author: DAVIDSON, J.

text:
    UTLEY v. STATE.
    (No. 3851.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. Criminal Law &wkey;1123 — Appeal—Record —Matters! Presented eor Review.
    Defendant’s contention, in a motion for a new trial in a prosecution for homicide, that the verdict was rendered in so short a time after the retirement of the jury as to show conclusively that it was not rendered upon mature deliberation and consideration of the facts, but was based upon prejudice and passion against defendant, a negro, could not be considered, where there was nothing to indicate the length of time the jury was out before returning the verdict, since, if the verdict was rendered in undue •haste and without consideration, some evidence of this fact should have been brought to the attention of the trial court and shown to the appellate court by the record.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. &wkey;1123.]
    2. Homicide <&wkey;253 — Evidence — Weight AND SUFFICIENCY.
    On the trial of a negro for killing a constable, who defendant apparently thought was going to arrest him, evidence held sufficient to sustain a conviction for a killing upon express malice.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig. &wkey;253.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Louis Utley was convicted of murder, and he appeals.
    Affirmed.
    John H. Crooker, Criminal Dist. Atty., E. T. Branch, and T. J. Harris, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, and given the death penalty.

There were no bills of exception reserved to the ruling of the court during the trial. The first ground of the motion for new trial alleges the insufficiency of the evidence. The second ground states that the verdict of the jury shows that the evidence was not considered by the jury in arriving at their verdict because it was rendered in so short a time after the jury retired that it shows conclusively that the verdict rendered was not one upon mature deliberation and consideration of all the facts in the case, but was based upon prejudice and passion against defendant, he being a negro, and not upon the true facts as the evidence reflected. This statement is in no way verified, and there is nothing to indicate the length of time the jury was out before returning the verdict. It is an unverified statement. If the verdict was rendered in undue haste and without consideration, there should have been some evidence of this fact brought to the attention of the trial court as well as shown to this court by the record. Every citizen in Texas is entitled to a fair trial and just consideration of his case, and if this has not been accorded it should be shown to the court so that proper action may be taken. This has not been done, however, if such thing occurred.

There is no complaint of the charge before being read to the jury, and no bill of exceptions to any ruling of the court. We are narrowed down, then, to the complaint in the motion for new trial that the evidence is not sufficient to support the finding of the jury. We are of opinion that this court with the evidence before it would hardly be justified in reversing for this reason. There is evidence from which the jury could conclude there was a deliberate killing and one upon express malice. The strength of the state’s case may thus be stated briefly: The deceased was constable at Spring, a station on the International & Great Northern Railway in Harris county. Late in the evening about 6 o’clock, or little later, leaving the jail where he had been looking after some prisoners, deceased rode to the house of Levy Jackson. Appellant and another negro were sitting on the front step of the house. The deceased rode up and called to appellant, stating that he desired to talk with him a moment. Appellant went through the back of the house and looked from behind a corner of the house and located the constable, who was still sitting on his horse in front of the house. Appellant then went in the house and secured a Winchester rifle, which was in one of the rooms, went to a small window which was about half covered with a curtain, and fired through it and killed the deceased. Appellant immediately fled, and was captured two or three days afterwards in Polk county. The evidence discloses that appellant had been previously arrested in Walker county for burglary. One of the officers of ■ that county had gone on his bond for his appearance before the grand jury. It seems that this burglary occurred in the early part of the year, perhaps in the month of March. Action had been taken by the grand jury, but appellant had not been arrested. The testimony indicates rather he was a fugitive from justice, and there is some intimation from the testimony, at least it might be drawn from the testimony, that the constable at Spring purposed to arrest defendant if he identified him as the party who was wanted in Walker county. That is more an inference, however, than a fact. However that may be, it seems appellant so understood or suspected, and that for that reason he declined to talk with the officer, and returned to the room and shot him from the window. Appellant reached the town of Spring early in the morning before day, and about 5 o’clock in the morning or a little later an old negro man, Levy Jackson, saw him, and aftersóme conversation appellant went to Jackson’s house and spent the day, mainly in and about the premises, and it was on the evening of that same day that the constable rode by Jackson’s house and desired to have this conversation with appellant. Appellant’s theory oí it was that, when he went bach behind the house and looked from behind the comer and saw the officer, he discovered the officer had a pistol in his hand, and that prior to his running from the front steps that the officer had threatened to kill him, and that when he saw him with the pistol he went back and got a gun and shot deceased through the window. This, it may be stated, is the substance of the case; it being unnecessary to follow the details of the' flight of appellant from Spring until his capture two days later in Polk county. We are of 'opinion that under the facts, the jury was authorized to find a killing upon express malice; at least, under the facts this court would not feel justified in reversing the judgment for this reason. The court charged on murder, manslaughter, and self-defense.

Being of the opinion that the verdict of the jury was authorized from their view of the case, we will not disturb the finding, and affirm the judgment.

The judgment is affirmed.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'


source: Caselaw Access Project

author: CONLEV, C. J.

license: Public Domain

text:
    BALDWIN v. DREW.
    (No. 10.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 21, 1915.
    Rehearing Denied Nov. 18, 1915.)
    1. Vendor and Purchaser <&wkey;334 — Remedies or Purchaser — Recovery of Money Paid-Quitclaim Deeds.
    Where one takes by a quitclaim deed, taking only the chance of title, and not the land itself, he cannot, on failure of title, recover money paid.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. <&wkey;334.]
    2. Covenants <&wkey;14 —Implied Covenants — Quitclaim — Statutory Rules — Application.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1112, 1113, providing that “from the use of the words ‘grant and convey’ in any conveyance by which an estate of inheritance or fee simple is to be passed,” certain covenants of warranty are implied, does not apply to the use of such words in a quitclaim deed.
    [Ed. Note. — Eor other cases, see Covenants, Cent. Dig. § 11; Dec. Dig. <&wkey;>14.]
    3. Deeds <&wkey;25 — Construction—“Quitclaim Deeds.”
    A deed conveying only the right, title, and interest of the grantor in land, and not the land itself, is a quitclaim deed.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. &wkey;?25.
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Quitclaim Deed.]
    4. Deeds <&wkey;93 — Construction — Intent of Parties — Evidence—Admissibility.
    In construing a deed the intention of the parties governs, and that may be ascertained from the terms of the deed, adequacy of price, and other pertinent circumstances surrounding its execution.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 231, 232; Dec. Dig. &wkey;93.]
    5.Deeds <&wkey;190 — Pleading and Proof.
    On allegations in a supplemental petition in an action on a note given for the price of land conveyed that the deed was only a quitclaim, that the consideration was only $500 for 1,579 acres of land, and that the parties intended to have a quitclaim deed only, the question of the nature of the conveyance is squarely presented, and the court may then consider surrounding circumstances in construing the deed.
    [Ed. Note. — Eor other cases, see Deeds, Cent.. Dig. § 561; Dec. Dig. &wkey;>190.]
    6. Appeal and Error &wkey;>934 — Record — Statement of Eacts — Presumptions — When Indulged.
    Where there is no statement of facts in the record, the court on appeal will presume the facts necessary to the judgment and susceptible of proof on the pleadings to have been proved; but the rule does not apply where the record contains findings of fact and conclusions of law therefrom.
    LJIU. iNote. - Error, Cent. Dig. 934.] -nor otner cases, see Appeal ™ "• ■■ 3777-3782; Dec. Dig. &wkey;
    7. Deeds <&wkey;25 — Construction—Words Employed.
    A deed in words that the grantor does “grant, sell, convey, and quitclaim unto said B. 1,579 acres of land,” and further providing that it “is understood that the intention is to convey * * * all the land, * * * ” is not a quitclaim deed, since it conveys the land itself.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. &wkey;>25.]
    8. Evidence <&wkey;>18 — Judicial Notice — Value of Land.
    The court cannot, in construing a deed, take judicial notice that the recited consideration of $500 for the fee in 1,579 acres of land was inadequate, so as to construe the deed to be a quitclaim only.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 22; Dec. Dig. i&wkey;>18.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Action by Tom M. Drew against J. C. Baldwin. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baldwin & Baldwin, of Houston, for appellant. Marshall & Harrison, of Liberty, for appellee.
   CONLEV, C. J.

This suit was filed by Tom M. Drew against Jacob Baldwin on a promissory note dated February 12, 1910, for the sum of $300 executed by Jacob Baldwin to Tom M. Drew, and given in part payment of the purchase price for 1,579 acres of land, which had been previously sold to Jacob Baldwin by Tom Drew under deed dated February 12, 1910. The payment of the note sued on was secured in the deed by a vendor’s lien, and in addition to judgment on the note the plaintiff also prayed for foreclosure of the lien on the land.

The defendant, Jacob Baldwin, answered, admitting the execution of the note, and that it was given as part payment for the land. He further contended that plaintiff, in selling the land to him, executed a warranty deed therefor, and that at the time of the execution of the deed there was due, and unpaid state and county taxes amounting to tide sum of $1,189.55, wliich taxes were an existing incumbrance on tbe land. He also contended that the property had been conveyed to the plaintiff prior to the execution of said warranty deed by one Tom Moore, and that on or about the 26th day of August, 1912, the said Tom Moore notified the defendant not to pay the note sued on herein to Tom M. Drew, the plaintiff; that he (Moore) was in fact the owner of said 1,579 acres of land, and that the plaintiff, Tom M. Drew, was only holding the land in trust for him (Moore), and that he (Moore) was the owner in equity of the note; the defendant contending further that, the consideration for the land having failed and implied warranties in said deed having been breached, he asked that the contract between himself and plaintiff, Drew, be canceled and that he have judgment against the plaintiff for $200 paid the said Drew in cash on February 12, 1910, as the other part of the purchase price for said land, with interest thereon at 6 per cent., that the note executed by defendant and the deed to him by Drew be canceled, and that, if this relief was not granted, the plaintiff be, required to satisfy and pay off the tax lien against the property before the defendant be required to pay the note, and that the said Tom Moore be made a party to the suit, and be required to establish his interest in the note.

The case was tried by the court without the intervention of a jury, and the court rendered judgment for the plaintiff for the full amount of the note, together with interest and attorney’s fees, and decreed a foreclosure of the vendor’s lien on the note; and denied the defendant any of the relief he prayed for.

There is no statement of facts in the record, but the court filed its findings of fact and conclusions of law, as follows:

“This is a suit filed by Tom M. Drew against Jacob Baldwin, on a promissory note for $300, secured by a vendor’s lien dated February 12, 1910. * * * I have rendered judgment for the plaintiff, and at the defendant’s request I make and file the following conclusions of fact:
“First. On February 12, 1910, the plaintiff, Tom M. Drew, executed to the defendant, Jacob C. Baldwin, a deed to 1,579 acres of land in Liberty county, Texas. A true copy of said deed is as follows, to wit:
“ ‘State of Texas, County of Harris.
“ ‘Know all men by these presents, that I, Tom M. Drew, of the county of Polk and state of Texas, for and in consideration of the sum of $200 cash to. me in hand paid and the further sum of $300 to be paid as hereinbefore recited by Jacob C. Baldwin, of the county of Harris and state of Texas, have granted, sold, conveyed, and quitclaimed, and by those presents do grant, sell, convey, and quitclaim, unto the said Jacob C. Baldwin, of the county of Harris and state of Texas, 1,579 acres of land, the same being a part of the D. D. Blartinez leagues, Nos. 9 and 6, in Liberty county, Texas, and being the same land sold and conveyed by II. J. McCordall, administrator of the estate of James Davis, deceased, to D. D. Moore, and by Tom Moore, sole surviving heir of said D. D. Bioore, deceased, to myself, as shown by deed of record in Liberty county, Texas, and by certified copy of said probate documents recorded in volume 25, pages 303-313, of the Deed Keeords of Liberty county, Texas, to which record reference is made for better description. It being understood that the intention of this instrument is to convey to the grantee all land in either of the leagues, above mentioned, which was at any time owned or claimed or stood in the name of D. D. Moore, no matter what the description by metes and bounds thereof might be. To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said Jacob O. Baldwin, his heirs and assigns, forever. And 1 hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said Jacob O. Baldwin, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof, by, through, or under me. It is expressly understood that the consideration hereinbefore mentioned, the sum of $200, has been this day paid in cash, and the further sum of $300, as evidenced by the promissory note of said grantee of even date herewith, made payable to the grantor, and due two years after date, with interest at the rate of six per cent, per annum, and that a vendor’s lien is expressly retained to secure the payment of said note and interest. Witness my hand at Houston, Texas, this the 12th day of February, 1910. [Signed] Tom M. Drew.’
“Second. The consideration to the said T. M. Drew for the conveyance above set forth was $500, as recited in the deed, said consideration being correctly recited therein, of which the sum of $200 was paid by Jacob O. Baldwin to said Drew on the same date, and he executed his note for $300', due in two years after date, as recited in said deed, bearing interest at 6 per cent, per annum, and providing for 10 per cent, attorney’s fees, on principal and interest due, if suit should be brought on same.
“Third. At the time the plaintiff, Tom M. Drew, executed said deed to said Jacob C. Baldwin, there was then due and unpaid to the state of Texas and county of Liberty taxes amounting to $1,189.55, as alleged in the defendant’s answer. They were then a valid, subsisting tax lien against said property. Said taxes have never been paid, and are at this time a valid, subsisting lien against the land conveyed by Drew to Baldwin, as above mentioned.
“Fourth. The land in controversy — that is to say, upon which the plaintiff seeks to foreclose his lien — was on or about the 1st day of January, 1861, conveyed by J. BlcCordall, administrator of the estate of James Davis, to D. D. Moore. D. D. Bioore departed this life about the year 1890, and left one child surviving him, Tom Moore, who on or about the 10th day of Blay, 1905, as sole surviving heir of D. D. Moore, deceased, he being the only heir, executed to the plaintiff, Tom M. Drew, a general warranty deed, by which he conveyed to Tom M. Drew said land for a recited consideration of $10 cash paid and other valid and valuable considerations, the receipt of which is hereby acknowledged. Tom Moore is now living in Kauffman county, Texas.
“Fifth. On or about the 26th day of August, 1912, Tom Moore notified the defendant, Jacob O. Baldwin, that the land had been conveyed to Tom M. Drew in trust and had not been paid for, and that he (Moore) was the owner of the land and not to pay the note to the plaintiff.
“Conclusions of Law.
“From the foregoing I conclude as a matter of law that the deed above set forth is a quitclaim or special warranty deed, and that the special warranty clause is sufficient of itself to limit the implied warranty contained in the deed by reason of the use of the words ‘have granted, sold, and conveyed, and by these presents do grant, sell, and convey.’ This being true, the defendant is not entitled to protection against the unpaid taxes existing against the land at the time he bought the same, and is not entitled to have the contract between him and the plaintiff set aside, and to recover from the plaintiff the sum of money which he paid the plaintiff, together with interest thereon from the date of paj'ment.
“Second. I find the amount due upon the note sued upon, together with interest and attorney’s fees, to be $415, and ordered that judgment be entered for the plaintiff against the defendant for this amount of money, together with a foreclosure of plaintiff’s vendor’s Sen for the payment of the same. To each and all of said conclusions of fact and of law, and of the judgment ordered entered thereon, the defendant in open court then and there excepted, and gave notice of appeal to the Court of Civil Appeals at Galveston.”

Appellee’s first, second, and fifth assignments of error will be considered together, inasmuch as they involve a discussion of the same legal question in the case.

Under these assignments the appellant contends that the court erred in rendering judgment for the plaintiff, inasmuch as it is undisputably shown that the note sued on was executed as part of the consideration for the 1,579 acres of land purchased by appellant from the appellee, and that the use of the words “grant and convey,” in the deed executed by appellee to appellant, carried in themselves an implied covenant on the part of the plaintiff that, previous to the time of the execution of such conveyance, the grantor had not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee, and that such estate was at the time of the execution of such conveyance free from in-cumbrances, which included the unpaid taxes.

A solution of the questions raised under these assignments of error must necessarily be decided by determining the character of the conveyance executed by the plaintiff, Drew, to the defendant, Baldwin, bearing date of February, 12, 1910. The trial court held this deed to be a quitclaim. If one takes under a strictly quitclaim deed—that is, one by which the chance of title, and not the land itself, is conveyed—he will not be accorded the protection which the defendant seeks in this case, for the obvious reason that he contracted for the interest only which the vendor then had in the land. If the vendor had previously divested himself of all or a portion of the land, to the extent of the divestiture there would be no right remaining in the vendor to pass by the quitclaim to the vendee. Thorn v. Newsom, 64 Tex. 164, 53 Am. Rep. 747. In commenting upon the case of Hope v. Stone, 10 Minn. 141 (Gil. 114), and which case is’ cited in Richardson v. Levi, 67 Tex. 365, 3 S. W. 447, our Supreme Court said:

• “The court, in holding that the deed before them, which conveyed only the right, title, and interest of the grantor, did not protect the grantee against a previous trust with which the land ‡ * *, was charged, said that if it had been a conveyance of the land, instead of the right, title, and interest of the grantor, it might be necessary to inquire whether the registration or possession of the opposing claimant was notice to the grantee. But they say, as he only took the grantor’s right, he took nothing which the latter had previously conveyed. The very terms of the deed were notice to him of all the rights previously conferred upon others by his grantor.”

The Revised Statutes (articles 1112, 1113, Vernon’s Sayles’ Texas Civ. St.), upon which appellant relies for authority for his proposition to read into the conveyance from Drew to himself the implied covenant as to previous conveyances and freedom from in-cumbrances, does not apply to> any other conveyance than one by which an estate of inheritance or the "fee simple is granted. The statute reads as follows:

“From the use of the word ‘grant’ or ‘convey,’ in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants; and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance: 1. That previous to the time of the execution of such conveyance the grantor has not conveyed the same estate, or any right, title or interest therein, to any other person than the grantee. 2. That such estate is at the time of the execution of such conveyance free from in-cumbrances.”

Under the common law, conveyances are classified, first, as original or primary conveyances, which are those by means whereof the benefit or estate is created or first arises; and, second, derivative or .secondary conveyances, whereby the benefit or estate originally created is enlarged, restricted, transferred, or extinguished. Original conveyances are the following: Feoffment, gift, grant, lease, exchange, and partition. Derivatives are release, confirmation, surrender, assignment, and defeasements. Blackburn, vol. 1, pp. 309, 310.

If a deed purports and is intended to convey only the right, title, and interest in the land, as distinguished from the land itself, it is strictly speaking a quitclaim deed. The words used in the ordinary form of a quitclaim at common law are “remise, release, and forever quitclaim all the right, title, and interest” of the party making the deed. Richardson v. Levi, 67 Tex. 359, 3 S. W. 444. A quitclaim deed has with us the same effect as a release at common law. Harrison v. Boring, 44 Tex. 255. Therefore, as a conveyance, it must fall in the second classification, and is of a dignity less than a conveyance of an estate of inheritance or an estate in fee, and for this reason the statute does not apply to a strictly quitclaim deed.

Much has been written and said about the rules for determining whether a conveyance is a transfer of the land itself, or a mere chance for title, and we only deem it necessary to quote from a few of the many cases on that subject. When such a question is properly raised, it would seem that the intention of the parties is the main question, and to that end the terms of the deed, [ the adequacy of the price, and other pertinent circumstances surrounding the execution of the deed, are admissible to show whether the purchaser bought the land, or merely bought a chance for title.

In the case of Harrison v. Boring, 44 Tex. 255, the court, after citing a number of authorities, says:

From these authorities “it may he fairly deduced that where the deed contains evidence that the absolute right to the land, and not the title or the chance of the title, is sought to be sold and bought, the purchaser may be a bona fide purchaser, notwithstanding the deed may have in some other respects the qualities of a quitclaim deed in form. Not only the terms of the deed, but the adequacy of the price given, and other circumstances attending the transaction, may serve to show, when brought in evidence, whether the purchaser bought the .land, or bought merely the title. * * * The fact appearing in the deed that the company expressly retained a vendor’s lien [may] be construed as tending to show that it was intended to sell the land with the absolute right of the fee, and not merely the title or chance of the title, and if that fact had been aided by proof of payment of full value of the lot, as though no adverse interest was claimed on it, or other like circumstances, it might have been left to the jury to determine in connection with the deed whether or not the parties intended to convey such absolute right to the land, as that it was not regarded and intended by them to be a mere quitclaim deed to the land, notwithstanding it purported to convey only the company’s right and title, and contained only a special warranty. A deed, as other instruments, may be read and construed [in] the light of surrounding circumstances under which it was executed. While a deed may be so plain, in its terms as to require the court to construe it to be a quitclaim [deed] in one case, or an absolute conveyance of the land in another case, still its wording may be such as to raise a question whether it is the one or the other, and in that event the circumstances under which it is made and purposes for which it is made may be considered to fix its true character as being the one or the other.”

In Taylor v. Harrison, 47 Tex. 461, 26 Am. Rep. 304, the court said:

“Whether a deed is a [quitclaim or a warranty] is not to be determined merely by an omission of the covenant of * * * warranty of title, but may be inferred ‘not only from the terms of the deed, but from the adequacy of the price given, and other circumstances attending the transaction,’ calculated to show the real intent and purpose of the instrument. * * * The meager statement of facts * * * does not sufficiently enlighten us in regard to the ‘circumstances attending the transaction,’ to enable us to draw a satisfactory conclusion as to the import and proper construction of the deed from the administrator. We are unable to say what was the character of claims for the payment of which the sale was ordered, or that the creditors for whose benefit the sale appears to have' been made were within the protection of the statute, or that the purchaser was without * * * notice of the prior deed, or whether or not the price at which the land was sold indicates a sale of the land or a mere claim or chance of title to it.”

In Thorn v. Newsom, 64 Tex. 164, 53 Am. Rep. 747, it is said:

“In the determination of that question [whether a conveyance was a quitclaim or a warranty], resort should be had to the circumstances attending the transaction, the primary object being to arrive at the intention of the * ' * * parties ; for if their intention was that the one purchased and the other intended only to sell his interest in the land, then it would be held that the bond called for only a quitclaim deed. On the other hand, if the obligee intended to contract for an absolute conveyance of the land, and the obligor intended to bind himself to make that character of conveyance, even though it was upon special warranty, nevertheless it would be a conveyance of the land, as distinguished from a release or transfer of merely the obligator’s right.”

In Carleton v. Lombardi, 81 Tex. 357, 16 S. W. 1081, the court said;

“Not only the terms of the deed but the adequacy of the price given, and other circumstances attending the transaction, may serve to show, when brought in evidence, whether the purchaser bought the land or bought merely the title.”

In the case of Culmell v. Borroum, 13 Tex. Civ. App. 461, 35 S. W. 943, the court said:

“Much has been written on what it takes to constitute an instrument a conveyance of the land itself, or merely a release of such title, however imperfect it may be, lodged in the grantor; but the matter, it seems, resolves itself into a question of arriving at the intention of the parties. It has been held in this state that ‘while a deed may be so plain in its terms as to require the court to construe it to be a quitclaim in one case, or an absolute conveyance of the land in another case, still its wording may be such as to raise a question whether it is the one or the other, and in that event the circumstances under which it is made and the purposes for which it is made may be considered to fix its true character as being one or the other.’ If the deed, no matter how expressed, shows on the part of the grantor an intention to convey the land itself, then it was not a quitclaim * * * but, if it conveyed only the title that the grantor may have had in the land, * * * the grantee is charged with notice of all the risks attending such a purchase. The deed * * * conveyed ‘all my right, title, and interest in and to that certain tract of land,’ which is followed by a description of the lands and the habendum clause, ‘To have and to hold the title unto him, -, his heirs and assigns, forever,’ which evidently refers back to what was conveyed, namely, ‘right, title, and interest.’ The warranty is of the ‘title to the land.’ The warranty clause * * * forms no part of the conveyance, but is looked upon as a separate contract. * * * The use of the words ‘bargain and sell’ do not alter the character of the instrument. * * * We conclude * * * that the deed * * * was a quitclaim, and not an absolute, conveyance of the land.”

In the case of Threadgill v. Bickerstaff, 87 Tex. 523, 29 S. W. 758, the court said:

“The clear deduction from the cases cited is that in order to charge a purchaser with notice of an unrecorded instrument, a secret lien, or equity, by reason of the character of the deed under which he claims, that deed must purport to convey and quitclaim to the purchaser no more than the right, title, or interest of the grantor. The tests by which the character of the deed is to be determined are clearly and forci-» bly expressed in the statement of the rule. It does not matter that the instrument used the word ‘quitclaim.’ If it conveys to the grantee the land itself, it is not such a deed as will charge him with notice of prior unregistered instruments, secret liens, or equities; and, on the other hand, although it may contain a clause of warranty, it will have the effect to so charge him with notice, if it purports to convey no more than the right and title of the grantor, to the land.”

By the second supplemental petition, which appears in the record of this case, the plaintiff specially denies that he executed a warranty deed to the defendant, and alleged that he only executed a quitclaim deed; but in the event the court should hold that the deed on its face or by its terms amounted to a warranty deed, then the plaintiff further alleged that by agreement between himself and the defendant, Baldwin, the deed was regarded only as a quitclaim, and by the terms of which, as set forth in plaintiff's petition, he only received $200 cash and $300 to be paid, as evidenced by the note sued on. These allegations squarely raised the issue as to the nature of the conveyance executed by plaintiff to the defendant, and, such instrument itself being ambiguous as to just what kind of estate was conveyed, under the above authorities, the court was authorized to hear evidence on the intention of the parties at the time of the execution of the conveyance, and to that end to inquire into and consider the agreement of the parties, as alleged, the understanding between them as to the kind of an estate to be conveyed, the adequacy of the price paid, and other pertinent circumstances, which would shed light upon this disputed point.

There is no statement of facts in the record showing what evidence, if any, was introduced upon these issues. The court in its findings of fact and conclusions of law makes no reference to such matters, nor is there any finding upon such issues of fact, if they were submitted. Ordinarily, where there is no statement of facts in the record, the appellate court, to sustain a judgment, will pi’esume everything to have been proved which was susceptible of legal proof under the pleadings; but this rule is only applicable where there is neither statement of facts nor findings of fact and conclusions of law by the court, and it is not applicable where the findings of fact and conclusions of law were filed below and duly excepted to, since the law authorizes an appeal from such findings alone, and generally entitles the appellant to have the correctness of the legal conclusions on which the judgment rests tested by the facts stated as their basis. Kimball v. Houston Oil Co., 100 Tex. 336, 99 S. W. 852.

In the instant case, as appears from a recital in the court’s findings of fact and conclusions of law, he based his conclusion that the conveyance in dispute was a quitclaim deed upon a mere inspection of the instrument. The appellant duly excepted to such conclusion, and under the third assignment of error attacks the judgment of the court in that respect. This necessarily requires an analysis of the language used in said deed. The deed on its face undertakes to convey tc> Jacob Baldwin the land itself, instead of the-“right, title, and interest” of the grantor. In that respect it reads:

“Know all men by these presents, that I, Tom L. Drew, of the county of Polk and state of Texas, for and in consideration of the sum of $200 cash to me in hand paid and the further sum of $300 to be paid as hereinafter recited by Jacob Baldwin, * * * have granted, sold, conveyed, and quitclaimed, and by these presents do grant, sell, convey, and quitclaim, unto said Jacob Baldwin * * * 1,579 acres of land [describing it].”

There is a further provision in the premises of the deed which tends to emphasize an intention of the parties (if we rely upon the language alone) to convey the land, instead of the title thereto, which reads as follows:

“It being understood that the intention of this instrument is to convey to the grantee all the land in either of the two leagues above mentioned, which was at any time owned or claimed or stood in the name of D. D. Moore, no matter what the description by metes and bounds may be.”

A reference to the' language of the grantor in the warranty clause shows the language used by the grantor to be:

“And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises [instead of ‘all his right, title, interest and claim in and to said premises’] unto -the said Jacob Baldwin,” etc.

The only word or words appearing in the express language of this deed, which can in themselves be relied upon to take it out of the ordinary and prescribed form for a fee-simple conveyance of the land (article 1107, Vernon’s Sayles’ Tex. Civ. St.) is the addition of the word “quitclaim” in the granting clause. In the case of Richardson et al. v. Levi et al., 67 Tex. 359, 3 S. W. 445, the court was called upon to determine the character of the following deed — that it is to say, whether the deed on its face was a quitclaim or a conveyance of the land itself — to wit:

“Know all men that I, James Park, of Williamson county, state of Tennessee, for the sum of $200, received to my full satisfaction, of John C. Moody, of Victoria county, in the state of Texas, do by these presents grant, bargain, sell, demise, release, and forever quitclaim unto the said Moody, his heirs and assigns, the following lots of land situated and being in the town of Victoria, county of Victoria, and state of Texas, and known upon the map, and according to the plat of said town, as building lots, Nos. 1, 2, 3, and 4, in block 131, range 9. Witness my hand and scroll for seal this 21st day of July, A. D. 1858.”

Referring to this deed, Judge Willie, speaking for the coui’t, said:

“The deed from Park to Moody does not purport on its face to convey merely the right and title of Park to the land, but the land itself. It is true that it uses the word ‘quitclaim’ in connection with other words by which title may be passed under a deed of conveyance; but we do not think this word restricts the conveyance in any manner whatever. The words used in the ordinary form of quitclaim at common law 'are ‘remise, release, and forever quitclaim all the right, title, and interest’ of the party making the deed. The use, in addition, of other words, such as ‘give, grant, bargain, and sell,’ would not change the character of the conveyance, if the interest sold was still described as the ‘right and title’ of the grantor. It would still be a conveyance of'that interest, and not of the land described in the deed; but each of the words of conveyance found in deeds which purport to convey land, and not the vendor’s title had at common law its own signification and legal effect. The word ‘give’ was used in conveying a fee tail; the word ‘grant’ to convey an incorporeal hereditament; the term ‘bargain and sell’ evidenced contract to convey which made the bargainer to hold for the use of the bargainee, and the statute of uses vested the title in the usee. A release was used only when the releasee was in possession, and releasor conveyed to him his own title. The signification of these terms has been somewhat modified, and in America, at least, the words ‘grant’ or ‘bargain and sell’ may convey fee-simple title to any species of property. * * * It is clear, therefore, that the use of the word ‘quitclaim’ in the present deed did not make it any the less a conveyance of the lot in controversy, or restrict it so as to make it upon its face convey no more than the interest of the grantor in the property.”

While the recitals in the instant deed of a purchase price of only $500 for 1,579 acres of land may, under proof, be determined an inadequate consideration, and therefore be considered as a circumstance showing, along with other evidence that may be introduced on the subject, the intention of the parties, in determining the nature of the conveyance, still this court would not be authorized in taking judicial notice that $500, recited in said deed as the purchase price for the 1,579 acres of land, wias an inadequate price. We therefore cannot agree that this deed on its face, and based upon the facts as stated by the court in his findings of fact and conclusions of law, is a quitclaim deed, and therefore this cause will be reversed and remanded for a new trial.

We have examined the other assignments of error contained in appellant’s brief, and, finding no merit in them, they are overruled. Case reversed and remanded for new trial.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUPP, C. J.

text:
    DALHART ICE & ELECTRIC CO. v. TINSLEY.
    (No. 857.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1915.)
    1. Justices oe the Peace <5&wkey;73, 74t — Plea oe Privilege — Statute.
    Where suit is not pending also in the justice court of the county of defendant’s residence, or brought in such court, defendant’s plea of privilege to be sued in the county of his residence need not show that the justice to whose court the case is asked to be transferred is not disqualified, since Rev. St. 1911, art. 2312, providing if there be no justice of the peace qualified to try the suit in the proper precinct, it may be commenced before the nearest justice of the peace of the county who is not disqualified to try the same, has no application to a nonresident of a county.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dee. Dig. &wkey;>73, 74.]
    2. Justices oe the Peace &wkey;>73, 74^-Waiver oe Pbivilege — Statute.
    Rev. St. 1911, arts. 1831-1833, providing that issuing process for witnesses and taking depositions shall not constitute a waiver of a plea of privilege, that if a plea of privilege is sustained the cause shall not be dismissed, but the court shall transfer it to the court having jurisdiction of the person of the defendant, and that when the plea is sustained the court shall order the venue changed and the record shall be transmitted, apply to cases pending in justice courts, since article 1903, prescribing what the plea of privilege shall state, and that none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1830 or article 2308 exists in the cause, was added to the Revised Statutes by the same act of 1907 (Acts 30th Leg. c. 133), which added articles 1831-1833, while the exceptions mentioned in article 2308 refer to the venue in justice courts.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dee. Dig. &wkey;73, 74.]
    Appeal from Dallam County Court; T. S. Mills, Judge.
    Action by the Dalhart lee & Electric Company against Leslie Tinsley. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Tatum & Tatum, of Dalhart, for appellant. H. L. McCune, of El Paso, and Bailey & Richards, of Dalhart, for appellee.
   HUPP, C. J.

The appellant instituted suit against appellee in the justice court, precinct No. 1, Dallam county. In that court the appellee filed his plea of privilege to be sued in precinct No. 1, El Paso county, Tex., which he alleged was and is his place of residence and in .which he should be sued. The plea of privilege is sufficient under article 1903, R. C. S. In fact, there are no objections to the form of the plea. In the justice court that court found against the plea and rendered judgment by default in favor of the appellant against appellee. The appellee appealed to the county court of Dallam county, and upon the hearing on the plea of privilege, the court sustained the plea, and foun.d that the allegations therein were true and ordered the case transferred to precinct No. 1, El Paso county, Tex. The appellant excepted to the plea on the ground that it does not negative the disqualification of the justice of the peace of precinct No. 1, El Paso county, or that there was a justice of the peace in that precinct qualified to try the case. The court overruled the exception, and this is assigned as error. Where the suit is not pending in the justice court of the county of the defendant’s residence, or brought in such court, we do not understand it to be required to show by the plea that the justice of the peace to whose court the case was ordered transferred is not disqualified. Article 2312, R. C. S., does not apply to a nonresident of a county. Aspermont Drug Co. v. Crowdus Co., 80 S. W. 258.

It is also assigned as error that there was no law authorizing the transfer from one justice court in one county to a justice court in another county. It is contended that articles 1831 to 1833, inclusive, do not apply to cases pending in the justice courts'. This has been held otherwise. Kramer v. Lilley, 55 Tex. Civ. App. 339, 118 S. W. 735. In addition to what was said in the above case, we call attention to the Acts of 1907, which added articles 1194A, 119413, 11940, to the Revised Statutes of 1895. These articles, so added, were all in one act. Articles 1194B and 11940 are now articles 1831 to 1833, inclusive, R. C. S. 1911; and article 1194A is now article 1903, R. O. S. This last article prescribes what the plea of privilege shall state:

“And that none of the exceptions to exclusive venue in the county of one's residence mentioned in article 1830 (old article 1194), or article 2308 (old article 1585) of the Revised Statutes, exist in said cause.”

The exceptions mentioned in article 2308, R. O. S., refer to the venue in justice courts. We think it is evident the Legislature intended these articles to apply to justice courts. The' case will be affirmed.
      @E5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    RIBBLE v. ROBERTS.
    (No. 5516.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 20, 1915.
    Rehearing Denied Nov. 24, 1915.)
    Insubance <&wkey;141 — Delivery and Acceptance op Policy — Estoppel.
    As claimed by plaintiff, he was induced to take life insurance by the representations of the insurer’s agent that the annual premium would be $81.90, whereas the policy provided for payment of an annual premium of $86.90. A few days after the delivery of the policy plaintiff discovered this discrepancy and wrote the agent a letter calling his attention to it, and stating that he did not want the policy unless he could get it corrected and would hold it subject to the agent’s order unless corrected. The agent did not answer the letter, and, though they lived in the same community, plaintiff neither returned the policy, notified the company, nor again wrote the agent until payment of the second annual premium was demanded, when he notified the company that he had dropped the policy. Held that, conceding that fraud was proved, there being no offer to return the policy, except what might be construed as a conditional proposition to do so, plaintiff’s retention of the policy was an acquiescence therein, and a ratification thereof and estopped him from asserting the contrary as a defense to an action on notes givJ en for the premiums.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 75, 253-262; Dec. Dig. &wkey;141.]
    ■ Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by A. D. Ribble against J. B. Roberts. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    Miller & Low, of Brownwood, for appellant. Mark McGee and Scott & Foster, all of Brownwood, for appellee.
   RICE, J.

This suit was instituted by appellant against appellee in the justice court on the 15th of April, 1914, to enforce the collection of two notes, executed by ap-pellee, of date May 27, 1911, one for the sum of $81.90, and the other for the sum of $11.-11, each payable to the order of Ribble and Wilson, the first on November 1, 1911, and the latter upon the tender to appellee of a certain life insurance policy, in consideration for which they were executed, the first bearing 8 per cent, interest from date and providing for 10 per cent, attorney’s fees, if placed in the hands of an attorney for collection.

Appellee resisted their payment upon the ground that Wilson made fraudulent representations to him to procure their execution and induce him to take said insurance, in this, that he represented that the annual premium upon said policy of insurance would be $81.90, whereas, in truth and in fact, the policy when delivered provided for the payment of an annual premium of $86.90.

Trial in the justice’s court resulted in a judgment in favor of appellant, from which an appeal was taken to the county court, where the case was tried by jury on special issues and judgment was rendered for ap-pellee, from which appellant has prosecuted this appeal.

It appears from the evidence that on the 27th of May, 1911, A. D. Ribble and Chas. Wilson were agents for the American Home Life Insurance Company of Ft. Worth, and, as such, entered into a contract with appel-lee whereby he agreed to take out a policy of insurance upon his life in said company for the sum of $2,500, and the notes in question were executed in payment of the premiums therefor. It further appears that Wilson agreed that the annual premium should be $81.90. The policy, however, recited that it should be $86.90, and the application, which the appellee signed without reading, contained a similar recital. Wilson did nothing, however, that induced him to sign the application without reading it, and states that the note was made for $81.90 by mistake. Desiring the policy to take effect from date and the premiums therefor to become . due on the 1st of November of each year, the first note was given for the first annual premium, and the second to cover the short term insurance; that Wilson represented to him that the annual premiums on said policy would be $81.90. About the 1st of June thereafter the policy was delivered to him by Wilson, but, being about ready to go to the field to work, he put the policy in his trunk without reading it. Within three or four days thereafter he showed the policy to his brother-in-law, who called his attention to the fact that the premium called for therein was $86.90, instead of $81.90. On the next day thereafter he went to see Wilson, who lived in the neighborhood, about this matter, intending to turn the policy back to him, but failed to see him. 1-Ie did not try to see Ribble, because he was not then in the country. On returning home he wrote Wilson a letter calling Ms attention to the discrepancy, stating that he had promised to write the policy for the premium of $81.90; that he did not want the policy, unless he •could get it corrected to conform to his agreement, and would hold it subject to his order unless corrected; that he heard nothing thereafter from Wilson or Kibble about the policy until about the time the note became due; that he did not write again to either of them in regard to it; that Wilson lived in the same community, and he could easily have seen him, but that he did not see him often, and did not mail the policy to either of them, nor did he at any time demand the return of his notes; that he never notified the company that he would not accept the policy, or that he desired any changes in it, until after it drew on him through the Brownwood bank for the second annual premium, which was due November 1, 1912; that he then notified the bank and the company that he would not pay the premium, but had dropped the policy; that he would not have agreed to take the policy if he had known that it called for an annual premium of $86.90; that he still had the policy of insurance in his possession; and that he never told his mother, the beneficiary, who lived with him, that he had rejected it.

Appellant requested and the court refused to give a peremptory instruction in his behalf, which is assigned as error. He also questions the sufficiency of the evidence to sustain the judgment. We agree with ap-. pellant in both of these contentions, and think the charge requested should have been given.'' Conceding, for argument’s sake, that there was sufficient proof of fraud to justify the avoidance of the policy on this ground, if the proper steps had been taken to do so, and that the notes were therefore without consideration to support them, still it appears that appellee never at any time returned or offered to return the policy.'1 It is trae that what he did may be construed as a conditional proposition to do so, if the company should fail to change the policy so as to conform to his understanding of the matter ;v yet, after failing to hear from the agent to whom he had written, he kept the policy, and had it in his possession at the time the suit was instituted. The refusal of Wilson to respond to this letter and his neglect to conform to the request therein made, with the continuous retention of the policy on the part of ap-pellee, is sufficient, we think, to show Ms acquiescence in and ratification of the policy as written, and will therefore estop Mm from asserting the contrary.'' Having had the benefit of the policy from its date, thereby giving the beneficiary a right of, action thereon in the event of his death, he should not now be permitted to repudiate the payment •of the notes on the ground of failure of consideration ; but, on the contrary, that he did must be regarded as an election by him to treat the policy as being in full force. See American Ins. Co. v. Dillahunty, 89 Ark. 416, 117 S. W. 245; Smith v. Smith, 86 Ark. 284, 110 S. W. 1038; Remmel v. Griffin, 81 Ark. 269, 99 S. W. 70; N. Y. Life Ins. Co. v. Miller, 11 Tex. Civ. App. 536, 32 S. W. 550; King v. Mayes, 3 Ind. T. 362, 58 S. W. 573; 25 Cyc. 757-8 and notes; Leigh v. Brown, 99 Ga. 258, 25 S. E. 621; Fennell v. Zimmerman, 96 Va. 197, 31 S. E. 22; Plympton v. Dunn, 148 Mass. 523, 20 N. E. 180; American Ins. Co. v. Neiberger, 74 Mo. 167; 1 Joyce on Insurance, § 58, where it is stated that:

“If the application for insurance does not set forth all the provisions which the policy is to contain, and the agent represents that the policy will contain certain lawful stipulations, the policy must contain them, or the insured will not be bound to accept it. In such case, however, it is incumbent upon the applicant immediately on receipt of the policy to notify the company of his refusal to accept the policy.”

For the reasons indicated, the judgment of the court below is reversed, and judgment here rendered on both notes for appellant.

Reversed and rendered.
      <¡&wkey;For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    TEXAS-KALAMAZOO SILO CO. v. ALLEY.
    (No. 862.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1915.)
    1. Judgment <&wkey;251 — Pleadings — Breach OF WARRANTY — REMEDIES OF BUYER.
    In an action for breach of a warranty in a contract of sale which contained no provision for the return of the goods, the court could not where fraud was neither alleged nor proved, enter a judgment rescinding the contract.
    [Ed. Note. — For other cases, see Judgment, Cent Dig. § 437; Dec. Dig. &wkey;251.]
    2. Sales <&wkey;434^-BREACH of Warranty — Actions — Petition.
    In an action for breach of a warranty on a contract of sale of materials, a special exception should have been sustained to a paragraph of the petition alleging that at the time of such contract defendant entered into a similar contract through the same agent, for the purchase of two silos, by plaintiff’s brother-in-law, it not being alleged that such sales and the sale to plaintiff were included in the same contract or covered by the same warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1234-1238; Dec. Dig. &wkey;434.]
    3. Trial <&wkey;350 — Breach of Contract — Special Issues — Issues to be Submitted.
    In an' action for breach of a warranty on sale of the materials for a silo, where there was evidence that the use of the silo while it was used by plaintiff had_ a value, and that some of the materials were still in a sound condition, defendant was entitled to have issues submitted as to whether the use of the silo had any value and, if so; what such value was, and whether the materials in the silo were of any value to plaintiff or any one as material, provided the evidence, showed the value of such use and of the sound material.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350J
    Appeal from District Court, Hale County; R. C. Joiner, Judge.

      Action by Nick Alley against tlie Texas-Kalamazoo Silo Company. Erom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Randolph & Randolph, of Plainview, and Eloumoy, Smith & Storer, of Et. Worth, for appellant. X. W. Holmes, of Plainview, for appellee.
   HALL, J.

Appellant company sold appel-lee certain tiling, doors, steel hoops, steel door frames, gaskets, latches, etc., to be used by plaintiff in the construction of a silo on his farm in Hale county. By the terms of the written contract of sale plaintiff was to do all of the work in constructing the silo and furnish all of the balance of the material for its construction at his own expense. The contract price of the material furnished was $811.05, which amount plaintiff agreed to pay in three installments, one-third cash, paid upon delivery of the material, and the balance in two equal installments, to be evidenced by notes executed upon the arrival of the material. The cash payment was made, .and the notes executed, in accordance with the contract. Plaintiff finished the silo in September, 1914, and soon after it was filled it began to crack, and he filed this suit to restrain appellant company from disposing of the notes, prayed for damages in the sum of $1,253.15, and for a rescission of the contract of sale and cancellation of the notes. The amount claimed as damages included the $811.05, which plaintiff had agreed to pay for the materials and $422.10 for labor and extra material in its construction. In his amended petition, appellee tendered the silo to appellant company as soon as it should become empty. It was shown at the trial that it contained from 12 y2 to 15 feet of ensilage. The contract of sale does not provide that the materials furnished by appellant should ever be returned to it, and appellee’s pleadings contain no allegation of fraud. The contract of sale contained the following warranty:

“This is to certify that the Kalamazoo Silo Company of Ft. Worth, Texas, hereby guarantees their hollow clay tile silo to not crack or bulge and to withstand all winds that do not destroy adjacent buildings, if erected on a suitable foundation, as instructed by this company. This guaranty is operative for five years from date of erection of silo.”

It is admitted that the foundation was suitable, and that it was properly constructed by appellee. A trial before a jury resulted in a verdict against appellant, in the sum of $1,-253.15 damages, the judgment perpetuating the injunction, restraining appellant from disposing of the notes, and further provided that upon the surrender of the notes the judgment against appellant should be satisfied pro tanto.

The controlling question in this case is presented by the sixth assignment of error. As heretofore stated, there are no pleadings setting up fraud on the part of the appellant in the sale of the silo, and no provision in the contract for its return in ease of a breach of the warranty. Appellant urges under this assignment the proposition that the court was not authorized to enter judgment rescinding the contract, when it contained no provision for the return of the goods, and fraud was neither alleged nor proven. This assignment must be sustained. Jesse French Piano Co. v. Thomas, 36 Tex. Civ. App. 78, 80 S. W. 1063; Jesse French Piano Co. v. Garza, 53 Tex. Civ. App. 346, 116 S. W. 150; Wright v. Davenport, 44 Tex. 164; Stark v. Alford, 49 Tex. 261; Fetzer v. Haralson, 147 S. W. 290; Texas Machinery & S. Co. v. Ayers Ice Cream Co., 150 S. W. 750; Simpkins, Contracts and Sales (3d Ed.) 971. According to these authorities, the suit was instituted and tried upon a mistaken theory, and the judgment is clearly erroneous, since it grants relief to which appellee was not entitled under the nature of the case presented in his pleadings and the evidence.

The first assignment is based upon the action of the court in overruling appellant’s special exception. This exception is to the fifth paragraph of the petition, which is:

“That at the same time the defendant entered into a similar contract through the same agent, for the purchase of two silos, by Charles E. Saigling, a brother-in-law of this plaintiff.”

Appellee insists that it is not improper to allege the sale of a silo to another person, where both sales are included in the same written contract, and covered by the same warranty. We agree with appellee, but no such allegation was made or excepted to, and this assignment is sustained.

Under the second assignment appellant insists that the court erred in refusing to submit its first and second special issues, as follows:

“First. Did the use of the silo, by defendant to plaintiff, and shown by the testimony to have been used by the plaintiff, from the latter 'part of August, 1914, to this time, and yet in use by the plaintiff, have any value? If so, what was the value?
“Second. Are the blocks and other materials in said silo of any value, not only to plaintiff, but to any one as material?”

The- uneontradicted evidence of Alley and Saigling was that the use of the silo from September up to March would have a value. It is further shown by appellee’s testimony that the silo was cracked from the foundation up to a height of 15 feet in several places; that the structure was 45 feet high, and that the blocks above the cracks were in a sound condition. We think appellant was entitled to have these issues submitted, provided the evidence showed the value of the use of the silo during the time and the value of the sound material. This also disposes of the third and fourth assignments.

The error complained of under the fifth assignment cannot arise upon another trial, and it will be disregarded.

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


author: FLY, C. J.

text:
    CITY OF BROWNSVILLE v. KINDER.
    (No. 5533.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1915.
    Rehearing Denied Dec. 15, 1915.)
    1. Election ox Remedies <&wkey;7 — What Constitutes.
    Where a city attorney sued the city to recover salary at the rate of $100 per month for two months, his trial of such suit was an election to abide by the result, and amounted to an abandonment of his suit to enjoin the enforcement of an ordinance reducing his salary to $25 a month, since the institution of two suits, by the same plaintiff, involving the same issues and subject-matter, against the same defendants, and trial of one of them, amounts to an election to abide by the result in the ease tried, and the judgment therein is res adjudicata of the issues in the other case.
    [Ed. Note. — For other cases, see Election of Remedies, Cent Dig'. § 12; Dec. Dig. <i&wkey;7.]
    2. Municipal CORPORATIONS <&wkey;164 — Reduction oe Salary — Statute.
    Rev. St. 1911, art. 816, applying to the salaries of officers of a city incorporated under the provisions of the title, provides that the salaries of the mayor’ and officers elected or appointed by the city council on or before the 1st day of January next preceding every election shall be fixed by the council, and that the compensation so established shall not he changed during the term for which the officers shall be elected or appointed. Article 784 provides that the treasurer, assessor, collector, secretary, city attorney, marshal, and city engineer, shall he elected by the qualified electors and hold their offices for two years, etc. Held, that the word “elected,” in article 816, refers to the officers mentioned in article 784, and does not mean officers “elected” by the city council, as no such term .is used as to its appointees, so that an attempted reduction of salary of the city attorney, during the term for which he was elected, was void.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent.Dig. § 370, 371; Dec.Dig.&wkey;164.]
    Appeal from Cameron County Court; H. L. Yates, Judge.
    Action by T. A. Kinder against the City of Brownsville. Judgment for plaintiff for $200, and defendant appeals.
    Affirmed.
    Graham, Jones, West & George, of Brownsville, for appellant. H. W. Williams, Ira Webster, and Harbert Davenport, all of Brownsville, for appellee.
   FLY, C. J.

Appellee, the duly elected and qualified city attorney of the city of Brownsville, sued the latter to recover his salary of $100 a month for the months of January and February, 1915. The cause was heard by the trial judge, and judgment rendered in favor of appellee for the sum of $200, of which $100 hears interest at 6 per cent, from February 1, and the other $100 bears the same interest from March 1, 1915.

It seems that at the time of the trial of this cause a suit was pending in the district court of Cameron county in which the enforcement of a certain ordinance passed by the city council, having for its object the reduction of the salary from $100 to $25, was sought to be enjoined by appellee, as against appellant. Appellant sought by a plea of abatement to procure a dismissal of this suit, or that in the district court. The plea was denied by the trial judge, and that action is made the subject of the first assignment. If it be admitted that the cases involve the same issues and the same parties, and that appellee should have been compelled to elect which one he would try, we are of the opinion that his trial of the cause was such election and amounted to an abandonment of the other suit. Where two suits are instituted, by the same plaintiff, involving the same issues and subject-matter, against the same defendants, the trial of one of them amounts to an election to abide by the result in that case and the judgment therein would be res adjudicata of the issues in the other case. Pullman v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 315; Cole v. State, 163 S. W. 353.

The evidence is conclusive that the city of Brownsville is incorporated under the provisions of title 22, Texas Statutes, and that therefore article 816 applies to the salaries of its officers. In that article it is provided that the salaries of the mayor and officers elected or appointed by the city council on or before the 1st day of January next preceding each and every election be fixed by the city council, “and the compensation or salary so established shall not be changed during the term for which said officers shall be elected or appointed.” It is provided in article 784 that the treasurer, assessor, collector, secretary, city attorney, marshal, and city engineer shall be elected by the qualified electors and shall hold their offices for two years and until the election and qualification of their successors. The only provision made for the salaries of the elected officers is in article 816. It is clear that the word “elected,” used in that article, refers to those mentioned in article 784, and does not mean officers elected by the city council, as no such term is used as to appointees, and they are described as those “appointed by the city council.”

The statute was followed in fixing the salary of the city attorney at $100 a month, and afterwards at a regular election held on April 7, 1914, appellee was elected city attorney by the voters of the city of Brownsville for a term of. two years and duly and legally qualified as such, and has since that time performed the duties of the office. Under the statute the attempt made to reduce the salary of appellee by the council, in December, 1914, was null and void. It was directly in the face of the plain, and unmistakable provisions of the statute, the only part of article 816, that is absolutely mandatory. City of Uvalde v. Burney, 145 S. W. 311. The authorities offered by appellant do not in any way justify appellant in its plain disregard of the law.

The judgment is affirmed.
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text:
    NEW BRITAIN MACH. CO. et al. v. WATT.
    (No. 5536.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 1, 1915.)
    1. Receivers <&wkey;59l — Appointment—Collateral Attack.
    The propriety or legality of a receivers appointment cannot be questioned, nor can his eligibility be attacked in any subsequent proceeding, since that would be a collateral attack upon the validity of the appointment.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 103, 104; Dec. Dig. <&wkey;59.)
    2. Receivers &wkey;> 163 — Payment and Distribution-Collateral Attack.
    An order directing the payment and distribution of the funds in the possession of a receiver cannot be collaterally attacked.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 312-316; Dec. Dig. <@==»163J
    3. Receivers <&wkey;139 — Attack on Sale — Fraud.
    The sale of property by a receiver may be set aside for fraud and collusion or inadequacy of price, and it would evidence fraud for a receiver to purchase or be interested in purchasing at his sale of the property.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ -243, 244; Dec. Dig. <S&wkey;139.] -
    4. Receivers <&wkey;139 — Sale by Receiver — Attack — Fraud—Pleading and Evidence.
    Allegations on a motion to set aside a receiver’s sale that the price received, being the highest bid therefor, was materially inadequate, being several thousand dollars less than the price the movant offered for the property if ordered sold to him at private sale, formed a sufficient basis for the introduction of evidence upon the issue of inadequacy of price.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 243, 244; Dec. Dig. <$=139.]
    5. Receivers <&wkey;139> — Sale—Notice—Objection.
    Evidence is admissible on motion to set aside a receiver’s sale alleging that proper notices of the sale had not been given.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 243, 244; Dec. Dig. <&wkey;>139.]
    Appeal from District Court, Kleberg County; W. B. Hopkins, ludge.
    Objection by the New Britain Machine Company and others to a sale by R. F. Watt, receiver, and to the action of the receiver in paying himself the salary fixed by the court. Sale and order confirmed, and the objectors appeal.
    Reversed, and cause remanded.
    T. Wesley Hook, of Kingsville, for appellants.
   FLY, C. J.

This is an appeal from two orders of the district court, one being a confirmation of a sale made by the receiver, and the other an order confirming the action of the receiver in paying himself the salary fixed by the court. Demurrers were sustained to pleadings attacking the sale and order confirming the payment of the salary. The receiver was appointed by the court, and it must be presumed that such appointment was legally made, and that the receiver has duly qualified.

Appellants seek to indirectly and collaterally attack the appointment of the receiver, which attack cannot be permitted or sustained. Where a receiver has been appointed, the propriety or legality of the appointment cannot be questioned, nor can the-eligibility of the receiver be attacked in any subsequent proceeding, because that would' be a collateral attack upon the validity of the appointment. High on Receivers, § 39b; Eichman v. Hersker, 170 Pa. 402, 33 Atl. 229 ; National Bank v. State Bank, 104 Iowa, 682. 74 N. W. 26. So an order directing the payment and distribution by the receiver of the funds in his possession cannot be questioned collaterally. Platt v. Railway, 170 N. Y. 451, 63 N. E. 532.

There is no allegation in the petition that shows that the appointment of the receiver was void, but mere irregularities are set up which might have rendered the appointment voidable in a proper proceeding to set aside the appointment.

Sale of property toy a receiver may be set aside for fraud and collusion or inadequacy of price. It would evidence fraud for a receiver to purchase or be interested in purchasing at a sale of property made by him. High, Receivers, §§ 193-199d.

In the motion to set aside the sale it was alleged:

“The price received for the said property, being the highest bid therefor, is inadequate, and very materially so, it being several thousand dollars less than the price the undersigned offered for the said property should the same be ordered sold to them at private sale as per their offer filed herein in connection with their motion to set aside the order of sale made by your honor on October 1, 1914, directing the receiver herein to make a sale of personal property of said corporation, said company.”

If the facts alleged in that paragraph are true, the sale should have been set aside. It formed a sufficient basis'for the introduction of evidence, but the court sustained a demurrer to it and would not hear evidence on the subject.

Not only was it alleged that the property was sold at a grossly inadequate price, but it was alleged that proper notices were not given of the sale. This was a matter upon which evidence should have been heard. High, Receivers, § 198; Deford v. Macwatty, 82 Md. 168, 33 Atl. 488.

The judgment is reversed, and the cause remanded.
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