text:
    NOWLIN v. STATE.
    (No. 3494.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Burglary <&wkey;38 — Evidence — Possession or Goods.
    In prosecution for the burglary of a box car, testimony of officers who searched defendant’s house that they found in his trunk two shirts identified as those stolen, that he denied that they were his, and claimed that they had been bought by his brother-in-law, that his sister in his presence denied that, and stated that defendant had brought them there, and that defendant made no reply to her statement, was admissible.
    [Ed. Note. — Eor other cases, see Burglary, Cent. Dig. § 91; Dec. Dig. <&wkey;38J
    2. Criminal Law <&wkey;742, 743 — Question 3?ob Jury — Credibility of Witnesses.
    In a prosecution for burglary, the credibility of defendant and of the officers testifying against him held for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1722; Dec. Dig. &wkey;742, 743.]
    3.Criminal Law <&wkey;510 — Testimony of Accomplice-Corroboration.
    In a prosecution for the burglary of a box car and the taking of certain clothes therefrom, where the testimony of an accomplice that he and defendant had previously broken into a car and taken certain clothes was introduced to show the system of the offenses, the state, by other than accomplice evidence, should have identified the articles taken on the former breaking.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124^-1120; Dec. Dig. &wkey;> 510.]
    4. Criminal Law <&wkey;819 — Trial — Withdrawal 03? Instructions.
    Under Code Or. Proc. 1911, art. 737a, added by Acts 33d Leg. c. 138, requiring the court to deliver his charge before the argument, and in view of the purpose of the article which changed the previous law under which the court was required to charge after the argument, the court, if convinced that an erroneous charge against accused has been given,'may withdraw and correct it before the verdict.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1992; Dec. Dig. <S&wkey;819.]
    5. Criminal Law <&wkey;699 — Trial — Change in Charge — Right to Argue.
    Whore the defendant in good faith desired to argue the matter after the court had withdrawn part of its charge delivered before the argument and substituted a different charge, the denial of a reasonable time for such argument deprived defendant of a valuable right, and was prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1655, 1656; Dec. Dig. <S=> 699.]
    6. Criminal Law <&wkey;763, 704 — Instructions —Weight of Evidence.
    In a prosecution for the burglary of a box car, a charge that the evidence tending to connect defendant with another and previous burglary of a car could only be considered on the issue of whether defendant’s explanation of his possession of stolen goods was true, and that defendant could not be convicted of the breaking of any other car than that charged, was erroneous, as being a charge on the weight- of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. &wkey;>763, 764.]
    7. Criminal Law <&wkey;372 — Evidence—Other Offenses.
    In a prosecution for the burglary of a box car, where defendant claimed that certain clothing found at his' house had been bought by him from a certain named person, evidence that such clothing had been taken by defendant and another on another and previous breaking of a car was admissible to rebut the defense, though evidence of other independent crimes is ordinarily inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. &wkey;> 372.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Tom Nowlin was convicted of burglary of a box car, and he appeals.
    Reversed and remanded.
    Chas. E. Witt, of Ft. Worth, and Chas. B. Braun and Witt & Saunders, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the burglary of a box car.

The uncontroverted testimony shows that on the night of August 16, 1914, a box car in charge of the agent of one of the railroads running into Waco was burglarized and a large amount of merchandise stolen out of it at the time. Some of said merchandise was found in and above the ceiling of the building of the railroad company, used by appellant and other employes. Also others of the goods were found in another place. M. L. De Lay, who, by his own testimony, was one of the participants in the burglary and theft, testified that appellant was one of the parties who was also guilty of the burglary and theft. Appellant testified. He did not deny that a burglary of said car and theft of goods therefrom had been committed, but he denied any participancy whatever therein or any knowledge thereof, and testified that he was not at said burglarized car at the time it was burglarized, nor had anything to do with it, but was at another location in the yards of the company at the time, and he also introduced another witness Brun, whose testimony tended to show the same thing. It thereupon became important for the state to introduce other evidence than that of the confessed participant De Lay to show that appellant was present and participated in the burglary and theft from said-car, and corroborate De Lay.

S. S. Fleming, the sheriff and his deputy, Lee Jenkins, both testified, in substance, that soon after the burglary they were informed of it and began an investigation to find the stolen goods and to ascertain the guilty parties; that they went to appellant’s home, found him there, and searched his house; that they found in his and his brother-in-law’s trunk, among others, two shirts which were amply identified as two of the shirts stolen from said burglarized car. They also found there, in appellant’s possession, a certain coat which was produced and identified on the trial. Said officers further testified that, when they found said two shirts in appellant’s trunk, he at first denied that they were his, claiming that they were his hrother-in-law’s, who had bought them. This occurred in the presence of appellant’s sister, and she, in his presence, denied this, and stated that he (appellant) had brought them there, and that they were not her husband’s. Appellant made no reply to this. The officers, on the trial, produced and identified the shirts they claimed they got out of appellant’s trunk. Appellant, in his testimony, denied that they had gotten these, and himself produced others and identified them, claiming those he produced, and not those produced by the officers, were those they got out of his trunk. All this testimony by the officers was admissible and pertinent, even though appellant, on the trial, denied that the two shirts the officers identified were those taken by them out of his trunk, and swore that he had never seen them or had them in his possession.

The question of whether he or the officers were correct was a question for the jury.

After appellant himself testified that he did not participate in said burglary of August 16th and had nothing to do with it, etc., and had his witness Brun to testify, as stated, the state then in rebuttal reintroduced De Lay, who, in effect, testified that on the night of July 31, 1914, he and appellant at night burglarized another car in said same railroad yard and took therefrom certain men’s clothing; that they took these clothes that night to the house of a negro, Walter Jones, and his wife, Josie, and left them there till next morning. Walter and Josie Jones both, in substance, testified, corroborating De Lay about he and appellant bringing said clothes to and leaving them in their house that night; that the next morning appellant came to their house with a large suit case, got all the clothes, except one pair of pants, which Nowlin gave to Walter Jones. De Lay further testified that appellant sent the suit case with the clothes in it by another negro to him, directed that he get out the clothes he (De Lay) wanted, and waited across the street in sight for this to be done; that De Lay took out the clothes he wanted, and the negro took the others in the suit case back to Nowlin. The officers got said pair of pants from Walter Jones, and they were produced and identified on the trial of this case. The state claimed that said coat the officers found in appellant’s possession at the time they searched his house was one of the articles stolen out of said car on July 31st. The circumstances might probably show this. At least, they so tended. ’ The officers testified that, when they found this coat at appellant’s house, he claimed he had bought it from Mr. Loch-ridge. He denied in his testimony that he so told the officers, but said he told them that he bought it from Mr. Burnett. The state introduced Mr. Lochridge’s clerk (Loch-ridge himself being out of the state at the time of the trial), who testified that said coat did not come from Loehridge’s stock. Mr. Burnett testified in substance that he had not sold said coat to appellant.

The state introduced no other testimony than that of De Lay, except perhaps some circumstances that said car was burglarized on the night of July 31st, nor that either or both said coat and pants were stolen from it at the time. If this be true, the state should have proven it by testimony, in addition to that of De Lay, to corroborate him at least, and to identify said coat and pants as stolen therefrom.

All this testimony about the burglary of said car on July 81st, and that appellant and De Lay took some of the stolen articles to the house of said negro and left them there and subsequently got them, and all about the pants left with the negro, and the said coat found in appellant’s possession, was admitted over appellant’s obj'ections. He contends that it was about a separate and distinct crime committed at a different time, and was wholly inadmissible in this case for any purpose. At the time the court admitted it, the state claimed that it was admissible for the purpose of showing system, and the court admitted it on that theory.

When the court prepared Ms charge, he, in effect, told the j'ury that he admitted said testimony “to establish the identity in developing the res gestae and system of the alleged offense, or to prove the guilt of the accused by circumstances connected with the burglary charged, or to show intent, etc.,” and that the jury could consider it for those purposes only. In accordance with the statute, when the judge prepared his charge, he gave it to appellant’s attorneys to make objections thereto, if any they had. Appellant’s attorneys then objected to said charge for various reasons. It seems the court still adhered to the charge and made no change therein upon appellant’s objections thereto, and, as thus prepared, read it to the jury. The attorneys for both sides then argued the case and completed their argument. After this, the court, it seems, concluded that he had made a mistake on this point in his charge and had permitted the jury thereby to consider said testimony for improper purposes. Thereupon he took out that charge, told the jury not to consider it, and substituted in place of it this charge:

“In this case there has been admitted in evidence facts which you may find tend to connect the defendant with the burglarious entry of a railroad car, other than that alleged in the indictment, and at a time prior to that alleged in the indictment, and you are instructed that you cap only consider such testimony for the purpose for which it was admitted, wMch is the defendant accounted for his possession of certain property found in his possession in a manner consistent with his innocence. The evidence as to a prior burglary was admitted before you for the sole purpose of showing whether or not his explanation of his possession was true, and you will not consider said evidence for any other purpose whatevei-. And, in this connection, you are instructed that the railroad car charged in the indictment to have been entered is identified by the evidence as H. & T. 0. car No. 11213, and you cannot convict the defendant and return a verdict of guilty for an entry of any other car, though you might find and conclude from the evidence that defendant committed the offense of burglary on another and different occasion.”

When the court did this, appellant objected, claiming that it was on the weight of the evidence in several particulars, specifying them, and that there was no evidence, other than that of said accomplice De Lay, which shows or tends to show the burglarious entry of any car on the night of July 31st. And he specially excepted to it further that at that stage of the trial the court could not further charge the jury at all, but if the court, notwithstanding his objections, at that time would so change his charge, they demanded the privilege of arguing that feature of the matter before the jury. The court inquired how long they wanted to argue that point. The attorneys replied they wanted rather a long time. E. E. Witt and W. R. Saunders were law partners at the time. Mr. E. E. Witt had not participated in the trial, but Charles E. Witt and Mr. Saunders, as attorneys for appellant, had conducted the trial. Mr. E. E. Witt happened in the courtroom at the time when this matter was before the judge. The judge refused to permit either of the attorneys who participated in the trial to argue the point, but offered to let Mr. E. B. Witt do so. Mr. E. E. Witt declined to make any argument at all, because he had not been engaged in the trial.

The inference can well be drawn from all that occurred that appellant’s attorneys in arguing his case before the jury in this particular may have tended to convince the court and jury that the said charge he had given was inapplicable, and that the said testimony was not admissible for the purposes the judge had expressly stated it was in his charge; but whether the attorneys’ argument so convinced him or not, at any rate, at that late time he changed his opinion and charge and restricted the jury to the consideration of it for a purpose entirely different from what he had originally charged.

Before the act of April 5, 1913 (Acts 33d Leg c. 138), amending articles 735, 737, and 743, and adding article 737a to our Criminal Procedure, the statute required the judge to deliver -his charge to the jury after all the argument was concluded. These articles now require the judge to deliver his charge before the argument; and, if article 737a is to be literally construed, the court has no right over appellant’s objection to change his charge or give any additional charge, in any contingency after the argument has been concluded, except those mentioned in this article. But we believe that taking all of our statutes and previous decisions into consideration, and the purpose and object of the Legislature in making the changes by said act of 1913, said article 737a should not be construed to prohibit the court absolutely under all circumstances from changing or adding to his charge. For instance, if the court should become convinced that an erroneous charge against the accused had been given, he should not be precluded from withdrawing it and correcting the matter before the verdict. Otherwise, trials in some instances would be mere farces, for, when the jury returned a verdict of guilty under such an erroneous charge, the court would be under the necessity of at once setting the verdict aside and retrying the whole case. Taking this case as an illustration, we think it clear that the court’s first charge on this subject was erroneous and against appellant. The court ought, in a proper way, to have corrected the matter.

However, we conclude from the whole record that appellant in good faith desired to argue the question when the court changed his charge, and he was deprived of a valuable right, prejudicial to him by not being permitted to do so. The court could reasonably regulate the time allowed for such argument. He need not have given the appellant’s attorneys a very long time, but he should have given them a reasonable time.

Besides this, we think the said charge given was upon the weight of the evidence in substantially the particulars specified by appellant at the time. For these errors the judgment must be reversed.

The rule that independent crimes by an accused are ordinarily inadmissible is too well established to need discussion. Bowman v. State, 70 Tex. Cr. R. 22, 155 S. W. 940, where some of the cases are collated. But it is as' equally well established that there are certain exceptions to this rule which are as well settled as the rule itself. Mr. Wharton, in his Criminal Evidence, vol. 1, § 31, states these exceptions. They have been approved and copied time and again in the decisions of this court. Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 60. Among them, stated by Mr Wharton, are: (8) To rebut special defenses. If, on another trial, the state should introduce proof in addition to De Lay’s evidence to show that said car was burglarized on the night of July 31st, and said pair of pants, claimed to have been delivered by appellant to the negro Walter Jones, and the said coat the officers claimed they found in appellant’s possession, are reasonably identified as a part of the property stolen out of said car on July 31st, then it is our opinion that the court should admit in evidence the said testimony about the burglary of said car and the goods taken therefrom on July 31st, which was objected to-by appellant, and we think the evidence in that event would he admissible for the purpose above specified. However, if that proof is not made, then the court should exclude all of said evidence admitted on this trial about the burglary of said car on July 31st. Wyatt v. State, 55 Tex. Cr. R. 74, 114 S. W. 812; Wright v. State, 56 Tex. Cr. R. 357, 120 S. W. 458; Hall v. State, 31 Tex. Cr. R. 566, 21 S. W. 368; Wharton, Cr. Ev. § 41; People v. Cunningham, 66 Cal. 668, 4 Pac. 1144, 6 Pac. 700, 846.

We deem it unnecessary to discuss any other question raised. We think, no other error is pointed out.

The judgment is reversed, and the cause remanded.
      <&wkey;For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON; J.

license: Public Domain

text:
    DAVIS v. STATE.
    (No. 3520.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.)
    Criminal Law <&wkey;7S9 — Instructions—Reasonable Doubt — Unlawfully Carrying Weapons.
    Where accused, charged with carrying a pistol, claimed that he borrowed the pistol as he was leaving town after having a difficulty with a third person, and that while en route to his wagon to go home he met the third person and the difficulty was resumed', a charge that before the jury could give accused the benefit of his defensive matter they must find beyond a reasonable doubt that he had a legal right to carry the pistol was erroneous, for the reasonable doubt was in his favor as he could borrow the pistol and carry it home, and if after borrowing it he was en route to his wagon to go home, the mere fact that he had a difficulty did not affect his right.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dee. Dig. &wkey;789.]
    Appeal from Madison County Court; Joe E. Webb, Judge.
    J. W. Davis was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON; J.

Appellant was convicted of unlawfully carrying a pistol, his punishment being assessed at a fine of $100.

Briefly stated, the record shows that appellant and Frank Blair were neighbors, and had had some trouble with reference to stock of appellant depredating upon the land or property of Blair. On the day that appellant is charged with having carried the pistol, they met in town, and trouble arose between them. There had been previous trouble. Davis borrowed a pistol, and claims that he was leaving the place where he borrowed the pistol, having it on his person, en route to his wagon to go home, when he met Blair. Blair contends that Davis was in the wrong about the trouble that ensued, and Davis insists that Blair was in the wrong. Davis had on the pistol at the time, and Biair had a knife. A personal difficulty arose and two shots were fired by Davis, and Davis was cut by Blair. The meeting was accidental at the time of the difficulty. It is-unnecessary to discuss which was in the wrong, as the issue was presented from both viewpoints.

The court charged the jury that if they should find that appellant had the pistol, and that at the time had reasonable ground for fearing an unlawful attack upon his person, and they should further find that the danger was so imminent and threatening as not to admit of the arrest of the person about to make such attack, upon legal process, then he would not be guilty of carrying the pistol, and it was for the jury to determine whether the fear of an unlawful attack was reasonable, and whether the danger was so imminent and threatening as not to admit of the arrest of the party about to make such attack upon legal process. Of course, if Blair was attacking appellant with an opened knife, the danger was threatening and imminent, but if Davis was the attacking party then the question of self-defense would not be in the case. There is no objection, however, to this part of the charge, but the court gave this instruction:

“You are instructed, if you believe from the evidence beyond a reasonable doubt that the defendant had a legal right in accordance with the-law herein given and from the evidence then in connection therewith, the law does not take-that right away because the defendant stops on his way home and demands an explanation which: leads up to a difficulty.”

Again the court charged the jury:

“You are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant borrowed said pistol for the purpose of carrying it home and without the intent of making an attack on any one- or engaging in a difficulty, even though he-should have later engaged in a difficulty and discharged said pistol while on the way to his wagon though the defendant did not go the most direct route to his wagon, you will find the defendant not guilty.”

If for no other reason, these charges are-both wrong because they place the burden on the defendant, and this beyond a reasonable doubt. Before the jury could give appellant the benefit of his defensive matter, the jury would have to find under these charges beyond a reasonable doubt that appellant had the legal right to do the things upon which he relied. This is not the law. The reasonable doubt is in favor of the defendant, and not against hi.m. Appellant had the right to borrow the pistol and carry it home, and, if after borrowing it he was en route to his-wagon to go home, he had not violated any law, and the mere fact that he engaged in a. difficulty would not change his right to carry the pistol home. Of course, if he borrowed the pistol and went around town hunting his-antagonist for the purpose of shooting him, we would have a different case entirely, but the court charged he must prove the defensive issués beyond a reasonable doubt. Again, there was a special charge asked by the county attorney, which was given. We deem it unnecessary to repeat it. Upon another trial if this phase of the law is given, it should not be upon the weight of the evidence, which we think the county attorney’s charge was.

'The judgment is reversed, and the cause remanded.
      ©soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    HARRISON v. STATE.
    (No. 3498.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    Appeal from District Court, McLennan County: Richard I. Munroe, Judge.
    George Harrison was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This appeal is prosecuted from a conviction for manslaughter.

There is neither a bill of exceptions, nor a statement of facts. In the absence of these, no question is raised which can be reviewed.

The judgment is affirmed.


author: HARPER, J.

text:
    GORDON v. STATE.
    (No. 3489.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    William Gordon was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at four years’ confinement in the btate penitentiary.

In the absence of a statement of facts, "or any bill of exceptions, there is no ground in the motion for a new trial we can review.

The judgment is affirmed.


text:
    EAST v. STATE.
    (No. 3491.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    Appeal from Lampasas County Court; J: Tom Higgins, Judge.
    Leonard East was convicted of embezzlement, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State. ■
   PRENDERGAST, P. J.

Appellant was indicted by the grand jury of Lapipasas county for embezzlement.

The indictment contains six distinct counts, evidently presenting the same matter in the different counts, so as to meet what the evidence would be. Appellant made six motions, one each to quash the said respective counts. It seems the court sustained two of them, and quashed two counts, but overruled his motions to quash each of the others.

We think it unnecessary to state the counts and the grounds of his motions. The several counts sustained are strictly in accordance with the statute and with the standard forms for indictments prescribed by both Judge White and Judge Willson.

The orders by-the district court,' showing the filing of the indictment therein and the transferring of the case from the district to the county court, were regular and without any substantial defect. So that appellant’s motion, as he. terms -it, “to dismiss the case,” was without merit. ’

There is no statement of facts or bill of exceptions in the record. No other question is raised, in the absence of these, which can be reviewed.

The judgment is affirmed.


author: HALL, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. CATOR.
    (No. 751.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1915.
    Rehearing Denied April 24, 1915.)
    1. Appeal and Error &wkey;>282 — Pbesentation . Below —Motion poe New Teial — Necessity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914,1 art. 1991, providing what shall be sufficient to preserve for review exceptions to the conclusions of law or judgment of the court, a party-appealing from the judgment rendered by the court without a jury need not file a motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. 282.]
    2. Appeal and Error &wkey;?282 — Presentation foe Review — Fundamental Errors.
    Where a party, appealing from a judgment rendered by the court without a jury, has failed to move for a new trial, only fundamental errors will be considered, unless he has excepted to the judgment and caused the trial judge to file findings of fact and conclusion of law, or brought up a statement of facts in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. <&wkey;> 282.]
    3. Corporations <&wkey;80 — Stock Subscription —Waives—Burden of Proof.
    In an action to cancel a stock subscription and recover money paid thereon, the burden was on the defendant corporation to establish its contention that plaintiff waived his right to recover by participating in a stockholders’ meeting which, decided to incorporate under the laws of Arizona instead of under the laws of Texas, as stipulated by the subscription agreement, by proving that plaintiff’s stock was present or was voted at the meeting.
    • [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. &wkey;>80.]
    4. Corporations <&wkey;80 — Stock Subscription —Right to Cancel — Waiver—Transfer of Stock.
    Where a subscriber for stock of a corporation, after being informed that the corporation had been incorporated in Arizona instead of in Texas, as stipulated by the subscription contract, exchanged his stock for the stock of another company, he waived his right to cancel his subscription on the ground that the corporation was incorporated in a state other than that stipulated.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407% ; Dec. Dig. &wkey;>80.]
    5. Corporations <&wkey;80 — Stock Subscription —Right to Relief — Status Quo.
    The cancellation of a stock subscription will not be decreed in favor of a subscriber who has transferred the stock to a third party, who retains possession thereof, though the third party answers, disclaiming any interest in the stock; such remedy not ordinarily being available, where the status quo cannot be restored.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. <&wkey;>80.j
    6. Corporations <&wkey;83 — Stock Subscription — Cancellation — Instruments Given in Payment.
    That a corporation was chartered in Arizona instead of in Texas, as is stipulated by the prospectus and the subscription contract, was sufficient grounds, had the subscriber not been estopped from setting it up, for cancellation of the note and the deed of trust given in payment of the stock, where the corporation had notice of such stipulation when it accepted the subscription.
    [Ed. Note — Eor other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407% ; Dee. Dig. <@^83.3
    7. Pleading &wkey;>290 — Answer—'Verification —Necessity.
    An exception to an answer, not verified as required by law, should have been sustained.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 859-863, 886% ; Dec. Dig. &wkey; 290.]
    S. Corporations <&wkey;448 —Stock Subscription — Money Paid to Promoters — Liability to Subscriber.
    Where, in a subscriber’s action to- cancel his stock subscription and recover money paid thereon, it appeared that the subscription contract stipulated that such money was paid to the promoters in consideration of their agreement to organize the company free of expense to the stockholders, and the evidence showed that none was received by the corporation, the corporation was not liable therefor; such money being recoverable, if at all, only by an action against the promoters.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. &wkey; 448.]
    9. Corporations &wkey;82 — Stock Subscription — Cancellation—Grounds.
    Where, in a subscriber’s action to cancel a stock subscription, it appeared that plaintiff had not paid the full amount of the subscription, the failure of the corporation to make him a loan, pursuant to a promise to make a loan on “full payment of said subscription,” could not avail him as a ground for cancellation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 285-295; Dec. Dig. <3&wkey;82.j
    10. Corporations <&wkey;80 —Stock Subscription — Cancellation — Evidence — Misrepresentations by Agent.
    In a subscriber’s action to cancel a stock subscription, evidence of misrepresentations made by an agent of the promoters was admissible to show fraud in the inception of the subscription contract, though the contract stipulated that no conditions, representations, or agreements, other than those printed therein, should be binding; the effect of such evidence not being to vary or contradict the terms of a written instrument.
    . [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407-1407%; Dee. Dig. &wkey;380.3
    11. Corporations <&wkey;80 — Stock Subscription — Grounds—Fraud of Promotors.
    Where the managing officers of a corporation, at the time of accepting a subscription procured by the promotors through fraud, have ho notice of the fraud, the subscriber cannot thereafter cancel his subscription contract by reason of the fraud.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dee. Dig. <&wkey;>80.3
    12. Corporations <&wkey;80 —Stock Subscription-Cancellation for Fraud — Right i
    A subscription procured by fraud of the officers or agents of an existing corporation is voidable at the option of the subscriber.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407% ; Dec. Dig. &wkey;>80.3
    13. Corporations <&wkey;80 — Stock Subscripts n — Cancellation—Material Misrepresentation.
    A statement by an agent of the promotors that the corporation already had $200,000 in cash paid in on subscriptions, when in fact it had only comparatively a small amount in cash, was a material misrepresentation, such as would have authorized a cancellation of the stock subscription if the company had had notice of it when it accepted the subscription.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. <&wkey;>80J
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by L. S. Cator against the Commonwealth Bonding & Casualty Insurance Company and others. From judgment for plaintiff, the defendant named appeals.
    Reversed and remanded.
    F. H. Haddix, of Ft. Worth, and Lumpkin & Harrington, of Amarillo, for appellant. H. E. Hoover, of Canadian, and Jas. A. Stephens, of Benjamin, for appellees.
   HALL, J.

This action was ‘ brought in the district court of Hansford county against the Bankers’ Guaranty Company and certain individuals, as officers and organizers of both companies, to cancel a subscription to the capital stock of appellant and recover $625, paid in cash thereon. The venue was changed to Hemphill county, where, upon a trial before the court without a jury, judgment was rendered against the appellant company and in favor of appellee Cator, canceling the subscription, together with the stock certificate, the note, and deed of trust, and decreeing the recovery of $625. The appellee’s original petition stated, in substance, that in the spring of 1910 R. T. Stuart and Coke W. Harkrider undertook, as promoters, to bring about the organization of appellant company. In circulars and a prospectus prepared by them, they represented that the company was to commence business, when in good faith a cash capital of $200,000 had been paid in; that appellee subscribed in good faith and gave his note and mortgage, relying upon the prospectus and statements in the subscription list and representations made by their agent, one C. ,S. McDonald; that it was expressly understood, agreed, and stipulated in the sub-' scription contract that the company should be incorporated in pursuance of the laws of ■ •the state of Texas; that a charter was pro•cured for the company on the 23d of March, 1911, incorporating it under the laws of the :State of Arizona, and at that time the company did not have, in cash, exceeding $16,-000; that C. S. McDonald, who was the agent and representative, both of the organization company and ■ of appellant company, which was afterwards organized, stated, in substance, that the object of the organization was to procure cheap money for its members; that they had a paid-up capital stock at the time of the subscription of at least $200,000, and had capital stock already paid in to furnish stockholders money at 6 .per cent, interest, by approved real estate, .and that, under these representations, plaintiff subscribed for 125 shares of the stock at the agreed price of $5,000; that the corporation had not, as represented by McDon.ald, made arrangements whereby it could loan plaintiff money at 6 per cent, on approved real estate; that, upon ascertaining the falsity of the representations made by defendant, plaintiff rescinded the contract and tendered the appellant the certificate of stock, demanded a return of the money, note, etc.

Without setting out the allegations in detail, the petition alleges, with great particularity, the fraudulent representations, the condition of the company, and the facts entitling appellee to the relief sought; that, after the execution of the note and mortgage, the defendants fraudulently combined together for the purpose of inducing the plaintiff to so act as to estop himself from setting up the invalidity of the contract and the fraud perpetrated upon him. These acts •consisted of sending him proxies to vote his stock at meetings and inducing him to exchange his stock in appellant company for stock in the Bankers’ Guaranty Company, •organized by the same parties.

Appellee, by preliminary motion, objects to the consideration by this court of any of the errors assigned by appellant, because the record discloses that the case was tried before the court without a jury, and judgment rendered in favor of appellee; and the appellant failing to make a motion for .new trial, and further failing to have the court file his findings of fact and conelu.sions of law, is here without any exceptions to the judgment and cannot be heard to complain. We find from the record that the .appellant excepted to the judgment and has filed in this court, in due time, a statement • of facts. Article 1991, Vernon’s Sayles’ Civil Statutes, which is a part of article 1333, Sayles’ Civil Statutes, is:

“It shall be sufficient for the party, excepting •to the conclusions of law or judgment of the •court, to cause it to be noted on the record in the judgment entry that he excepts thereto; ■and such party may thereupon take his appeal ■or writ of error without a statement of facts or further exceptions in 'the transcript; but the -.transcript shall in such cases contain the special ver-dict or conclusions of fact and law aforesaid, and the judgment rendered thereon.”

We conclude from this article that one appealing from a judgment rendered by the court without a jury need not file a motion for new trial, and it has been frequently so held (Frenzell v. Lexington, L. A. & I. Co., 126 S. W. 907; Luther v. Western Union Telegraph Co., 25 Tex. Civ. App. 31, 60 S. W. 1029; Griffin v. McKinney, 25 Tex. Civ. App. 432, 62 S. W. 82; Akes v. Sanford, 39 S. W. 952; G., C. & S. F. Ry. v. Gaedecke, 39 S. W. 312; Maverick v. Routh, 7 Tex. Civ. App. 669, 26 S. W. 1011; Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268); but, when no such motion is filed, the party appealing must except to the judgment and have the trial judge file findings of fact and conclusions of law (Pollard v. Allen & Sims, 171 S. W. 302, and authorities cited), or bring up a statement of facts in the record (Cornelius v. Harris, 163 S. W. 346; Greer v. Featherston, 95 Tex. 654, 69 S. W. 69). Failing in this, none hut fundamental errors can be considered.

Under the fifth, sixth, and seventh assignments of error appellant insists that appellee has waived his right to recover by participating in the stockholders’ meeting, which decided to incorporate under the laws of Arizona, instead of under the laws of Texas, and by exchanging his stock in appellant company for stock in the Bankers’ Guaranty Company, and that such acts constituted a waiver of the alleged fraud practiced upon him.

The record does not show that appellee’s stock was voted at the meeting, or that it was even present at the meeting in which it was decided to incorporate under the laws of Arizona. The burden was upon appellant to establish this fact. Failing in this, appellee would not be estopped upon that ground. Cattlemen’s Trust Co. v. Beck, 167 S. W. 754; Kampman v. Tarver, 87 Tex. 491, 29 S. W. 768.

It is further contended by appellee that the statement in the letter received by him that the meeting was called to decide under what state laws they should incorporate was itself a fraud in that it did not notify him and other subscribers that the condition of the company was such that it could not be incorporated under the stringent laws of the state of Texas. This contention seems to have been sustained by the court. The witness Branham testified that the officers knew, long before the letter was written, that they could not incorporate in Texas. The question of waiver is raised under the sixth assignment by a general demurrer. The plaintiff’s original petition showing that the plaintiff, prior to the time of filing said suit, exchanged and transferred his stock in the Bonding Company for stock in the Bankers’ Company, it is insisted that plaintiff is in no position to request a cancellation. Plaintiff alleged that on or about July, 1911, at the request of the officers of the Commonwealth Company, he transferred this stock to the Bankers’ Guaranty Company, upon their representation that the Bankers’ Company would carry out the original purposes of the Commonwealth Company, and that the same was made upon the request of that company; that the Bankers’ Company never carried out the objects of its incorporation, and it has ceased to make any effort to do so, and in fact has never been organized; that the purpose and consideration of said transfer has wholly failed, and that the Bankers’ Company has informed plaintiff that it does not claim any interest in said stock, and has promised and agreed to retransfer the same to plaintiff.

Appellee testified that McDonald’s representations induced him to make exchange of stock, and that, before he consented to make it, McDonald told him that the Bonding Company had been organized under the laws of Arizona, instead of under the laws of Texas. The general rule is that a subscriber who has been induced to purchase stock by misrepresentation waives his right to cancel the contract by a sale or transfer thereof. Francis v. New York, etc., Ry., 108 N. Y. 93, 15 N. E. 192. The question of waiver is largely one of intent. Kennedy v. Bender, 104 Tex. 149, 135 S. W. 524. No reason is given here why there should not be implied from appellee’s exchange of the stock, after he had been informed that the company was incorporated in Arizona, such an assumption of ownership .as would waive the right to cancel upon the ’ground that it was incorporated in a state other than was stipulated in the subscription •contract. Appellee cannot affirm the transaction by accepting and disposing of the stock, and at the same time maintain an action to cancel it, together with his contract. Appellee’s witness Branham testified that McDonald was not the agent of the Bonding Company in procuring the exchange of stock, but was sent out by R. T. Stuart, who was at that time the president of the Bankers’ Company; that, in advising appellee to exchange his stock, he and the other stockholders in the Bonding Company acted as individuals and not as officers or directors of the Bonding Company. Branham’s testimony is uncontradicted by any competent evidence, and, if true, appellant is not estop-ped to insist upon the fact of the exchange of stock as a waiver.

If appellee does not now possess the stock so he can return it to the Bonding Company, the court cannot grant him the relief of cancellation and rescission. These remedies are not ordinarily applied where the status quo cannot be restored. The record is sufficient to show that stock in a corporation organized under the laws of Texas is more valuable and desirable and affords ..greater protection to the stockholders than where the organization is effected under the laws of Arizona. The prospectus and the subscription contract both state that the organization would be perfected under the laws of Texas, and we think the fact that it was chartered in Arizona would be grounds for canceling the note and deed in trust (if ap-pellee was not in some way estopped to set it up), because the company had notice of such agreement when it accepted the subscription. 1 Cook on Corporations (6th Ed.) § 1S6.

The answer filed by the Bankers’ Company, in which it disclaimed any interest in the stock issued to appellee by the Bonding Company, and wherein it is alleged it was organized with the consent of the officers of the Bonding Company, and that they afterwards prevented the completion of its organization, was not admissible against appellant for any purpose. The answer was excepted to by appellant because it was not verified as required by law, and this exception should have been sustained. It is clear that the appellant company would not be liable to appellee for a fee which he paid to the promoters in consideration of their agreement to organize a corporation. His subscription contract expressly stipulates that the $625 is paid to the promoters in consideration of their agreement to organize and incorporate the company, free of expense to the stockholders, and the testimony shows that none of this amount was ever paid or received by the Bonding Company. American Home Life Ins. Co. v. Jenkins, 138 S. W. 424. This amount, if recoverable at all, must be by an action against the promoters.

Appellee cannot complain because he has not received the benefit of his loan contract, since his right to a loan is, by the terms of the contract itself, made to depend upon “the full payment of said subscription.” Though the subscription contract stipulates that no conditions, representations, or agreements, other than those printed therein, shall be binding, still evidence of the alleged representations by McDonald was admissible to show fraud in the inception of the contract. The effect of this evidence was not to vary or contradict the terms of the written instrument. United States Gypsum Co. v. Shields (Civ. App.) 106 S. W. 724; Id., 101 Tex. 473, 108 S. W. 1165. The controlling question in this controversy is as to the binding effect of McDonald’s alleged fraudulent representations upon the corporation, after it was chartered. The authorities bearing upon the right of a subscriber to cancel his subscription contract by reason of the fraudulent representations of a promoter are far from harmonious. That a subscription induced by fraud of the officers or agents of an existing corporation is voidable at the option of the subscriber is settled in this state. Davis v. Burns, 173 S. W. 476; Burleson v. Davis, 141 S. W. 561. But, if the question under consideration here has ever been passed upon by the higher courts of this state, we have not been able to find the decision. Our Supreme Court held, in Weatherford, Mineral Wells & Northwestern Railway Co. v. Granger, 86 Tex. 350, 24 S. W. 795, 40 Am. St. Rep. 837, that, in the absence of a statute or an express agreement binding the corporation, it cannot be bound by contracts made with its promoters, unless they are adopted by the corporation after it comes into existence, and this is held to he the rule, although the promoters purport to act in behalf of the projected corporation. It is said in that case that the promoter cannot be treated as an agent because the nominal principal is not then in existence. See, also, Jones v. Smith, 87 S. W. 210; Bivins v. Panhandle Packing Co., 140 S. W. 523; Lancaster Gin, etc., Co. v. Murray Ginning Co., 19 Tex. Civ. App. 110, 47 S. W. 389; Ennis Cotton Oil Co. v. Burks, 39 S. W. 966; Gough Mill & Gin Co. v. Looney, 112 S. W. 782. The question of fraud was involved in the case last cited, but the controversy was determined upon other issues. It was said in the Granger Case, supra, that it would be unjust to shareholders to charge them with liabilities arising under the contract of which they had no knowledge at the time they accepted subscriptions, and we think the reasoning applies with equal force to false representations made by promoters. The correct rule, in our opinion, is stated in 1 Thompson on Corporations (2d Ed.) § 739, thus:

“Where a person is induced to subscribe to the shares of an intended corporation by the fraudulent representations of its promoters, and if after the corporation is organized, and at the time when it acquires the right to adopt or reject the subscription., so as to make it a binding contract, its managing officers are apprised of the fraud., such adoption is subject to the right of rescission on the part of such subscriber provided he rescinds promptly. This is upon the theory that when a corporation, with knowledge, adopts a contract procured in its behalf through fraud, it adopts the fraud as much as though the fraud had been committed by its authorized agent with the knowledge of its managing board of officers.” Helliwell on Stocks and Stockholders, § 83; 1 Thompson on Corporations (2d Ed.) 521; 10 Cyc. 262.

We find no evidence in the record that the appellant herein had any notice of the alleged fraud of McDonald until long after organization was perfected and appellee’s subscription had been accepted. The case of Commonwealth Bonding & Casualty Co. v. Bomar, 169 S. W. 1060, decided by this court, and cited by appellant, is not authority, because the subscription was after incorporation, and the officers of the corporation had notice of the fraud perpetrated upon Bomar.

We think, under the weight of authority, the statement by McDonald, at the time appellee’s subscription contract was executed, that the company already had $200,-000 of cash paid in upon subscriptions to stock, was 'material; and if appellee relied upon such representation, and was induced thereby to execute the contract in question, he would be entitled to the relief asked, provided notice could be brought home to the company, under the rule above stated. See Cook on Corporations (6th Ed.) §§ 712-714. It may be true as asserted and urged by ap-pellee, that he has been victimized, but the state of this record is such that we are powerless to grant him any relief.

Because of the errors hereinbefore discussed, the judgment must be reversed, and the cause remanded.

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

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


author: RAINEY, C. J.

text:
    PECK v. MURPHY & BOLANZ et al.
    (No. 7408.)
    (Court of Civil Appeals of Texas. Dallas.
    April 17, 1915.
    Rehearing Denied May 1, 1915.)
    Appeal and Error &wkey;781 — Dismissal — Grounds — Mandamus.
    Where, pending appeal from the denial of an application for a writ of mandamus to compel a district clerk to issue an. execution on a judgment, the clerk’s term of office expires and his successor qualifies and is installed, the cause will be dismissed; it being the duty of appellate court to refuse to decide questions where the matter in controversy has ceased to exist or the decision would be inoperative.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. &wkey;>781.]
    Appeal from District Court, Dallas County ; E. B. Muse, Judge.
    Application for writ of mandamus by Herman Kruegel against H. H. Williams, district clerk, to compel him to issue an execution on a judgment for H. D. Peck in an action by H. D. Peck against J. P. Murphy and another, doing business as Murphy & Bolanz. Writ denied, and Kruegel appeals.
    Dismissed.
    Herman Kruegel, of Dallas, in pro. per. Cobb & Avery, of Dallas, for appellees.
   RAINEY, C. J.

Herman Kruegel, appellant, filed a motion in the Fourty-Fourth district court of Dallas county seeking a writ of mandamus against H. I-I. Williams, district clerk of said county, commanding him to issue an execution by virtue of a judgment rendered by said court in favor of I-I. D. Peck against Murphy & Bolanz, J. P. Murphy and Charles F. Bolanz, in cause No. 14225, styled H. D. Peck v. Murphy & Bolanz, which judgment has been assigned to Herman Kruegel by H. D. Peck. On hearing the cause the district court refused to issue the writ of mandamus, and Kruegel appeals.

Since judgment overruling said motion by the district court and the perfecting of this appeal, the respondent, I-I. H. Williams, has ceased to be clerk of said court, his term of office having expired at the last general election in November, 1914, and his successor, Matt L. Cobb, has qualified and been install-éd as district clerk of said county. Williams being no longer clerk of the court, it is no longer Ms duty to perform tbe duties of said office, therefore a mandamus should not be issued commanding him to issue the execution, as the law requires the clerk to perform that duty, and an execution now issued by Williams would be void. Then it would be useless for us to determine the question of whether or not the district court should have granted the motion for mandamus. It is well settled by decisions of this state that appellate courts will not decide questions where the matter in controversy has ceased to exist or the decision would be useless and inoperative. Watkins v. Huff, 94 Tex. 631, 64 S. W. 682; Ansley v. State of Texas, 175 S. W. 470, decided by this court April 3, 1915, not yet officially published; Old River Rice Irr. Co. v. Stubbs, 133 S. W. 494; Gordon v. State, 47 Tex. 208; McWhorter v. Northcut, 94 Tex. 86, 58 S. W. 720.

The cause is dismissed.
      <^>For other cases see same topic and KEY-NXJMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    SELLS et al. v. WHITE et al.
    (No. 5445.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 31, 1915.
    Rehearing Denied April 28, 1915.)
    1. Judgment <§=>744 — Conclusiveness—Parties Concluded.
    Plaintiffs, who were the owners of realty, executed a conveyance, receiving a sum in cash as well as vendor’s lien notes. The notes were negotiated. Their grantee failing in payment, suit to foreclose the lien of the notes was instituted ; plaintiffs being made parties. Held that, where plaintiffs defaulted and judgment of foreclosure was rendered, it was a conclusive adjudication against their claim that the conveyance was merely a mortgage; hence that part of the judgment which foreclosed the lien against one of the plaintiffs, who did not join in negotiating the notes, was surplusage, as such party had no interest in the land.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1278-1281; Dec. Dig. >§=>744.]
    2. Vendor and Purchaser <§=3287 — Vendor’s Lien — Sale—N otice — Necessity.
    Where no personal judgment was rendered against plaintiff, and a judgment foreclosing vendor’s lien notes upon land was an adjudication that she had no interest therein, notice of the sale to satisfy the lien need not be given to her.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. §§ 810-814; Dec. Dig. <§=>287.]
    3. Vendor and Purchaser <§=>287 — Vendor’s Lien — Sale — Vacation — Inadequacy of Price.
    Where property sold to satisfy a vendor’s lien brought a wholly inadequate price, plaintiffs, who notified the purchasers that they had . a homestead in the property, and that a lawsuit would follow a purchase, could not procure a vacation of the sale, where the judgment foreclosing the vendor’s lien was an adjudication that plaintiffs had no interest.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 810-814; Dec. Dig. <§=>287.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Action by Kate S. White and another against G. M. Sells and others. From a judgment for plaintiffs, defendants appeal
    Reversed and rendered. ■
    Blain & Howth, of Beaumont, and Bisland & Bruce, of Orange, for appellants. J. S. Wheless, of Beaumont, for appellees.
   CARL, J.

On December 24, 1908, Kate S. White and her husband, E. A. White, executed a general warranty- deed to E. A. Cheat-ham, whereby they conveyed to him lot 5 in block 64 of Van Wormer’s addition to the city of Beaumont, in Jefferson county, for a recited consideration of $1,000 in cash, and two vendor’s lien notes each for the sum of $200, and due respectively in three and six months from their date. These two notes were indorsed by E. A. and Kate S. White immediately after their execution and sold to G. M. Sells for a valuable consideration, without any notice that the transfer was not what it purported to be, and without any notice on part of Sells that the vendor’s lien notes were not in truth- and in fact what they purported to be.

The first of said notes was paid by E. A. Cheatham, and, when the second note became due, Cheatham refused to pay it, and on August 9, 1909, Sells instituted suit in the Fifty-Eighth district court to foreclose, naming E. A. Cheatham, E. A. White, and Kate S. White as defendants, which suit was numbered 7450 on the docket of said court. Service was regularly had on all the defendants, and on September 21, 1909, a judgment by default was taken for the sum of $236.32 against E. A. White and E. A. Cheat-ham, and foreclosing the vendor’s lien against all of the defendants. Execution and order of sale were directed in the usual form; and on November 15, 1909, an order of sale was issued which recites a judgment against E. A. Cheatham and E. A. White, but which order -of! sale does not mention Kate S. White. The return on the order of sale recites that notices were mailed to Cheatham and White and Kate S. White. The court found, however, that E. A. White concealed from his wife, Kate S. White, the notice of the sale sent to her. On December 7, 1909, the sheriff of Jefferson county sold the property at public sale, and G. M. Sells bought it for $100, $68.85 being credited on the judgment, and the balance was applied to costs. The sheriff made Sells a de.ed. E. A. White and his wife had actual notice of the sale, and of the time and place, and they were represented at the sale and gave notice at the time of the sale that the property constituted their homestead, and that, if any one- bought it, he would bring a lawsuit. The trial court finds that there was no other circumstance that transpired at the sale to cause the property to bring an inadequate price, except the notice of White and wife that whoever bought the property would be buying a lawsuit, and the failure to include the name of Kate S. White in the order of sale. White and his wife made no effort to buy the property at the sale. And the court also found that the price at which the property was sold was grossly inadequate. On December 27, 1909, White and wife filed suit in the Sixtieth district court against Sells and Jake Giles, sheriff of Jefferson county, for injunction to restrain them from executing a writ of possession or in any wise in- ■ terfering with their possession and for judgment for title to the property, as well as for judgment removing the dioud from their title, but they made no tender of the amount due on the judgment rendered. That suit was dismissed for want of jurisdiction. On June 25, 1910, this suit was filed in which an injunction is asked restraining Giles, the sheriff, from placing Sells in possession of the property, and praying that, on final hearing, the deed made to Sells by the sheriff be canceled. The court granted a temporary injunction, which was later dissolved, and Sells was placed in possession. On September 7, 1910, Sells conveyed the property to J. B. Bisland, who gave notes for the purchase price, less $150, which Sells owed him for services as- attorney in the matter. Bis-land conveyed the property to Joe Hally and Biaggio Tortoris, and they gave notes, which were still unpaid at the time of the trial.

The trial court concluded that, because of the fact that Kate S. White’s name did not appear in the order of sale, the same was irregular; and, since the property sold for a grossly inadequate price, the deed should be set aside. The subsequent purchasers of the property bought with notice of the claim of White and wife, because a lis pendens notice was on file. However, the foreclosure judgment was found to be a valid judgment. Other than to set aside the deeds from the sheriff to Sells and to subsequent purhasers, the -original judgment was left in force.

The original judgment of forelosure was against E. A. White and Kate S. White, and E. A. Cheatham entered an appearance. White and wife were regularly served in this cause, and a judgment by default was taken against the defendants E. A. White and Cheatham personally, and against all of them, including Mrs. White, foreclosing the vendor’s lien on the property. This judgment provides that, if the property shall sell for more than sufficient to pay the judgment, the excess shall be paid to E. A. Cheat-ham, and, if it did not sell for enough to pay same, then Sells should have execution for any deficiency against E. A. White and E. A. Cheatham.

It will be noted that this judgment directly and plainly forecloses the vendor’s lien and not a mortgage lien, and no defense was made therein that the property was a homestead or that the sale was in fact intended as a mortgage. The parties were regularly before the court upon proper service and failed to make the defense they now seek to interpose. If the Whites had homestead rights in the property or an equity of redemption because of the fact that the deed made Cheatham was in fact a mortgage to enable them to raise money on the homestead, as now contended, the time to assert that fact was in the foreclosure suit, where they were called upon to set forth their claims. This they did not do, and the court proceeded to final judgment on the debt and to foreclosure of the vendor’s lien, and in that judgment order of sale was provided. The Whites had sold the notes, and the court, by foreclosing the lien, necessarily recognized the fact that title had passed out of them. So the foreclosure, as against Mrs. White, was a mere surplusage, for she had no interest against which foreclosure could be had. That judgment was not set aside or appealed from, and therefore became a final judgment. The matters therein in issue are res adjudicata. It is true the pleadings of the plaintiffs in this case sought to set aside that judgment in so far as it foreclosed a vendor’s lien and ordered sale of the property; but no fact was set forth which would justify the court in doing so. That judgment in cause No. 7450 was final.

E. A. White and wife both knew of the sale as advertised, for it is shown that both were represented at the time and place of sale. It may be conceded that the property brought 'an inadequate price; but that is to be expected as the natural and probable result of White and his wife giving notice at the time of the sale that whoever bought the property would buy a lawsuit. Having no interest in the property, under the judgment of the court, it was not necessary that Mrs. White be notified at all, for there was no personal judgment against her. Therefore that fact cannot be relied upon as being conducive to the inadequate price. The only other matter, under the court’s findings, which caused same, was the notice given that whoever bought the property would buy a lawsuit. Having been the direct and sole legal cause why the property sold for an inadequate price, White and wife should not now be heard to complain that their notice at the sale produced the result it was only natural it should produce.

The judgment of the trial court is reversed, and judgment is here rendered that the plaintiffs below, E. A. White and Kate S. White, his wife, take nothing by reason of this suit; and that Joe Mally and Biaggio Tortoris take nothing by reason of their cross-action. The costs of this court as well as in the court below are adjudged against the said E. A. White and Kate S. White.

Judgment reversed and here rendered.
      igs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    CLINE et al. v. BOOTY et al.
    (No. 5473.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 7, 1915.
    Rehearing Denied April 28, 1915.)
    1. Vendor and Purchasee <@=s324-Deposit bob Liquidated Damages — Actions — Pleadings.
    An answer, in an action by a vendor for a deposit by the purchaser as liquidated damages for failure to carry out the contract, which alleges vendor’s failure to show a good and merchantable title, and which sets forth defects in the title, and which alleges false representations as to the character of the land to be conveyed, sets up a good defense.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 944-947; Dec. Dig. <S=324.]
    2. Appeal and Error <@=1054 — Harmless Error — Erroneous Rulings on Evidence.
    Where a cause is tried by the court without a jury, error in rulings on evidence is not reversible, where there is sufficient and proper testimony to sustain the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185-, 4186; Dec. Dig. <@= 1054.]
    3. Appeal and Error <@=1054, 1056 — Harmless Error — Erroneous Rulings on Evidence.
    Where the court based its judgment for defendant on one defense, error in the admission or rejection of evidence on another defense is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186-4193, 4207; Dec. Dig. <@=1054, 1056.]
    4. Appeal and Error <@=1054 — Harmless Error — Erroneous Rulings on Evidence.
    Where the court trying a ease without a jury based its judgment on facts established by proper evidence, error in admitting evidence of other facts, over the objection that the evidence was irrelevant and immaterial, is not reversible.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. <@= 1054.]
    5. Vendor and Purchaser <@=130 — Contracts — “Good, Mebchantable Title.”
    A title by limitation is not a good, merchantable title, within a contract of sale calling for such a title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245-247; Dec. Dig. <@=>130.]
    6. Vendor and Purchaser <@=130 — Defective Title — Obligation oe Puechasee.
    A purchaser contracting for a good, merchantable title need not proceed to carry out his part of the contract, where a defect in the title is disclosed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245-247; Dec. Dig. <@=130.]
    7. Evidence <@=318 — Hearsay—Affidavits— Merchantable Title — Proof of Title.
    Affidavits of witnesses as to limitation in connection with land contracted to be sold are merely ex parte affidavits and hearsay and inadmissible as evidence to establish a good, merchantable title, within a contract calling for such a title.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. <@=318.]
    8. Adverse Possession <S= 13 — Title by “Adveese Possession” — Requisites.
    To establish title by limitations, it must appear that possession has been open, hostile, adverse, notorious, and uninterrupted for the statutory period, and that there is no saving to any person for personal disabilities.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. <S=
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Action by H. A. Cline and another against E. F. Booty and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Gaines & Corbett, of Bay City, and W. L. Hall and H. A. Cline, both of Wharton, for appellants. Proctor, Vandenberge, Crain & Mitchell and C. F. & C. C. Carsner, all of Victoria, and G. G. Kelley, of Wharton, for appellees.
   FLY, C. J.

This is a suit instituted by I-I. A. Cline and W. F. O’Briant against E. F. Booty, John L. Booty, A. J. Booty, and the Levi Bank & Trust Company of Victoria county, to recover the sum of $5,000, alleged to be-liquidated damages placed by the Bootys in the said bank, to make secure a purchase of land by the Bootys from Cline and O’Briant. Pending the suit, C. A. Ward purchased the interest of O’Briant and took his place in the suit. The bank answered by general and special demurrers and general denial. The Bootys filed general and special exceptions and answered that the abstracts of title furnished by appellants did not show a good and merchantable title to the lands, contracted for by them, but disclosed numerous defects in the title to several tracts embraced in the body of land. The defects were specifically alleged. They further alleged false and fraudulent representations made by W. F. O’Briant in pointing out and designating the boundaries of the land, and in representing that there was not more than 1,200 acres of the land covered with timber, when in truth and in fact at least half of the tract of 7,590' acres of land was covered with timber, and that those representations induced the signing of the contract to purchase the land. A jury was waived, and the cause was tried by the court; judgment being rendered that appellants recover nothing by their suit, and that the Bootys recover of the Levi Bank & Trust Company the special deposit of $5,000 made by them in said bank. We adopt the findings of fact of the trial judge.

The general demurrer was properly overruled. The answer sets up a good defense.

The second assignment of error is overruled. The evidence of E. F. Booty as to the misrepresentations made by O’Briant was properly admitted. The objections of appellants to the testimony go to its weight rather than its competency. The court found that the representations of O’Briant were not wholly relied upon by E. F. Booty when he made the contract on which the suit is based. It is clear, therefore, that the evidence did not influence the trial judge and could not have injured appellants.

The letter of Oline to E. P. Booty seems to have been written to induce a compromise, and probably should not have been admitted in evidence; but the findings of the judge clearly indicate that it did not affect his judgment in any respect. The same rigid rules as to the admission of improper testimony before a jury cannot be applied in case of a trial by the court. The rule is that, when a case is tried without a jury, the admission of improper evidence will not demand a reversal, when there is sufficient proper testimony to sustain the judgment. Beham v. Ghio, 75 Tex. 90, 12 S. W. 996; Moore v. Kennedy, 81 Tex. 144, 16 S. W. 740. The trial judge based his judgment upon defects in the title to a part of the land and not on the fraudulent representations of O’Briant, about which the letter of Oline was written. The admission of the letter had no conceivable influence in shaping the judgment of the court.

The letter to C. E. & O. O. Oarsner from Oline had nothing in it bearing in the least upon any issue in the case, and could not have injured appellants. The fourth assignment of error is overruled.

The fifth and sixth assignments of error are without merit. If the judgments in the suits of Goodman v. O’Briant and O’Briant v. Jones et al. “were irrelevant and immaterial,” as contended by appellants, they cannot be made the basis of error, unless they in some way affected the judgment of the court. The conclusions of fact and law clearly show that they received no consideration by the court in arriving at the judgment. The objections to the evidence are based on mere abstractions. The court based its judgment on the defects in the title in 339 acres in the Joseph Simons grant and 160 acres in the Lucy A. Jernigan tract. Those defects were in nowise connected with the judgments in question.

The contract of purchase was repudiated by the Bootys, not only on account of the fraudulent representations of O’Briant, but on account of defects in the title. The defects were pointed out by their attorneys. Reasonable time was given to perfect the title. There was no title whatever in appellants to the two tracts herein mentioned, except possibly by limitation, which was not “a good, merchantable title,” as provided for in the contract of sale. The defect was disclosed by the record, and appellees were not compelled to go any further. Beach, Mod. Law Gont. § 346; Littlefield v. Tinsley, 22 Tex. 257; Id., 26 Tex. 353; McCroskey v. Ladd, 3 Cal. Unrep. Cas. 433, 28 Pac. 216.

The ninth assignment of error is very vague and indefinite, and the proposition is equally so. The statement thereunder fails to show any title in appellants to the two tracts from the original grantees. We overrule the assignment.

The tenth, eleventh, twelfth, and thirteenth assignments of error are overruled. It is admitted by appellants that they had no title to the 339 and 160 acre tracts of land, except such as they might establish through limitations. McLaughlin v. Brown, 126 S. W. 292; Ross v. Thigpen, 140 S. W. 1180; Nicholson v. Lieber, 153 S. W. 641; McLane v. Petty, 159 S. W. 891; Hamburger v. Thomas, 103 Tex. 280, 126 S. W. 561. As said in the case last cited:

“Nor can it be said, in opposition to the ver-, diet, that the evidence of title by limitation was such as to require a purchaser to accept it, if that could be said of any claim of title by limitation.”

The evidence in this case does not show title by limitation, and, if it had, it was not the “good, merchantable title” demanded by the contract. As said by this court in McLaughlin v. Brown, herein cited:

“Appellant did not furnish appellee with a perfect record title, as was in contemplation of the parties, and he cannot be heard to say that the title has become invulnerable by lapse of time. The parties did not contract as to a title by limitations.”

The affidavits of witnesses as to limitation in connection with one of the tracts of land, and which were placed on record, were merely ex parte affidavits and hearsay and inadmissible as evidence in the courts, and are not record evidence of title. War-ville, Abstracts, 369; Maupin, Marketable Titles, pp. 740, 741. There are necessary matters laid down by Maupin, p. 740, to show a title by limitations:

. “(1) That the possession has been open, hostile, adverse, notorious, and uninterrupted for the statutory period; (2) that there is no saving to any person on account of personal disabilities ; and (3) it must appear that in all human probability the purchaser will have means at hand to establish his title by adverse possession, if it should be attacked by a third person in the future.”

This question is fully discussed in the case of Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527; and, while the Court of Appeals of New York holds that there might be such a title by limitations as would be marketable, still it is held:

“Moreover, to sustain the plaintiffs’ title by adverse possession, the defendant or his grantees would be required to resort to parol evidence, and it may be that it will depend upon an issue of fact as to which some dispute may arise.

Limitation, in the case under our consideration, would undoubtedly “depend on an issue of fact as to which some dispute may arise.”

The judgment is affirmed.
      . <©c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J

text:
    BAILEY v. CULVER.
    (No. 5477.)
    (Court of Civil Appeals of Texas. Austin.
    April 14, 1915.)
    1. Chattel Mortgages <@=>8—Filing—Sufficiency.
    Where a mortgaged hay press was situated in a field within one county, the registration of the mortgage in that county was sufficient notice, even though the property was occasionally moved into an adjoining county, the field lying partly in both counties.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 162-165 ; Dec. Dig. <S=>87.]
    2. Chattel Mortgages <@=>269 — Foreclosure.
    A chattel mortgage may be foreclosed by action, though containing no power of sale.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 553, 554; Dec. Dig. <=> 269.]
    3. Reformation of Instruments <@=>19 — Power of Court of Equity.
    Where, through mutual mistake, a chattel mortgage misdescribed the note securing the debt, equity will award reformation.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. <§=>19.]
    4. Chattel Mortgages <@=>272—Sufficiency —Description.
    Where a chattel mortgage correctly described the debt, but erroneously set up the giving of two instead of a single note to secure the entire amount, the error was immaterial, the debt being the real thing secured, and foreclosure could be had.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 559; Dee. Dig. <@=>272.]
    5. Chattel Mortgages <@=>178 — Mortgaged Property — Conversion.
    Where a second mortgagee foreclosed his lien and bought in the mortgaged property, denying the rights of the prior chattel mortgagee, there was a conversion and he was liable for the purchase price.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 358, 359; Dec.Dig. <@=>17S.]
    6. Chattel Mortgages <@=>178 — Mortgaged Property — Judgment.
    Where a subsequent chattel mortgagee converted the property, sums collected from him should be credited on the judgment against the mortgagor, while sums collected from the mortgagor should be credited on the judgment against such mortgagee.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 358, 359; Dec.Dig. <@=>178.]
    Appeal from Lampasas County Court; M. M. White, Judge.
    Action by X. A. Bailey against D. Culver, Jr., and another, begun in justice court and appealed to |the county court. From a judgment for the named defendant, plaintiff appeals.
    Affirmed in part, and in part reversed and rendered.
    H. F. Lewis and Word & Walker, all of Lampasas, for appellant. J. C. Abney and Matthews & Browning, all of Lampasas, for appellee.
   Findings of Fact.

JENKINS, J

On February 26, 1909, appellant sold to L. East a hay press and some other implements for, among other considerations, a promissory note for $170, due November 28, 1909. East executed a mortgage to secure the payment of said note, which was, on December 18, 1909, filed for record in Lampasas county. The hay press, at the time of the execution of said mortgage, was in Lampasas county in a field, a portion of which was in Burnet county. The court found that: “The residence on said farm occupied by said East being partly in Burnet and partly in Lampasas county.”

The mortgage referred to is as follows:

“State of Texas, County of Lampasas.
“For the purpose of securing X. A. Bailey in the sum of $170 which I owe him, I hereby sell and mortgage to him the following personal property, to wit: One Admiral hay press, and all parts pertaining to the hay press this day bought of X. A. Bailey, all of Burnet county, Texas. Also mower and rake, one double disc plow, one double buggy and harness, also bought of X. A. Bailey; and should I fail to pay the said debt on or before, first note for $50, due June 1, 1910, second note $120, due November 1, 1910; I hereby authorize the said mortgagee or his assigns to sell said goods and chattels, after ten days’ notice, at public sale, and to apply the proceeds first to the payment of said debt and .all expenses incident thereto, and then to pay over to me the surplus money, if any remains. In witness whereof, I hereunto set my signature, this the 26th day of February, 1909.”

The debt of $170 mentioned in this mortgage was part of the purchase price of said hay press and other implements. The note given for said debt was for $170, due November 28, 1909, and there were in fact no notes for $50 and $120, respectively, as recited in said mortgage. Appellee alleged that in fact the agreement was to pay off said note for $170, $50 the 1st of June and $120 the 1st of November, and that the draughts-man, by mistake, referred to said payments as notes, and that this part of the mortgage was executed by mutual mistake, and asked that same be reformed. The evidence sustains these allegations. On August 20, 1912, said East executed to D. Culver, Jr., a mortgage on said hay press, to secure the payment of a note in the sum of $97.70, said mortgage containing this recital: “It being understood that this is a second lien upon the hay press, that the first lien does not exceed $50.” Culver brought suit upon the last-mentioned note, foreclosed his lien on said press, bought the same at the sale thereof, and subsequently sold it for $150.

This case was originally tried in the justice’s court. There was judgment for appellant against East in the sum of $148.50, balance due on the note from East to Bailey referred to, and judgment in favor of Culver, who was made party defendant upon the allegation that he had converted the hay press to his own use, and upon appeal to the county court there was judgment in favor of appellant against East for the sum of $151.50, and judgment in favor of the defendant D. Culver, Jr.

Opinion.

Tills case was tried before the court without a jury. The grounds upon which the court rested its judgment may be ascertained by reference to its conclusions of law. The court filed the following conclusion of law:

“I conclude that the registration of said mortgage in Lampasas county, Tex., was not notice to D. Culver, Jr., actual or constructive, of any lien held by X. A. Bailey on said property,” etc.

This conclusion of law is evidently based upon the finding of the court that at the time the mortgage from Bast to Bailey was executed the hay press was “temporarily in Lampasas county.” The evidence shows that it was in a field which East was cultivating aá tenant, and in that portion of said field which was situated in Lampasas county. The evidence further shows that this hay press was in that same portion of said field when Culver brought his suit, two years thereafter, and there is no evidence that it was out of Lampasas county between these periods, except temporarily being used in Burnet county, near the line, for baling hay. The situs cf personal property is, in a sense, always temporary; if it should become fixed to the soil it becomes a part of the realty. The hay press being situated in Lampasas county at the time the mortgage was executed, said mortgage was properly recorded in Lampasas county, and such registration was constructive notice to Culver and all other parties. R. S. art. 5655; Burlington State Bank v. Marlin Bank, 166 S. W. 499; Brinberry v. White, 167 S. W. 205; Oxsheer v. Watt, 91 Tex. 402, 44 S. W. 67.

The court also filed the following conclusion of law:

“I conclude as matter of law that the mortgage securing the note 'sued upon by X. A. Bailey is void and of no effect, because the same misdescribed the debt secured.”

The mortgage, in so far as it conveys the property for the purpose of securing the debt, does not misdescribe the note sued upon. That portion of the mortgage empowering the mortgagee to sell describes the debt as two notes instead of one. This is not a case where sale is made under the power, but where the court is asked to foreclose the mortgage, which might have been done had the power of sale been omitted, and such power of sale, so far as this case is concerned, is immaterial. But if such misdes-cription had been material, equity, upon a proper showing of mutual mistake, would have reformed and enforced the mortgage, and the evidence in this ease was sufficient to justify such reformation. However, we deem the error as to describing the debt immaterial, for the reason that it was the debt, and .not the note, that was secured by the mortgage. Aycock v. Trammell, 77 Tex. 487, 14 S. W. 147; Meyer Bros. v. Rather, 30 S. W. 812; Simon v. Ash, 1 Tex. Civ. App. 202, 20 S. W. 719.

In Meyer Bros. v. Rather, supra, the court quotes with approval from Cobby on Chattel Mortgages, as follows:

“The validity of a mortgage depends on the genuineness of the debt which the mortgage is to secure, and not upon the description of the debt contained in the mortgage. * * * A misdescription of the note given as evidence of the debt, in the chattel mortgage securing the same, is not a fatal error, and does not avoid the mortgage.”

The undisputed evidence showing that appellant had a valid mortgage upon the hay press, duly registered in Lampasas county prior to the mortgage upon same given to D. Culver, Jr., and further showing that said Culver had sold said press for $150, thereby converting the same to his 'own use, the court should have rendered judgment in favor of appellant and against appellee Culver, Jr., for the value of said hay press from 'the date of conversion, which exceeds the amount for which appellant recovered judgment against East, for which reason the judgment of the trial court in favor of appellant and against East for the sum of $151.-50, with 10 per cent, interest thereon from the 26th day of August, 1914, is affirmed; and the judgment of said court that appellant take nothing as against appellee D. Culver, Jr., is reversed and here rendered in favor of appellant, so that he shall recover judgment against said Culver for $151.50, with 6 per cent, interest thereon from December 20, 1912, not to exceed, however, the amount for which judgment is herein rendered against East, and whatever amount is collected, whether the same be from East or from Culver, shall be credited on appellant’s judgment against East, and be a pro tanto payment on the judgment against Culver.

Affirmed in part and in part reversed and rendered.
      <g=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes