author: WILLSON, C. J.

text:
    GREEN v. EDDINS et al.
    (No. 1322.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 11, 1914.
    On Motion for Rehearing, May 14, 1914.)
    1. Deeds (§ 45) — Forgery—Effect.
    No interest in land could be predicated on forged deeds.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 89-94; Dec. Dig. § 45.]
    2. Vendor and Purchaser (§ 261) — Property Conveyed.
    Where a grantor had previously assigned secured notes, and conveyed at the same time to the assignee the “vendor’s lien rights, equities, and interest” which, as prior vendor, he then had in the land, a second grantee and assignee of the notes only took by conveyance to him the right to receive any balance of the proceeds of a sale made to satisfy the notes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 26l.]
    3. Vendor and Purchaser (§ 231) — Bona Fide Purchaser.
    Subsequent purchasers of land could not claim as innocent purchasers for value, where, at the time of the conveyance to them, there was then recorded a prior deed covering the same land, executed by their grantors.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Dec. Dig. § 231.]
    4. Bills and Notes (§ 345) — Bona Fide Purchasers.
    Neither an equitable assignee of notes, nor those claiming under him, could claim as innocent purchasers, where the assignee never had possession of the notes.
    [Ed. Note. — For other cases, .see Bills and Notes, Cent. Dig. §§ 849-852; Dec. Dig. § 345.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by L. R. Green against J. L. Eddins and others. From a judgment in part for plaintiff, and against him in favor of certain of defendants, plaintiff appeals.
    Reversed and remanded, with directions.
    By a deed dated August 28, 1909, R. W. Brummett, in consideration, as recited therein, of $6,000 paid to him by. J. L. Eddins, the execution and delivery to him by Eddins °of his four promissory notes for sums aggregating $9,082.50, payable to his (Brum-mett’s), order, one on May 26, 1910, and the others on August 28, 1910, and the undertaking by Eddins to pay a balance of $936 due to the state thereon, conveyed to Eddins 960 acres of land in Dallam county. By the terms of the deed the vendor’s lien was retained on the land to secure the payment of the four notes referred to. The deed was recorded September 9, 1909. August 16, 1910, Brummett indorsed and delivered the four notes to E. C. Hyde as collateral security for his note of that date in Hyde’s favor for $4,500, and on August 19, 1910, by a writing of that date, assigned to Hyde “the contract lien, vendor’s lien, rights, equities, and interest in said land which I have,” it was recited, “by virtue of being the vendor in said deed [to Eddins] and payee in said notes.” On the same day, to wit, said August 19, 1910, Hyde, in consideration of $4,500 paid to him by L. R. Green, indorsed and delivered to Green the note for $4,500 made by Brummett, and at the same time transferred and delivered to Green the Ed-dins four notes held by him as collateral security for said $4,500 note. Afterwards, by an instrument dated October 29, 1912, Hyde assigned to Green “all rights,” it was recited in the instrument, “interests, equities, and titles that I have and that were conveyed to me by R. W. Brummett in written transfer dated 19th day of August, 1910, hereby conveying and transferring to the said L. R. Green the original vendor’s lien reserved on the above-described land to secure their payment, the same having been by R. W. Brummett transferred to me by said written transfer dated August 19, 1910, as above referred to. I hereby transfer, assign, and set over unto the said L. R. Green all my rights and all the rights of R. W. Brummett to said land and lien retained in said deed from R. W. Brummett to J. L. Eddins.” Default having been made in the payment of the $4,-500 note, it seems that Green sued and recovered judgment thereon. Afterwards, to wit, on February 27, 1913, Green commenced this suit against Brummett, Eddins, Hyde, D. S. Arnold, J. E. Hutcherson, Noah Roark, Lee Newbury, E. S. Owens; Mrs. Helen Moore, the Bonner Loan & Investment Company, and others, who need not be named, as the suit as to them was afterwards dismissed. The relief Green sought was: (1) Judgment for the amount of the four notes made' by Eddins to Brummett, and foreclosing the vendor’s lien retained on the 960 acres of land to secure same; (2) in the alternative, if the court should find that any of the parties had acquired rights in the land superior to his, for a personal judgment against the defendants “for whatsoever amount the court should hold to be superior to his rights and lien.”
    Brummett, Eddins, Hyde, and Arnold did not defend against the suit. The defenses urged by Newbury, Mrs. Moore, the Bonner Loan & Investment Company, Hutcherson, and Roark were based on facts substantially as follows:
    January 25, 1912, Brummett, by an instrument reciting the fact that he had conveyed the land to Eddins August 28, 1909, and received as a part of the consideration therefor the Eddins notes for $9,082.50, and further reciting that, none of said notes having been paid, he had on December 18, 1911, for a valuable consideration, sold and conveyed same to Arnold, ratified and confirmed the sale he had so made to Arnold, and released, conveyed, and quitclaimed” to Arnold “all interest, right, claim, or title” he had “in and to said notes, and in the said land,” and “empowered the said Arnold or his assigns to release said land from any liens created by said notes.” By an instrument dated March 7, 1912, purporting to have been executed by Eddins, “in consideration of the sum of one dollar and the consideration of other valuables, and subject to $9,000 incumbrance,” the land was attempted to be conveyed to J. C. Cummins, who, by an instrument dated May 22, 1912, attempted to convey same to Hutcherson in consideration of “cash in hand paid and the exchange of other property, also the assumption by the said Hutcherson of'97% cents per acre due the state of Texas, and subject to an incum-brance of $9,000.” Both the deeds last referred to were at the trial conceded to be forgeries, and none of the parties claimed that they operated to pass the title to the land. By an instrument dated May 25, 1912, in which it was recited that Brummett had made the conveyance of January 25, 1912, to Arnold, as noted above, and in which it was further recited that the Eddins notes had been fully paid by Hutcherson, “who is the present owner of the above-described land” (to wit, the 960 acres conveyed by Brummett to Eddins), Arnold “released, discharged, and quitclaimed” to Hutcherson “all the right, title, interest, and estate in and to” the land which he “had or might be entitled to by virtue of being the owner of said vendor’s lien notes,” and declared said property “released and discharged from any and all liens created by virtue of said vendor lien notes.” On the - same day, to wit, May 25, 1912, by his warranty deed of that date, Hutcherson conveyed 320 acres of the land to Roark, who on June 7, 1912, conveyed same to Newbury in consideration of $2,100 paid to him by Newbury, and the assumption by Newbury of the payment of a note (amount not stated) he (Roark) had made to Owens, secured by a trust deed he had given on the land, and the further assumption by Newbury of the payment of a balance due the state on the land. On the same day, to wit, June 7, 1912, Hutcherson conveyed the other 640 acres of the 960 acres to Newbury in consideration of $6,400 cash (as recited) and the assumption by Newbury of the payment of a balance due the state thereon. September 20, 1912, Mrs. Moore, through the Bonner Loan & Investment Company, loaned Newbury $3,000, and Newbury, to secure the payment of the sum, made and delivered to her a mortgage on the land, and at the same time made and delivered to the Bonner Loan & Investment Company a second mortgage thereon to secure $242 he owed to them for services in connection with the loan made to him by Mrs. Mobre. Newbury afterwards paid to the state a balance of $647.16 due on the land, and on October 8, 1912, it was patented to Eddins as assignee. The transfers of August 19, 1910, from Brummett to Hyde, and of October 29, 1912, from Hyde to Green, were not placed of record until November 2, 1912; and neither Newbury, Mrs. Moore, the Bonner Loan & Investment Company, nor Owens, at the time of the transactions referred to, to which they were parties, had knowledge ' of the existence of same. The parties mentioned relied upon an abstract embracing the forged deeds referred to, and, because it did, showing on its face title to the land to be in Hutcherson.
    On the facts stated, Newbury claimed to own the land, and sought, as against Green and Eddins, .judgment quieting his title. If this relief was denied to him, then he sought to be subrogated to Arnold’s rights as the owner of Brummett’s equity in the Eddins notes. Mrs. Moore and the Bonner Loan & Investment Company claimed protection on the ground that they had acquired the liens they asserted in good faith, for value, and without notice of Green’s claim. Owens sought judgment against Roark and New-bury for $1,100 he had loaned Roark, and also asked for a foreclosure of the lien of the trust deed Roark had made to him on the 320 acres Hutcherson had conveyed to him.
    The verdict of the jury was in accordance with peremptory instructions given them by the court, and on the verdict judgment was rendered as follows; (1) In favor of Green against Brummett for $6,414.90, interest and costs; (2) in favor of Owens, Newbury, Roark, Hutcierson, Mrs. Moore, and the Bonner Loan & Investment Company against Green for costs; (3) in favor of Newbury quieting his title as against Green and Ed-dins; (4) in favor of Owens against Roark for $900 and interest, and foreclosing as against Roark, Green, Eddins, Brummett, and Hutcherson the trust deed made by Roark on the 320 acres. This appeal is prosecuted by Green alone against Newbury, Hutcherson, Roark, Owens, Mrs. Moore, Brummett, and the Bonner Loan & Investment Company.
    C. K. Bullard and H. D. Payne, both of Et. Worth, for appellant. Bonners, of .Dallas, D. T. Bomar, of Ft. Worth, O. O. - Ross and Cockrell,-Gray & Thomas, all of Dallas, Mays & Mays, and Frank R. Graves, all of Ft. Worth, and W. A. Bonner, of Dallas, for appellees.

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

   WILLSON, C. J.

(after stating the facts as above).

As a right to the land or an interest in it could not be predicated on the forged deeds from Eddins to Cummins and Cummins to Hutcherson (Abee v. Bargas, 65 S. W. 489; Blair v. Hennessy, 138 S. W. 1078; Loring v. Jackson, 43 Tex. Civ. App. 306, 95 S. W. 21), it is plain that Green was entitled to' relief he sought, unless some of the parties claiming adversely to him had acquired rights superior to his by force of the instrument from Brummett to Arnold, dated January 25, 1912. That instrument purported to convey to Arnold an interest owned by Brummett in the land and in the Eddins notes. As Brummett had previously assigned those notes to Hyde and, by the instrument dated August 19, 1910, had conveyed to him “the contract lien, vendor’s lien, rights, equities, and interest” which he as the vendor thereof had in the land, it is clear that the only right he had with reference to either the notes or the land was the right to demand and receive any balance remaining of the proceeds of a sale thereof made to satisfy his note for $4,500 to Hyde, then held by Green. The right to this balance was all that he did or could pass by his assignment to Arnold, and all that Arnold did or could pass to Hutcherson and those who claimed under him. Neither Hutcher-son, Roark, Owens, Green, Mrs. Moore nor the Bonner Loan & Investment Company should be heard to assert any other and greater right, unless they were, as to Green, in the attitude of innocent purchasers for value. It is obvious that none of the parties named were in that attitude as to the land, for Brummett’s deed to Eddins was of record at the time of the transactions they relied on, and therefore they could not claim to be without notice of the fact that Eddins owned the land, and that Brummett at the most had conveyed, and could convey, to Arnold, under whom they -claimed, only such right as he, as the vendor thereof with part of the purchase price unpaid, possessed. That right, on the facts here, was to enforce, as against Eddins and the land, the payment of the remainder of the purchase price represented by the Eddins notes. That right in Brummett passed to Arnold. The parties claiming under the latter doubtless would have had equities superior to the right in Green if the assignment of the notes by Brummett to Arnold had been accompanied by a delivery to him of the possession thereof. In that event, it might be said that Arnold and the parties who had acquired his rights were in the attitude of innocent purchasers of the notes, and entitled to priority as against Green, because of his failure to have the assignment from Brummett to Hyde placed of record. As, however, the notes were never in Arnold’s hands, nor in the hands of any of the parties claiming under him, but all the time were in Green’s possession, neither Arnold nor those who had acquired his rights could claim to be innocent purchasers thereof. “The possession of commercial paper,” said the author of the article on “Bills and Notes” in the American and English Encyclopedia of Law, “is not only the legal evidence of ownership, but it is that evidence required in dealing with it in the ordinary course of business; consequently, where the transferee takes merely an equitable assignment of paper not at the time in the possession of his transferror, he is not entitled to protection as a holder in due course of trade.” -The conclusion we have reached is that Green was entitled, as against all the parties who claimed rights adverse to him, to relief he sought, and that the court below erred in refusing him relief. The conclusion to the contrary reached by that court was not, we think, authorized by the rulings made in Drumm Commission Co. v. Core, 47 Tex. Civ. App. 216, 105 S. W. 843; King v. Quincy National Bank, 30 Tex. Civ. App. 92, 69 S. W. 978; Moran v. Wheeler, 87 Tex. 181, 27 S. W. 54; and Loan Association v. Brackett, 91 Tex. 44, 40 S. W. 719, cited in the brief of Newbury, Mrs. Moore, and the Bonner Loan & Investment Company. Each of those cases on its facts is believed to be clearly distinguishable from this one.

The judgment will be reversed and the cause remanded, with instructions to the court below to render judgment in favor of Green against Eddins for the amount unpaid of the four notes made by Eddins to Brum-mett, foreclosing, as against all the other parties, the vendor’s lien reserved in said notes and in the deed from Brummett to Ed-dins on the land described in Green’s petition, but subject to the lien, if asserted, in favor of Newbury for the $647.16, and interest thereon paid by him to the state as the balance of the purchase money due to it on the land, and directing the sale of the land as under execution, and the application of the proceeds to the payment in full of the amount due on the note for $4,500 made by Brummett to 1-Iyde. On the pleadings in the record we are unable to determine how the balance remaining, if any, of such proceeds should be disposed of.

On Motion for Rehearing.

If it should be conceded that Newbury and those claiming under him had a right to deal with the land, on the theory that the Eddins notes, while owned by Arnold, had been paid in full, as recited in the release to Hutcherson, it would still appear that appel-lees were not in a position to object to the granting to appellant of the relief he sought; for it appeared that Newbury did not acquire an interest in the land by his purchase from Hutcherson and Roark, because neither of those parties, in fact, owned, nor appeared on the face of the record to own, an interest in same at the time they conveyed it to him. Before Newbury could claim to be in the attitude of an innocent purchaser of the land, it must have appeared that he purchased it from some one he had a right to believe did own it. He not only did not have a right to believe Hutcherson and Roark owned it, but he knew from the face of the record that Eddins owned it. Never having acquired an interest in the land, it was no •concern of his that appellant sought to foreclose a lien against it. In the view appellees take of the case, we think they lose sight •of the fact that Newbury never acquired, nor in any way connected himself with, the title in Eddins. The case would be different if it appeared that Newbury, relying, and having a right to rely, on the release by Arnold of the vendor’s lien, had acquired the Eddins title. He might then be in a position to defeat a foreclosure of the vendor’s lien asserted by appellant as the true owner of the Eddins notes.

The motion is overruled.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    HOUSTON & T. C. R. CO. v. WALKER.
    (No. 1313.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1914.)
    1. Action (§ 45) — Joinder oe Causes oe Action — Pleading.
    In view of Rev. St. 1911, art. 5686, providing that, where injuries for which plaintiff sought a recovery were not those which caused his death, his heirs, in the absence of any administration or necessity therefor, might make themselves parties to and prosecute the original suit, his surviving children, if doubtful as to. what the proof would establish regarding the' real cause of death, might frame their petition for a recovery for injury causing his death, or for his death from some other cause; and the addition of such a count might be made by way of amendment in accordance with the rules of practice.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 378-383, 385-448; Dee. Dig. § 45.]
    2. Appearance (§ 19) — Answer-^Jurisdiction.
    Defendant, by answering the original petition in an action for personal injuries, submitted itself to the jurisdiction of the court.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 79-82, 84r-90; Dec. Dig. § 19.]
    3. Appearance (§ 13) — Answer—Notice oe Amendment.
    A defendant, whose answer to the original petition, in an action for personal injury, submits itself to the jurisdiction of the court, is bound to take notice of all amendments filed thereafter in term time under appropriate orders.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. § 65; Dec. Dig. § 13.]
    4. Appearance (§ 19) —Waiver oe Process-Statute.
    Rev. St. 1911, art. 1882, provides that the filing of. an answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him. Rule 7 for district and county courts (142 S. W. xvii) declares that the answer may consist of pleas to the jurisdiction, in abatement or privilege or any other dilatory plea. In an action for personal injury, with amended petition after plaintiff’s death seeking to recover as his surviving children, or as his heirs in case the alleged injury did not result in his death, defendant answered the original suit, and objected to the amended petitions because of misjoinder of the causes of action therein, but appeared by attorney in the trial and examined witnesses upon all the issues involved. Held, that defendant had submitted itself to the jurisdiction of the court for the rendition of any judgment which the pleadings and the evidence justified.
    [Ed. Note. — For other cases, see Appearance, 1 Cent. Dig. §§ 79-82, 8A-90; Dec. Dig. § 19.1

      5. Death (§ 99) — Damages—Excessive Damages.
    In an action by the surviving children of one whose injury resulted in his death, brought under the death statute, which leaves the estimate of benefits which they might expect from the deceased to the sound discretion of the jury, the jury might assume that adult children who were earning money for themselves might have outlived the parent and have received material benefits from his continued life, and hence a verdict of §1,000 for each of them was not excessive.
    [Ed. Note. — Eor other cases, see Death, Cent. Dig. §§ 125-180; Dec. Dig. § 99.]
    6. Cabriees (§ 318) — Injury to Mail Clerk — Sufficiency of Evidence — Negligence.
    Evidence, in an action by the surviving children of a railway mail clerk for injury from being struck by a falling letter box, resulting in his death, held to show that the defendant railroad Was negligent in furnishing a defective car.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § , 318.]
    7. Carriers (§ 318) — Action by Surviving Children — Sufficiency of Evidence — Inspection.
    Evidence, in such action, held to show that the defendant was negligent in failing to inspect and repair the car.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.]
    8. Trial (§ 191) — Instructions—Weight of Evidence.
    In an action for personal injury to a railway mail clerk from a falling letter box, continued after his death by his surviving children, an instruction that if defendant railroad was negligent in furnishing Mm with a defective car, or in failing to inspect it and discover and repair such defects, or in repairing them, which negligence, if any, was the direct and proximate cause of the injury, plaintiffs might recover, but that if defendant’s negligence, in any of such particulars, was not the direct and proximate cause of the injury, defendant was not liable, was objectionable as assuming that •the defendant furnished a defective car and failed to inspect it.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    9. Appeal and Error (§ 1068) — Harmless Error — Instruction on Weight of Evidence.
    In such action, where the evidence showed defendant’s negligence in furnishing a defective car and in failing to inspect it, an instruction assuming such negligence was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225^228, 4230; Dec. Dig. § 1068.]
    Appeal from District Court, Grayson County; W. J. Mathis, Judge.
    Action by T. B. Walker, prosecuted after his death by Camille Walker and Fount Walker, for themselves and as next friends of their minor sisters, as heirs and survivors of deceased, against the Houston & Texas Central Railroad Company. Judgment for plaintiffs as surviving children, and defendant appeals.
    Affirmed.
    Head, Smith, Maxey & Head, of Sherman, for appellant. Wolfe, Wood & Haven, of Sherman, for appellees.

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

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

   HODGES, J.

On September 12, 1912, T. B. Walker filed a suit against the appellant, in which he sought to recover damages for personal injuries received while riding in one of appellant’s trains. The petition alleged that on or about the 20th of October, 1910, Walker was a mail clerk employed by the United States government in its railway mail service; his run being from Denison to Houston in Texas, over the defendant’s line of railway. In the mail car in which the plaintiff was riding was a' large letter box used in the mail service. On the date mentioned above, while traveling from Houston to Deni-son, this box fell on the plaintiff and inflicted serious bodily injuries which are fully described. Three grounds of negligence are charged: (1) Furnishing a defective car; (2) a failure to inspect and repair the defects; (3) insufficient repairing after the defects had been reported. It was further alleged that prior to his injuries plaintiff was a healthy man 47 years of age, and was at that time earning $1,500 per year, with prospects of promotion; that on account of his injuries he had lost considerable time, and his ability to work in the future had been greatly impaired. He claimed damages for doctor’s bills, past and future expenses, and other actual damages, aggregating $40,000. On October 8, 1912, after service of citation, appellant answered by general demurrer and general and special denials.

On March 3, 1913, the death of T. B. Walker was suggested in court, and on the 21st day of the same month a first amended original petition was filed in the same suit by his widow, Mrs. Edna E. Walker. This amended petition alleged substantially the same facts embraced in the original petition regarding the cause and character of the injuries, and further alleged that the injuries-caused the death of Walker. It was also alleged that the plaintiff was the widow of the-deceased, and that at his death he left surviving him four children: Camille, a girl 24 years of age; Fount, a boy 22 years of age; Pansy, a girl 20 years of age; and Elizabeth Ellen, a girl 3 years of age. The plaintiff sought actual damages in the sum of $40,000-for the benefit of herself and the children.

On April 22, 1913, the death of Mrs. Edna Walker was suggested, and what is termed' a “second amended original petition” was filed by Camille and Fount Walker for themselves and as next friends for their minor sisters. In this petition substantially the-same facts as to the nature and character- and .result of the injuries sustained by Walker and the conditions under which they occurred were repeated. Damages in the sum of $40,000 were prayed for. On May 16, 1913, the same parties filed a third amended original petition, in which the averments of the-second amended original petition were repeated, and in which it was further alleged that, in tile event it should be detennined that Walker died from any other cause than the injuries described, then plaintiffs have judgment for the amount which would have been recovered by him had he lived, which they say amounts in the aggregate to $30,000. As a basis for this latter recovery, they set out in detail the expenses incurred by Walker during his lifetime in treating his injuries, and the time lost, and the mental and physical pain suffered by him.

On June 16, 1913, the appellant filed its first amended original answer, the first portion of which is as follows:

“In the Special District Court of Grayson County, Texas.
“T. B. Walker v. H. & T. C. R. R. Co.
No. 21127.
“Now comes the defendant, Houston & Texas Central Railroad Company, and with leave of court files this its first amended original answer in lieu of its original answer filed herein on October 8, 1912, and for such amendment says: As hereinafter stated: Defendant appears and files this answer only as to the original suit instituted by T. B. Walker and now prosecuted by plaintiffs as the heirs and legal representatives of said T. B. Walker, and defendant expressly fails and refuses and has at all times heretofore failed and refused to answer or appear in any manner as to the suits-of Edna E. Walker, Camille Walker, Pansy Walker, Fount Walker, and Elizabeth Walker, or any of them, because no citation or process of any kind has ever .issued upon such suits or any of them, or been served upon defendant. Por answer to the suit of said plaintiffs, as heirs and legal representatives of said T. B. Walker, prosecuted by them, as originally instituted by said T. B. Walker, the defendant pleads as follows:
“(1) Defendant demurs generally to plaintiffs’ petition because the facts therein alleged show no cause of action.
“(2) Defendant specially excepts to plaintiffs’ petition because of the misjoinder of causes of action therein, and for such exception says that the plaintiffs have improperly joined in this suit the cause of action which they claim to have by reason of the death of the said T. B. Walker. Defendant says that such joinder is improper and asks that the plaintiffs he compelled to sever the two causes of action as pleaded by them and to elect as to which they shall prosecute.”

Then follow general and special denials.

The transcript also shows that on June 16th the following order was made in this case:

“This day this cause was called for trial and both parties announced ready, defendant refusing. to plead as to the third amended original petition in so far as the recovery by the children for the death of the father is claimed.”

After a trial before a jury the following verdict was rendered:

“We, the jury, find for the plaintiffs as heirs of said T. B. Walker for the benefit of the estate of said T. B. Walker the sum of $2,500.
“We, the jury, find for plaintiffs as surviving children of said T. B. Walker, deceased, in the sum of $9,000, apportioned as follows: CamiUe Walker, $1,000; Fount Walker, $1,000; Pansy Walker, $2,000; Elizabeth Walker, $5,000.”

From the judgment entered on that verdict, this appeal is prosecuted.

In submitting the issues the court gave the following instructions, upon which the jury must have relied in formulating the verdict:

“(7) In order for you to determine the rights of the parties in this case, you must first determine whether or not the death of the said T. B. Walker was caused solely by £he injuries, if any, he received on or about the 20th day of October, 1910. If you should believe and find from the evidence that the said T. B. Walker died from any cause other than the injuries, if any, which he received on or about the 20th day of October, 1910, then you are instructed that the plaintiffs cannot recover as the surviving children of the said T. B. Walker.
“(8) If you should believe from the evidence that the said T. B. Walker died from any cause other than the injuries, if any, he received by said letter or distributing box falling on him on or about the 20th day of October, 1910, yet you believe he was injured on or about the 20th day of October, 1910, by said letter or distributing box falling on him, and that said letter or distributing box was caused to fall upon him by the negligence of the defendant, as that term has been hereinbefore explained to you, and that said negligence was the direct and proximate cause thereof, you will find against plaintiffs as surviving children of deceased.”

After the transcript was filed in this appeal, and before the case was submitted, the appellees remitted all that part of the judgment awarding the plaintiffs below the sum of $2,500 as the heirs of T. B. Walker, and they now ask an affirmance of that part only which gives them $9,000 as the surviving children. It will therefore be unnecessary to consider those assignments in the appellant’s brief which relate exclusively to that portion of the judgment which has been remitted.

The first, and what seems to be the principal, ground upon which the appellant relies for a reversal of that portion of the judgment is thus stated:

“If the accident was the sole and proximate cause of Walker’s death, the only action maintainable was the statutory one given to his children (and his wife, had she lived) directly and in their own right. If the accident was not the sole, proximate cause of the death of Walker, the only action maintainable was the one by the personal representative for the benefit of his estate, or by his children as his heirs, provided no administration was had and none was necessary. In this case no recovery could be had by the children in their own statutory right, because the filing of the petition by them setting up such cause of action constituted the filing of a new cause of action upon which citation was necessary; and no citation having been issued thereon, and the defendant not having appeared, no judgment could be rendered thereon.”

From this it appears that the right of the appellees to the judgment awarded to them as the surviving children of T. B. Walker is resisted upon the ground that the appellant had never been cited to defend any such cause of action, and had not voluntarily appeared and answered such a suit. It is true the suit originally filed by Walker during his life is the only one which appellant was cited to defend. It is also true that the cause of action prosecuted by his children, in which they seek to-recover damages because of his death, is separate and distinct from that originally instituted by Walker bimself. Tbe record shows that tbe same style and number borne by tbe original suit instituted by Walker bas been preserved all through these various proceedings, and tbe case bas been treated as but a continuation of tbe original litigation. The record shows also that but one citation was ever issued and served, and that was tbe citation issued upon the original petition filed by Walker. It is further shown that ho answer was ever filed except that filed prior to Walker’s death, and the first amended original answer from which we have quoted. The question is: Did the court at the time have jurisdiction over the person of the appellant to render a judgment upon that count in the petition in which the appellees claimed damages as the surviving children of T. B. Walker? Article 1882 of the Revised Civil Statutes provides that the filing of an answer shall constitute an appearance of the defendant, so as to dispense with the necessity for the issuance or service of citation upon him. If it can be said that the •appellant by either of its answers had submitted itself to the jurisdiction of the court, it is wholly immaterial whether or not any citation had ever been issued and served upon it. When Walker died, his suit did not necessarily abate. If the injuries for which he sought a recovery did not result in his death, his heirs, in the absence of any administration or necessity therefor, had a right to make themselves parties to the original suit and continue its prosecution. Rev. Civ. St. art. 5686. If the facts were such that the plaintiffs were doubtful as to what the proof would establish regarding the true cause of Walker’s death, they had a right, under our ■system of pleading, to so frame their petition that a recovery might be had whether that injury caused his death or he died from some ■other cause. The addition of such a count might be made by way of amendment in accordance with the rules of practice. Town, PL 825-327.

By answering the original petition, the aiDpellant submitted itself to the juris■diction of the court and was bound to take notice of all amendments filed thereafter in term time under appropriate orders. Rabb v. Rodgers, 67 Tex. 335, 3 S. W. 303; Tyson v. Bank, 154 S. W. 1055; James v. Houston, 21 Tex. Civ. App. 214, 51 S. W. 642.

We think, however, that the last amended answer of the appellant, filed after the third original petition» was alone sufficient to constitute an appearance in the case for all purposes. Under our system of pleading, there can be no such special appearance as that which the appellant attempted in this instance. Conceding that the preamble to the last answer might restrict to one cause of action the general demurrer and the denials which followed, that restriction -does not apply to the plea in abatement. In the second paragraph, which contains this plea, the ■defendant objects to the plaintiffs’ entire petition because of the misjoinder of the causes of action therein set up. This necessarily referred to the only two causes of action which the petition contained, that in which the appellees attempted to recover as the surviving children of T. B. Walker, and the one in which they sought a recovery as his heirs in case the injury complained of did not result in his death. Under the rules of pleading, the answer may consist of pleas to the jurisdiction, in abatement, or privilege, or any other dilatory plea. Rule 7 for district and county courts (142 S. W. xvii). In addition to its pleadings, the appellant appeared by attorney in the trial of the case, examined witnesses upon all the issues involved, and presumably argued the facts before the jury. After having done these things, there can be no room for doubt that the appellant submitted itself to the jurisdiction of the court for the rendition of any judgment which the pleadings and the evidence justified. We should not feel inclined to discuss this question at such length but for the fact that it is urgently presented by counsel of recognized ability, and a large portion of the briefs is devoted to its discussion.

It is also urged that the verdict which awards Camille and Fount Walker $1,000 each is excessive. It is contended that, under the evidence, they had no right to expect such benefits from their father had he lived. The evidence shows that both of these two children had attained their majority and were earning money for themselves. The jury had a right to assume that in the ordinary course of events the child would outlive the parent, and that through natural affection, and under the laws of descent and distribution, the child would probably receive some material benefits from the continued life of the parent The statute leaves the estimate of such benefits to the sound judgment and discretion of the jury; and, unless there is some good reason for holding that the jury has abused that discretion, we do not feel inclined to disturb its findings.

Complaint is made of the following ing portions of the court’s charge:

“Now, if you believe from the evidence that the defendant was guilty of negligence, as that term has hereinbefore been defined to you, in furnishing deceased with a defective car in which to be transported, or in its failure to inspect said car and discover said defects and repair said car, or by negligently repairing the same after the same had been reported defective and not making substantial repairs thereto, and that said negligence, if any you find, was the direct and proximate cause of a letter or distributing box falling on and injuring deceased, you will find for the plaintiffs, and assess their damages as herein directed, unless you find for tbe defendant under other instructions given you. On the other hand, if you do not believe from the evidence that the defendant was guilty of negligence in furnishing deceased with a defective car in which to be transported, or in its failure to inspect said car and discover said defects and repair said car, or by negligently re-' pairing same after same had been reported defective and not making substantial repairs thereto, or if you believe that the defendant was negligent in any of said respects, but that said negligence, if any, was not the direct and proximate cause of the injuries to T. B. Walker, you will find for the defendant.”

It is claimed that these portions of the charge are upon the weight of the evidence in assuming: (1) That the appellant furnished a defective car; and (2) that it had failed to inspect the car. The peculiar manner in which the charge is worded justifies the criticism; but the question arises: Is this sufficient to require the reversal of this judgment? In other words, did this charge, as framed, probably cause the rendition of an improper verdict? In order to answer that question, it will he necessary to examine the evidence. It was shown without contradiction that Walker was, at the time of his injury, a railway mail clerk on appellant’s line between Houston and Denison. 1-Iis train was scheduled to leave Houston at or about 9:30 p. m., the day before his injury, which occurred on or about October 20, 1910, and was due in Denison the next morning near the same hour. In the car occupied by Walker on that occasion were two other mail clerks, I. N. Simmons and W. B. Jewell. These clerks were the only eyewitnesses to the injury. Both of them testified on the trial by deposition.

Simmons testified that the accident occurred between Denison and Sherman, just as the train was rounding a sharp curve. Walker was at the time sitting near the letter case, which was a box about four or five feet square and weighed about 40 pounds. As the train rounded the curve, the box was thrown from the table upon which it was sitting and struck Walker on the head, causing a stream of blood to flow from the wounds inflicted. Before leaving Houston on that trip, Simmons heard a car repairer state within the hearing of Walker that he had fixed the box so that it would not come out. He does not know whether Walker heard it or not. Kepairs had been made by driving a wedge in the top of the box, probably between it and the frame in which it was held. Witness was unable to state the name of this car repairer, but says he knows that he was one of the repairers in the service of the appellant. At the .time the box' fell, the train was running about 50 miles an hour, and the box was thrown out with great violence.

Jewell testified to substantially the same facts. He was more positive, however, about Walker’s having heard what the car repairer stated with reference to having made the repairs before they left Houston. Jewell further testified as follows:

“The case fell out when the train struck the curve and caused the car to lurch sideways, and this threw the case violently out of its holdings. The hook on the top of the case was loose and worn out and did not hold the case securely in the frame. The car repairer at Houston, Tex., came around to the car before we left Houston, and reported that the case was fixed, that he had repaired the same that day.”

The evidence also showed that the defective condition of this letter case had been reported, but it does not designate the party to whom that report was made.

These witnesses were uncontradicted, unless it can be said that the testimony of the ear inspector at Houston and of a car repairer is in conflict with their testimony. The inspector testified that he was on duty at the time the car in question left Houston. His testimony indicates that the train in which this car was incorporated was designated as “No. 5.” He says that he went through the car, as was his duty, and inspected the interior. He found nothing wrong with this car upon that occasion, except the absence of a dusting brush and probably some other articles. On cross-examination it developed that he had not in fact inspected the case and its fastenings, and the only guide he had of the conditions observed by him on that occasion was the record made by him at the time. He further testified that he was the only one who inspected the car upon the occasion. The testimony of the car repairer is equally as indefinite.

Let us suppose that the court had propounded to the jury this question: ‘-‘Was the car furnished upon that occasion to Walker defective; that is, was the letter case which it contained insecurely fastened in its place?” There could be little doubt as to what the answer of the jury would have been to such a question. A negative answer would have been so opposed to the great weight of the evidence that the court might have been called upon, in the interest of justice, to set the finding aside. We therefore conclude that there was no reversible error committed by the court in assuming in his charge that the car was defective.

The fact that the case fell from its position against the wall of the car demonstrates that it was insecurely fastened, and that was the defect in issue. We must conclude that it was either so insecurely fastened that it could not withstand the jars of ordinary transportation which it was expected to undergo, or that at the time it fell the train was running at an unusual and dangerous rate of speed. While the evidence does show that it was going at the rate of 50 miles per hour and was rounding a curve, there is nothing which justifies the conclusion that this was an unusual rate at that particular point. Bor aught that appears to the contrary, it may have been according to a fixed schedule and an unbroken custom for that train.

The next question is: Did the court err in assuming that the car had not been inspected? It will be noticed that the language used in the charge with reference to that issue connects inspection conjunctively with the discovery and repair of the ear. In other words, it says:

“If you believe from the evidence that the defendant was guilty of negligence in its failure to inspect said car and discover said defects and repair said car, you will find for the plaintiffs.”

We think the evidence shows that the particular defect which caused the case to fall, the condition of the hook with which it was fastened, had not been inspected and repaired. The testimony of the inspector himself establishes that fact. It is also clear that that fastening, which was shown, to be the proper one, had not been repaired. It was left to the jury to determine whether or not the failure to do those things was negligence.

We do not think the record justifies the conclusion that the charge probably caused the rendition of an improper judgment. The judgment of the district court is therefore affirmed.


author: RAINEY, C. J.

text:
    TOMLIN v. CLAY.
    (No. 7201.)
    (Court of Civil Appeals of Texas. Dallas.
    May 16, 1914.)
    1. Courts (§ 169) — Jurisdiction—County Court.
    The county court has jurisdiction of a suit for an injunction to restrain a breach of contract and thereby prevent damages in the sum of $500.
    . [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    2. Injunction (§ 17) — Adequacy of Remedy at Law — Solvency of Defendant.
    The remedy by injunction will not be denied merely because defendant is solvent and able to respond in damages, where the remedy at law is doubtful.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 16; Dec. Dig. § 17.]
    3. Frauds, Statute of (§ 44) — Parol Agreements — Performance within a Year.
    A parol agreement by a seller of his business not to engage in similar business in the village, so long as the buyer engages therein in the village, is not within the statute of frauds, because there is nothing in the agreement which shows that it is not to be performed within one year.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 66; Dec. Dig. § 44.]
    Appeal from Ellis County Court; J. O. Lumpkins, Judge.
    Action by Homer Tomlin against E. Y. Clay. From a judgment of dismissal, plaintiff appeals.
    Reversed and remanded.
    Clyde F. Winn, of Waxahachie, for appellant. Will Hancock and Supple & Harding, all of Waxahachie, for appellee.

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

   RAINEY, C. J.

Appellant brought this suit against appellee, alleging: That he purchased a lot of land from appellee and a barber shop, a clothes cleaning and clothes pressing business, and establishment with fixtures and furniture, which appellee owned and was conducting on said lot in the village of Avalon, Ellis county, Tex., and that appellee further agreed not to conduct or operate a like business in said village of Avalon, so long as appellant continued to operate said business. And in consideration of said purchase he paid to the appellee the sum of $400. That appellee has violated said contract by operating a similar business in the village of Avalon, which will cause irreparable injury to appellant in the sum of $500, unless appellee be restrained from engaging in said business for which appellant prays for a writ of injunction.

Appellee answered: First, that such suit was not authorized by law; second, that the county court did not have jurisdiction; third, denying the making of such contract, if made, it was in violation of the statute of frauds; fourth, that appellee is solvent and able to respond in damages.

Upon a hearing of the cause it was dismissed for want of jurisdiction in the county court to grant the relief prayed for.

The court erred in dismissing appellant’s cause of action on the ground that the county court had no jurisdiction of the suit. Said court has jurisdiction to issue writs of injunction where the matter in controversy exceeds the sum of $209, and does not exceed the sum of $1,000. Here the threatened damage is alleged by plaintiff to be $500, and to prevent such loss an injunction was sought. This, we think, sufficiently shows the amount of anticipated damages to be within the jurisdiction of the county court. De Witt Co. v. Wishchkemper, 95 Tex. 435, 67 S. W. 882. In that case there was no value of the subject-matter set forth in the petition; therefore the jurisdiction of the county court did not attach. In this case, however, the damages threatened are within the jurisdiction of the county court.

It is insisted by appellee that he is solvent and able to respond in damages; therefore the appellant is not entitled to the writ of injunction. The remedy of injunction should not be denied, because of the existence of a doubtful remedy at law; “it is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice, its prompt administration, as the remedy in equity.”

In Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, the court, speaking through Justice Denman, said:

“In courts administering both law and equity, like ours, the rules denying injunction when there is a remedy at law should not be applied as rigidly as at common law, where the issuance of the writ in equity was, to a certain extent, an invasion of the jurisdiction of another tribunal. If, as here, the applicant shows a clear right to be left in the undisturbed possession of certain property, and that such right is about to be invaded without semblance of right by another, such invasion, on principle, should be prevented in its incipieney by injunction, instead of allowing the injury to be inflicted and then leaving the party to his legally adequate, but in fact generally very inadequate, remedy of an action for damages.”

Appellant further alleged that, as part consideration for the purchase of said lot and business, appellee agreed and contracted not to engage directly or indirectly in tbe barber, clothes pressing, and cleaning business in Avalon so long as appellant operated said business in said village.

It is urged by appellee that appellant is not entitled to recover for the reason that said agreement is not in writing, and falls within the statute of frauds, which prohibits suits from being brought, and when the agreement is not to be performed within the space of one year from the making thereof. There is nothing in the allegation which shows that the contract is not to be performed within one year. In Thouvenin v. Lea, 26 Tex. 612, it is said:

“An agreement which may or may not be performed within a year is not required by the statute of frauds to be in writing; it must appear from the agreement itself that it is not to be performed within a year.” Robb v. St. Railway Co., 82 Tex. 392, 18 S. W. 707.

For dismissing appellant’s cause of action, the judgment is reversed, and cause remanded.


text:
    BRINBERRY et al. v. WHITE.
    (No. 7128.)
    (Court of Civil Appeals of Texas. Dallas.
    April 25, 1914.
    Rehearing Denied May 23, 1914.)
    1. Chattel Mortgages (§ 144) — Recording —Priorities.
    The purchaser of mules executed Ms note and mortgage therefor, and the mules were delivered to him in E. county, where the seller resided, and where the purchaser then represented that he lived, though in fact he lived in N. county, which the seller did not discover until four or five months thereafter, when he recorded the mortgage in N. county. The purchaser did not carry the mules to N. county on the day of sale. Held,, that when the mortgage was executed the mules were in E. county, and hence that the mortgage, duly recorded there, was pri- or to mortgages subsequently executed and recorded in N. county; that it was afterwards recorded in N. county being immaterial, since its record there was not necessary to preserve the lien.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 241; Dec. Dig. § 144.]
    2. Chattel Mortgages (§ 150) — Record-Time.
    The mere omission to deposit and file a chattel mortgage “forthwith,” as required by the statute, will not impair the effect of the record as to persons acquiring the rights in the mortgaged property at a date subsequent to the record.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-252; Dec. Dig.

    Appeal from Ellis County Court; J. C. Lumpkins, Judge.
    Action by R. B. White against A. J. Brin-berry, one Anderson, the Corsicana National Bank, and others. Judgment for plaintiff, and Anderson and the Bank appeal.
    Affirmed.
    Richard Mays, of Corsicana, for appellants. John H. Sharp, of Ennis, for appellee.

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

   RAINEY, C. J.

This suit was brought by appellee against appellants to recover on a note for $400, and to foreclose a mortgage on two mules for which the note was given. Appellants, Anderson and Corsicana National Bank, were made parties; they claiming a superior lien on the mules. A trial resulted in a judgment for appellee for the amount pf his note, and for a foreclosure of his mortgage, from which judgment Anderson and the bank appeal.

Trial was had before the court without a jury and the court found the following facts, which we conclude are supported by the evidence, to wit:

“(1) I find that on September 8, 1910, A. J. Brinberry bought two mules, in Ennis, Ellis county, Tex., from Farris & Atwood, who were then selling mules at Ennis, in Ellis county, Tex., and that for the consideration of said two mules the said A. J. Brinberry executed and delivered his promissory note of that date, for the sum of $400, payable to Farris & Atwood, or order, on October 1, 1911, with interest thereon from date at the rate of 10 per cent, per annum, and 10 per cent, for attorney’s fees, in the event said note was not paid at maturity and it was placed in the hands of an attorney for collection, or suit is brought oh same, or if collected through the probate court; that said note was payable at the Ennis National Bank, Ennis, Tex.
“(2).That at the time said A. J. Brinberry executed and delivered unto Farris & Atwood said note aforesaid he also executed and delivered unto Farris & Atwood his chattel mortgage of the same date, giving them, among other things, a mortgage upon the following described property: ‘1 black horse mule, 5 years old, 16 hands high, no brand. 1 black horse mule, 3 years old, 15% hands’ high, no brand. 1 black horse ten (10) years old 14% hands high, scar on right hind leg. The entire cotton crop to be grown hy A. J. Brinberry during the year 1911, consisting of 40 acres of cotton and - acres of corn, on Anderson lease farm, being - acres out of original grant or survey, Ellis county, about 5 miles east of Ennis.’ 'That the said chattel mortgage was executed by A. J. Brinberry in the city of Ennis, Ellis county, Tex., and was given for the purchase money of the two mules above described, bought by him from Farris & Atwood; and said mortgage recites, among other things, that the said A. J. Brinberry was of Ellis county, Tex., and that he would keep safely all the property upon said premises, unless same be removed with the consent of Farris & Atwood.
“(3) I find that said chattel mortgage given by the said A. J. Brinberry to Farris & Atwood was recorded in the county clerk’s office of Ellis county on September 16, 1910; that a certified copy of the chattel mortgage given by the said A. J. Brinberry to Farris & Atwood was recorded in the county clerk’s office of Navarro county on March 18, 1911, in volume 83, page 172, Chattel Mortgage Records of Navarro county, Tex.; that said chattel mortgage was filed in volume 53, page 86, Chattel Mortgage Records of Ellis county, Tex.
“(4) I find that on the 12th day of March, 1909, A. J. 'Brinberry executed and delivered his chattel mortgage to Farris & Atwood to secure the payment of a certain note executed by him at that time, and in that mortgage he recites that he was of Ellis county, Tex., and gave a lien on his crop of cotton to be grown that year on" the Lambert farm, in Ellis county, Tex., about eight miles southeast from Ennis, and gave Ms post office address as ESnnis, R. E. D. No. 6.
“(5) That on November 27, 1909, said A. J. Brinberry executed and delivered bis chattel mortgage of that date to Earris & Atwood to secure the payment of a certain note of. that date, and recited in that mortgage that he was of Ellis/¡ounty, and gave a lien on his cotton crop to be grown by him during the year 1910 on the Weems farm, in Ellis county, Tex., and gave his post office address as being Ennis, R. F. D. No. 6.
“(6) I find that the mules above described, at the time they were purchased by A. J. Brin-berry from Earris & Atwood, were located in Ennis, Ellis county, Tex.; that A. J. Brinberry stated to E. K. Atwood, at the time he bought them, that he lived in Ellis county and was going to move in a few days to the Anderson lease in Ellis county; that at that time Farris & Atwood thought he was living in Ellis county, and recorded the chattel mortgage in the county clerk’s office for Ellis county; that within a week or ten days after Earris & Atwood had learned that A. J. Brinberry was not living on the Anderson lease in Ellis county, but was in fact living in Navarro county, they had a certified copy of the chattel mortgage given by him for said mules recorded in the county clerk’s office of Navarro county.
“(7) I further find that Farris & Atwood did not know that A. J. Brinberry was living in Navarro county, or that the mules were in Navarro county, after they had sold and delivered same to A. J. Brinberry, until about a week or ten days before they filed a certified copy of the chattel mortgage given by him to Farris & Atwood, which was filed in Navarro county on March 18, 1911, and that they filed a certified copy of their chattel mortgage within less than four months after they discovered that A. J. Brinberry had removed the two mules from Ellis to Navarro county, nor did they consent to their removal from Ellis county.
“(8) I further find that Farris & Atwood indorsed said note aforesaid, and sold and delivered same to R. B. White, plaintiff in this cause, for a valuable consideration, and that he accepted said note in good faith, and is the legal owner and holder of same, and that Farris & Atwood are liable as indorsers on said note.
“(9) I find that. W. D. Earris and E. K. Atwood reside in Ennis, Eillis county, Tex., and resided here at the institution of this suit and for a long time prior thereto, and now reside in Ellis county. I find that A. J. Brinberry has left the country and his whereabouts. are unknown. I find that W. J. Anderson and the Corsicana National Bank, defendants herein, reside in Navarro county, Tex.
“(10) I find that after A. J. Brinberry had purchased said mules aforesaid that he leased some land from W. J.' Anderson for the year 1911, and started to make a crop thereon, but later sold his crop and mules; that W. J. Anderson now has in his possession said mules aforesaid, and that each, of said mules is worth the sum of $200.
“(11) I find that A. J. Brinberry lived in Navarro county during the year 1910, but that Earris & Atwood did not know about it.
“(12) I find that on November 18, 1910, A. J. Brinberry gave Will Goldman a chattel mortgage of that date, to secure the payment of a note of that date, for the sum of $162.25 due October 15, 1911, with interest from date at the rate of 10 per cent, and 10 per cent, additional for attorney’s fees; that said note is secured by lien on one 3" Bois d’arc Bain wagon, complete, one set of harness complete, with 4" tugs, less the breeching, one Oliver cultivator, and one black horse mule, forir years old, and about 16 hands high, no brand; that said •mortgage was filed for record with the county clerk of Navarro county, Tex., on November 18, 1910, in volume 80, page 267, Chattel Mortgage Records of Navarro county.
“(13) I find that on the 16th day of April, 1910, A. J. Brinberry executed and delivered his chattel mortgage of that date to Will Goldman, to secure the payment of his note for the sum of $35, payable to J. Goldman, due October 15, 1910, with interest thereon from date at the rate of 10 per cent, per annum and 1Ó per cent, for attorney’s fees, etc., on one Oliver cultivator and three acres of cotton on the Henderson farm ; that said mortgage was filed in the county clerk’s office of Navarro county on April 16, 1910, in volume 79, page 193, Chattel Mortgage Records of Navarro county.
“(14) I find that on January 3, 1911, A. J. Brinberry executed and delivered his mortgage of that date to the Corsicana National Bank, for the sum of $435, due November 1, 1911, with interest thereon from maturity at the rate of 10 per cent, per annum and 10 per cent, for attorney’s fees, and secured by a lien upon the following described property: T black horse mule, 5 years old, 15 hands high, no brand. 1 black horse mule, 14% hands high, 4 years old. 1 black horse, 14 hands high, 10 years old. 1 bay horse, 13% hands' high, 4 years old. 1 3" Bain wagon, in use three months. 1 buggy. 65 acres of cotton and 10 acres in corn.’ That said mortgage was filed in the county clerk’s office in Navarro county on January 4, 1911, in volume 81, page 209, Chattel Mortgage Records of Navarro county.
“(15) That on the 15th day of January, 1911, W. A. Johns executed and-delivered to-the Cor-sicana National Bank his certain chattel mortgage of that date, to secure the payment of hi's note of that date for the sum of $181, due October 15, 1911, with interest from maturity at the rate of 10 per cent, per annum and 10 per cent, for attorney’s fees, and secured by mortgage lien on the following property: T horse mule, brown color, 10 years old, 15 hands high, no marks. 1 brown mare, 8 years old, 14 hands high, no marks. 1 farm wagon, make New Stoughton, 27 acres of cotton, and 15 acres of corn.’ Said mortgage filed in the county clerk’s office of Navarro county on January 13, 1911, on page 67, in volume 82, Chattel Mortgage Records of Navarro county.
“(16) That on February 14, 1911, W. A. Johns executed and delivered his chattel mortgage of that date to A. J. Brinberry, to secure a note to A. J. Brinberry for the sum of $825, with 10 per cent, interest from maturity and 10 per cent, attorney’s fees, etc., and was filed with the county clerk of Navarro county on February 16, 1911, in volume 73, page 47, Chattel Mortgage Records of Navarro county, and a copy of that mortgage is copied in the statement of facts in this cause, and the description of the property embraced within said mortgage is hereby adopted and made a part hereof.
“(17) I find that the Corsicana National Bank owns said notes aforesaid, with the exception of the one held by R. B. White.
“(18) I further find that after the execution and delivery of the note by Brinberry to Far-ris & Atwood that they transferred the note to Ennis National Bank, indorsing it at th'e time in their firm name. Said note not having been paid at maturity, the bank charged said note back to the account of Farris & Atwood, and caused the money originally paid by it to them to be refunded.
“(19) That the several notes held by the Cor-sicana National Bank have heretofore been placed in the hands of an attorney for collection, and the attorney’s fees therein provided for have been incurred.
“(20) W. J. Anderson and the Corsicana National Bank lived in Navarro county prior to the institution of this suit, prior to service of process herein, and have not since resided in Ellis county.
“(21) I further find that at the time Farris & Atwood transferred this note to R. B. White that E. K. Atwood, a member of the firm of Farris & Atwood, owed the said R. B. White the sum of $5,000 and interest thereon, and it was understood between E. K. Atwood, representing Farris & Atwood¡ and R. B. White, that said note, together with the principal and interest due thereon, would be deducted from the amount due by the said E. K. Atwood to R. B. White when a settlement was made between them concerning their business transactions.”

Whether appellee or Anderson and the Corsicana National Bank held the superior mortgage is the main question for solution in this controversy. There is no controversy about Brinberry buying the mules from Farris & Atwood, and executing his note) and giving the mortgage to secure the payment of said note. Nor is there any contention but that said note was transferred to appellee by Farris & Atwood for a valuable consideration; nor that Anderson and the bank held their mortgages without actual notice of appellee’s claim. Appellants claim that at the time Brinberry purchased the mules from Farris & Atwood and executed to them the mortgage he lived in Navarro county; that he immediately carried *said mules to Navarro county, the county line being about seven miles; and that it cannot be said that the mules were situated in Ellis county, and the recording of said mortgage in Ellis county was of no effect, especially as it was not recorded forthwith, as required by the statute, it being executed on the 8th day of September, 1910, and not filed for record until the 16th day of September, 1910.

The evidence shows that at the time Brin-berry bought the mules of Farris & Atwood and executed to them his note and mortgage, and the mules were delivered to him, he was in Ennis, Ellis county, where Farris & Atwood resided and were engaged in business. Brinberry at that time represented to them that he lived in Ellis county. Some months prior to this he had some transaction with them, when he lived in Ellis county, and they did not know he had gone to Navarro county, but supposed he still lived in Ellis county at the time he pm-chased the mules, and did not know of his removal to Navarro county until five or six months after they sold him the mules. While Brinberry at that time resided in Navarro county, it is not shown that the mules were carried to Navarro county on the day of sale, nor at what particular date they were so carried. We therefore conclude that at the time the mortgage was executed by Brinberry the mules were situated in Ellis county in contemplation of the statute, and Ellis county was the proper place for the recording of the mortgage. In the case of County of Allegheny v. Gibson, 90 Pa. 397, 35 Am. Rep. 670, in construing a statute as to the right to recover for property destroyed by a mob in any county where the property is “situated,” it was held in effect that, though the property was in transit, it was situated in Allegheny county, and the county was held liable. The same principle, we think, applies to this case.

There might be some question about whether the mortgage was filed “forthwith” in Ellis county; but we do not think that question arises under the evidence, as the rights of Anderson and the. bank arose long after the mortgage was recorded. In Vickers v. Carnahan, 4 Tex. Civ. App. 305, 23 S. W. 338, in discussing this point it is said:

“The mere omission to deposit and file the instrument ‘forthwith’ will not impair the effect of the registration as to persons acquiring rights in the mortgaged property at a date subsequent to the registration.”

The mortgage having been properly recorded in Ellis county, and the holders thereof not having consented to removal of the mules to Navarro county, the recording of said mortgage in said last county becomes immaterial, as its recording there was not necessary to preserve the lien.

The judgment is affirmed.


author: KEY, C. J.

text:
    COBERN et al. v. STEVENS et al.
    (No. 5336.)
    (Court of Civil Appeals of Texas. Austin.
    April 22, 1914.
    Rehearing Denied May 27, 1914.)
    1. Homestead (§ 189) — Right to Set Aside —Conveyance in Fraud oe Cbeditors.
    Where an owner of land, who was the head of a family and resided thereon, conveyed it in fraud of creditors, he is entitled, upon the conveyance being set aside at the suit of his creditors, to select and hold 200 acres as Ms homestead, for, the conveyance being a nullity as to his creditors, it does not destroy his right to a homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 358; Dee. Dig. § 189.]
    2. Homestead (§ 213) — Plea oe Homestead-Waiver oe Objection.
    Where a plea to set aside a homestead out of a larger tract did not designate the particular portion selected, but merely asked that his right to 200 acres be protected, and the plaintiff creditors did not except to the plea, the debtor is entitled to have his homestead set off.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 39A-396; Dec. Dig. § 213.]
    Appeal from District Court, McCulloch County; John W. Goodwin, Judge.
    Action by J. E. Stevens and others against G. E. Cobern and others. From a judgment for plaintiffs, defendants appeal.
    Reversed and remanded.
    Harvey Walker and Shropshire & House, all of Brady, for appellants. Snodgrass, Dib-rell & Snodgrass, of Coleman, for appellees,

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

   KEY, C. J.

Appellees brought this suit against Ben Polk, G. E. Cobern, and Mrs. S. M. Roller, seeking to recover upon a note executed by Polk and Cobern, and to foreclose an attachment lien upon 335 acres of land as against all the defendants, including Mrs. Roller; plaintiffs- alleging that G. E. Cobern had conveyed the land to Mrs. Roller for the purpose of defrauding the plaintiffs, and asking to have that conveyance canceled and the land sold under their attachment lien for the payment of the debt owing by Polk and Cd-bern. All of the defendants filed general denials, and the only other pleading necessary to be mentioned is the plea of homestead interposed by the defendant Cobern. The ease was submitted to a jury upon special issues, and the jury found that the land was conveyed by Cobern to his mother, Mrs. Roller, for an indebtedness amounting to $2,625; that the deed by which the property was conveyed transferred other property, the entire amount transferred being at that time of the value of $7,404; that the transfer referred to was made by Cobern for the purpose of defrauding his creditors; but that his mother, Mrs. Roller, was not aware of such fraudulent intent, and surrendered to him a note signed by him, and payable to her, for the sum of $5,800 as a consideration for the execution of the deed. The jury also found that, at the time of the issuance and levy of the writ of attachment sued out by the plaintiffs, the defendant Cobern was a married man, and was residing on and using the land involved as a home. The court rendered judgment for the plaintiffs for the amount of their debt, and foreclosed the attachment lien against the entire tract of land, and the defendants G. E. Cobern and Mrs. Roller have appealed.

We sustain the third assignment of error, and hold that the trial court committed error in not sustaining Cobern’s plea of homestead. According to the findings of the jury and the undisputed testimony, at the time the attachment was issued and levied upon the land, Cobern was the head of a family, and was residing with his family upon the land.. This being true, as against the plaintiffs and all other general creditors, he was entitled to select and hold 200 acres of the land, including the residence and other buildings, as his homestead. Counsel for appellees seem to contend that he could not assert any homestead right because of the fact found by the jury that he transferred the land with intent to defraud his creditors. We do not regard that contention as sound. If he resided on the property as his homestead at the time he made the transfer referred to, then such transfer as to the 200 acres which constituted homestead was not in fraud of creditors; but the jury did not find, and we do not hold, that it was his homestead at that time. However, the plaintiffs are estopped from denying that the land belonged to Cobern at the time they had their attachment levied upon it, because they levied upon it as his property, and sought to have the transfer which he had executed canceled and set aside, in order that it might be sold as. his property in satisfaction of their debt against him. Necessarily, their contention is that, as against them, the law should deal with the property as though it had never been transferred; and, if such had been the ease, it is clear that Cobern could have interposed and maintained his homestead right as against the plaintiffs’ demand. In other words, if it be conceded that the transfer was made with intent to defraud the plaintiffs, nevertheless, if on account of such fraudulent intent, or for any other reason, Mrs. Roller had transferred the land back to Cobern before the attachment was levied, he could have then interposed his homestead right, as against the attachment lien, or any other right asserted by the plaintiffs. The fact that Cobern could not have asserted his homestead right as against Mrs. Roller is immaterial for two reasons: In the first place Mrs. Roller joined him in his plea of homestead, and in the request that the court protect his homestead right, and in the second place the plaintiffs do not assert any fight from or under Mrs. Roller; on the contrary, their claim is.adverse to hers, and is founded upon the proposition that, as against them, Cobern’s deed to Mrs. Roller conveyed nothing, and left the title in Cobern.

It is true that in his plea of homestead Cobern did not, as perhaps he should have done, designate by metes and bounds the particular 200 acres of land he claimed as his homestead; but his plea was not excepted to for that reason, and he asked the court to protect his tight as to 200 acres of the land, and we hold that he was entitled to have the judgment so framed as to accomplish that result.

As to the contention that Mrs. Roller should be protected as an innocent purchaser, we express no opinion, and merely send the case back for another trial.

For the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: BROWN, C. J.

text:
    HICKMAN v. SWAIN et al.
    (No. 2372.)
    (Supreme Court of Texas.
    June 3, 1914.)
    1. Appeal and Error (§ 70) — 1Orders Ap-pealable — Plea oe Privilege — Order Granting Plea — Eight to Appeal.
    Kev. St. 1911, art. 1833, provides that ■whenever a plea of privilege to the venue shall he sustained the court shall order the venue changed to the proper court of the county having jurisdiction of the parties and the cause, providing that nothing contained therein shall prevent an appeal from the judgment of the court sustaining a plea of privilege. Held, that an order sustaining a plea of privilege is ap-pealable before trial.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 367-378, 386, 411; Dec. Dig. § 70.]
    2. Venue (§ 77) — Change oe Venue — Application — Waiver.
    Where a plea of privilege is filed in due order of pleading, the subsequent filing of a plea over against plaintiff did not affect a waiver of the plea of privilege.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 59, 134, 138; Dec. Dig. § 77.]
    3. Venue (§ 78) — Change oe Venue — Plea oe Privilege — Eeeect.
    The granting of a plea of privilege applied for by certain of the defendants was effective to transfer the whole case, both as to all parties and subject-matter, to the county where the defendants filing such plea were entitled to have the case tried.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 135, 136; Dec. Dig. § 78.]
    Certified Question from Court of Civil Appeals of Second Supreme Judicial District Action by C. W. Hickman against M. F. Swain, and others.
    On certified questions from the Court of Civil Appeals.
    Wm. J. Berne, of Ft. Worth, for appellant. D. J. Brookreson, of Benjamin, and B. K. Goree, of Ft. Worth, for appellees.

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

   BROWN, C. J.

The honorable Court of Civil Appeals of the Second Supreme Judicial District has certified to this court the following statement and questions:

“Appellant, C. W. Hickman, alleged to reside in Tippecanoe county, Ind., instituted this suit in the district court of Tarrant county, Tex., against M. F. Swain and nine other persons, all of whom were alleged to reside in Knox county, Tex., upon a promissory note executed by the defendants named on March 31, 1908, for the sum of $1,500, and payable to the order of J. Crouch & Son at the Farmers’ State Bank of Knox City, Tex., on or before October 1, 1910. It was alleged that J. Crouch & Son had indorsed said note in blank to the plaintiff, whereupon ‘each defendant’ became .liable and promised to pay the amount specified in the note. It was further alleged that J. Crouch & Son was a firm composed of Jeptha Crouch and George Crouch, who both resided in the state of Indiana, and who were consequently not made parties to the suit by the petition. All defendants named in the petition were either cited or answered as hereinafter stated, save the defendant J. A. Wood, who does not appear to have been cited or to have joined in an answer of any kind. Of the defendants named in the plaintiff’s petition, appellee M. F. Swain and seven others joined in a plea of privilege to be sued in Knox county. The plea was duly verified, filed, and presented, as hereinafter. stated. In addition fo this pleh of privilege, .these defendants at the same time filed an answer in which C. C. Tucker and R. E. Butler, who were not parties to the plea of privilege, joined. The answer, in substance, alleged that the payees of the note, J. Crouch & Son, and J. A. Wood, one of the signers thereto, had, for the purpose of deceiving and defrauding, conspired together in fraudulently representing the value and quality of a certain horse owned by J. Crouch & Son which defendants, by the means stated, had been induced to purchase, and for which they gave the note sued upon and another of like amount, which" they had theretofore paid to J. Crouch & Son. The prayer was, as against the plaintiff, Hickman, for a cancellation of the note sued upon, it being alleged that he was not a bona fide owner and holder of the note, or, if so, a purchaser after its maturity, and for judgment ‘against said J. Crouch & Son and said J. A. Wood, jointly and severally, or against such of them as are brought within the jurisdiction of the court,’ for the sum alleged to have been paid to J. Ci'oueh & Son on the note previously paid. It should, perhaps, be further stated in this connection that the note as sued upon, had, among other in-dorsements, the following: ‘Received of J. A. Wood one hundred and fifty dol. $150.00, this being his pro rata of the within note, this April 1st, 1908. J. Crouch & Son.’
“The trial court in due order heard the plea of privilege, and, Raving found, as the evidence justifies, that its material allegations were true, and that the answer to the merits had been filed subject to the action of the court upon the plea of privilege, sustained the plea of privilege, and, as to all parties, ordered the cause transferred to the district court of Knox county, Tex., and from this order the plaintiff in the suit prosecutes an appeal, which is now pending before us.

“In this state of the record we deem it advisable to certify to your honors the following questions, viz.:

“First. Whether an apnpal from such an order is allowable at all under chapter 4 of title 30 of the Revised Statutes, as amended by the act of the Thirti-t' Legislature approved April 18, 1907? See General Laws 1907, p. 248.
“Second. If so,_ whether the answer of the defendants who joined in the plea of privilege is of such affirmative character as to constitute a waiver on their part of the plea of privilege to be sued in Knox county?
“And third. If not, did the court err in transferring the cause as to those defendants, Tucker, Butler, and Wood, who failed to join in the plea of privilege?”

The following articles of the Revised Statutes govern the action of the court on the questions submitted:

“If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff.” Article 1832, R. S. 1911.
“Whenever a plea of privilege to the venue, to be sued in some other county than the county in which the suit is pending, shall be sustained, the court shall order the venue to be changed to the proper court of the county having jurisdiction of the parties and the cause; and the clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and transmit the same, with the original papers in the cause, to the clerk of the court to which the venue has been changed; provided, that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege.” Article 1833, R. S. 1911.

Prior to the enactment of the above statutory provisions, when the plea of privilege was sustained, the case was dismissed, from which judgment an appeal would lie. The proceeding was the same then as now, except that the case will not be dismissed. The judgment would be interlocutory, from which no appeal would lie, unless the right is preserved by this language:

“Provided, that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege.”

If the plea of privilege in this case had been tried under the former law, the case would have been dismissed, and plaintiff could have appealed, and the action sustaining the plea of privilege would have been revised. If the plea had been overruled, the defendant, upon appeal, could have had it reversed. The evident purpose of the proviso to article 1833 was to preserve to the plaintiff the right of appeal which existed before that article was enacted. If the law be construed so as to require the plaintiff to await a trial in the county to which it was transferred, the right to have the court’s action revised would be practically denied. The construction we give to the proviso preserves the rights of both parties, and will prevent the delays and expense of a trial the judgment in which might be reversed on the issue of venue alone, requiring a second trial on the merits. The language of the proviso to article 1833 cannot be applied otherwise than as saving to the plaintiff the right of appeal as it formerly existed in such matters, constituting an exception to the general rule that an appeal cannot be prosecuted from interlocutory orders or judgments.

We answer that the appeal was authorized in this case. If the plea of privilege was filed in the due order of pleading, the filing thereafter of a plea over against plaintiff did not affect the right of the defendants to insist upon the transfer of the case to the county in which they resided.

The granting of the plea of privilege had the effect to transfer to Knox county the case entirely as to parties and subject-matter of the suit and plea of defendants over against plaintiff.