author: WADTHALB, J.

text:
    TEXAS & P. RY. CO. v. SCHELB.
    (No. 681.)

    (Court of Civil Appeals of Texas. El Paso.
    June 14, 1917.
    Rehearing Denied June 28, 1917.)
    1. Appeal and Error <&wkey;995 — Review.
    It is not the province of the court on ai>peal to determine the preponderance of the evidence.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3907.]
    2. Master and Seevant <&wkey;127 — Injuries to Servant — Assumption of Risk.
    Employment to remove the main rods of an engine and place them on the engine frames in front of the cylinder is not such work as invokes the doctrine that when the servant is making repairs to machinery in unsafe condition the master is not required to provide a safe place to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 252.]
    3. Master and Servant <&wkey;28S(l) — Injuries to Servant — Assumption of Risk.
    The question whether the servant assumed the risk is ordinarily for the jury.
    [Fd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068, 1069, 1087, 1088.]
    4. Master and Servant <&wkey;276(5) — Injuries to Servano^-Proximate Cause — Evidence.
    Evidence held to warrant finding that negligence in permitting a defect in a locomotive step was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959.]
    5. Appeal and Error <&wkey;731(l) — Scope of Review — Preservation of Exceptions.
    An assignment of error that the verdict is contrary to law is too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3017.]
    6. Appeal and Error <&wkey;722(l) — Review.
    A variance in that an assignment of error is not a true copy of the assignment in the transcript because of slight error in copying does not preclude the court from passing upon the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig'. §§ 2990, 2994-2996.]
    7. Damages <&wkey;132(4) — Excessive Damages —Personal Injuries.
    Verdict of $7,750 was not excessive in favor óf a railroad workman 50 years old in good state of health earning about $125 per month who by his injuries received a hernia and was incapacitated for heavy work.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 375.]

      8. Tkial <S=>129 — Argument of Counsel.
    In the absence of showing of prejudice, it was not error for plaintiff’s counsel to state that the railroad would not hesitate to fire a man who had testified against it, where the railroad’s counsel had stated that plaintiff’s counsel would probably state that the witnesses were not to be believed because they worked for defendant.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 310.]
    Appeal from District Court, El Paso County ; P. R. Price, Judge.
    Action, by P. J. Schelb against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant' appeals.
    Affirmed.
    S. N. Russell, of El Paso, for appellant. Moore & Harris, T. A. Falvey, and Volney M. Brown, all of El Paso, for appellee.

      Application ior writ o£ error pending in Supreme Court.

   WADTHALB, J.

Appellee, P. J. Schelb, brought this suit against appellant to recover damages for personal injuries alleged to have been sustained by him as the result of negligence of appellant while working as a mechanic on an engine belonging to appellant. The facts stated are, substantially, that it was necessary to dismantle an engine in appellant’s roundhouse at El Paso for the purpose of sending same in a train to Big Springs for repair; that for the purpose of dismantling the engine it was removed from the roundhouse and placed on a track near the roundhouse in appellant’s yards; that to transport said engine it was necessary that the main rods of the engine be removed and placed crosswise of the engine in front of the cylinders and to secure same by wire or otherwise; that appellee under the instructions of the foreman had placed the said rods in front of the cylinders, and while standing on the step at the pilot, trying to tie said rods with a wire, appellee’s feet slipped off the step causing him to fall from the engine. It is alleged that while appellee was working on the engine and prior to the time ap-pellee placed his feet on the step, by order of the foreman, the water in the engine was allowed to run out on the ground where ap-pellee was required to work in dismantling the engine; that his feet became wet and muddy and likely to slip off the step ; that the step did not extend out at right angles from the rod or bar to which it was attached as it should, but was out of repair, in that the outer part of the step was lower than the inner part and sloped downward from the inner to the outer' parts, rendering same unsafe to stand on, and by reason thereof caused appellee’s feet to slip off of said step and caused him to fall and become injured.

Appellee assigned negligence “in allowing the said step to so become out of repair and furnishing same to plaintiff to use in the discharge of his duty in such unsafe condition,” and “in requiring plaintiff to do his said work on a side track, which defendant caused to become wet and muddy, instead of in the roundhouse, where the work could have been done with less danger to plaintiff.” Appellee alleged that by reason of the said negligence he slipped off the step, and thereby received the injury causing a rupture and hernia of his abdomen, and alleged that the injury was permanent.

Appellant answered by general demurrer, general denial, and special pleas to the effect that at the time of appellee’s injuries appellant owned and operated a line of railway from New Orleans,,La., to El Paso, Tex., and was engaged in operating interstate trains and cars hauling interstate passengers and freight over its line of road; that the locomotive engine on which appellee was working at the time of his injury was standing on one of its tracks connected with its interstate track, and that the engine on which appellee was working had been and' was up to the time of appellee’s injury continuously used in interstate commerce, and that appellee was at the time of his injury employed by appellant and was engaged in interstate commerce; that if the step complained of was bent or defective as alleged said defect.was open and obvious; that appellee knew its condition when he placed his feet on the step; and that appellee assumed the risk incident to the use of the step. Appellant pleaded contributory negligence in standing on the step with wet and muddy feet, when he could have stood on the ground and performed the work in tying the rods in front of the cylinders of the engine. The case was submitted to the jury on the general issue, and resulted in a verdict for appellee for $7,750.

Appellant in its first assignment complains that the verdict is contrary to the preponderance of the evidence, in that the evidence, by a preponderance of it, showed that, if appellee was injured, it was on account of his own negligence. Under the assignment appellant submits four propositions. The first is to the effect that a servant while employed in interstate commerce by a carrier engaged in such commerce, where no negligence on the part of the carrier is shown, is not entitled to recover damages. The proposition assumes that no negligence on the part of appellant was shown. The issue of negligence on the part of appellant was submitted to the jury, and the jury found in favor of appellee. The verdict is supported by some evidence. It is not the province of this court to determine on which side of the issue the evidence preponderates. The second proposition submits that, where a carrier engaged in interstate commerce provides its servant, also employed in interstate commerce, with a reasonably safe place to work, etc., the carrier has performed its duty. The proposition is well sustained by many authorities, but the trouble is the jury evidently did not find that the appellant had provided the servant a reasonably safe place to work — the fact assumed in the proposition. The proposition of law as submitted has no application.

The third proposition asserts that the general rule requiring the master to exercise ordinary care to furnish a reasonably safe place to work has no application to cases in which the work the servant is engaged upon consists in making repairs, since the character of the servant’s employment necessarily requires him to go upon and work on machinery that is in an unsafe and dangerous condition. The proposition has application on issues of assumed risk, the reason being that negligence cannot be charged to the master where the servant contracts to assume the very risk of which he complains. But such is not the case here. The appellee was not making repairs on the engine or on the step on the engine from which he fell, and it seems to us that the nature of his undertaking in taking down the main rods of the engine and placing same crosswise the engine frames in front of the cylinders and fastening them there, to be carried to the shops at Big Springs for repair of the broken right cylinder of the engine, was not such contract as involves the rule stated in the proposition. If the servant was- undertaking to repair the engine, that is, render safe and suitable for use a thing not safe and suitable, he then becomes the inspector of the thing being repaired, and has equal opportunity with the master to see and know the defects of it, and it would then be inconsistent to require the master to have the thing in process of repair in a safe condition for the purpose of such employment. We hardly think the proposition is germane to the assignment, but thought to consider it.

In any event the question as to whether the risk was ordinarily incident to the employment was a fact to be determined by the jury, and under the circumstances was not a question of law to be determined by the court. The fourth proposition is that the defects complained of must be shown to have been the proximate cause of his injury. The appellee in his evidence detailed the position of the step with reference to his work then being done, how it was fastened, and said:

“In order to properly tie and bind this rod on the front end of the engine, I had to stand on this step, which was the most convenient and most likely place where anybody would go or would stand. I was standing on the step here with both feet, had the wire in my hand, as I said, and I could not control the other end of the wire, and I reached out to get hold of the other end of the wire, when both of my feet suddenly fell out from under me. I fell and struck my abdomen, as I said. * * * As soon as I caught my breath I got down to see what caused my fall. * * * I stepped over to the other side, glanced down at the step, and I found the step was slipped down like that, * * * and I looked, and these two bolts were gone out of there, that is, the back bolt. When I looked after I fell, the step was slipped down. It was slipped down. I did not make any measurement of it, hut, just guessing at it, I would be safe in saying 1% inches or 2 inches out of place. That back bolt was gone that held the step in place there. * * * An upright piece to be properly constructed and attached to an engine should be at right angles. When I looked at it immediately after I had fallen, it was not at right angles. * * * My attention had not been called by anybody that the step was out of order. I had not had any occasion to observe it to see whether it was out of order or not. My attention was directed to wiring them rods. * * * I fell possibly 12 or 14 inches from this point. I fell that far with my body on the end of the beam.”

The witness also testified that his feet were muddy from alkali mud and water blown out of the boiler. From the above, stated more at' length than we have quoted, the jury could have found that the proximate cause of appellee’s injury was the defect in the step, aided more or less by the alkali mud and water on the ground, the negligence assigned.

The fifth proposition, suggesting a safer way of doing the work than standing on the step, is not germane to the assignment, and has no basis in the pleading. It was not an issue in any way submitted or requested to be submitted to the jury. The assignment is overruled.

The second assignment is: “Because the verdict, of the jury is contrary to law.” The assignment is too general to be considered. Neither the assignment nor the propositions thereunder distinctly point out that part of the proceedings contained in the record in which the error is complained of in a particular manner, so as to identify it; the propositions present abstract propositions of law, and in doing so assume facts otherwise than found by the jury, and assume facts and propositions of law not decided by the trial court. The assignment is not considered.

Objection is made to a consideration of the third assignment on the ground that it is not a true copy of the assignment as it appears in the transcript. The variance is slight and wholly unimportant. It is evidently the result of an error made in copying, and under Cammack v. Rogers, 96 Tex. 457, 73 S. W. 795, this court may, in the exercise of its discretion, pass upon the assignment; but in so doing it is not to be understood that it is our intention to in any wise depart from the rule heretofore announced by this court that it will not consider reconstructed assignments. Fessinger v. El Paso Times Co., 154 S. W. 1171; Ruth v. Cobe, 165 S. W. 530; Mt. Franklin, etc., v. May, 150 S. W. 756; Lakeside Irr. Co. v. Buffington, 168 S. W. 21.

The evidence is too lengthy to quote here in full. It shows that at the time appellee was injured he was about 50 years old, and while he had had an operation for appendicitis some 13 years previously, he seems to have fully recovered, and at the time of his injury was in a good state of health and earning about $125 per month. Dr. Schugt examined the appellee on two different occasions, the difference in time not clearly shown, but the doctor testified that appellee’s condition had grown worse, disclosing an increased hernia, as shown in the two examinations, and that his injury incapacitates him from any heavy work. We cannot say that the verdict is excessive. The assignment is overruled.

The fourth assignment complains of the following remark of counsel in his closing argument to the jury:

“The railroad would not hesitate to fire a man who testified against it in five minutes, that is my opinion, gentlemen,” and, “if the defendant’s witnesses were to come into court and testify against its interest, their jobs would not last five minutes.”

The remarks were objected to and the objection overruled by the court. The court, in signing the bill of exception, stated that counsel for the defendant had in his argument to the jury stated in substance that Mr. Moore (the attorney making the objectionable remarks) will probably state to you that defendant’s -witnesses are not to be believed because they work for defendant: that at least that was what he usually stated to the jury in trial of this case. The argument of counsel is not to be commended, but it may have been provoked by appellant’s argument. It does not appear that the argument had any effect whatever on the jury and we cannot say that it did. San Antonio, U. & G. R. Co. v. Hagen, 188 S. W. 954.

Finding no reversible error, the case is affirmed.
      ©=u>For other eases see same topic and KEY-NUMBER, m all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    BROWNE v. KING et al.
    (No. 5873.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 6, 1917.
    Rehearing Denied July 2, 1917.)
    1. Mortgages &wkey;>137 — Mortgagor’s Title.
    A mortgage or deed of trust is but a security for the debt; the title remaining in the mortgagor, subject to be divested by foreclosure.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 270-276.]
    2. Mortgages <&wkey;274^-FoRECLOSURE — Necessary Parties.
    Where the deed from the mortgagor, subsequent to the execution of the mortgage and prior to its foreclosure, was at once recorded, the rights of parties holding under such deed could be divested in the foreclosure proceedings only if they were made parties.
    [E'd. Note. — For other cases, see Mortgages, Cent. Dig. §§ 718-724, 728.]
    3. Principal and Agent &wkey;>190(l) — Power of Attorney — Title of Agent and Right to Recover — Burden oe Proof.
    In action to recover land, in which inter-vener claimed interest under power of attorney from plaintiff, who had the record title, it was necessary for intervener to piove, not only good record title in plaintiff, which intervener might have recovered, but for a settlement between plaintiff and defendant, but that defendant had not perfected title to the land under a recorded deed, or by 10 years’ adverse possession, as pleaded by defendant.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 718.]
    4. Principal and Agent &wkey;>97 — Power of Attorney — Effect as Conveyance to Agent.
    A power of attorney to bring suit for certain land, agreeing that the attorney should have, for his services, “one-half of the amount of land so recovered and one-half of the proceeds of any and all sales,” etc., did not convey one-hálf the land, but merely an interest in the proceeds.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 344-376.]
    5. Principal and Agent <&wkey;97 — Power Coupled with Interest.
    Where an agent is authorized to sue for land, or to sell it, and to have a share out of the proceeds or the property recovered for his services, his powers are not coupled with an interest, and the authority may be revoked at the principal’s will, even though, by the agreement, declared to be exclusive and irrevocable.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 344^-376.] ■
    6. Assignments <&wkey;3 — Record—Statute.
    Rev. St. 1911, art. 6S33, as to record of transfers of judgment, has no application to a cause of action on which suit has not been filed.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 5.]
    7. Principal and Agent <&wkey;183(l) — Power of Attorney — Effect of Compromise Settlement-Liability of Defendant for Attorney’s Share of “Ciiose in Action.”
    Where an attorney was employed to institute suit to recover certain land, for which he was to receive one-half of the amount of land recovered or one-half of the proceeds, and his principals compromised the suit, defendant was not liable for the attorney’s, proportionate share of the amount of the compromise, since the transfer was not one of a chose in action, but of an interest in land to be recovered, or the money for which it might be sold, for a chose in action is a right to damages, arising either from the commission of a tort, the omission of a duty, or the breach of a' contract, and, while a right or a suit for damages for personal injuries would be a chose in action, a right to land would not be a chose in action; a chose in action being an intangible or incorporeal right, and not including a right to real estate.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 691, 697-699.
    For other definitions, see Words and Phrases, First and Second Series, Chose in Action.]
    8. Contracts <&wkey;108(2) — Validity — Agreement Not to Compromise Claim.
    A contract by litigants with their attorney not to compromise a lawsuit is against public policy, and null and void.
    [E'd. Note. — For other .cases, see Contracts, Cent. Dig. §§ 498-503, 505, 507-511.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by Dimas F. Acebo and another against Mrs. H. M. King and others; W. H. Brownie, intervening. From judgment for defendants, intervener appeals.
    Affirmed.
    J. C. Scott, of Corpus Christi, and P. M. Young, of Marshall, for appellant. Joseph K. Wells, Jas. B. Wells, and Harbert Davenport, all of Brownsville, for appellees.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

This suit was instituted by Dimas F. Acebo and Joseph A. Acebo against Mrs. H. M. King to recover an undivided interest of 1,044.86 acres of land out of the “Rincon de Bóveda” and “Rincon del Grul-lo” grants of land, now in Kleberg county, but when in Nueces county. On July 19, 1913, the Acebos conveyed the and to Mrs. King, and thereby settled and compromised the suit. We are led to infer that for some reason, perhaps because the court was not in session, the cause was not dismissed, and on December 31, 1913, appellant filed what is denominated a “plea of intervention,” in which it was alleged that appellant owned an interest in the land by virtue of a power of attorney coupled with an interest, executed to him by the Acebos, which empowered him to sue in their names for the land, and that he had employed counsel and had the suit instituted, which they had fraudulently, and with intent to deprive him of his interest in the land, compromised without the knowledge or consent of appellant or his counsel, and had conveyed the land to Mrs. H. M. King. He prayed for damages in the sum of $16,978.97, one-half of the value of the land, and, for $941.40, the rental value of one-half of the land, and the foreclosure of a lien on the same, as against the Acebos, and for one-half the land as against Mrs. King. A verdict was instructed for appellees, and judgment rendered thereon.

Domingo Rotge is the common source of title, Mrs. King claiming through a deed of trust executed by Domingo Rotge to R. W. Stayton, trustee, to secure a promissory note for $3,000, given by Rotge to Mrs. King on October 17, 1889; said deed of trust being given on the land in controversy. On December 12, 1894, Mrs. King obtained a judgment for her debt and a foreclosure of her lien against Rotge, and the land was regularly sold under the judgment, and was bought by the Milmo National Bank for $4,-822, and a deed duly executed by the sheriff and duly recorded. A special warranty deed was made by the bank to Mrs. King on May 19, 1897, and was duly recorded. On July 18, 1913, Dimas F. Acebo and Joseph A. Ace-bo conveyed a one-half interest in the land to Mrs. King, the recited consideration being $4,500, and the deed was duly recorded.

Appellant showed that on September 1, 1891, about two years after he had executed the deed of trust to Mrs. King, Domingo Rotge executed a, deed to the same land, consisting of 1,044.86 acres, to Jose Acebo, which was duly recorded. That deed was made subject to a deed of trust in favor of Mrs. H. M. King for $3,000. Jose Acebo died, leaving a will bequeathing to'his wife, Annie K. Acebo, all of his estate. The will was duly probated; the widow being appointed independent executrix. On September 20, 1907, Mrs. Annie K. Acebo executed a deed, conveying to Joseph A. Acebo and Dimas F. Acebo the 1,044.86 acres of land conveyed by Rotge to Jose Acebo. In September, 1907, the last-named parties executed to W. H. Browne, appellant herein, a power of attorney giving him authority, in connection with the land in controversy, and providing for his compensation as follows:

“And we hereby authorize and empower the said Wm. H. Browne, for us and in our name, and ag our agent and attorney in fact, whenever and as often as in his judgment it may seem advisable, to employ counsel, and institute suit or suits for the protection of our interests and title in and to said property, or any part thereof, and also to institute any suit or suits that may be necessary or requisite against adverse claimants, if any, or to remove clouds, if any, from our title to same, or any part thereof, or to effect a partition, or to agree on -any amicable partition of said property, and to sign all necessary deeds, contracts, and instruments. He is hereby authorized to lease all or any part of said property, for such time, and on such terms, as he may desire. The said Wm. H. Browne is empowered for us and in our name, as our agent and attorney in fact, to sell all or any part of the aforesaid property, with or without general warranty of title and on' such terms as he deems best; we hereby giving and granting unto our said agent and attorney in fact the sole and exclusive right to sell our said interests, and to perform and exercise all the rights and powers that we, as owners, - might or could perform, if acting for ourselves, whether in making a sale thereof, or in making other disposition of the same, or doing anything else, or making any contract, in regard thereto. In consideration of the services rendered and to be rendered by the said Wm. H. Browne in effecting recovery of our said property, or selling or partitioning of same, or in otherwise representing and acting'for us, in the exercise of the powers herein granted, we hereby grant and give unto the said Wm. H. Browne, his heirs and assigns, one-half of the amount of land so recovered, and one-half of the proceeds of any and all sales that may hereafter be made, and one-half of all moneys recovered as damages, he to retain his said one-half and deliver the other one-half to us, our heirs or assigns.”

This suit was instituted by an attorney employed by appellants, and while the same was pending Joseph A. Acebo .and Dimas F. Acebo conveyed the land to Mrs. King. Appellant claims a half interest in the land or its value through the power of attorney.

When Rotge executed the deed of trust to Mrs. King, the legal title to the land remained in him, and was conveyed by him to Jose Acebo by his deed. A mortgage or' deed of trust is but a security for the debt; the title remaining in the mortgagor, subject to be divested by foreclosure. Wright v. Henderson, 12 Tex. 43; Pratt v. Godwin, 61 Tex. 331; Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; Wilkins v. Bryarly, 46 S. W. 266. The land ,was not sold by the trustee, but the instrument was treated as a mortgage and the lien given by it foreclosed. The judgment obtained by Mrs. King against Rotge, foreclosing her mortgage, did not affect the title acquired by Jose Acebo through the deed made by Rotge subsequent to the execution of the mortgage and prior to its foreclosure, and which deed was at once recorded. In order to divest the Acebos of their rights in the land, it was necessary to make them parties to the foreclosure proceedings. That was not done. Bradford v. Knowles, 86 Tex. 505, 25 S. W. 1117; Thompson v. Robinson, 93 Tex. 165, 54 S. W. 243, 77 Am. St. Rep. 843; Davis v. Lanier, 94 Tex. 455, 61 S. W. 385; Brown v. Cates, 99 Tex. 133, 87 S. W. 1149. It follows that, whatever title to the land, that the Acebos had when the mortgage was foreclosed, they retained afterwards. In other words, they held the legal title to the land before the foreclosure of the mortgage lien, and they held it afterwards unaffected by the foreclosure.

It appears from the statement of facts that Mrs. King pleaded limitation of three, five, and ten years in this case before the compromise ,was made and a deed executed to the land by the Acebos to Mrs. King. No effort was made by appellant to show that Mrs. King did not have title to the land by limitation, although it had been conveyed to her by the Milmo National Bank ten years before this suit was instituted. Appellant’s right to the land, if he had any, was dependent on proof that the title to the land was in the Acebos, for in the power of attorney nothing was conveyed to him except a part of what he might recover. If he had any right to recover at all, it would undoubtedly rest upon proof that the Acebos had not only the record title to the land, but that Mrs. King had not perfected title to the land under a recorded deed or by ten years’ adverse possession. Pie testified that the land was fenced, and that there had been a fence “there for years and years,” and that the fence belonged to Mrs. King. Appellant should have proved that he would have recovered the land, but for the compromise, and a good record title did not prove that fact. Undoubtedly ’ it was incumbent upon appellant to prove these facts, if he could recover the land at all upon his allegations.

There was no conveyance by the Acebos to appellant of a part of the land, but it was clearly stated in the power of attorney that he should have, in consideration of his services, “one-half of the amount of land so recovered, and one-half of the proceeds of any and all sales that may hereafter be made, and one-half of all moneys recovered as damages.” There was no conveyance of one-half of the land. It was an interest in the proceeds, and not in the land itself, that was conveyed. Where an agent is given authority to sue for land, or to sell it, and is to have a share out of the proceeds or the property recovered for his services, his powers are not coupled with an interest, and the authority may be revoked at the will of the principal, even though by the terms of the agreement it was declared to be exclusive and irrevocable. Mechem on Agency, § 580; Taylor v. Burns, 203 U. S. 120, 27 Sup. Ct. 40, 51 L. Ed. 116. In the case cited it was contended that the use of the word “sell,” in the power of attorney, showed a conveyance of the property Itself. The Supreme Court said:

“While it may be conceded that the meaning and scope of the instrument are not perfectly clear, yet it seems more reasonable to hold that it was simply a grant of authority to Taylor to ‘sell and negotiate’ the mines, and not also a transfer to him of the title to the property. As such an instrument it was subject to revocation. It. was not a power of attorney coupled with an interest. ‘By the phrase “coupled with an interest” is not meant an interest in the exorcise of the power, but an interest in the property on which the power is to operate.’ * * * Now, as we construe this contract, Taylor was to receive, in case he made a sale, sevon-eig'hths of the price in excess of $45,000 — that is, he was to be paid for making the sale. It was an interest in the exercise of the power, and not an interest in the property upon which the power was to operate.”

The language of the power of attorney showed that any benefits from the lands to appellant depended on the acts of appellant and .were matters of the future. There was no conveyance of the land. Taylor v. Taul, 88 Tex. 665, 32 S. W. 866.

Appellant, in his plea in intervention, does not claim that one-half of the land was conveyed to him, but—

“that under and by virtue of said power of attorney, and by his accepting the same and assuming and entering into and upon the discharge of the duties and obligations thereof, as herein-before shown, this intervener acquired an interest in the undivided one-half of all of said undivided land, sought to be recovered by plaintiffs in this suit. And plaintiffs were entitled to and would have recovered said lands from the defendant, Henrietta M. King, and thereupon this inter-vener would have been entitled to an undivided one-half of all of such lands or portions thereof which plaintiffs so recovered, and also an undivided one-half of all the rents of such lands.”

If one-half the land had been conveyed by the Acebos to appellant, his right to recover would not be affected by their deed to Mrs. King, and he could still recover the land from her. He does not allege or prove any claim against Mrs. King, but bases his claim on a breach of contract on the part of the Acebos. The suit was prosecuted by the Acebos in their own name, the allegations being that they owned the land, and in his plea appellant alleged that the suit was instituted to recover the land for the Acebos; that he had instituted the suit and was representing the interests of the Acebos. If he was entitled to anything, it was one-half of the amount received by the Acebos from Mrs. King. There is nothing in the pleadings or testimony that tends to fix any liability on Mrs. King. In his brief, appellant does not seek to recover a moneyed judgment against the Acebos on a quantum meruit for his services, nor for one-half of what they received for the land, but the only relief that he asks from this court is a judgment for one-half of the value of 1,044.86 acres of land, or the land itself, as against Mrs. King.

The cases cited by appellant, dealing with personal injury suits, based upon article 6833, Rev. Stats, of Texas, have no applicability to cases like the one now before this court. That article has no application to a cause of action on which suit has not been filed. Railway v. Wooten, 10 Tex. Civ. App. 54, 30 S. W. 684; Railway v. Miller, 21 Tex. Civ. App. 609, 53 S. W. 709; Railway v. Winton, 27 Tex. Civ. App. 503, 66 S. W. 480. Mrs. King had no actual notice of any rights that appellant had in connection with the land. He was not, so far as she knew, connected with the suit for the land, and unless the record of the power of attorney six years before the compromise was made was constructive notice, she had no notice of his connection with the land. He had made no demands upon Mrs. King for the land, and had no connection whatever with the suit, so far as was known to any one except the counsel he had employed, and counsel was to be paid toy the Acebos. If he had performed any service in connection with the land, or had any connection with the suit, the record of the power of attorney did not disclose it. A perusal of the power of attorney would not have disclosed to Mrs. King that appellant had instituted the suit or had any interest in it, and she was not called upon to inquire as to whether the Acebos had a right to sell their land. Appellant is not an attorney, and did not appear in the suit in any manner. There was no evidence tending to show that Mrs. King knew that appellant was prosecuting the suit. The record did not supply notice of that fact.

The opinions holding that defendants settling personal injury or death suits, with notice of assignment of a part of the chose in action, will be responsible to the attorney prosecuting the suit, on a compromise with the client, for his proportionate share of the amount of the compromise, are not applicable to this case. A chose in action is a right to damages, arising either from the commission of a tort, the omission of a duty, or the breach of a contract. A right or a suit for damages for personal injuries would be a chose in action, but a right to land would not be a chose in action. The chose in action is an intangible or incorporeal right and does not include a right to real estate. The transfer in this ease was not one of a chose in action, but of an interest in land to be recovered, or the money for which it might be sold. Cincinnati v. Hafer, 49 Ohio St. 60, 30 N. E. 197. "VVe have seen no case carrying the doctrine asserted by appellant to the extent of holding that a defendant would be liable for any part of a compromise sum to the assignee of an interest in the cause of action. None of them has ever been extended beyond choses in action. Railway v. Ginther, 30 Tex. Civ. App. 161, 70 S. W. 96, Id., 96 Tex. 295, 72 S. W. 166.

If, as contended by appellant, the Acebos had contracted not to compromise the lawsuit, such contract was against public policy and null and void. They had the absolute right to compromise the suit and make a conveyance of the land. If appellant had title to one-half of it, their conveyance did not affect it; and if he had merely a transfer of an interest in the cause of action, then his recourse is against the Acebos for his part of the money for which the land was sold, or for the value of the land. The sole and exclusive right to sell the property did not deprive the owners of the right to sell.

Much of the discussion herein might well have been pretermitted altogether, because the crucial point in the case is: Does the power of attorney absolutely convey to appellant one-half of the 1,044.86 acres of land, or was it merely a promise, in consideration of the performance of certain services, to convey the land to appellant upon the happening of certain events? If it was a conveyance of one-half of the land, appellant should have recovered; but if it was not, he should not have recovered. We conclude, as herein-before stated, that no land was conveyed by the power of attorney, and as appellant sought only to recover the land from Mrs. King he failed to make out a case against her. Appellant did not pray for a moneyed judgment against Mrs. King, and consequently any reference to that subject might have been omitted. He does not seek a judgment against the Acebos for half of the money received by them for the land, but in his pleadings, and in his brief prays for a recovery of one-half of the value of the 1,044.86 acres of land.

The judgment is affirmed.
      For other cases see same and In all and Indexes


author: HARPER, C. J.

text:
    NEEDHAM et al. v. ARNO CO-OP. IRR. CO.
    (No. 774.)
    (Court of Civil Appeals of Texas. El Paso.
    May 31, 1917.
    Rehearing Denied June 28, 1917.)
    1. Injunction <&wkey;122 — Petition—Verifica - tion — Sufficiency—Statute.
    In a suit to enjoin defendants from voting stock in an irrigation company and from holding stockholders’ meeting and from issuing and using minute books and stock certificates and company seal alleged to be fraudulent, where petition was amended and affidavit attached at the time of the granting of a temporary injunction, the verification was a sufficient compliance with the statute.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268.]
    2. Injunction <&wkey;>118(l) — Petition—Verification — Sufficiency—Statute.
    Allegations in the petition upon information and belief were sufficiently positive.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-232, 234.]
    3. Injunction <&wkey;118(l) — 1Temporary Injunction-Grounds.
    In view of article 4643, Rev. St. 1911, providing for a writ of temporary injunction to issue where, pending litigation, it should be made to appear that the party doing some act respecting the subject of litigation, or who is threatening or about to do some act, or is procuring or suffering the same to be done in violation of the rights of the applicant which .would tend to render judgment ineffectual, in suit to restrain defendants from acting as stockholders and conducting the affairs of an irrigation company, a petition alleging the pendency of suits, failure of defendants to comply -with a temporary injunction, and acts of the defendants which would render judgment ineffectual, together with exhibits, was sufficient as to affirmative and negative averments to be the basis of the writ of temporary injunction.
    [Ed. Note. — Por other cases, see Injunction, Gent. Dig. §§ 223-232, 234.]
    4. Pleading &wkey;>129(l) — Admissions — Allegations Not Controverted.
    Pacts alleged by the petition not controverted by the answer are to be taken as true on appeal.
    [Ed. Note. — Por other cases, see Pleading, Gent. Dig. §§ 270, 274, 275.]
    5. Appeal and Error <&wkey;447 — Effect of Appeal-Jurisdiction of District Court —
    Temporary Injunction.
    As the writ of injunction is auxiliary to the relief sought in the main suit, and cannot be maintained separately, the district court had jurisdiction to grant a writ of temporary injunction enjoining persons from voting shares of stock in an irrigation company, title to which was being litigated on appeal from the district court’s judgment.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig; § 2207.]
    Appeal from District Court, Reeves County; Chas. Gibbs, Judge.
    Suit for injunction ¡by the Arno Co-operative Irrigation Company against Leslie A. Needham and others. Prom an order granting a temporary injunction, the defendants appeal.
    Affirmed.
    See, also, 177 S. W, 991.
    Leslie A. Needham, of Chicago, Ill., and Spencer B. Pugh, of El Paso-, for appellants. Clay Cooke and Jno. B. Howard, both of Pecos, for appellee.
   HARPER, C. J.

This is an appeal from an order granting a temporary injunction in vacation restraining Leslie A. Needham and Spencer B. Pugh from voting certain stock in an irrigation company, from holding stockholders’ meetings, and from issuing and using minute books and stock certificates and company seal alleged to be fraudulent.

The petition recites: That the Arno Cooperative Irrigation Company is a private corporation under the laws of Texas; that John B. Howard is president and Clay Cooke is secretary; complain of Leslie A. Needham and Spencer B. Pugh; that in December, 1912, said Pugh and Needham, acting with John B. Dandridge and I. 0. Carroll, under a pretended ownership of 7,804 shares of capital stock of said corporation, took forcible possession of the irrigation system, elected themselves officers, without authority, caused fraudulent minute books to be prepared, a fraudulent seal and fraudulent stock certificate hook, and signed and executed sundry certificates of stock in said company, and, while pretending to be officers of said corporation, executed fraudulent deeds which purported to 'convey all the water rights of the irrigation company to said Dandridge and Pugh, and that said Dandridge and Pugh, in turn, pretended to convey same to the Trans Pecos Land & Irrigation Company, being a corporation organized by said parties; that by reason thereof the Arno Irrigation Company, joined by its officers and R. G. Werner, at the time alleged to be the owner of the 7,804 shares of stock, filed suit in the district court of Reeves county to recover possession of said system and to enjoin the said defendants from acting for the company, from interfering with its possession of the property, and from attempting to vote said 7,804 shares of stock; that in 1913 the said Trans Pecos Land & Irrigation Company,, joined by said Dandridge and Pugh, filed suit in the district court of Reeves county to recover of said Werner said shares of stock, which two suits were consolidated (a specific statement of the issues involved in said consolidated suits is to be found in 177 S. W. 991, opinion by this court); that upon the trial of the said consolidated causes the district court decreed that said Needham was not entitled to recover said stock, and the said Needham, Pugh, Dandridge, and Carroll were enjoined from controlling or voting it and from pretending to act as officers of the corporation; that, because said decree permitted said parties to retain possession of the system, the cause was appealed to the Court of Civil Appeals, Eighth District; that upon final hearing the latter court held the parties to .be entitled to all the relief prayed for, but reversed and remanded the cause, thereupon application for writ of error was filed with the Supreme Court upon the sole ground that the cause should have been rendered, and the writ was granted; that the said consolidated causes are pending in the Supreme Court of Texas; that the said Needham, Dandridge, Pugh, and Carroll, nor either of them, appealed nor filed any cross-assignments of error, and are therefore bound >by the decree of Court of Civil Appeals; that said Leslie A. Needham, as alleged trustee for the stockholders of the Trans Pecos Land & Irrigation Company, immediately instituted another suit in the district court of Reeves county, Tex., to recover said 7,804 shares of stock aforesaid; that said suit was by the defendant Werner removed by petition and bond duly filed to the honorable District Court of the United States for the Western District of Texas, and is now pending in said court at El Paso division ; that, notwithstanding said removal and the prior adjudication and determination of said rights, the said state court proceeded in said cause and rendered judgment in the Forty-First judicial district court of El Paso, Tex., on or about the 27th day of February, 1917, decreeing said 7,804 shares of stock to said Needham, but directing in said decree that upon the filing by said Robert G. Werner and Arno Co-operative Irrigation Company of a supersedeas bond in the sum of $15,000 said judgment be in all things superseded until the return of the mandate in said cause; that said supersedeas bond, in accordance with the order of said court, was filed in said cause on the 8th day of March, 1917, at about 8.30 o’clock a. m.; that there has been no motion to change this injunctive order, but in violation thereof the said defendant Needham issued notices, as owner of the said shares of stock, for a stockholders’ meeting as the owner of the said 7,804 shares, with the purpose of electing another set of oflicers for plaintiff company and to cause such oflicers to issue fraudulent certificates of stock, etc.; that the duly elected officers have possession of the genuine stock book, minute book, and seal; that the pretended election will result in forged certificates of stock, deeds to water rights, etc., to parties unacquainted with the facts, and will result in a multiplicity of suits against the company and its true stockholders, etc.; that the said acts will tend to render ineffective the final judgment of the Supreme Oourt of Texas in the consolidated cases, and also the final judgment of the Court of Civil Appeals or Supreme Court in the cause appealed from the Eorty-Eirst judicial district court. The prayer is:

“Wherefore, premises considered, the said Arno Co-operative Irrigation Company respectfully prays that this honorable court issue immediately its temporary injunction restraining said Needham individually and as alleged trustee and the said Spencer B. Pugh from voting or attempting to vote said 7,804 shares of stock in said Arno Co-operative Irrigation Company; from holding or attempting to hold any alleged stockholders’ or directors’ meeting of said company, and from using any seal, stock certificate book, or minutes of said company; from signing the Arno Company’s name to any instrument; from entering upon or interfering with the possession of said Arno Co-operative Irrigation Company’s system, or any of its property in Reeves county, Tex.; from pretending to act as officers of said company; that the said injunction remain in full force and effect until the return of the mandates in said consolidated causes aforesaid and in said suit in said Eorty-Eirst district court aforesaid, and until the further order of this honorable court.”

Affidavit as follows attached:

“The State of Texas, County of Midland.
“Before me, the undersigned authority, on this day personally appeared Clay Cooke, who, being first duly sworn, states on oath that the matters and things set forth in the foregoing petition are true, except as to such matters stated to be alleged on information and belief, and as to such matters he verily believes same to be true”

—with exhibits attached.

Notice was issued for the parties defendant to show cause why temporary injunction should not issue. They filed no answer. The court granted the injunction upon the filing by appellee of a bond in sum of $6,000, which was filed. Thereupon appellants perfected this appeal.

The first suggestion of error by appellant is that the petition when filed was not sworn to. The petition was amended, and affidavit attached as above noted, and it was so verified at the time the court granted the injunction. This is a sufficient compliance with the statute.

Second: “The court erred in granting the injunction because the allegations in the petition are not positive, but upon information and belief.” The allegations are sufficiently positive.

And in answer to the third the petition with its exhibits is sufficient as to affirmative and negative averments to be the basis of the writ prayed for.

Article 4643, Rev. St. 1911, provides for the writ to issue where—

“pending litigation it shall be made to appear that a party doing some act respecting the subject of litigation, or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant, which act would tend to render judgment ineffectual.”

It will be noted that the petition alleges (since not controverted by answer ai’e by us to be taken as true) that the consolidated suits now before the Supreme Court are to establish the right of the present trustees and officers to have possession of and manage the property of the corporation, the irrigation system; that the suit transferred to the United States court and to the Eorty-Eirst district court of Texas, now pending upon appeal in this court from the latter, was to try. the title' to the 7,804 shares of stock aforesaid and the right to vote them.

The notice of the stockholders’ meeting is:

“You will please take notice that a special meeting of the stockholders of the Arno Co-operative Irrigation Company wifi, be held at the office of said company at Arno, Reeves county, Tex., on Thursday, the 8th day of March, 1917, at the hour of 8 o’clock a. m., for the purpose of exercising corporate action in the following matters and things, and all matters appertaining or relating thereto, or necessary for the purpose of executing the same, to wit:
“(1) The calling to account, discharge, and removal of all directors, officers, employés, agents, and attorneys, either de jure or de facto, and any and all persons acting or claiming to act as such, or who may have heretofore acted or claimed to act as such, or to have been appointed or elected as such, and to. exercise such action under and by virtue of articles 30, 31, and 32 of the by-laws of the company, the intention being, in case of favorable action by the majority of the stockholders, to vacate all directoral position and other offices and employments as at present or heretofore constituted by any authority, with a view to a rehabilitation of management and control of said corporation.
“(2) The election of a new board of three directors to fill the vacancies thereby created and the transaction of any such business as shall be deemed necessary to carry into effect the action and purpose above specified.
“You are further notified, in case you are acting as or claim to hold any office or employment under the company, or have in your possession any books, papers, documents, or thing belonging to the company, to appear at said meeting and give an account of the same and to have there present any and all such books, papers, documents, or things.
“Signed and mailed at El Paso, Tex., this 2d day of March, 1917.
“Leslie A. Needham, Trustee.”

It seems clear that to permit these parties, during pendency of these suits, to take such action as is indicated or threatened in the above notice, would tend to render any judgment finally entered ineffectual. There is no pretense that this was an annual election provided for by statute.

The fourth is that the court had no jurisdiction to hear and determine the matters set up in the petition or to grant the injunction. As stated above, article 4643, R. S. Tex., authorizes an injunction in such cases. But appellants suggest that, a final judgment having been rendered, appeal perfected, and the term of court expired, the jurisdiction of the trial court over the subject-matter is gone. This is not an attempt to change any judgment or order of the court theretofore rendered, but is a petition in the same suits to protect the subject-matter of the suits. (The writ of injunction directed by the court in the consolidated cases would seem to be sufficient and now in force?) It has long been the rule in Texas that the writ of injunction is auxiliary to the relief sought in the main suit, and that two suits cannot be maintained, one for injunction, and the other for final relief. Brady v. Hancock, 17 Tex. 361. And since this writ enjoins the defendant Needham from voting the shares of stock, the title to which is being litigated in the other suit, the order for the writ in no sense changes any judgment or order theretofore entered. And this is not an application to enforce or protect this court’s appellate jurisdiction. Ellis v. Harrison, 24 Tex. Civ. App. 13, 56 S. W. 592, 57 S. W. 984. So the district court, and not this court, has jurisdiction to grant such writs.

The answer to the sixth and seventh, which charge that there was no evidence upon which to base the order, is that the allegations in the petition, not having been controverted, are taken to be true.

There are other assignments and propositions possibly not specifically passed upon by the above observations, but they have received our consideration, and are thought to be without merit.

Finding no error in the record, the cause is affirmed.
      iteoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: RASBURY, J.

text:
    NUNN et al. v. TITCHE-GOETTINGER CO.

    (No. 7796.)
    (Court of Civil Appeals of Texas. Dallas.
    June 9, 1917.
    Rehearing Denied June 30, 1917.)
    1.Creditors’ Suit <&wkey;22 — Jurisdiction— “Suit to Annul or Suspend Provisions op a Will.”
    A creditors’ suit to collect a judgment from income payable under a testamentary trust was not a “suit to annul or suspend the provisions of a will,” within the meaning of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3358, providing that such suits shall be brought before the court probating such will.
    [Ed. Note. — For other cases, see Creditors’ Suit, Cent. Dig. § 98.]
    2. Creditors’ Suit <&wkey;>22 — Jurisdiction— “Demand Against the Estate.”
    A creditors’ suit to collect a judgment from income payable under a testamentary trust was not one to establish a money demand against the estate within the meaning of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 6, providing that such a suit shall be brought in the county in which the estate is being administered, since it could not be such a proceeding unless the estate was liable for the demand or its liability charged. A “demand against the estate” would be some debt or obligation of the testator incurred in his lifetime or some enforceable debt or obligation of his representatives incurred subsequent to his death.
    [Ed. Note. — For other cases, see Creditors’ Suit, Cent. Dig. § 98.
    For other definitions, see Words and Phrases, First and Second Series, Demand Against Estate.]
    3. Wills <&wkey;674 — -Construction — Spendthrift Trust — “Use.”
    Where income under testamentary trust was made payable during beneficiary’s lifetime for her use and benefit, without further limitation, held not to be a spendthrift trust which would be exempt from the beneficiary’s debts; the word “use” without limitation meaning unrestricted use.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1585.
    For other definitions, see Words and Phrases, First and Second Series, Use.]
    4. Wills &wkey;>674 — Construction — Distinction Between “Spendthrift Trust” and “Ordinary Trust.”
    Whenever it appears from any instrument, directing payment to or application of property, a portion thereof or income therefrom to the benefit of another, either expressly or impliedly to have been .the intention of the creator of a trust that the interest of the beneficiary should not be subject to creditors’ claims, such interest is exempt as a spendthrift trust, but, if the creator fails to exempt the interest, it necessarily occupies the status of an ordinary trust.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1585.
    For other definitions, see Words and Phrases, First and Second Series, Spendthrift Trust.]
    5. Wills &wkey;>487(3) — -Construction — Admission of Evidence — Testator’s Declarations — General Rule.
    Parol evidence to explain a testamentary provision should be confined to facts and circumstances which illuminate or discover the meaning attached by testator to the words actually used, but are not admissible where the testator’s intention is clearly expressed, since, like other instruments, a will may not be contradicted or varied by parol contemporaneous evidence.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1027.1
    6. Wills &wkey;>487(5) — Construction of Trust — Admission of Evidence — Testator’s Declarations.
    Where an alleged spendthrift trust was complete and unambiguous, testator’s explanatory declarations held inadmissible where they tended to establish the fact, if anything, that the testator did not intend that which he did express.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1030.1
    7. Wills <&wkey;487(5) — CONSTRUCTION oar Trust —Admission or Evidence — Beneficiary’s Debts.
    In construing an alleged spendthrift trust, evidence of the beneficiary’s debts at the time of trial, admissible if at all on the issue of the testator’s intention, was properly excluded.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 1030.]
    Appeal from District Court, Dallas County? W. F. Whitehurst, Judge.
    Creditors’ bill by the Titehe-Goettinger Company against W. G. Nunn and others. Decree for plaintiff, and defendants appeal.
    Affirmed.
    Cunningham & McMahon, of Bonham, for appellants. Alex F. Weisberg and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   RASBURY, J.

This proceeding is a creditors’ bill filed by appellee in the court below. The purpose is to subject a fund accruing to appellant Mrs. W. C. Maloney under the will of C. W. T. Weldon, her father, to the satisfaction of a judgment secured by appellee against Mrs. Maloney. It was alleged that Mrs. Maloney had no other assets, and that the fund so accruing to her could not be reached by ordinary processes or remedies. W. B. Weldon, W. G. Nunn, and C. H. Weldon, independent executors under the will of C. W. T. Weldon, and trustees of the property from which the fund accruing to Mrs. Ma-loney arose, were parties to the suit, and are appellants here. The exceptions and defenses to the proceeding are reflected in the issues presented on appeal, and for that reason will not be particularized in this statement. Trial was had before the district judge, resulting in a decree directing the appellants, the executors and trustees, to pay appellee’s judgment at stated periods out of the funds accruing to appellant, Mrs. Ma-loney, and awarding costs against appellants. From such decree this appeal is prosecuted.

The facts developed at trial are these: The will of O. W. T. Weldon was admitted to probate in the county court of Fannin county, July 23, 1908. The will provides for the payment of the testator’s debts and for certain legacies for his wife and daughter, Nannie S. Bleakney, after which the residue of the estate is directed by the testator to be divided into four equal portions, one portion being bequeathed to his daughter, Mrs. Sallie T. Nunn, one to his son, W. E. Weldon, one to his son, O. H. Weldon, and one to W. G. Nunn, W. E. Weldon, and G. H. Weldon, his executors, “in trust for the use and benefit of my daughter, Lucy Y. Maloney, wife of W. 0. Malo-ney,” with the provision “that the interest and revenue from same only be paid and delivered to my said daughter during her lifetime.” In event of death of Mrs. Maloney before her youngest child shall have attained his or her majority, the trustees are required to pay the revenue accruing to Mrs. Maloney in like manner to her children until the youngest shall have attained his or her majority, at which time the corpus of the share held by the trustees shall be distributed equally between such children. Full authority is conferred upon the trustees and their survivors to manage and control the property for the purposes indicated. The executors took possession of the estate and administered same in their dual capacity, substantially according to the testator’s will. Prior to the commencement of the instant proceeding appellee was awarded judgment against appellant Mrs. Maloney for $731.37, with interest, upon which execution had been issued and returned unsatisfied. The debt merged into the judgment was for wearing apparel, furniture, etc., and in part for a trousseau for Mrs. Maloney’s daughter. At trial it was admitted that Mrs. Maloney was a resident of Dallas county, and that the only property she had was the revenue from that portion of her father’s estate held by said trustees, who were residents of Fannin county, and that her average annual income from that source was $2,642.25, in addition to which she had the free use and occupancy of a home. Mrs. Maloney at the time of the trial was a widow aged 57 years, and was indulgent, and, if not a spendthrift, quite improvident. Her family consisted of herself, an invalid daughter 32 years of age, addicted to the drug habit, in consequence of which it was and is necessary for her to receive medical treatment in sanitariums, where her mother has placed her from time to time at great expense, and a son 20 years of age and in delicate health, and who has never earned anything with which to maintain himself.

The first and second assignments of error challenge the jurisdiction of the trial’court over the subject-matter of the suit In support of their contention appellants rely upon subdivision 6 of article 1830, Vernon’s Sayles’ Civil Statutes, prescribing the venue of suits, which declares that in suits against an executor, administrator, or guardian, as such, to establish a money demand against the estate which he represents, same must be brought in the county in which the estate is being administered, and upon article 3358, Id., which declares, in substance, that proceedings to annul or suspend the provisions of a will shall be before the court probating same. The inquiry then is: Is the purpose of this proceeding one of those enumerated in the articles quoted?

Incidentally it is so clear that this suit is not one to annul or suspend the provisions of the testator’s will, since its validity, execution, and probate is not challenged, we may dismiss all discussion relating to tlie application of article 3358.

Resuming, then, the purpose sought in this suit is to subject the money which Mrs. Maloney receives from the estate held by the trustees to the payment of her debt. ’ Then can that purpose be said to be, in contemplation of subdivision 6 of article 1830, a proceeding to establish a money demand against the estate? We believe not. In strictness, it could not be such a proceeding unless the estate was liable for the demand, or its liability charged. A demand against the estate ordinarily would be some debt or obligation of the testator incurred in his lifetime or some enforceable debt or obligation of his representatives incurred subsequent to the testator’s death. Literally in this case there is no demand sought to be established against any one. In fact, the claim or demand of ap-pellee as it originally existed has ceased to be a demand in the sense used in subdivision 6, since it is a judgment against appellant, and no claim that the said C. W. T. Weldon before his death, or his representatives thereafter, in law became bound therefor. Further, the effect of the judgment is not to establish a demand or liability against the estate. According to the judgment, the most comprehensive meaning deducible from the language used is, at most, a direction to the trustees to pay to appellee its judgment against Mrs. Maloney out of the income accruing to her from her father’s estate in the manner stated and establishing against said income an equitable lien until such judgment is paid. Such being the purpose of the suit, and the decree so adjudging, and Mrs. Ma-loney being a resident of Dallas county when the proceeding was commenced, the district court did have jurisdiction of the subject-matter. We have found no ease in point, nor have we been cited one. Counsel for ap-pellee do cite, however, the case of Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929, which is persuasive in that it holds in effect, that when the suit is not one to establish a demand against the estate, but, as shown in that case, one to construe a will, the suit may be brought in any county having jurisdiction on grounds of residence of some of the parties.

The third assignment of error complains of the action of the court in overruling appellants’ general demurrer leveled against appellee’s petition. The petition discloses that part of C. W. T. Weldon’s will whereby he placed in the hands of the trustees for the use and benefit of Mrs. Maloney during her lifetime one-fourth of the residue of his estate. It was maintained by appellants on presentation of the demurrer, and the point is urged now, that such disposition of Weldon’s estate constituted prima facie a spendthrift trust, the proceeds arising from which were exempt from any application to the payment of Mrs. Maloney’s, the beneficiary’s, debts. The will provided no more than we have stated, which, to repeat, was that the trustees were to receive and hold the property in trust for the “use and benefit” of Mrs. Maloney. That use and benefit was declared by the will to be her right to have and receive for her use the income and revenue arising therefrom. It occurs to us that the bare direction to the trustees to pay the income of the property to Mrs. Maloney for her use is insufficient to create a spendthrift trust.

Using, in substance, the language of another, whenever it appears from any given instrument, directing the payment to or the application of property, a portion thereof, or the imcome therefrom to the benefit of another, expressly or by implication, in the light of all the circumstances, to have been the intention of the creator of the trust that the interest of the beneficiary should not be subject to the claims of creditors, such interest is exempt. 39 Oyc. 240. Some jurisdictions do not recognize the right by such mode to limit the liability of property or income for the debts of the beneficiary, but this jurisdiction does. Gamble v. Dabney, 20 Tex. 69; Wallace v. Campbell, 53 Tex. 229; Patten v. Herring, 9 Tex. Civ. App. 640, 29 S. W. 388; McClelland v. McClelland, 37 S. W. 350; Herring v. Patten, 18 Tex. Civ. App. 147, 44 S. W. 50; Wood v. McClelland, 53 S. W. 381. Regarded in the light of the definition cited above, the element vitally essential to create a spendthrift trust is absent from that provision of Weldon’s will we are considering; that is to say, there is no express declaration in the will that the income accruing to Mrs. Maloney shall be exempt from liability for her debts. The difference, we apprehend, between an ordinary and a spendthrift trust is in the main that by the latter the beneficiary takes the property, interest, or income free from liability for his debt. If the creator fails to exempt the interest, then there is not a spendthrift trust, and the interest conferred necessarily occupies the status of other property acquired in any of the various ways by which it may be acquired. Neither can it be implied or inferred, as argued by appellants, from the language used that it was the intention of Weldon to exempt the interest conferred. As we have said, the sum of the testator’s directions was that the income from tire property should be paid to Mrs. 'Maloney for her “use.” All property, however, acquired by one is for that one’s use, and in the absence of restrictions in its acquisition the use contemplated is unrestricted use. In the cases supra from our own courts, some of which are relied upon by appellants, it will be found upon examination that the creator of the trust either expressly exempted the interest or used words reasonably implying an intention to restrict the use of the property or income to a designated purpose, such as support and maintenance, or to supply the comforts and necessities of the beneficiary. The use of such words affords a basis for the implication or inference that the interest conferred was to be restricted to that use, and hence exempted from any other which could not be implied in case of total absence of such language. For such reasons we conclude that the will did not prima facie create a spendthrift trust, and that the court did not err in overruling appellants’ general demurrer.

The third and fourth assignments complain of the action of the court in excluding testimony. Appellants offered to prove by the witness Myrick that C. W. T. Weldon in his lifetime declared that he limited the amount to be received by Mrs. Maloney under his will because she was a spendthrift. Appellants also offered in evidence a list of debts aggregating $1,620.60 owing by Mrs. Maloney. In both instances the court excluded the evidence. Appellants contend that the evidence of Myrick was admissible as tending to show the intention of the testator in limiting Mrs. Maloney to the use only of the income from the trust property.

The rule in such matters was announced in the early case of Hunt v. White, 24 Tex. 643. There it was said, in substance, that the situation of the testator in relation to persons and things around him could be shown by parol evidence in order that the provisions of his will might be read and explained in the light thereof, but that, since the provisions of a will, like other written instruments, may not be contradicted or varied by parol contemporaneous evidence, and the intention of the testator was to be ascertained from the meaning of the words used in the will, such parol testimony should be confined to those facts and circumstances which would illuminate and discover the meaning attached by the testator to the words actually used.

By the rule so stated the inquiry here then is: Did the parol testimony excluded by the court tend to ascertain or discover the meaning attached by Weldon to the language used by him in conferring the interest in his estate he did confer upon Mrs. Maloney? We conclude it did not. First, it may be said that the will itself discloses a completed purpose and fixed intention to bequeath to Mrs. Maloney for life the income only from the property placed with the trustees, since the language used is unambiguous, being neither doubtful nor uncertain, and the use of the interest conferred is free, full, and unrestricted. The evidence offered would have tended to establish the fact, if anything, that the testator did not intend that which he did express. In short, the tendency of the testimony would be, not to ascertain the intention gathered from the language used in the will, but rather to add to that used other language tending to establish a different intention; or, to be exact, the evidence would have had the effect of establishing limitation upon the free and unrestricted use of the income provided for in the will. Incidentally we think the right of appellee to subject the income to its debt is dependent upon whether the testator intended to restrict the use thereof by Mrs. Maloney. In such connection there is nothing in Weldon’s will directing the particular use to be made of the income or any provision placing upon the trustees the duty and responsibility of applying same to any particular use for the benefit of Mrs. Maloney, as is the case in many such trusts. We therefore conclude that the admission of the testimony offered would have tended not to explain the intention of the testator by the use of language actually employed, but to have changed the legal import of such language and was hence properly excluded.

The evidence of Mrs. Maloney’s debts at the time of trial, if admissible at all on the issue of the testator’s intention, was under our conclusions above also properly excluded.

The sixth assignment is ruled by our conclusions in' reference to the third and fourth assignments. The seventh becomes immaterial thereunder, while the eighth, ninth, and tenth present in another way issues already discussed, and accordingly all are overruled.

The judgment is affirmed.
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