source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    JOSEPH W. MOON BUGGY CO. v. MOORE-HUSTEAD CO. et al.
    (No. 7761.)
    (Court of Civil Appeals of Texas. Dallas.
    May 26, 1917.
    Rehearing Denied June 23, 1917.)
    1. Sequestration 1 &wkey;»12 — Affidavit—Bur-pose oe Writ.
    The statute (Rev. St. 1911, art. 7095) does not require affidavit for sequestration to state that the writ is not sued out to injure either defendant.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 11-16.]
    2. Sequestration <5&wkey;12 — Aefidavit—Value or Property.
    The affidavit for sequestration of 23 buggies satisfies the requirement of the statute (Rev. St. 1911, art. 7095) that it gives the value of each article of the property, where it gives the value of each which is different from any other, and groups those which are alike and gives the number thereof and the aggregate value of the group,
    [Ed. Note. — For other cases, see Sequestration, Cent. 'Dig. §§ 11-16.] '

      3. Pleading &wkey;>35 — Surplusage.
    The petition, in action to recover possession of buggies, showing that plaintiff had by written contract sold them on credit to defendant M,, reserving title thereto in itself till paid for, which contract, under Rev. St. 1911, art. 5654, constitutes a mortgage, .and under article 5660 entitles plaintiff as mortgagee, its debt being unpaid, to possession of them and to have them sold for payment thereof, M. having disposed of them to defendant S. as assignee for the benefit of creditors, the allegation of the prayer that plaintiff is owner of them is surplusage, and should be disregarded.
    [Ed. Note. — Por other eases, see Pleading, Cent. Dig. §§ 70-80.]
    4. Appeal and Eeroe &wkey;>1178(S) — Disposition OF CAUSE — REVERSAL — AMENDIN G Pleading.
    Judgment for defendant, in action by plaintiff, as owner, for possession of buggies, will be reversed, and plaintiff allowed to amend its petition and allege the proper grounds for relief on which it is entitled to recover; the petition showing plaintiff is in law a mortgagee and entitled to possession and sale of the buggies for payment of its debt.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4616-4619.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by the Joseph W. Moon Buggy Company against the Moore-Hustead Company and another. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Will M. Martin and Walter Collins, both of Hillsboro, and Short & Peild, of Dallas, for appellant. Wear & Frazier, of Hills-boro, for appellees.
   RAINEY, C. J.

Appellant sued the appel-lee, the Moore-Hustead Company and Houston Shipp, its assignee for the benefit of creditors, to recover the possession of a number of buggies which had been sold by appellant to the Moore-Hustead Company, or their value, in case the specific property could not be recovered. The petition alleged that the buggies had been sold and delivered under a contract, and the title to same had been reserved to appellant, if not paid, setting out the contract, describing the buggies, and stating their value to be $1,571.75. A writ of sequestration was sued out, the buggies seized and replevied by Houston Shipp, who filed a general exception, general denial, and answered specially in effect that Moore-Hustead Company having become financially embarrassed, and desirous of protecting all creditors, without preference, made a general assignment to him as assignee, conveying all of its property for the benefit of creditors, and he had taken possession of same; that Moore-Hustead Company was the purchaser of said property, and notwithstanding the reservation of title in said contract it was the understanding and intention between the parties that Moore-Hustead Company was the purchaser, and plaintiff was not to be considered the owner thereof. The.sequestration was quashed, and a trial upon the merits was had, the court instructing. the jury to return a verdict for defendant, which was accordingly done, and judgment rendered for defendants, from which this appeal is taken.

Complaint is made of the quashing of the sequestration on account of the alleged defective affidavit; one ground being that the affidavit failed to allege “that it was not. sued out for the purpose of injuring either of the defendants, when there were more than one defendant.” The statute in reference to affidavits for sequestration does not require such language to be so used. The second ground is that the value of each article is not stated separately. There were 23 buggies sequestrated, their aggregate value being placed at $1,571.75. All were listed and described by catalogue and factory numbers. Ten of them were valued separately at various amounts; 13 were grouped by 3’s and 2’s, and each group was valued separately. For instance, one group of 3, each buggy being alike, the aggregate value was given, and the same as to the groups of 2 each. The buggies in each group were like each other in that particular group, were described alike, were of the same make, and were of the same value, and the value of each can readily be ascertained by simple calculation. This valuation is substantially in compliance with the statute. Therefore there was error in quashing the sequestration.

On the merits of the case we think the court erred in giving a peremptory instruction to find for defendants. Appellant closes its petition with the prayer as follows:

“Wherefore plaintiff states that it is the owner of and entitled to the possession of all said buggies and vehicles of the value aforesaid of fifteen hundred seventy-one and 75/ioo ($1,571.-75) dollars, by virtue of and according to the terms of the written contracts hereinbefore mentioned. Wherefore it prays that, defendants having- already answered, upon a final hearing hereof, it have and recover of and from said defendants the possession of the buggies herein-before described, alleged to have been in their possession at the time of the institution of this suit, or for the sum of $1,571.75, in case said specific property cannot be recovered, and for all such other and further relief as to the court may seem just and proper in the premises; and as in duty bound plaintiff will ever pray.”

The petition also showed that plaintiff had by written contract sold said buggies to Moore-Hustead Company on a credit and reserved title thereto in itself until paid for. This shows h sale of the buggies, and under the statute (article 5654) said contract created only a mortgage; therefore it had no right as owner to recover the possession of said buggies. But as mortgagee it had the right, its debt being unpaid, to the possession of said buggies and have them sold for the payment of its debt, whether the same has become due or not. Article 5660, R. S. 1911. The plaintiff’s allegations showed facts whieh entitled it to the possession of the property, not as owner, but as mortgagee; and, Moore-Hustead Company having disposed of the property to Houston Shipp as assignee for the benefit of its creditors, the allegation that it was owner was but sur-plusage under the facts and should be disregarded.

Under the law, as we understand it, appellant could not recover possession of the buggies as owner; but, it being shown that appellant holds a. mortgage on the buggies, it would be inequitable to allow the judgment of the lower court to stand, and it will be reversed, and appellant allowed to amend and allege the proper grounds for relief, and upon which it is entitled to recover. Bank v. City of Terrell, 78 Tex. 450-461, 14 S. W. 1003.

The judgment is reversed, and the cause remanded.
      ¿&wkey;Eor other oases see same .topic and KEYrNUMBER in all Key-Numbered Digests and Indexes

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


author: BROOKE, J.

text:
    MANSFIELD v. RAMSEY.
    (No. 246.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 9, 1917.)
    1. Judgment &wkey;>l 7(9) — Process to Sustain— Authority of Officer.
    Where the petition shows that the sheriff is ■a party to the suit, or is interested therein, the ■citation shall be addi-essed to a constable of his county, and citation served by a sheriff through his deputy, on either the sheriff or his codefend-ant, will not support a judgment by default.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 31.]
    2. Process <&wkey;166 — Authority to Serve Citation-Waiver of Objections.
    Where citation in suit against a sheriff and a judgment creditor to restrain execution, issued to the sheriff and the deputy, served both parties, and the judgment creditor objected only to the service on the sheriff, objection that under Vernon's Sayles’ Ann. Civ. St. 1914, art. 1S54, the sheriff could not serve his codefendant was waived.
    [Ed. Note. — For other cases, see Process, Cent. Dig. §§ 250-255.]
    3. Appeal and Error <&wkey;880(l) — Right to Allege Error — Coparties.
    In such case_, where the sheriff was served with no citation in error and made no complaint on appeal, the judgment creditor could not complain of irregularity in the service as to the sheriff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.Di¿. §§ 3584, 3585, 3587, 3589, 3590'.]
    4. Appeal and Error <&wkey;408 — Citation — (‘t’H) RT A TWTY
    Sheriff’s return of citation, showing that it was “executed in Harris county by delivering to each defendant in person a true copy,” followed by name of defendant, date, and hour, was sufficiently certain.
    [Ed. Note. — For other cases, see Appeal and Error,' Cent. Dig. § 2133.]
    5. Appeal and Error <&wkey;1043(5) — Harmless Error — Injunction Bond — Effect of Final Decree.
    That too small an injunction bond was originally required is not reversible error, where the injunction was properly issued, and the final decree released the surety.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4119.]
    6. Injunction <&wkey;159 — Bond — Defects — Failure to Object.
    Defects in injunction bonds are waived, unless taken advantage of by motion to correct or to dissolve.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 344.]
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Injunction by W. R. Williams, as agent for D. D. Ramsey, against H. P. Mansfield and another. Decree for complainant, and Mansfield brings error.
    Affirmed.
    D. M. Ballowe, of Houston, for plaintiff in error. A. R. & W. P. Hamblen and Cole & Cole, all of Houston, for defendants in error.
   BROOKE, J.

This was a suit in injunction in the Eleventh district court of Harris county, filed on February 1, 1915, by one W. R. Williams, styling himself the agent of one D. D. Ramsey, who resided in Richmond, Ind., against M. P. Hammond as sheriff of Harris county, and H. P. Mtansfield, and in this suit it is correctly alleged that H. P. Mansfield was the owner and holder of a certain judgment theretofore obtained by him as plaintiff against W. R. Williams, being in the Eleventh district court of Harris county. In this cause, being numbered 56,345 in said above-mentioned court, H. P. Mansfield recovered a judgment against W. R. Williams in the sum of $1,150, and costs of court in the sum of $111.29, and under this judgment caused M. F. Hammond, sheriff of Harris county, to make levy on the property mentioned in plaintiff’s petition in this cause, to satisfy said judgment. W. R. Williams makes affidavit for injunction under the petition prepared by his attorneys, to restrain the sale of the land to satisfy the judgment obtained as aforesaid, by I-I. P. Mansfield. The honorable judge of the Eleventh district court of Harris county, being the same court wherein the judgment against W. R. Williams had been obtained by PI. P. Mansfield, upon being presented with the petition in this cause granted the temporary injunction as prayed for, to restrain this sale under execution, upon applicant giving bond in the sum of $500. Upon the filing of the bond, the writ of injunction issued from the proper source, together with the citation, and both were delivered to M. F. Hammond, sheriff of Harris county, and in both instances service was had on M. F. Hammond, sheriff of Harris county being served by M. F. Hammond, sheriff of Harris' county, Tex., by his deputy, Tom O. Smith, and I-I. P. Mansfield was served in the same manner by the same deputy, the return as to service on both Hammond and Mansfield being on the same instrument. M. F. Hammond filed an answer. PI. p. Mansfield made no answer. A final permanent injunction was rendered in this causa in default against I-I. P. Mansfield, and decree approved on April 28, 1915.

The assignments have been grouped and treated together, as follows:

(a) The court erred in rendering judgment by default in this cause, because the return of the officer serving the same shows conclusively that M. F. Hammond, by his deputy, Tom C. Smith, served the citation on M. F. Hammond, in his capacity as sheriff, which service was contrary to article 1854, Revised Statutes of the state of Texas.

(b) The court erred in rendering a judgment by default in this cause, because the officer’s return on the citation does not show conclusively that each of the defendants named were served with the citation at the time and place indicated, which on the original return is misleading, in the sense that M. F. Hammond and H. OP. Mansfield were served at “the office of Sheriff Houston, Harris county, Tex.”

(c) The court erred in rendering a judgment by default in this cause, because the injunction sought and prayed for by plaintiff, D. D. Ramsey, was not verified by a proper person, nor in the manner required by law.

(d) The court erred in rendering a judgment by default in this cause, because of the insufficient and contrary to statute order of the trial judge in this cause, wherein the injunction sought was to restrain a sale under a judgment and execution, and the amount of the bond required of the applicant should have been fixed at twice the amount of the judgment and costs, which bond in this cause should have been fixed at $2,520.58, instead of the amount of $500, as required by statute in injunction restraining sale under execution.

(e) The court erred in rendering a judgment by default in this cause, and primarily in granting even the temporary injunction therein, for the reason that the petition filed in this cause, praying for injunction, plainly shows that the applicant therefor had no interest in the property about to be sold by the sheriff under execution aforesaid, and that the court erred in granting said injunction and in rendering a judgment, temporary and final thereon.

Under the above assignments, the appellant offers the following proposition:

“Where it appears from the petition that the sheriff is a party to the suit, or is interested therein, the citation shall be addressed to any constable of his county, and a citation served by a sheriff through his deputy, on either the sheriff or his codefendant, is erroneous, and will not support a judgment by default.”

To which we agree as being correct.

.However, objection is made to the consideration of plaintiff in error’s proposition in so far as it makes complaint that the sheriff could not serve his codefendant, H. P. Mansfield, for the reason that so much of said proposition fails to comply with article 1612 of Vernon’s Sayles’ Texas Civil Statutes 1914, in that said assignment does not specify that portion of the error urged by the proposition ■thereunder as makes ,complaint that the sheriff could not serve his codefendant, H. P. Mansfield, and so much of said proposition asserted under said assignment is not based upon, nor justified by, nor germane to, said first assignment of error under which said proposition is urged; and therefore so much of said objection to the sheriff serving his codefendant as is urged in said proposition should be, as provided by said statute, regarded as waived.

It is plain that the first assignment of error filed below by plaintiff makes no complaint that the defendant, H. P. Mansfield, was served by the deputy sheriff; the complaint urged being purely that M. F. Hammond could not serve himself, through his deputy, Tom C. Smith. So much, then, of the first proposition under the first assignment of error as makes complaint that the sheriff is not authorized under article 1854, Revised Statutes, to serve his codefendant, I-I. P. Mansfield, must be considered as waived, and will not be considered. Article 1612, Vernon’s Sayles’ Texas Civil Statutes 1914, reads as follows:

“The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of record from the clerk’s office, * * * and provided further, that all errors not distinctly specified, are waived. * * * ”

In all four assignments of error filed by the appellant, neither of them even hinted at so much of the first proposition as found fault with the service, in that the sheriff was not authorized to serve his codefendant, H. P. Mansfield. However, it has been held that where the sheriff has only a nominal interest in the suit, service by him pr by his deputy on himself, as well as service by him or by his deputy on his codefendant, who is the substantial party defendant, is valid.

It is contended that article 1854, Vernon’s Sayles’ Texas Civil Statutes 1914, has reference only to eases where the sheriff is a substantial party interested in the litigation.

In the case of Clegg v. Patterson, 32 Ind. 135, it seems that Patterson filed a complaint against Clegg and Bellows, sheriff, praying for injunction against the sale of certain real estate lévied on by plaintiff as sheriff, by virtue of execution in his hands in favor of Clegg against Patterson. Process was issued in the case, and was placed in the hands of the defendant, Bellows, for service. Bellows acknowledged service on himself, and served it on Clegg. On the second day of the succeeding term, the defendants were called, and, not appearing, a default was taken against them, and a decree of perpetual injunction rendered. On the same day Clegg appeared, and, finding that he had been defaulted, filed an affidavit, and thereupon moved the court to set aside the default and permit him to appear and plead to the complaint. The motion was overruled. Clegg excepted and appealed. The service of process on Clegg was objected to because it was-served by the sheriff, who was also a delend-■ant in the suit. Bellows, the sheriff, was but a nominal party to the suit. He was not interested in the merits of the controversy. “The service of the summons by him on Olegg,” says the court, “even if irregular, was not void. And no objection was made to the service in the motion to set aside the default, and cannot be properly made for the first time in this court.”

We have also been cited to the case of Avery v. Warren, 12 I-Iéisk. 559, by the Supreme 'Court of Tennessee. Briefly stated, the case was as follows:

“Dixon and Avery filed their bill in the chancery court at Memphis to enforce the collection of a note given by Warren and Looney, against Warren only, a nonresident of the state, the defendants Alschuler and Soligman being sued as debtors to Warren, and Winters, the sheriff of Shelby county, made a nominal party, as having process in his hands for the collection of one of the debts in favor of Warren. * * * The bill was * * * taken for confessed against Seligman, he having been served with a subpoena [by a deputy sheriff], but failing to answer. The first point we need notice here is the objection that the subpoena was served on Soligman by a, deputy of the sheriff, who was party to the bill. There is nothing in this objection. Section 381 of the Code was intended to apply only to the case of the sheriff’s being a party in interest, not where he is a mere nominal party, and no redress is sought against him. The sheriff was in no wise interested in this case; he had no interest to be affected by the result of the litigation. He was probably not even a proper party to the suit. It was not like the case of Einer v. .Stacy, 8 Humph. 2S9, where the sheriff owned the execution, or the debt.”

There is no Texas ease cited upon the point involved. In addition the sheriff voluntarily appeared and filed answer in the ease.

In the case of Tinney v. Vittur, 134 La. 549, 64 South. 407, it was held that the sheriff may accept service of a petition for injunction and waive service of the writ. However, we believe if there was error in the sheriff, through his deputy, having served ' the citation, such matter was one to have been taken advantage of by abatement below, and cannot be urged for the first time in this court.

In the case of Lillard’s Executor v. Lillard’s Executors, 44 Ky. (5 B. Mon.) 340, the following language is used.

“Jacob Keller, though one of the plaintiffs, had no interest in the amount sought to be recovered, as appears by the condition of the bond, as well as by an indorsement upon the writ, that ‘the suit is for the benefit of Joseph Magee.’ His service of the writ as deputy sheriff should have been taken advantage of in the court below, and within the proper time. It was a matter of abatement only.”

Cfn addition 'tjo what has been said above, it might be said that the writ of error has not brought the case up as to the sheriff, Hammond, who was not served by any citation in error, and plaintiff in error, Mansfield, in our judgment, is in no position to complain of the alleged impropriety in serving his c'odefendant, I-Iammdnd, who is making no complaint on this appeal.

We ■ do not believe that there is any uncertainty in the officer’s return as to time, place, and manner of citation, and that the samé is in any sense misleading, and that it is sufficient to sustain, the judgment by default. The return was1 as follows:

The return shows quite clearly that M. IP. Hammond was served at 2 p. m. on February 2, 1915, at the office of the sheriff, and that the defendant H. P. Mansfield was served on February 3, 1915, at 3 p. m. at Houston, in Harris county, Tex. We see no valid reason for complaint in the matter complained of. As to the insufficiency of the bond, in a case in which an injunction was properly issued, we do not believe that it is error, such as would require a reversal in this court, simply because originally too small an injunction bond was required, especially where the surety on the bond originally executed was released from any further obligation on the bond by the final decree of the court. It is the general rule that defects in injunction bonds are waived, unless they are taken advantage of by motion to correct them, or to dissolve.

. In the case of Miller v. Clements, 54 Tex. 351, the Supreme Court held that the bond was good to the amount of the bond, and, in effect, that the bond was not void because of a failure to comply with statutory requirements.

In the case of Jones v. Gray, 91 Ill. App. 79, the holding was- that defects are waived, unless they are taken advantage of by motion to correct them, or to dissolve.

In Drake v. Phillips, 40 Ill. 388, it was held not reversible error to require too small a bond, in ease the injunction was properly granted.

We believe that the injunction was properly granted, and that the amount of the bond cannot be urged to reverse the case. However, no case directly in point in Texas has been cited, nor have we been able to find such a case.

It is insisted that the entire proceedings in this cause, especially as herein pointed-out, are grossly irregular and erroneous, and do not sustain the finding of any character of judgment, and will not sustain the judgment in default rendered.

We have considered the several matters complained of, as reflected in the record before us, and we have arrived at the conclusion that the judgment of the lower court, and his action on the matters involved, was correct, and that we would not be warranted, in the face of this record, in reversing the .cause. Believing, as we do, that the action of the lower court was correct, and was right in the premises, the said judgment is in all things affirmed. It is' so ordered.
      (&wkey;For other eases see same tODic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BUVENS et al. v. BARDEN.
    (No. 244.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 7, 1917.)
    1. Appeal and Ebbob <&wkey;564(5) — Recobd—• Statement of Facts.
    Where a statement of facts on appeal has not been filed in the appellate court with the transcript, and leave has not been obtained to file it subsequently, it will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2504-2506, 2558, 2559.]
    2. Appeal and Ekeok <&wkey;766 — Recobd— Bbiees. •
    A brief on appeal which fails to comply with the rules will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126.]
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by E. T. Barden against L. A. Bu-vens and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    B. L. Palmer, of Houston, for appellants. Hamblen Pattison, of Houston,- for appellee.
   BROOKE, J.

This is a suit brought by E. T. Barden, owner of the Barden Electric & Machinery Company, as -plaintiff, against L. A. Buvens and Mrs. M. B. Buvens, as defendants, wherein plaintiff seeks to recover judgment on certain ■ promissory notes given to him by the defendant, L. A. Buvens, in part payment of the purchase price of certain electrical wiring and fixtures sold to defendant by plaintiff. Mrs. M. B. Buvens becomes a party to the suit by reason of the fact that she indorsed the said notes for her son, L. A. Bnvens. Plaintiff also seeks judg-. ment of foreclosure of his lien upon the goods sold by him to the defendant L. A. Buvens.

The trial was before Hon. Murray B. Jones, judge of the county court at law of Harris county, was without a jury, and the court found for the plaintiff for the full amount of his claim.

The court filed the following findings of fact and conclusions of law, to wit:

“Findings of Fact.
“(1) On May 31, 1915, the defendant B. A. Buvens, for a valuable consideration, made, executed, and delivered to the plaintiff herein his two certain promissory notes introduced in evidence, No. 1 in the sum of $58.15, due on July 1, 1915, and No. 2 in the sum of $58.10, and due on August 1, 1915, and on the date of the execution of the notes gave plaintiff a lien, introduced in evidence, on certain electrical fixtures and wiring materials, described in plaintiff's petition, and now in plaintiff’s possession, as hereinafter shown, which plaintiff installed in a moving picture show for defendant, and which said lien was duly filed of record with the county clerk of Harris county, Tex.
“(2) On or about July 13, 1915_, defendant L. A. Buvens at that time having failed to pay the note due on July 1, 1915, and at that time owing plaintiff for other electrical fixtures, wiring materials, and for labor in installing same in his picture show in the sum of $153.89, for a valuable consideration, made, executed, and delivered to plaintiff his certain, promissory note, dated July 13, 1915, for said sum introduced in eyidence, and on that date, secured the in-dorsement of all three said notes by his mother, Mirs. M. B. Buvens, a widow, in consideration of and upon agreement with plaintiff for the extension in date of payment of the two first notes, which said notes in accordance therewith were extended in date of payment from their respective dates, the first thirty and second sixty days.
“(3) After running same for two or three months, defendants, finding the picture show unprofitable, dismantled said fixtures and wiring materials and carried them to his home where they remained for three or four months.
“(4) Plaintiff demanded payment of defendants when said notes became due, but defendants failed and refused to pay same or any part thereof. Plaintiff then notified defendants that suit would be filed and the property in their possession would be taken under process of law, when defendants agreed that plaintiff might take possession of said property without sequestration proceedings, which plaintiff did, placing it in a separate compartment, at his place of business, where same is now held for the purpose of being sold under order of sale, the mortgage giving such right.
“(5) Plaintiff filed suit upon his notes against defendants and prayed for judgment thereon and that his lien on said goods, wares, and merchandise be foreclosed and an ordlr of sale be issued thereon. Defendants answered, admitting the execution of the notes and mortgage, and claiming the plaintiff had lost his right, of action on the notes and foreclosure of his lien on the property by taking the property back as aforesaid.
“(6) The property mentioned is far less in value than the amount of the indebtedness on account of much of the indebtedness being for labor in installing said fixtures and materials, and plaintiff never agreed or intended to repurchase the property or release the indebtedness, nor did defendants so consider it, but plaintiff took possession of same in accordance with the right given in the mortgage to do so and in order to save sequestration proceedings and to hold same pending foreclosure proceedings and sale.
“Conclusions of Law.
“I conclude that plaintiff is entitled to judgment against the defendants for the amount of the principal of the notes and interest and attorney’s fees therein provided for, a total of $319.53, with interest from date of judgment at the rate of 10 per cent, per annum and for foreclosure of said lien on said property and costs, and that defendant’s contention that the taking possession by plaintiff of the property released them from the indebtedness or constituted a repurchase is not sustained.”

At the outset of this case, we are confronted with a motion to- strike out the statement of facts and appellant’s brief. The following is said motion:

“Now comes the appellee, and moves the court that the statement of facts and brief for appellants filed in this court in said cause be stricken out and not considered by the court, and that the judgment of the trial court in said cause be affirmed for lack thereof, and in that behalf would respectfully show:
“Appellants gave n.otice of appeal on March 30, 1916, and filed their appeal bond on the 20th day thereafter.
“The court’s order allowed 30 days after adjournment of court to file statement of facts. Court adjourned on April 1st. Appellee’s counsel agreed to the statement of facts, and appellants presented same to the trial court 35 days after court adjourned, and same was approved and ordered filed by the court on May 5th.
“Appellants filed the transcript in this court on the ninetieth day after the appeal was perfected.
“Notwithstanding the statement of facts was approved by and filed in the trial court on May 5th, and transcript filed in this court on July 18th, appellants did not file the statement of facts in this court until September 29th.
“The effect of article 2079 is to require the statement of facts to be filed in the appellate court with the transcript, thereby bringing same within the 90day provision. No motion or other proceeding was had to obtain leave to file after the time allowed by showing good cause for failure to file in time, as required by article 160S.
“No reason is apparent for the delay other than that suggested by the fact that appellants took the full time allowed by law in each step of the appeal, thus postponing decision by this court to the latest date within their power.
“Wherefore appellee asks that same be stricken and not considered as a part of the record in this cause.”

With reference to this motion, we have examined the record, and find the facts stated therein to be true, and therefore the statement oí facts will not be considered.

With reference to the appellant’s brief, we find no assignment of error, no proposition thereunder, and the brief in no respect complies with .the rules. Therefore the brief of appellant cannot be considered.

We have examined the record to see if there was error apparent of record, and, finding no such error, the cause is in all things affirmed.
      <@c=>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WESTCHESTER FIRE INS. CO. v. REDDITT.
    (No. 206.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 1, 1917.
    Rehearing Denied June 20, 1917.)
    Insurance <&wkey;323(4) — Fire Insurance-Breach oe Conditions.
    Condition in fire policy avoiding liability if premises were vacant or unoccupied was not violated by mere temporary absence with animus revertendi, caused by business and sickness, though continuing several months, where the premises were cared for daily by a neighbor ana kept locked.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 770, 771.]
    Error from District Court, Shelby County; W. C. Buford, Judge.
    Action by W. M. Redditt against the West-chester Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris, of. Dallas, for plaintiff in error. Davis & Davis, of Center, for defendant in error.
   BROOKE, J.

By his amended petition, the plaintiff alleged: That on October 12, 1915, he was the owner of a certain dwelling, and personal property situated in Center, Shelby county, Tex.. On that date, the defendant issued to him its policy of insurance in the sum of $3,000, covering $2,000 upon the dwelling house, and $1,000 upon the household furniture, which said policy went into effect at noon on October 12, 1915, for the term of one year. That on February 22, 1916, while the policy was in force, the house and all the furniture was destroyed by fire, the furniture being attached to the petition and marked “Exhibit B.” That, art the time of the issuance of the policy and at the time of the fire, all of this property was the property of the plaintiff, and the house was of the value of $2,000 and more, and that the personal property was of the value of $1,000 and more, and all of the property was of the aggregate value of $3,000 or more. That the plaintiff performed all of the provisions of the policy, and, more than 60 days before-the commencement of the suit, gave due notice and proofs of loss to the defendant, so that the defendant became bound to pay him the sum of $3,000 which it failed to do. Exhibit B is a list of properties, with values, attached to the petition. Plaintiff further alleged, in reply to the defense's of the defendant, that there was no other insurance upon the property, and admitted that the policy sued on contained the provision making the same void, if the building therein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for 10 days, but that the provision of the policy was technical and immaterial, and that the violation of it did not constitute any defense, unless said violation or breach contributed to bring about the destruction of the property. Plaintiff denied that the property was vacant at the time of the destruction of the same, nor had been for 10 days, and alleged that the plaintiff and his family were only temporarily absent from home, and that the property never at any time became vacant, as contemplated by the policy, and that the temporary absence of plaintiff did' not contribute to bring about the destruction of the property by fire. That, during the absence of the plaintiff and his family from the insured premises, the same was in charge of a caretaker, who regularly visited and looked after said premises, and that the loss was in no way contributed to by the plaintiff’s temporary absence.

Defendant answered by general demurrer, special exceptions, general denial, and set up descriptive portion of the policy, so far as building was concerned, and alleged that the clause of the policy making the same void, if a building therein described, whether intended for occupancy by owner or tenant, either became vacant or unoccupied and so remained for 10 days, and alleged that such building became vacant and unoccupied and so remained for a period of 10 days, and by reason of that fact the policy became null and void and of no force and effect, and that on account of such vacancy the portion of the policy covering household goods and other personal property also became null and void, and of no force and effect. That, at the time of the fire, the building described in said policy was not occupied by owner as a dwelling, and was not occupied at all, and, as the policy insured only such building while the same was occupied by the owner as a dwelling, that the portion of the policy was not in force and effect, and that, by reason ,of the fact, the plaintiff is not entitled to recover under the policy for any damage to the building by fire. Defendant alleged further that the provisions of the policy are prescribed by the state of Texas, and are the only forms that it can write, and that each of said provisions is material and nontechnical and the inducing causes of the issuance of the policy, and the failure of plaintiff to comply with the provisions was material to the risk and contributed to the loss, and defendant prays that plaintiff take nothing by his suit, and that the defendant have a judgment.

By supplemental petition, the plaintiff alleged, among other things: That the provision in paragraph 6 of the defendant’s answer was not breached by him, but that every condition of the policy was kept and performed by him, and that he never at any time permitted his house to become vacant or unoccupied. That his absence was not intended to be permanent, but that he was only temporarily absent .on business, and that during this time the house was daily visited by a neighbor, who lived within 50 yards of it, in whose care the house had been left, and who had the keys to it. That the building was not vacant or unoccupied for 10 days, but that, on the contrary, such building was at all times within the meaning of the policy occupied, and that all of the household furniture was situated in it, and that he was temporarily absent on business at the time of the fire. That when he left home he expected to be absent only a few days, and expected to be able to return within a short time. That his absence was not intended to be permanent. The neighbor during the temporary absence of plaintiff visited the premises daily and looked after the same and the property contained in it, and opened the doors and windows and aired the contents when necessary, and fed the chickens, and duly closed the doors and windows in the building at night. That the building and property was looked after and cared for in every respect as well as'though the plaintiff had been personally there. That the insured building was at all times occupied by the plaintiff as his residence, and it was never at any time vacant or unoccupied. That his temporary absence was not a breach of the provision of the policy, and that the defense attempted to be urged to the payment of the policy is immaterial and technical in character, and that the alleged breach of the terms of the policy in no manner affected the risk and in no way contributed to the loss of the insured premises by fire. That plaintiff’s temporary absence from the premises was such absence as was in contemplation of the parties at the time of the making of the contract with the insured and was such as was reasonably incident to the use of the premises as a residence. I-Ie said further that the policy was never invalid by any act of his and did not become null and void, but was in full force and effect at the time of the fire, and that the tender of the premium to him by the defendant was rejected.

The plaintiff in open court abandoned his claim of waiver, both parties waived a jury, and the case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendant, Westchester Fire Insurance Company, in the sum of $3,000, with 6 per cent, interest from the I9th day of July, 1916, to which the defendant excepted and gave notice of appeal.

The defendant filed its motion for new trial, which was overruled, and defendant excepted and gave notice of appeal to the Court of Civil Appeals.

The court filed its findings of fact and conclusions of law, as follows:

“Findings of Fact.
“(1) I find: That on December 12, 1915, the plaintiff, W. M. Redditt, with his wife and children, resided in Center, Tex., in a house which was the property of plaintiff, and that on said date the defendant, Westchester Fire Insurance Company, issued a fire insurance policy No. 172411, for the sum of $3,000 upon said house and the furniture and other personal property therein contained; $1,000 of same being upon the personal property, and the balance of $2,000 being upon the house. That this policy went into effect on said date and had not been canceled on the date of the fire hereinafter mentioned.
■ “(2) The policy contained the following provision : ‘This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.’
“(3) I find: That the plaintiff, with his family, lived in and continuously occupied the insured premises, using the same as their home, from tire date of the issuance of the policy, to the 20th day of December, 1915, on which date the entire family left the insured premises, taking with them certain clothing and personal belongings as were necessary for a temporary sojourn, and went to Louisiana, the plaintiff on business and the wife and children on a visit to the wife’s parents, where they intended to spend Christmas. That it was the intention of the wife to return home immediately after Christmas, and of the plaintiff to return in a few days, or as soon as his business in Louisiana could be concluded.
“(4) I find that, upon leaving said premises for the above-mentioned purpose, the plaintiff’s wife, in his presence, delivered the keys of the insured house to her nearest neighbor, Mrs. T. R. Crawford, who lived just across the street from the insured premises, and within 50 yards thereof, requesting the said Mrs. Crawford to look after the premises, feed the chickens, and gave her permission to use the telephone in said house, which the said Mrs. T. R. Crawford agreed to do.
“(5) I find that the plaintiff, W. M. Redditt, after attending to his business in Louisiana, returned to Center on December 27, 1915, after an absence of only six days, and resumed the personal occupancy of the insured premises, and continued to personally occupy and sleep at night upon the insured premises throughout the month of January, 1916, and until the 1st, 2d, or 3d of February, when he was again called to Louisiana on business and was absent from Center until after February 22, 1916.
“(6) I find that, on account of sickness in the family of her father and mother, the wife of plaintiff remained in Louisiana until after the 22d of February, 1916; that it. was her, intention at all times to return to ’ Center, and to use and occupy the insured premises as her home, but that her absence for the time above stated was necessitated by sickness in the family of her mother and father, as stated, and that her said absence was merely temporary.
“(7) I find that it was not the intention of plaintiff to abandon the insured premises as his home, but that his absence was intended merely as a temporary absence, and that it was occasioned , by business requiring his temporary presence in Louisiana.
“(8) I find that, during the absence of plaintiff’s wife, • Mrs. ■ T. R. Crawford, who lived within 50 yards of the insured premises, daily visited the house (except on a few very cold days), opening and airing the house, airing the beds and bedding, fed the chickens, used the telephone, and on one occasion, when ‘she observed that the rats were doing some damage to the bedding, placed the same beyond their reach, and she looked after the premises in general as well as if they had been her own, and that such care and supervision continued up to and including the day of the fire, and that on a few occasions .the daughter of Mrs. Crawford practiced on the piano. in the insured house.
“(9) I find that, during all of the time, from the date of the issuance of the policy up to and including the 22d day of February, 1916, the household furniture, beds, bedding, etc., glass, silverware, etc., personal property of plaintiff and family, and covered by the fire insurance policy, of the value of more than $2,000, was in the insured building, and that the said plaintiff and his family during their temporary absence from the insured premises had and carried with them only such personal effects as were necessary for their use during their temporary absence.
“(10)- I find that on February 22d, in the nighttime, the insured premises caught fire and were totally destroyed, and ,that the personal property in said building, with some slight exceptions, was totally destroyed, and that the loss in personal property was over $2,000, and that the said fire was not the result of the act or agency of the plaintiff. .
“(11) I find that the destruction of the property was not due to the temporary absence of the plaintiff from the insured premises, and that such absence did not contribute to bring about the destruction of the personal property covered by the policy of insurance.
“(12) I find that on the 4th day of April, 1916, the plaintiff made up and presented to the defendant’s agent proof of loss, and demanded payment of the policy and that, same not having been paid more than 60 days thereafter-, this suit was filed.
“(13) I find that the absence of the plaintiff and his family, as aforesaid, was such an absence as was naturally incident to the use of the insured promises as a dwelling, and such as was reasonably contemplated by the parties when the contract was made, upon which facts I base the following conclusions of law:
“1. I conclude that the insured premises did not become vacant or unoccupied and so remain for 10 days, and that the temporary absence of plaintiff and his family from said premises', during which time their household goods, etc., of the value of more than $2,000, remained in said house, did not make said premises vacant or unoccupied, as contemplated by the terms of the policy.
“2. I conclude that, the house being totally destroyed, the plaintiff is entitled to recover the full amount of the insurance on same, which is $2,000.
“3. I conclude that the plaintiff is entitled, as a matter of law, to recover the $1,000 for the loss of the personal property, as alleged; breach of the terms of the policy did not contribute to -bring about the destruction of the property.
“4. I conclude that the temporary absence of plaintiff and his family from the insured premises was reasonably incident to the use of the same as a family residence, and did not constitute a breach of any of the terms of the policy of insurance.”

Plaintiff in error duly filed its petition for writ of error, service being waived, and also filed its .supersedeas bond, and now comes to' .this "court, .complaining .of the errors committed in the trial of this ease, as evidenced by the assignments of error.

By its first assignment, appellant complains that the court erred in rendering judgment for the plaintiff for $3,000, for the reason that the undisputed evidence shows that, after issuance of the policy sued upon, the building described in said policy became unoccupied and so remained for a longer period than 10 days, and, by reason of such non-occupancy, said policy became void and of no force and effect.

It will be seen, from the findings above: That the court found that the plaintiff, with his family, lived in and continuously occupied the insured premises, using the same as their home, from the date of the issuance of the policy to the 20th day of December, 1915, on which date the entire family left the insured premises, taking with them certain clothing and personal belongings as were necessary for a temporary sojourn, and went to Louisiana, the plaintiff on business and the wife and children on a visit to the wife’s parents, where they intended to spend Christmas.. That it was the intention of the wife to return home immediately after Christmas, and of plaintiff to remain there a few days, or return as soon as his business in Louisiana could be concluded. That, upon leaving said premises for the above-mentioned purpose, the plaintiff’s wife delivered the keys of the insured house to her nearest neighbor, who lived just across the street from the insured premises, requesting said neighbor to look after the premises, feed the chickens, and gave her permission to use the telephone in said house. That the plaintiff, after attending to his business in Louisiana, returned to- Center on 'December 27, 1915, after an absence of only six days, and resumed the personal occupancy of the insured premises, and continued to occupy and sleep at night upon the insured premises throughout the month of January, 1916, and until the 1st, 2d or 3d of February, when he was again called to Louisiana on business, and was absent from Center until after February 22, 1916. The further finding by the court was that, on account of the sickness in the family of her father and mother, the wife of plaintiff remained in Louisiana until after the 22d of February, 1916; that it was her intention at all times to return to Center, and to use and occupy the insured premises as her home, but that her absence for the time above stated was necessitated by sickness in the family of her mother and father, as stated; and that her absence was only temporary. He further found that it was not the intention of plaintiff to abandon the insured premises as his home, but that his absence was intended merely as a temporary absence, and that it was occasioned by business requiring his temporary presence in Louisiana.

It is contended and urged that the policy provided that it should be void if a build* ing therein described became vacant or unoccupied and so remained for a period of 10 days, and that the building described in the policy sued on became unoccupied and so remained for 10 full days, and that thereby the policy became void, and it was error for the court to render judgment for the plaintiff for the amount of the policy and interest.

It is urged, on the contrary, that the evidence shows that the absence of defendant in error and his family from the insured premises was only a temporary absence, during which the "household furniture, beds, bedding, etc., glass, silverware, etc., personal property of plaintiff and family and covered by the fire insurance policy of the value of more than $2,000, was in the insured building, and the said plaintiff and his family during their said temporary absence from the insured premises had and carried with them only such personal effects as were necessary for their use during their temporary absence, and that such an absence was naturally incident to the use of the insured premises as a dwelling, and such as was reasonably contemplated by the parties when the contract was made, and that therefore the policy did not become void.

In the case of Phœnix Fire Ins. Co. v. Burton, 39 S. W. 319, it was held that a temporary absence from the insured building by the insured and his family, without a removal of the' furniture or an intent to abandon the premises, followed by occupation before the fire, is not within a condition against allowing the property to become vacant and unoccupied. In that case it seems, and the trial court found, that from the 20th day of May, 1891,' to the 27th day of July, 1894, a period of over two months, the assured nor his family nor any one else were-in the dwelling house described in the policy; that on the 20th day of May, 1894, the assured, for the purpose of having his wife to try the virtues of the waters at Mineral Wells, in this state, on account of her ill health, left the premises with his wife and the other members of his family, and with them went to the city of Mineral Wells, and there remained with his wife and all the other members of his family until the said 27th day of July, 1894; that assured, before leav ing with his family, requested one of his neighbors to look after his stock during his absence, and generally to overlook the premises for him during his sojourn at the Wells; that the assured left in the dwelling house all of his furniture, clothing, cooking utensils, etc., except such as he thought was necessary for the use of his family on the said trip; that when he left the assured did not know how long his visit to the Wells would be prolonged, but his intention, as disclosed by the evidence, was to return as soon as he thought his wife had made a fair trial of the virtue of the waters of the said Wells; that the said absence was not by the assured intended for a permanent abandonment of the said dwelling house as his home, but was for the purpose, as aforesaid, of finding out whether the waters at the Mineral Wells would be of advantage to his wife in her illness; that the said assured did not obtain from the said company, or its agent, any permission, written or verbal, to leave the house with no one in it during his absence at the Wells. As authority for the holding in that case, we are cited to Insurance Co. v. Kempner, 87 Tex. 229, 27 S. W. 122, 47 Am. St. Rep. 99; Stupetski v. Insurance Co., 43 Mich. 373, 5 N. W. 401, 38 Am. Rep. 195; Moody v. Insurance Co., 52 Ohio St. 12, 38 N. E. 1011, 20 L. R. A. 313, 49 Am. St. Rep. 699. In addition, also see the following authorities: Springfield Fire & Marine Ins. Co. v. McLimans, 28 Neb. 846, 45 N. W. 171; Home Fire Ins. Co. v. Peyson, 54 Neb. 495, 74 N. W. 960; Johnson v. Bowery Fire Ins. Co., 39 Hun (N. Y.) 410; Shackelton v. Sun Fire Office, 55 Mich. 288, 21 N. W. 343, 54 Am. Rep. 379; Morgan v. Ill. Ins. Co., 130 Mich. 427, 90 N. W. 40; Hill v. Ohio Ins. Co., 99 Mich. 466, 58 N. W. 359; Herrman v. Merchants’ Ins. Co., 81 N. Y. 184, 37 Am. Rep. 488; Imperial Fire Ins. Co. v. Kiernan, 83 Ky. 468; McMurray v. Capital Ins. Co., 87 Iowa, 453, 54 N. W. 354; Huber v. Manchester Fire Ins. Co., 92 Hun, 223, 36 N. Y. Supp. 873.

A careful consideration of the assignment leads us to the conclusion that there is no merit in the same, and it is overruled.

By. the second assignment of error, complaint is made that the court erred in rendering judgment for plaintiff in the amount of $3,000, for the reason that the undisputed evidence shows that the policy sued upon provided that it should be null and void if the building described therein became vacant or unoccupied and so remained for a period of longer than 10 days, and the undisputed evidence further shows, that the building described in said policy became unoccupied after the issuance of the policy sued upon and so remained for a longer period than 10 days; that, by reason of such facts, portions of said policy covering building became void, and plaintiff was not entitled to a judgment upon that portion of the policy.

The third assignment will be considered with the above assignment, it being as follows:

“The court erred in holding that the policy sued upon was not breached by the plaintiff by reason of the building being unoccupied for a longer period of time than 10 days and the rendering judgment for the plaintiff for the full amount of said policy, when the undisputed evidence shows that part of the policy covering building was void.”

Without burdening the record, we feel justified in holding, after a careful examination, that there is no merit in the assignments, and they are therefore overruled.

By the fourth assignment, the action of the court is challenged as being error in finding No. 11, which is as follows:

“I find that the destruction of the property was not due to the temporary absence of plaintiff from the insured premises, and that such absence did not contribute to bring about the destruction of the personal property covered by the policy of insurance.”

It is contended that this finding is unsupported by any evidence, and without evidence to support it, in that there was nothing to show to the court why the property was destroyed, or what effect the absence of the occupants of the premises had upon the fire.

We think the finding of the court was justified from the testimony in this case actually presented, and from the necessary inferences to be deduced therefrom. The same may be said with reference to the fifth assignment. Bach of said assignments therefore is overruled.

The sixth assignment, as well as the seventh, eighth, and ninth assignments, present practically the same matter as has been passed on in the first assignment. We therefore are constrained to believe, from the record before us, that the appellant’s rights were carefully guarded upon the trial of this case; that the findings of the court were justified and warranted by the testimony; that the legal effect of the findings that appellant company was liable is justified. And, finding no error of sufficient magnitude to make it necessary or proper to reverse this case, it is in all things affirmed.
      <Sü>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON OIL CO. OF TEXAS v. RAGLEY-SANER LUMBER CO. et al.
    (No. 159.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 20, 1917.
    Rehearing Denied June 20, 1917.)
    Trespass to Try Txtlei <&wkey;45(l) — Innocent Purchaser eor Value — Instruction.
    In suit to try title, where the only issue submitted was that of innocent purchaser for value, the court instructed that, in determining whether defendants were innocent purchasers as against unrecorded deeds, it was not required that a purchaser should search the records to find whether there is some adverse claim, and that it is not required that he should make any inquiry or investigations outside of the records to ascertain whether there may be any adverse claim; that it is only necessary that he should ■use the reasonable degree of care and prudence that a person of ordinary prudence would exercise under similar circumstances; that if there is an adverse claim of title not duly recorded, and the purchaser has no actual notice of its existence, or of such facts and circumstances as would lead a person of reasonable prudence to discover the existence of such adverse claim, of title, and such person in good faith relies on what appears of record to be the true title, and pays valuable consideration, such persont takes the title free from the claims of the owner of the unrecorded title, and meets the requirements of the law as to innocent purchaser for value without notice, etc. Held, that the charge contained no error.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67.]

      Error from District Court; Sabine County; A. E. Davis, Judge.
    Suit by the Houston Oil Company of Texas against the Ragley-Saner Lumber Company and' others. To review a judgment for defendants, plaintiff brings error.
    Affirmed.
    See, also, 162 S. W. 1183.
    Parker & Kennedy and Fred L. Williams, all of Houston, for plaintiff in error. W. D. Gordon, of Beaumont, W. E. Goodrich, of Hemphill, and S. W. Blount, of Nacogdoches, for defendants in error.
   BROOKE, J.

This suit was to try title to the northwest quarter of a league of land in Sabine county granted to A. B. C. Johnson, and by him conveyed to A. A. Lewis. Appellant, plaintiff below, claimed through mesne conveyances under deed dated March 9, 1843, from John Boyd, as .administrator of said Lewis’ estate, to William Clark, Jr. Appel-lees, defendants below, claimed under deeds made by heirs of said Lewis, and also claimed they were innocent purchasers for value of the land in controversy. The case was submitted to the jury upon special issues, and upon one proposition alone; -that is, whether or not the appellees were innocent purchasers for value.

The court charged the jury as follows:

“In this case, the court submits to you certain, questions to be answered by you, and which questions when so answered by you will form the basis on which the court will render judgment herein.
“The burden of proof rests upon the plaintiff to show by a preponderance of the testimony the material allegations in, its petition, and the burden of proof rests upon the defendants to show by a preponderance of the testimony whether they are innocent purchasers for value, without notice.
“Question No. 1. Did S. W. Blount, at the time he obtained a power of attorney from, Annie E. Colgin and husband, R. E. Colgin, and up to the time that he performed the service contracted to be performed under said power of attorney, know of the existence of the deeds in evidence from John Boyd, administrator of Allison A. Lewis, to William Clark, and of William Clark to John Boyd, and from John Boyd to Frederick Fort, or did he have knowledge of such facts as would put a man of ordinary and reasonable prudence on inquiry for the existence of such deeds, and would such inquiry, if made with reasonable prudence, have probably discovered such deeds? You will answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which question the jury answered, “No.”
“Question No. 2. Was S. W. Blount, at the time he performed the services contracted to be performed under the power of attorney obtained by him from Mrs. Annie E. Colgin and her husband, R. E. Colgin, an innocent purchaser of said land for value without notice? You will answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which the jury answered, “Yes.”
“Question No. 3. Did W. G. Ragley, at the time he obtained the deed from W. G. Sewell, know'of the existence of the deeds from John Boyd to William. Clark, William Clark to John Boyd, and John Boyd to Frederick Fort, or did he have such knowledge of such facts as would put a man of ordinary and reasonable prudence on inquiry for the existence of such deeds, and would such inquiry, if made with reasonable prudence, have probably discovered such deeds? You will answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which the jury answered, “No.”
“Question No. 4. Was W. G. Ragley, at the time of his purchase, an innocent purchaser of said land for value without notice? You will answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which question the jury answered, “Yes.”
“Question No. 5. Did A. R. Hare, at the time he purchased from Mrs. Finch, know of the existence of the deeds in evidence from Boyd to Clark, from Clark to Boyd, and from Boyd to Fort, or did he have knowledge of such facts as would put a man of ordinary and reasonable prudence on inquiry for the existence of such deeds, and would such inquiry, if made with reasonable prudence, have probably discovered such deeds? You will answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which the jury answered, “No.”
“Question No. 6. Was A. R. Hare at the time of hisi purchase an innocent purchaser of said land for value without notice? Answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which the jury answered, “Yes.”
“Question No. 7. Did W. D. Gordon, at the time of his purchase from A. R. Hare, and up to the time he performed the services which he rendered in the case of A. R. Hare et al. v. Ragley-MeWilliams Lumber Company, know of the existence of the deeds in evidence from Boyd to Clark, from Clark to Boyd, and from Boyd to Fort, or did he have knowledge of such facts as would put a man of ordinary and reasonable prudence on inquiry for existence of such deeds, and would such inquiry, if made with reasonable prudence, have probably discovered such deeds? You will answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which question the jury answered, “No.”
“Question No. 8. Was W. D. Gordon at the time of his purchase, an innocent purchaser of said land for value, without notice? You will answer this question, ‘Yes,’ or, ‘No,’ as you may determine the fact to be.” To which the jury answered, “Yes.”
“To guide you in your determination and answers of the foregoing questions, the court submits to you the following instructions as the law concerning said matters:
“The registration laws of this state provide a method by which all persons who have title to land may record their deeds. And, if any claimant to land fails or neglects to record his deed, they are null and void, and of no force or effect whatever as against an innocent purchaser for a valuable consideration without notice of said unrecorded deeds, where such purchaser buys what appears to be the true title as reflected by the records.
“So if you believe from the evidence in this case that the defendants purchased the land claimed by them in good faith paying a valuable consideration therefor, which consideration may be in money, or legal services, or both without notice of the unrecorded deeds from John Boyd to William Clark, William Clark to John Boyd, and John Boyd to F. Foi-t, which deeds weremot recorded at the time of the defendants’ purchase, such unrecorded deeds would be null and void as to the defendants, and it would be your duty, if you so believed, to answer questions Nos. 1, 3, 5, and 7, ‘No,’ and questions Nos. 2, 4, 6, and 8, ‘Yes.’
“In determining this question as to whether or not the defendants are innocent purchasers for value as against the unrecorded deeds, you are instructed that it is not required by law that a purchaser of land should search out the records to find whether or not there is some adverse claim to the land, nor is it required by law that he should make any inquiry or investigations outside of the records of the deeds to ascertain whether or not there may be any adverse claim.
“It is only necessary that he should use that reasonable degree of care and prudence in buying the land that a person of ordinary prudence would exercise under similar circumstances.
“And if in fact there be an adverse claim of title which is not duly recorded, and such purchaser has no actual notice of its existence or of such facts and circumstances as would lead a person of reasonable prudence to discover the existence of such adverse claim of title, and such person in good faith relies upon what appears of record to be the true title to the land, and pays a valuable consideration therefor, such person takes the title free from the claims of the holder of the unrecorded title, and would meet the requirements of the law as to innocent purchasers for value without notice.
“You are instructed that in law there is what is known as constructive' and actual notice.
“ ‘Constructive notice’ is that which the law implies to all purchasers of land where the adverse claim of title is duly recorded.
“ ‘Actual notice’ is that which a person may have actually brought home to him whereby he is put upon notice of the existence of the adverse claim of title.
“In this case the undisputed evidence shows that the chain of title under which the plaintiff Houston Oil Company claims was not duly recorded at the time of the defendants’ purchase, so that the defendants are not charged with constructive notice of the plaintiff’s chain of title.
“And the jury is instructed that you are to look to all the fac-ts and circumstances to determine whether or not the defendants had actual notice of the unrecorded claim of title asserted by the plaintiff, and if they did not they would not be charged therewith, but such unrecorded title would be null and void as to the defendants, if they in fact paid a valuable consideration for the land purchased by them in good faith, believing they were obtaining the title to the land so purchased.
“You will therefore bear in mind the foregoing rules in answering the questions propounded to you.
“You are the exclusive judges of the facts proved, and the credibility of the witnesses, and of the weight to be given to their evidence; but the law you will receive front the court in this charge, and be governed thereby.”

At the outset, it may be well to say that in no one of the instruments from Frederick Fort to the Houston Oil Company of Texas, inclusive, which said instruments were placed upon record some time during the year 1910, was there any indication or recital of any nature from which the inference could be drawn that Allison A. Lewis, or any one claiming under him, had ever made any sale or conveyance of said land, and said claim remained undisclosed until about 'June 27, 1910, when there were placed upon the records the deeds from Boyd to Clark, Clark to Boyd, and Boyd to Fort.

Upon the findings of the jury, as above set out, the court entered a judgment for appellees herein. There is no express finding by the court itself that the paper title under which appellant claims was a good and perfect title. The record not having reflected, therefore, any finding of the court that appellant showed title to the land, it is, in the opinion of the writer, unnecessary to inquire fully into this phase of the case, although it was developed on the trial, as no good purpose would be served thereby, and such a discussion would be merely academic.

In view of the submission by the court of one issue alone, to wit, the issue of innocent purchase for value, which the jury found in favor of appellees, under a charge of the cofirt which we have carefully examined and find not to contain error, therefore, we are unwilling to disturb this verdict.

There is a very able, exhaustive, and comprehensive brief filed by the appellant in this cause, and to examine each one of the assignments of error in detail, and the propositions submitted thereunder, would require this opinion to be of great length, and on this question of innocent purchase would develop nothing novel or instructive to the profession. The testimony admitted upon the trial of the case was, we hold, such as should have been submitted, and no error was committed upon the part of the court with reference thereto. The jury was certainly of the opinion, from the testimony submitted to it, that the appellees were innocent purchasers for value, and, in a close consideration of the testimony for many days, we do not believe they reached an erroneous conclusion. In fact, no other conclusion could have been reached, perhaps, than the one found by the jury. Therefore, eliminating from this cause the question of whether or not appellant had the real paper title, as being unnecessary to the disposition of the case, and finding that the court submitted all the legal testimony offered on the proposition of innocent purchase, disposes of each assignment raised by appellant’s brief.

It has required much time and exceeding care to carefully examine the various assignments and propositions thereunder, raised upon the trial of this cause, in one of the most profound and thorough briefs ever presented to this court, and, as said before, it would require an opinion perhaps equal in length to the brief,-which is several hundred pages in length, to consider' each assignment in detail, and no real benefit would result therefrom. Therefore, believing as we do that the verdict of the jury and the judgment of the court are conclusive on the issue that the appellees were innocent purchasers for value, and that without regard to whether the real title was in appellants, we are of opinion that the assignments of error raised by appellant should be overruled, and that this cause should be affirmed. It is so ordered.

HIGHTOWER, O. J., being disqualified, did not sit.
      ig=s>For other oases see same topic ana KEY-NUMBBB. in all Key-Numbered Digests and Indexes


text:
    KIAM v. STACY et al.
    (No. 238.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 4, 1917.)
    1. LANDLORD AND TENANT &wkey;>233(3) — ACTION eor Rent — Sotjtcienoy oe Evidence.
    In a landlord’s action for rent, defendant’s testimony that sho owned fixtures in a barber shoD kept by her son and had received part of the shop’s income for their use, etc., is insufficient to make her liability for the rent a jury question.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. § 942.]
    2. Landlord and Tenant &wkey;j231(2) — Action eor Rent — Admissibility oe Evidence.
    In landlord’s action for rent, leases between other parties executed two years before the lease in question are inadmissible.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 927, 928, 930.]
    3. Landlord and Tenant <&wkey;231(2) — Action eor Rent — Admissibility oe Evidence.
    In landlord’s action for rent against a party owning fixtures in the premises involved, an assignment of another lease by third parties to the defendant is inadmissible.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 927, 928, 930.]
    4. Landlord and Tenant <&wkey;>231(2) — Action eor Rent — Admissibility oe Evidence.
    In landlord’s action for rent against a person owning fixtures in the premises involved, a lease from the plaintiff to defendant’s son and codo-fendant is inadmissible against the mother.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 927, 928, 930.]
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by Ben Kiam against, C. E. Stacy and Mrs. Hattie E. Stacy. From a judgment in favor of the last-named defendant, plaintiff appeals.
    Affirmed.
    M. 6. Fakes,' of Houston, for appellant. Stevens & Stevens, of Houston, for appellees.
   BROOKE, J.

The statement of the nature and result of the suit is practically agreed to be as follows: This is a suit in which the plaintiff, Ben Kiam, first brought suit in the county court at law of Harris county, against the defendant C. E. Stacy, alleging an indebtedness against said Stacy growing out of the renting of a barber shop, said rentals being due for three months, amounting to $300, setting up his landlord’s lien and asking for judgment for the rents found to be due, and for foreclosure of his landlord’s lien on the contents of the shop. Plaintiff, subsequent to the filing of said suit, swore out a distress warrant against said C. E. Stacy and his mother, Mrs. Hattie E. Stacy, alleging the aforesaid indebtedness as against both of said parties, under the authority of which the contents of the barber shop were seized. Plaintiff duly filed suit against both aforesaid parties in the county court at law to which said distress warrant was made returnable. The two suits were consolidated and tried as one suit; the defendant Mrs. Stacy having prior to trial re-plevined the property seized under the distress warrant. Plaintiff’s further allegations, besides suing for the rent, were to effect that the storehouse had been damaged in the removal of the goods by the defendants, that they removed fixtures that were a part of the building, for which acts plaintiff further asked for damages in the sum of $500, further setting up the fact to be that Mrs. Hattie E. Stacy was jointly liable with her son, as she knew that he was holding himself out to be the owner of the barber shop; thather said son acted for her in running said shop, and leasing same from the plaintiff. Defendant O. E. Stacy admitted renting the property at $100 per month, but claimed that he had been damaged on account-of leaks to the extent of $400. Defendant Mrs. Hattie E. Stacy denied that she ever stood in the attitude of a tenant of the plaintiff, and' further denied removal of any permanent fixtures from the building, or damage to the building. On final trial, the court peremptorily instructed the jury to find for the plaintiff for $300 against O. B. Stacy, and to find for the defendant Mrs. Hattie E. Stacy, to which action of the court the plaintiff duly excepted, and has perfected his appeal, and the case is properly before this court for adjudication.

There were the following agreements in the case:

“It is agreed that prior to the time of this lease, and subsequent to the time and during the life of this lease, the light contracts and the gas contracts stood in the name of Mrs. Hattie E. Stacy, and the bills were made out to Mrs. Hattie E. Stacy.
“It is agreed that O. E. Stacy owes Ben Kiam rent for the months of September, October, and November.
“It is agreed that the property levied upon was- the property of Mrs. Hattie E. Stacy, and not the property of O. B. Stacy.”

The first and second assignments of error are as follows:

“(a) Because the court erred in refusing to give the special charges as offered by the plaintiff and giving peremptory instructions in favor of the defendant Mrs. H. E. Stacy, because the plaintiff was entitled to have the issue submitted to the jury as to whether or not Mrs. Stacy had turned over the barber shop to her co-defendant to handle and use as his own and her liability thereunder.
“(b) Because the court erred in refusing to give the special charge as offered by the plaintiff, and giving peremptory instructions in favor of the defendant Mrs. Hattie E. Stacy, because plaintiff was entitled to have the issues submitted to the jury and their findings thereunder as to whether O. E. Stacy was the 'agent of Mrs. Hattie E. Stacy, or was acting for her use and benefit in leasing the barber shop from plaintiff, and her liability - and of the contents of the barber shop for the unpaid rents.”

The requested instruction No. 3 was as follows:

“Gentlemen of the jury, if you find from all the facts and circumstances adduced in evidence in this case that the defendant !C. E. Stacy was acting for his mother, as well as himself, in leasing the premises in which the barber shop was situated, from the plaintiff, Ben Kiam, that the lease, while taken in the name of O. E. Stacy, was for the use and benefit of his mother, Mrs. Hattie E. Stacy, then you will find for the plaintiff, Ben Kiam, against both defendants for the amount as sued for by said plaintiff as rent, namely, $300, and also against the sureties on the replevin bond.”

The record nowhere reflects any testimony with reference to or that could in any wise raise an issue as to O. E. Stacy being the agent of Mrs. Hattie E. Stacy, outside of the testimony of Mrs. Stacy herself, and a careful examination of the testimony of Mrs. Stacy, in our judgment, to construe the same as a whole and most strongly against her, would, perhaps, only amount to a suspicion that she was interested in the rent received from said property, outside of the fact, which is admitted, that she was renting the fixtures and • receiving therefor the sum of $35 per month for the same. Her testimony, which is not very lengthy, is as follows:

“I suppose I am one of the defendants in this cause. I don’t remember whether any papers were read to me or not. On or about December 5, 1914, I gave my son permission to trade for some barber property. In trading for that barber shop, my son did not, for me, take over the lease that Mr. Oanessa had with Mr. Kiam. I had nothing to do with the leasing, never gave anybody any authority to lease the building, and didn’t know it was leased for a long time, ’SO I had nothing to do with it then. I knew that the barber shop was being run, but I never gave him any authority to lease the building. I had nothing to do with the rent or anything; I just merely let him trade for the barber fixtures. I have seen better business women than I, of course. I have let my son attend to my business somewhat. I remember signing this lease that you show me; but, as to the leasing of the building, I never had anything to do with it. I never at any time paid the rent on that barber shop over there. That has always been in the charge and control of my son, O. E. Stacy. I have always left those matters to him, in the barber shop. He has not acted for me as my .agent in everything, but in regard to that barber shop. In regard to that barber shop, he has full charge and control. I gave my consent to the papers that were signed, of course. I owned the barber shop; that is, the furniture and fixtures. Of course, I got some of the money from the business, and he got some of it. He paid the rent, of course, for the building out of it, didn’t pay it very well, I don’t think. The business never had paid really very well, because it took very nearly all to pay the help and the' rent. Of course, I have got a little out of it. I put up, the money for it in the first place.
“Before the barber shop was closed up, of course my son told me about what it was doing some of the time. Of course not all the time, because I didn’t see him all the time. I did not know after Mr. Alexander left here, and that old lease was canceled, that three years lease, that for two or three months there was no written lease from JAr. Kiam at all, I did not know anything about the leasing at all. I loft all that to my son. I don’t remember that he reported to me, after he got that written lease, that he had a new lease with Mr. Kiam; that the old lease had been done away with. All I remember was that he had to pay for the use of the building, paid the lease right up to the time of the storm when it was damaged. I did not tell him that he ought not to pay full rent at that time. I do not remember the name now, but I know when the lease was made and $100 would be rent. I don’t remember whether he showed me a copy of the lease, now. I wouldn’t say that he did, because I don’t remember just now. My memory is not as good as it used to be, of course. I heard my son say that under that lease Corte was to pay $100 a month over to Mr. Kiam. I heard him say he was paid that $100 a month, and I expect he had kept it up right along. Occasionally I got some money myself from the building. I don’t remember now whether I got some money from the barber shop up till last August, I guess not. It wasn’t doing very much; took it all to pay rent; hardly paid rent and the help. I couldn’t tell whether it was hardly paying rent last September, not that. I couldn’t say what it had been doing three or four months before November. My son did not tell me that he wasn’t able to pay the rent. I don’t remember just now whether he gave me any money at all those months or not. Of course, I got a little money out of him occasionally; but I don’t remember whether it was for that or not. I don’t remember just what he did about the moneys from the barber business, because I get money out of it occasionally, and I don’t pay no attention to what it is for. He is running the business himself. I expect I saw this lease that my son made with Mr. Corte on or about March 1, 1915. He showed me different things, but I don’t remember.
“Mr. Stacy rented that building himself, I had nothing to do with it whatever. I gave my son my consent to trade some land for some barber fixtures. I had no interest in the shop. I didn’t run it at all. It was just the same, money for the land or my fixtures, or stuff that I let him use. My son told me that he would let Corte take this stuff and run it, and that Corte would pay mo $35 a month for the use of my stuff. I didn’t assume any obligation for the payment of the rent of that barber shop and wasn’t in that business. I didn’t authorize anybody to tear up Mr. Kiam’s building, or the wainscoting out, or any glass, or any partition. I wouldn’t do anything of that kind. I simply recall giving a replevin bond, to get the stuff out of there, to the sheriff. I had nothing to do with paying the gas bill. I did not sign up a contract for the gas bill and the light bill. My son did not do that with my permission and consent, never said anything about it. There was never any gas bills or light bills paid by me.”

As said before, under our view, the testimony of Mrs. Stacy, not corroborated by any other fact or circumstance, was insufficient to raise the issue, in order to have the jury pass on the same, and therefore we find no error in the. action of the court in giving a peremptory instruction. In the testimony of Mrs. Stacy, the only fact, or at least the strongest fact, which would tend to raise the issue of an agency, was apparently that she was interested in the proceeds derived from the operation of the barber shop; but she explains this in a way which renders it uncertain whether she ever received any remuneration for her fixtures, which it is admitted she owned, and which she had rented and was to receive for the same the sum of $35 per month. As we view the matter, there was no error in the court’s action, and the assignments are overruled.

By the third, fourth, fifth, and sixth assignments of error, complaint is made of the action of the lower court as follows: (a) Because the court erred in refusing to aRow the plaintiff to introduce in evidence a bill of sale dated December 17,1914, given by D. Canessa and A. G. Corte to Mrs. Hattie E. Stacy, and transfer of lease to Mrs. Hattie E. Stacy, dated December 15, 1915. (b) Because tbe court erred in refusing to allow tbe plaintiff to introduce in evidence a lease dated January 10, 1913; same being between C. A. Alexander and Corte & Conessa. (c) Because tbe court erred in refusing to allow the plaintiff to introduce in evidence a lease dated March 1, 1915, between A. J. Corte and Mrs. Hattie E. Stacy by C. E. Stacy, (d) Because tbe court erred in allowing tbe lease between Stacy & Kiam, dated April 1, 1915, to be used in evidence only as to C. E. Stacy, and not considered as to Hattie E. Stacy.

Tbe leases between Alexander, Canessa, and Corte not being between parties, to •this suit, and being dated January 10, 1915, more than two years before tbe lease in controversy, were properly excluded. Tbe assignment of tbe lease from D. Canessa and A. G. Corte referred to a lease held by a party other than the plaintiff, and hence was irrelevant and immaterial, for the reason that it was agreed at the outset, by the parties in tbe case, that the property levied upon under the distress warrant was the property of Hattie E. Stacy, and not tbe property of C. E. Stacy. With reference to the introduction of the lease between Ben Kiam and C. E. Stacy, dated April 1, 1915, being introduced as against Hattie E. Stacy, the said Hattie E. Stacy’s name does not appear in the said lease, and therefore we cannot find or see error in the action of the court in his ruling. The assignments have been carefully considered, and we find each of them without merit, and they are therefore overruled.

The action of the lower court is called in question as being error, by the seventh assignment of error, in refusing to submit to the jury the issue as to whether defendants bad improperly removed any fixtures from plaintiff’s building, and in the eighth assignment of error complaint is made that there was error in refusing to submit to the jury any issue in regard to damages done to plaintiff’s building by defendants in removing the contents therefrom.

We have examined the record, and find no testimony to show that the defendant Hattie E. Stacy wrongfully removed the fixtures from the building, or injured the building in any manner, and therefore we see no error in the action of the court in refusing to submit such issue to the jury.

The record reflects that a fair and impartial trial of the case has been had, that' the ‘appellant’s rights have been carefully guarded by tbe lower court, and we find no error in its action, and therefore the judgment of the lower court is in all things affirmed.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes