights was the mother of J. H. Speights, J. M. Speights, G. W. Speights, Susan Daw, and Mary Garaway, and that she died about the year 1857, and left the above-named children surviving her as her only heirs.
“(3) I find that all of said named children, except G. W. Speights, are dead; that J. M. Speights died on or about the-day of January, 1913; also that he was married to Emily Scott between 1850 and 1853, and that he had three children by her, the said Emily Scott Speights, Dora, who married D. A. Deak; that Dora Deak died some time prior to the institution of this suit, arid left R. A. Deak and May Deak, children and her only heirs surviving her; that T. G. Speights, Sr., died after the institution of this suit, and after his father and mother’s death, and that he was never married; that the said T. G. Speights, Sr., J. W. Speights, R. A. Deak, and May Deak are the parties plaintiff to this suit.
“(4) I find as a fact that about 1861 or 1862 the said Emily Scott Speights died in Sabine county, Tex., and left surviving her T. G. Speights, Sr., J. W. Speights, and Dora, a daughter, who married D. A. Deak, children and her only heirs surviving her.
“(5) I find as a fact that Exa Speights, Mattie Speights, and Mittie Wilson, defendants herein, are the children of J. M. Speights, deceased, by a marriage subsequent to the death of his wife Emily Scott Speights.
“(6) I find as a fact that about the year 1859 or i860 there was a partition of the real and personal estate of Rebecca Speights, deceased, among her surviving children and only heirs, namely J. H. Speights, J. M. Speights, G. W. Speights, Susan Dow, and Mary Caraway, and that in said partition the land in controversy was apportioned and awarded to J. M. Speights as a portion of his moiety of said estate, and that his brothers and sisters, to wit, J. H. Speights, G. W. Speights, Susan Dow, and Mary Caraway, executed to him their deed for the purpose of partition, relinquishing, and conveying .to him the land in controversy, which deed was destroyed about 1875, and which was after-wards substituted by a deed executed in 1887 by G. W. Speights, J. M. Speights, Susan Dow, and Mary Caraway to him, the said J. M. Speights, and which said deed so destroyed and which substituted deed in lieu thereof were made for the purpose of conveying to and placing the title in J. M. Speights to the land in controversy, it being a portion of his moiety or interest in the estate of the said Rebecca Speights, deceased, as awarded to him in the partition of said estate, the other heirs receiving as their portion of said estate in the partition thereof certain negroes and other personal property equal in value to said land, which said partition so made was satisfactory and agreed to by all of said heirs, and has been recognized and. acquiesced in by them during their lifetime for more than 30 years.
“(7) I find as a fact that the land in controversy was conveyed by J. M. Speights on the 5th day of April, 1911, to his children Exa Speights and Mattie Speights, by deed duly executed by him.
“(8) I find as a fact that the land in controversy 'was never at any time any part of the community estate of J. M. Speights and his wife Emily Scott Speights, but that the same was separate estate of the said J. M. Speights, and was by him inherited from his mother and partitioned to him as a portion of his moiety in said 6SÍ£lt6.
“(9) I find as a fact that the said J. M. Speights, by his deed executed on the 5th day of April, 1911, to his daughters Exa Speights and Mattie Speights conveyed all the right, title, and interest he had in the land in controversy to said children, and that at the time of his death he had no interest or estate of any kind in said land which did or could descend to his heirs.
“(10) I find as a fact that plaintiffs have failed to show that they have any interest or right in the land in controversy, and that the defendants have shown by a preponderance of the evidence that the said Exa Speights and the said Mattie Speights have the legal title to said land.
“Conclusions of Law.
“Therefore, in accordance with the facts as above found by the court, the court concludes that the law is with the defendants Exa and Mattie Lula Speights, and that plaintiffs are not entitled to recover anything, and that their prayer in all things is denied.”

Appellants’ assignments 1 to 10, inclusive, in their brief, present practically but one proposition, and that is that the finding of facts, conclusion of law, and judgment entered by the trial court was not supported by the preponderance of the evidence, but was against the preponderance of the evidence. This proposition presents nothing for review by this court. Alexander v. Lumber Co., 154 S. W. 235; Cullen v. Emgard, 44 S. W. 538; Degener v. O’Leary, 85 Tex. 171, 19 S. W. 1004; Bennett v. Lumber Co., 148 S. W. 1190; Springer v. Riley, 136 S. W. 580 (on rehearing). None of the assignments insist that there was no evidence, nor sufficient evidence to support the finding of facts and law and judgment, but only that the same was against the preponderance of the evidence.

■ The finding of facts by the court have the same force and are entitled to same weight as the verdict of a jury. This court is authorized to overrule them only when they are without any evidence to support them, or when they are so against the great weight and preponderance of the evidence as to be manifestly wrong. It is not claimed by the assignments of error that the finding of facts of the court referred to are subject to either of these objections. They do not present any such question. We cannot say that they were intended to do so, and we cannot consider them. An appellate court will not weigh conflicting evidence and balance probabilities and draw inferences in determining an issue of fact. Where there is competent evidence it must be assumed that the court before whom the case was tried based its findings thereon. Funk v. Miller, 142 S. W. 24; Tex. Cent. Ry. v. Dumas, 149 S. W. 543; Todd v. St. Louis S. W. Ry. Co., 173 S. W. 617; Sanborn v. Gunter, 84 Tex. 273, 17 S. W. 117, 20 S. W. 72.

We have, however, taken the trouble to carefully examine the statement of facts, and think the finding of facts and conclusion of law of the trial court are amply supported thereby, and, so believing, the judgment of the court below is in all things affirmed.

Affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    HALL et al. v. DAVISON.
    (No. 6799.)
    (Court of Civil Appeals of Texas. Galveston.
    April 7, 1915.
    Rehearing Denied May 6, 1915.)
    1. Certiorari <s=342 — Petition — SUFFICIENCY.
    _ A petition, to be sufficient to bring up for review the action of the county court in admitting a will to probate, should state the facts showing the purported will was void; hence a petition for certiorari which merely alleged that the purported will was void and prayed that it be set aside is insufficient.
    [Ed. Note. — For other cases, see Certiorari, Cent. Dig. §§ 64-73, 75-79, 81-84, 87; Dec. Dig. ®=^42.]
    2. Executors and Administrators <®=»35— Removal of Temporary Administrator-Review .
    Where a will appointing the testator’s wife an independent executrix was admitted to probate, one appointed temporary administrator cannot complain of an illegal order removing him; the wife being entitled to administer the estate.
    [Ed. Note. — Eor other cases, see Executors and Administrators, Dee. Dig. <@=>35.]
    3. Certiorari <@=>42 — Petition—Amendment.
    Rev. St. 1911, art. 734, provides that all applications for writ of certiorari to the county court shall distinctly set forth the error in the proceedings sought to be reviewed, while article 740 declares that the cause shall be tried de novo, but the issues shall be confined to the grounds of error specified in the application for the writ. The original petition for a writ to review the action of the county court admitting a will to probate did not set forth the facts showing its invalidity, hut only prayed that the purported will be set aside. Meld, that the denial of leave to file an amended petition alleging want of capacity, and that the will was not that of the testator, was not error; for it changed the cause of action upon which the writ of certiorari was granted.
    [Ed. Note. — Eor other cases, see Certiorari, Cent. Dig. §§ 64-73, 75-79, 81-84, 87; Dec. Dig. <®=42.]
    Appeal from District Court, Newtou County; A. E. Davis, Judge.
    Application by Mary J. Davison to probate a will; opposed by Henry S. Hall and others. Letters testamentary being granted proponent contestants brought certiorari. Prom a judgment dismissing the writ, certain contestants alppeal.
    Affirmed.
    Geo. G. Clough and Aubrey Duller, both of Galveston, for appellants. Holland & Holland, of Orange, for appellee.
   McMEANS, J.

On May 18, 1909, Mary J. Davison, the surviving wife of William Dajvi-son, deceased, filed in the county court of Newton county application to probate the will of the deceased. The will was presented with the application, and by its terms made certain bequests to the children 'and wife of the deceased, and appointed the wife, appellee here, sole executrix of his estate without bond. On June 18, 1910, John R. Davison and Mary A. Hall filed a contest, and on the same day H. S. Hall, one of the appellants, filed his application to be appointed temporary administrator and was so appointed. On July !*, 1910, Hall and the contestants of the will filed their application to continue the cause for the term, and on July 9th an order was entered continuing Hall as temporary administrator until the decision of the contest.

On July 9, 1910, a special judge was duly elected and qualified. A motion was made to vacate and set aside the order made the salme day on the ground that it was entered on an ex parte hearing before the county judge at his residence, where he was confined by sickness, and at a time when court was not in session, which motion was granted. There was a trial, and the will offered by appellee as the last will of William Davi-son, deceased, was probated, and letters testamentary granted to appellee.

On July 8, 1911, Henry S. Hall, individually and as temporary administrator, complaining of appellee individually and as independent executrix of the estate of William Davison, deceased, and as temporary administratrix, filed his petition for certi-orari, which was granted, and he gave the required bond. Defendant (appellee) filed motion to dismiss the certiorari. On MArch 21, 1914, appellant Henry S. Hall filed an amended petition, and on March 24, 1914, appellee filed a motion to strike out the amended petition and dismiss the cause on the additional grounds that all persons adversely interested were not made parties, and that the pleading stated a new cause of action shown to be barred by limitation. On March 25th both motions presented by appellee were sustained and the certiorari dismissed. Thereafter appellant asked leave to file a second amended petition, and permission to do so was denied. From the judgment of dismissal Hall and John R. Davison, who joined him in the contest, have appealed.

Appellant in his petition for certiorari alleged, in substance, that on April -, 1910, William Davison died, and there was filed in the county court what purported to be a written will; that plaintiffs contested the validity of the will by written contest filed in said county court, and on the 18th of June plaintiff secured appointment of himself as temporary administrator, and he qualified in the terms of the law, and that thereafter, on the- day of June, 1910, the defendant filed her application to be appointed temporary administratrix, and to remove plaintiff, which was heard June 21, 1910, and denied; that thereafter her attorneys removed her application from the file for the purpose of defeating the jurisdiction of the court, and thereafter, without appealing from the order and decree of the county court refusing to appoint her temporary administratrix, they filed another motion to remove plaintiff, which was pending at the July term of the county court; that said second motion was not heard, because of illness of the county judge, and a continuance was granted until the next term on said mattter, and entered of record; that thereupon plaintiff’s attorneys, who lived in Galveston, departed, and during their absence defendant, through her attorneys, procured an attorney from Orange county, and on the 9th of July, 1910, they proceeded to go through the form of electing said attorney special judge, and he assumed the bench and set aside the order of continuance entered by the regular county judge, and without ainy notice to plaintiffs or their attorneys proceeded to probate said will; that said attorney was not a resident of Newton county, and that as soon as he, acting as such special judge, concluded the hearing of this probate matter, he ait once adjourned court for the entire term, and left for Orange, being at said county seat of Newton county less than four hours; that there was a large volume of other civil, criminal, and probate business to be transacted, but that said adjournment was for the purpose of denying to plaintiff a hearing upon said matter when they became informed of said illegal acts; that all of said acts were a violation of the law, and said attorney acting as special judge, was disqualified, and an attack was made upon the action of the special judge in pretending to set aside the orders, judgments, and decrees of the regular judge for such probate matter; that the effort of Mary J. Davison to remove plaintiff by her second motion was res adjudicata, and that there ha'd been no appeal from said order; that the said Mary J. Davison was usurping the power of the temporary administrator. It was prayed that a writ of cer-tiorari be granted, and that upon hearing hereof the action of the said special judge be set aside, and that the action of the county judge in deciding said contest against contestants, and in admitting said will to probate, be reviewed, and that the order admitting said will to probate be set aside, and the probate of said will be tried anew, and that the motion of the said Mary J. Davi-son to remove plaintiff, and for her appointment as temporary administratrix pending the contest, be set aside, and the matter heard and tried anew, and that upon such trial in this court that the will be not admitted to probate, and that plaintiff have judgment on his contest thereof.

The motion to dismiss was in the nature of general demurrers to the petition for certiorari, and we think they were properly sustained. It might be gathered from the petition that the purpose of the appeal was to obtain a review by the district court of the action of the county court in admitting the will to probate, as well as in removing the applicant as temporary administrator, and appointing the executrix in his stead. But a petition, to be sufficient to bring into review tlie action oí the county court in admitting the will to prohate, should state the facts upon which it is relied to show that the purported will was void, or otherwise not entitled to probate; and the petition was wholly insufficient in this regard.

In Jirou v. Jirou, 136 S. W. 496, it is held that:

“The petition for certiorari, to be sufficient, must allege facts which, if true, would require the rendition of a different judgment upon the merits of the case from the order appealed from.”

Article 734, Revised Statutes 1911, provides:

“All applications for the writ of certiorari to the county court shall be made to the district court, or judge thereof. It * * * shall distinctly set forth the error in the proceeding sought to he revised.”

Article 740 provides:

“The cause shall be tried de novo in the district court, hut the issues shall he confined to the grounds of error specified in. the application for the writ.”

The italics are ours.

The only allegations of the petition that would indicate the object of the appellant in removing the proceedings to the district court was to obtain a review of the action of the county court in probating the will were that there had been filed in the county court “what purported to be a written will executed by the said Wm. Davison, deceased,” and that appellant and others contested the validity of said will in the county court, and the prayer that the order admitting the will to probate be set aside. No facts were stated to show the grounds upon which such contest was based and relied upon by the contestants to have the will declared void, and its probate denied. It is clear, we think, that the petition for certiorari was wholly insufficient as a basis for a review of the action of the county court in admitting the will to probate, and that therefore the action of the district court in sustaining the motion to dismiss was not error.

The will having been admitted to probate, and Mrs. Davison having been by the terms of the will appointed independent executrix, her right to thereafter administer the estate became absolute, and the rights of the temporary administrator thereupon ceased, and therefore the action of the county court in removing the said Hall as such administrator, even if he were wrongfully removed, was thereafter unimportant and immaterial.-

The only question that remains to be determined is whether the court erred in striking out the amended petition filed by appellant after objections to the petition, upon which the writ was granted, had been presented.

The amended petition, in addition to the allegations of the petition for certiorari, set up that the will sought to be probated was not the last will and testament- of the deceased, and, further, that at the time of its execution the testator was not of sound mind and memory, and was incapable of making proper disposition of his property, and incapable of properly attending to his ordinary business affairs, and that by reason of his disordered mind, arising from serious bodily illness, he was incapable in law of making a will; that he did -not possess sufficient mental capacity to know the nature of the business he was engaged in, the extent of his property, and the persons whom he wished to provide for; and that the will was not executed in manner and form as required by law, and not attested as required by law.

It will be observed that the amended petition set up, in' the respects just stated, entirely different grounds for review by the district court of the proceedings of the county court than those alleged in the petition upon which the writ was granted, and to that extent a different cause of action, and alleged an error in the proceedings not “distinctly set forth” in the application for the writ. To try the case upon the grounds alleged in the amendment would not be confining the issues “to the grounds of error specified in the application for the writ,” as the statute requires. The fact that the trial is to be de novo implies that the applicant may amend his pleadings, but this, we think, applies to the original case as made in his application for the writ, and does not give a right to make a new case by an amendment which sets up grounds of error not specified in the application for the writ, and seeks a revision of an error in the proceedings which was not sought in the application to be revised.

We have concluded that the action of the court in striking out the amendment was not error. Other questions presented by appellants in their brief are deemed to be without merit.

The judgment of the court below is affirmed.

Affirmed.
      \gcs>For other capes see same topic and KEY-NXJMBER in all Key-Numbered Digests and Indexes