author: CONNER, C. .J.

text:
    STATE ex rel. PEDEN v. VALENTINE.
    (No. 8894.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 20, 1917.
    Rehearing Denied Oct. 27, 1917.)
    1. Ofxioe'rs <®=^30 — Judges—Member of Legislature — 'Vacancy in Office — Constitutional Provisions.
    Const, art. 16, § 17, provides that all officers in the state shall continue to perform the duties of their office until a successor has qualified/ A member of the Legislature accepted and qualified for the office of judge of’the county court of Tarrant county for civil cases, without resigning his membership in the Legislature. Meld, that such action vacated his office as representative, and that he was not ineligible for appointment to the judicial office by the properly constituted authority, though no successor to his legislative office had qualified.
    2. Judges <g^3 — County Office — Confirmation by Senate — Constitutional Provisions — “State Office” — “District Office.”
    Under Const, art. 4, § 12, providing that all vacancies in state or district offices, except members of the Legislature, shall be filled, unless otherwise provided by law, by appointment by the Governor, which, if made in recess, shall be nominated to the senate, and that, if rejected, the office shall immediately become vacant, and that the Governor shall then make further nominations until there has been confirmation, and in view of article 5, § 15, establishing in each county a county court, etc., and article 5, § 1, as amended, authorizing the Legislature to provide courts other than those named in the Constitution, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1799 et seq., providing for county court for civil cases for Tarrant county, the office of judge of that court is not a state or district office, but a county office, so that the appointee’s confirmation by the senate was not necessary to the validity of his appointment.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, State Office.]
    3. Judges <S=>8 — Appointment — County Judges — Unconstitutionality of Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1804, providing that all vacancies in the office of the judge of the 'county court for civil cases in Tarrant county shall bo filled by appointment of the Governor until the next general election thereafter, conflicts with Const, art. 4, § 12, providing that all vacancies in state or district offices, except members of the Legislature, shall be filled, “unless otherwise provided by law,” by appointment of the Governor with the advice and consent of two-thirds of the senate present, and article 5, § 28, providing that vacancies in the office of county judge shall be filled by the commissioners’ court until the next general election for such office.
    4. Statutes (⅞=>163 — Implied Repeal.
    A general provision sufficiently comprehensive to include a given subject-matter will be controlled by another provision specifically relating to the same subject-matter.
    Appeal from District Court, Tarrant County; R. E. L. ■ Roy, Judge.
    Quo warranto by the State of Texas, on relation of R. F. Peden, against I. T. Valentine. Judgment for respondent, and the relator appeals.
    Judgment reversed, and judgment rendered that defendant unlawfully intrudes in the office of county judge for Tarrant county for civil cases, and that he be ousted therefrom, and the prayer of the relator to be' installed in such office denied.
    Marshall Spoonts, Miller & Miller, and J. Á. Templeton, all of Ft. Worth, for appellant. McLean, Scott & McLean and L. M. Levy, all of Ft. Worth, for appellee.
   CONNER, C. .J.

This is a quo warranto proceeding by the state to test the validity of I. T. Valentine’s claims to the office of judge of the county court of Tarrant county for civil cases. The information was filed by the county attorney upon the relation of Robert F. Peden, who also claims the office. Both Peden and Valentine claim under appointments of the Governor made to fill a vacancy as provided by the law creating the court. Valentine’s appointment was by Hon. Jas. E. Fterguson, then the regularly elected and acting Governor, during a recess of the Legislature, but this appointment, when reported to the senate thereafter convened, was rejected by the senate. Thereafter and thereupon the relator, Robt. F. Peden, was appointed to said office by 1-Ion. W. P. Hobby, who in the meantime had been installed as the duly qualified and acting Governor of the state. This latter appointment, upon its immediate report to the senate then in session, was ratified and confirmed by the senate. Peden soon qualified by taking the oath and giving the bond required by law, and forthwith demanded of Valentine possession of the office. But the respondent, Valentine, having theretofore also qualified after his prior appointment, and having theretofore taken possession of the office and entered upon a discharge of its duties, refused to surrender the office to Peden, claiming that Peden’s appointment was unauthorized. Whereupon the state, acting by its duly authorized county attorney, instituted this proceeding by filing in a district court of Tarrant county an information upon the relation of Peden seeking the writ of quo-warranto to oust said Valentine from said office and to install Peden therein.

As tried below the validity of I. T. Valentine’s claims to office was made to depend: First, on whether I. T. Valentine was ineligible by reason of the fact shown in evidence that at the time, of his appointment he was a duly elected, qualified, and acting member of our Legislature; and, second, on whether the office of judge of the county court of Tarrant county for civil cases is a county office, as contradistinguished from a state or district office. Both of these questions were decided by the trial court in favor of the respondent, Valentine, and judgment was accordingly rendered against the state, and the state has appealed, and assigns error to these rulings.

While perhaps not material to the final conclusion reached by us upon consideration of the whole case, it may not be improper to say in reference to the question first presented that we agree with the trial judge in the conclusion that the appellee, Valentine', was not ineligible at the time of his appointment as judge. It is true, as urged, that- our Constitution (section 17, art. 16) provides that all officers in the' state shall continue to perform . the duties of their office until a successor has been qualified, and that respondent at no timé tendered his resignation as a representative in the Legislature, nor was his successor elected or qualified. There is also a line of cases holding that, under laws such as section 17, art. 16, of our Constitution, the resignation of an officer will not be fully effective until the appointment and qualification of a successor; the policy of the law being to prevent vacancies and preserve continuity of term. Of this class of cases appellant has cited the following: Jones v. City of Jefferson, 66 Tex. 576, 1 S. W. 903; McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S. W. 405; Keen v. Featherston, 29 Tex. Civ. App. 563, 69 S. W. 983; El Paso & S. W. R. Co. v. Ankenbauer, 175 S. W. 1090.

By reference thereto it may be seen that none of them are cases where the officer whose resignation was under consideration had been tendered and accepted another office with duties incompatible with those of the first. They are all cases where some private right was involved, and the prevention of a vacancy in office was necessary to the ends of justice or of public policy. In the case before us, however, Valentine, while representative, was tendered and accepted another office incompatible with that first held by him. In such cases it is very generally held that' the acceptance of, and qualification for, the second office creates a vacancy in the first. The legal effect is thus stated by Mr. Justice Moore of our own Supreme Court in the case of Biencourt v. Parker, 27 Tex. 562, 563:

“The Constitution declares, that ‘no person shall hold or exercise at the same time, more than one civil office of emolument, except that of justice of the peace.’ Article 7, § 26. On the acceptance and qualification of a person .to a second office incompatible with one he is then holding, the first office is ipso facto vacated. * * ⅜ A resignation by implication will take place by being appointed to and accepting a new office incompatible with the former one. It is said to be an absolute determination of the original office, and leaves no shadow of title to the possessor; so that neither quo warranto nor a motion is necessary, before another may be elected.”

Of like effect are the following cases: State of Texas v. J. T. Brinkerhoff, 66 Tex. 45, 17 S. W. 109; Ex parte Call, 2 Tex. App. 497; Webb et al. v. Reynolds, 160 S. W. 152; Meachem on Public Officers, §§ 420, 421; cases cited in 37 Cent. Dig. p. 1886, § 79.

In one class of cases the officer has acted in his own or another’s interest in violation of public policy, or to the .detriment of some private third party. In the other class the 'officer has been called upon and qualified to perform public duties by the duly authorized representative of the sovereign power over all offices. In such case and' when the Constitution forbids the holding of both offices, it must be held that section 17, art. 16,' requiring continued performance of official duty, is without application. We conclude, therefore, that the respondent, Valentine, was and is not ineligible for appointment by the properly constituted authority merely because he has not resigned his legislative office, and no successor thereto has qualified.

This brings us to the consideration of the second question herein presented, viz.: Is the office of judge of the county court of Tarrant county for civil cases a state or district office, or is it a county office? If the latter, then in no event was confirmation of Valentine’s appointment as judge by the senate necessary to the validity of the appointment ; the law nowhere so providing. If of either of the former classes, then, as insisted by appellant, confirmation by the senate was necessary, under section 12, art. 4, of-the Constitution, which reads:

“All vacancies in state or district offices, except members of tbe Legislature; shall be filled, unless otherwise provided by -law, by appointment of the Governor, which appointment, if made during its session, shall be with the advice and consent of two-thirds of the senate present. If made during the recess of the senate, the said appointee or some other person to fill such vacancy, shall be nominated to the senate during the first ten days of its session. If rejected, said office shall immediately become vacant, and the Governor shall, without delay, make further nominations until a confirmation takes place. » * * ”

An examination of the Constitution as a whole plainly shows that in organizing the judicial power of the state courts of distinct grades and classes were provided, which were given carefully prescribed spheres of action within which the' judicial functions of each could be exercised. In thus apportioning the judicial power the several classes of courts were distinctly named. Thus we have a Supreme Court, a Court of Criminal Appeals, Courts of Civil Appeals, district courts, county courts and justices’ courts. Each court named not only has its powers carefully defined so as to prevent conflicts with other courts, but to the same end is given carefully prescribed territorial limits. Thus section 15, art. 5, of the' Constitution provides that “there shall be established in each county in this state a county court,” etc., and its jurisdiction or power is defined. No' other court of all those provided is given the same powers or has been so named. The citizen, therefore, when one of these courts is named in a law, is not left to inferences in order to determine the character of court referred to. It is so plain that “he who runs may read.”

Wie must reject, therefore, the state’s contention that the “county court of Tarrant county for civil cases” is a' State or district court,- and that hence its judge is a state or district officer within the meaning of section 12, art. .4, of the Constitution, requiring his appointment to be confirmed. It is true that it has been frequently said in decisions that the character of a court is to be determined by the character of its acts or powers rather than by its name or its territorial limits, and appellant has cited many of the cases. They are too numerous to review, but for the most part they are special cases only inferentially ■applicable to the particular facts we have before us, and we are unwilling to give controlling force to the inferences to be drawn from them as against the undisputed facts of this case, and the plain terms of. our Constitution and laws relating to the subject.

Section 1, art. 5, of our Constitution as amended, authorizes the Legislature to provide courts other than those named in the Constitution, evidently to the end that the judicial power of the state, except as otherwise restricted, might be from time to time adjusted to exigencies that might arise in the course of the state’s expanding development. Hence we find that the Legislature has provided for special “district courts” (see Acts 1913, pp. 53, S3, 439, and 441); criminal district courts (see V. S. Tex. Civ. Stat. arts. 2201c, 2229, 2235a); county courts “at law,” as for Dallas and Harris counties (V. S. Tex. Civ. Stat. arts. 1786 and 1811); and county courts for “civil cases,” as for Tar-, rant and Bexar counties (V. S. Tex. Civ. Stat. arts. 1799 and 1811 — 6). An examination of these several acts will show that the several courts so provided for are not courts “other” than those named in the Constitution, in the sense that they are of- wholly differing functions, but rather courts of the same kind, but with divided powers. To illustrate: These special district courts and county courts are given jurisdiction over parts of a whole originally committed to courts of the same class by the Constitution. No special district court is given power not originally committed to district courts, and no special county court is given powers other than were committed to county courts. The names and territorial limits given these special courts rather than the qualifying affixes and suffixes indicate the character of the courts. The affix “criminal” or the suffixes “at law” or “for civil cases” have reference to the character of the divided jurisdiction given rather than to the character of the court. As named they are essentially district and county courts within the meaning of the Constitution. Of course, in a general sense, and perhaps for special purposes, all the courts named are state courts, and their presiding judges state officers. But we cannot for this reason disregard the distinct classification of our courts by the Constitution and laws where the classification is the point at issue. Numerous references might be made to constitutional and legislative acts that tend to show the sense in which the terms “county court” and “county judge” are used. Eor instance, section 24, art. 5, of the Constitution provides as follows:

“County judges, county attorneys, clerks of the distinct and county courts, justices of the peace, constables and other county officers, may be removed by the judges of the district court for incompetency,” etc.

Here is a plain declaration that county judges are among those who are designated as county officers. The words, “and other county officers,” after naming certain ones, is a plain declaration that a county judge is a county officer. The act itself which creates the court seems to compel this conclusion. In section 12, c. 17, of the act of 1909 creating the court (1 V. S. Tex. Civ. Stat. art. 1810) it is provided that the judge may be removed from office for the same causes as “any other county judge,” etc.

If we are correct, as we think we are, in the foregoing conclusions, it would seem to follow without dispute that the judge of the county court of Tarrant county for civil cases is a county judge, a county officer as con-tradistinguished from a district judge or a state officer, and hence that appointment to that office needs no confirmation by the senate.

It is apparent from what we have said that thus far we sustain the contentions of appellee and the conclusions of the trial court. But we nevertheless are of the opinion that it is apparent of record that the judgment below is fundamentally erroneous. In section 6 of the act creating the county court of Tarrant county for civil cases it is provided that:

“All vacancies in said office [the judge’s] shall be filled by appointment by the Governor until the next general election thereafter.” See 2 V. S. Tex. Civ. Stat. art. 1804.

It is undisputed that both the relator, Peden, and the respondent, Valentine, claim, and can only claim, a de jure right to the office in controversy under the provision quoted. No other provision of law, either constitutional or legislative, can be found which authorizes the Governor to fill a vacancy in the office of county judge. On the contrary, it is otherwise expressly provided in the Constitution. The general provision relating to vacancies was invoked by relator and has been hereinbefore cited. It reads, so far as relevant:

“All vacancies in state or district offices, except members of the'Legislature, shall be filled, unless otherwise provided by law, by appointment of the Governor, which appointment, if made during its session, shall be with the advice and consent of two-thirds of the senate present.”

There is a special provision, however, relating to vacancies in the office of the judges in the judicial article of the Constitution. It is as follows:

“Vacancies in the office of judges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, and district courts, shall be filled by the Governor, until the next suceeell-ing general election, and vacancies in the office of county judge and justices of the peace shall be filled by the commissioners’ court, until the next general election for such offices.” See section 28, art. 5.

It is a well-settled rule in the construction of constitutional law that a general provision sufficiently comprehensive to include a given subject-matter will be controlled by another provision specifically relating to the same subject-matter. Warren v. Shuman, 5 Tex. 441; Erwin v. Blanks, 60 Tex. 583. It cannot be doubted, therefore, that section 28, art. 5, of the Constitution, particularly relating as it does to vacancies in the offices of our judges, must govern in the determination of the question before us, and this section plainly specifies that vacancies in the office of county judge shall be filled by the commissioners’ court. The language, by necessary implication, excludes power on the part of the Governor to make the appointment, both because coming within the exception provided for in section 12, art. 4, and because of' the distinct separation of county judges from judges of our other courts, state and district. And this must be true regardless of the character of the functions performed by a county court or its judge.

We therefore finally conclude that so much of the act creating the county court of Tar-rant county for civil cases as attempts to authorize the Governor to fill vacancies in the office of its judge is violative of the Constitution and void, and that neither relator, Peden, nor respondent, Valentine, has shown legal appointment or right to the office under consideration, it being undisputed that neither has received appointment by the commissioners’ court of Tarrant county, which alone has power to fill the vacancy in office created by the resignation and acceptance of another office by Hon. George E. Hosey.

It has been suggested that the approval of appellee’s bond and oath by the commissioners’ court was tantamount to his appointment as judge, but we do not concur in this view. Altogetner different functions are involved in the selection of an eligible and fit county judge from those called into exercise in approving an official bond. The commissioners’ court of Tarrant county approved the bonds tendered by both claimants to the office, and it seems manifest that it had no purpose of filling the vacancy in question.

We conclude that the 'judgment below must be reversed, and here rendered that appellee unlawfully intrudes in the office of county judge of Tarrant county for civil cases, and that he accordingly be ousted therefrom. For the reasons given the prayer of the appellant that the relator, Peden, be installed in said office as judge will also be denied; it being adjudged that all costs be taxed against the party, relator or respondent, in whose behalf they have been incurred.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, O. J.

license: Public Domain

text:
    McKENZIE v. FREY et al.
    (No. 729.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1917.)

    1. Judgment <§=415 — Equitable Relief — Receiver of Estate of Insane Person.
    That orders of the court appointing receiver of the estate of a person of unsound mind were not entered of record upon the minutes of the court, as required by Rev. St. 1911, art. 4088, is sufficient to void a judgment taken by the receiver as such in ease of direct attack upon the judgment.
    2. Judgment <§=525 — Construction — Recitals — Suit by Receiver of Estate — Prosecution as Next Friend. '
    Where the purported receiver of the estate of an insane person sued as such, and, realizing that he had no authority as receiver to enter into a particular agreed judgment, sought to make the same effective by reciting that he recovered both as receiver and next friend, but under his allegations he did not in fact prosecute the suit as next friend, the recital in the judgment was not a recognition of him in such capacity.
    3. Judgment <§=442 — Setting Aside — Fraud and Collusion — Insane Person.
    Where plaintiff was insane when judgment denying cancellation was entered in suit by the receiver of her estate to cancel her deed, so that any proceedings had were without her knowledge or consent, while no orders were entered of record authorizing her purported receiver to prosecute the suit in her name for her benefit or otherwise, and he did not appear before the court in any pleading as next friend, and she had title to the land involved, and was deprived of it, while insane, through the fraud and collusion of her purported receiver and her grantees, she was entitled to have the judgment set aside by a court of equity.
    4. Insane Persons <§=G7 — Avoidance of Conveyance — Tender Back of Consideration.
    Where plaintiff, an insane person, deeded away her land, receiving no money, while none of the purchase-money notes were delivered to her, a defendant by fraud obtaining possession of the instruments, plaintiff was not called upon to make any tender back to defendants in her suit to cancel her deed.
    5. Cancellation of Instruments <§=35(1)— Parties — Transferee of Purciiase-Money Note.
    The transferee of a purchase-money note given for land is not a necessary party to the vendor’s suit to cancel her conveyance on the ground of fraud, etc., if he has a valid subsisting lien to secure payment of his note, and desires to foreclose it, judgment in the vendor’s-suit for cancellation cannot affect his rights; his lien following the title.
    6. Judgment <§=4G0(4) — Pleading — Sufficiency of Allegations.
    In suit by a formerly insane person to set aside judgment in her receiver’s suit denying cancellation of her deed, to cancel the deed, to remove cloud on title, etc., plaintiff’s allegations of fraud chargeable to a defendant held sufficient to form the basis of a judgment in.her favor for the relief prayed for, the return of her land, and reasonable rents.
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by Eliza McKenzie against W. H. Frey and others.' From judgment for defendants on demurrer to the petition, plaintiff appeals.
    Cause reversed and remanded for trial upon its merits. ■

      Hickman & Bateman and B. E. Cook, all of Stephenville, for appellant. Chandler & Pannill, of Stephenville, for appellees.
   HARPER, O. J.

This suit was brought by Eliza McKenzie against W. H. Frey, 0. Henry and wife, Cora Henry, to set aside a judgment to cancel deed, to remove cloud and for title to certain real estate, etc. Her petition contains the following allegations:

That on April 25, 1913, plaintiff executed to defendant Henry an instrument which in form was a general warranty deed, conveying certain lands (described) for a consideration of $200 cash, and the balance in vendor’s lien notes. That August 12, 1914, said Henry and wife conveyed the same lands to defendant W. H. Frey for a consideration of $5 cash and the cancellation of the last notes above mentioned, and the further consideration that said Frey take said land subject to $800 note payable to the order of Charles L. Kribs. That during all these times she was of unsound mind, unable to understand the nature and consequences of her acts, wherefore she prays that such deed was not operative and binding upon her, etc.

Again: That she is the widow of Oliver McKenzie, who, upon his death, left much property. That one Lucas McKenzie, not related, but raised by them, was her confidential manager. That the latter and C. Henry, by threats, coercion, and false and fraudulent statements, induced the execution of said deed. That no consideration passed to her. That no notes were ever delivered to her.

That May 5, 1913, a petition was filed in this court, signed by J. B. Keith and J. A. Johnson, as attorneys for W. D. Bennett, which recited that on the 3d day of May, 1913, said Bennett was appointed receiver of her estate by the county court of Erath county, and that Bennett was directed to institute the said suit. That said petition recited the facts as to the deed from plaintiff to Henry substantially as hereinabove, and prayed that the deed be canceled. That an agreed judgment was entered in that suit No. 3808, substantially as follows (we copy such parts of it as seem pertinent to this appeal):

“This day the cause came on for trial; came W. D. Bennett, receiver in estate of Eliza McKenzie, and as her next friend, by his counsel, and defendants O. Henry and Cora Henry, by their counsel, and presented a written agreement for the settlement of the cause [here the agreement is copied] and [then judgment recites] that Bennett, as receiver and next friend, take nothing by this suit. That Henry and wife take title to the land subject to certain notes of said Henry in favor of plaintiff with vendor’s lien upon the land. [Then alleges that if Bennett was appointed receiver of the McKenzie estate, no order was ever entered upon the minutes of the probate court of Erath county. Is therefore void.]
“(10) Plaintiff says that after a diligent search in the records of the county clerk of Erath county, she has been unable to find the decree appointing the said W. D. Bennett receiver of her estate, and does not know the provisions thereof, the powers therein contained, nor the date when same was made, but says that if same was made on April 3, 1913, as alleged in the petition filed in said cause No. 3803, then in that event the deed heretofore mentioned from plaintiff to said O. Henry is void, because same was made after plaintiff was adjudged to be of unsound mind and her affairs placed in the hands of said receiver. That if said decree was issued on May 3, 1913, as recited in the order of dismissal above described, then in that event said decree was void, because plaintiff was at that time a resident of Palo Pinto county, Tex., and not of Erath county, Tex.; that no notice of receivership proceedings was given, no hearing thereon, and she had no day in court, and at any and all events plaintiff says that said order appointing W. D. Bennett receiver of her estate, if same was ever entered, was void and never took effect because same was not recorded in the minutes of the county court of Erath county, Tex., and the clerk of said court did not indorse thereon a certificate that it had been so ordered. * ⅜ * ”

That said Bennett therefore was never authorized to enter into the said judgment. It was therefore void. That if the appointment was regular, it was temporary, only until a guardian might be appointed. That same ceased to be in effect the next term of county court unless same was continued in force by an order upon the minutes. That no such order was entered - though three terms of court had passed prior to the date of the judgment.

That in cause 3803 above, Henry and wife pleaded that the appointment of Bennett as receiver was void because Mrs. McKenzie was not a resident of Erath county, but of Palo Pinto county, and that Bennett, realizing that he was without authority, entered into the agreed judgment, and sought to make same effective by reciting therein that he recovered both in the capacity of receiver and of “next friend.” That the suit having been filed and prosecuted as receiver, the court was without authority to enter a binding judgment in favor of next friend.

That in the alternative, and that event only, that this court should hold that Bennett had authority to agree to said judgment as next friend, the judgment should be opened and vacated because her interests were not protected in any degree. That $2,500 worth of property -was given away without one cent to plaintiff. Therefore invokes the equity powers of the court.

Further alleges: That defendant Frey was a surety upon the bond of Bennett as receiver, and was fully informed of the facts of receivership. That he knew the infirm condition of plaintiff’s mind. That he is and was at all times mentioned the active president of the Farmers’ National Bank of Stephen-ville. That he, by an unlawful and fraudulent scheme, caused plaintiff to transfer to said bank, while she was insane, as known .to said Frey, in that, through Lucas McKenzie, well knowing his influence with plaintiff, note No. 1 of the series above described, and a short time after for the purpose of protecting said bank and himself, had the defendants C. Henry and wife to borrow from one Charles L. Kribs upon said property. That she received no consideration for said transfer of this note, but same was squandered in the receivership proceedings and by Tucas McKenzie and that Frey participated therein by delivering the money to others than plaintiff. That in furtherance of his unlawful scheme said Frey procured the balance of said series, $3,000, in the following manner: That while plaintiff was residing in Anderson county, said Frey procured said C. Henry to act as a go-between, because he well knew of the latter’s influence over her, to secure a transfer of said notes whilst she was still insane, and had been so adjudged, and this well known to defendant Frey, in that said Henry was paid $500 to go to Anderson county and procure the notes for $1,500. That the money was furnished through his bank to defray his expenses for the trip. That the transfer of said notes was made through the coercion and undue influence of said Lucas McKenzie and said C. Henry whilst she was of unsound mind, had been so adjudged, and these things well known to said Frey. That the transfer was made -for a grossly inadequate consideration, which was squandered by other persons with the knowledge in advance of said Frey.

“Plaintiff says that shortly after said defendant Frey obtained possession of said notes and after this plaintiff had been adjudged to be sane by the county court of Erath county, Tex., and said defendant Frey then began negotiations with the defendant Henry for the said Henry to convey the said land to him in settlement of said notes, and that thereafter, on the 12th day of August, 1914, said defendant O. Henry joined by his wife, did convey said land to the defendant Frey as hereinbefore alleged in this petition, and the said Frey is now claiming the same, and is in possession thereof. That such possession is hostile to and adverse to plaintiff’s possession. That same casts a. cloud upon her title, and is inconsistent with the right of ownership and possession vested in this plaintiff. * * *
“Plaintiff will further show the court: That since removing to Anderson county, Tex., her physical condition has improved, and her mental faculties have again become sound. That she was restored to a sane condition of mind on or about the 1st day of October, 1914, and as soon as she realized fully the fraud and schemes that had been practiced upon her by defendants as herein alleged, she at once and within a reasonable time repudiated -said transactions, and here now repudiates same and invokes the legal and equitable powers of this court to set aside and hold for naught all of said transactions, quiet her title and possession of her _ property, and remove the cloud cast upon her title thereto by the transactions hereinbefore set out.
“Plaintiff further shows the court: That she has been deprived of the rent and rental value of said land for three years. That the rental value thereof was $300 per year. That same has been appropriated bv the defendants W. H. Frey and O. Henry, and she here now sues for said rents and for the rental value of said premises in addition to the other relief herein sought. Plaintiff will further show to the court: That the said W. D. Bennett is now dead. That he died insolvent.
“Wherefore, the premises considered, plaintiff prays the court that upon final hearing hereof tie agreed judgment heretofore rendered in this court on the 1st day 'of December, 1913, above referred to, be opened, vacated, set aside and held for naught; that the deeds described in this petition be canceled; that the transfers of vendor’s lien notes described in this petition be also canceled; that she have judgment for title _ and ownership of the land and premises herein described, for writ of possession, and that she be quieted in her title • to said land and premises; that the cloud be removed therefrom; that she have judgment against the defendants W. H. Frey and O. Henry, and each of them, for $900 for rental value for her said premises, for all costs of suit, and for such other and further relief, special and general, in law and in equity, that she may show herself justly entitled, for which she will ever pray,” etc.

The trial court sustained a general demurrer, from which this appeal is prosecuted.

Appellant, by one assignment and many propositions, asserts that the above petition is good upon general demurrer, and that the court erred in sustaining it.

The effect to be given the judgment in the suit brought by the receiver is the principal question for our determination.

The sufficiency of the allegations of fraud and insanity in securing the deed from Mrs. McKenzie to Henry is not questioned, but ap-pellee insists that the judgment confirmed it, and that such judgment cannot now be set aside. This depends upon the answer to the questions:

First. Was Bennett authorized by a valid, subsisting order of a court of competent jurisdiction to bring the suit as receiver? Article 4088, R. S. 1911, provides for the appointment of receivers of the estate of a person of unsound mind to take charge of the estate until a guardian can be regularly appointed. It further provides that such appointment and orders shall be recorded in the minutes of the court, and shall specify the duties and powers of such receivers. The allegation as to this is “that if Bennett was ever appointed receiver, such appointment was void because appellant was not a resident of the county where the appointment was sought to be made, and that no orders ever appeared upon the minutes of the court as required by' statute.”

The charge that these orders were not entered of record upon the minutes of the court is sufficient to void the judgment taken by Bennett as receiver in cases like this of direct attack upon the judgment entered. Kelsey v. Trisler et al., 32 Tex. Civ. App. 177, 74 S. W. 64.

Second. The appellee insists that, since the judgment shows that Bennett appeared both as receiver and as next friend, if he was not authorized as receiver to agree to the judgment, he having been recognized as next friend and permitted to act by the court, it was tantamount to an appointment. It seems clear that if this suit had been brought by Bennett as next friend, and the court had recognized him as such by entering the judgment complained of, and no fraud practiced upon the court, it should be upheld, but that is not the state of facts here alleged. On the contrary, plaintiff says that the suit was brought as receiver, and that he, realizing that he had no authority as receiver to enter into such an agreed judgment, sought to make the same effective by reciting that he recovered both as receiver and as next friend; that she has been deprived of her property without remuneration; that if the court had been informed of the facts, as he was not, he would not have approved of the agreed judgment; and appeals to equity.

The effect of these allegations is that Bennett did not prosecute the suit as next friend, but recited such in the judgment as a pretext or as a saving clause to the validity of the judgment. Under this state of facts, it could not be held that Bennett in fact prosecuted the suit as next friend, nor that such recital in the judgment was a recognition of him in such capacity.

The allegations of this petition are of a positive nature; that plaintiff at the time this judgment was taken was insane; therefore any proceedings had were without her knowledge or consent; that no orders were entered of record authorizing Bennett as receiver to prosecute the suit in her name for her benefit or otherwise^ that he did not appear before the court in any pleading as next friend; that she had title to the land; and that through fraud and while insane she has been deprived of it. These facts would entitle her to have this judgment set aside by a court of equity. Stephens v. Hewett, 22 Tex. Civ. App. 303, 54 S. W. 301.

Appellee urges that the petition does not otter to do equity, in that a recovery thereon would give her the land and leave her in possession of the notes also. She alleges that she received no money, and that none of the notes were delivered to her; also alleged that defendant Erey by fraud obtained possession of them, and now holds them. Under such state of facts she was not called upon to make any tender. Rowan v. Hodges, 175 S. W. 847.

Appellee further urges that the petition is subject to general demurrer, because it is shown by its allegations that after plaintiff conveyed the land in controversy she transferred note No. 1 to- the bank, and that in turn the bank transferred it to one Kribs, and that he now holds it, and that she nowhere offers to take the land subject thereto, nor was the said Kribs made a party to this suit, nor has she offered to do equity in respect thereto.

Kribs is not a necessary party to this suit, for if he has a valid, subsisting lien upon the land in controversy to secure the payment of his note and desires to foreclose it, the judgment in this case could in no wise affect his rights in this respect, for his lien would follow the title.

Appellee further urges that because the petition shows that the judgment vested the title in Henry subject to the vendor’s lien notes, five for $750 each, she is not entitled to the relief sought. These notes she alleges were fraudulently obtained from her by C. Henry under an agreement with defendant Frey, and asks that they be canceled.' All that she asks is that she have her land and reasonable rents. The allegations of fraud chargeable to said Frey are sufficient to form the basis of a judgment in her favor for the relief prayed for.

We are therefore of the opinion that the court erred in sustaining the general demurrer. The cause must therefore’ be reversed and remanded for trial upon its merits; and it is so ordered.

WALTHALL, J., not sitting, being absent on committee of judges assisting the Supreme Court.
      <g=For other eases see same topic and KEY-NUMBER in" all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    McKENZIE v. SUTTON et al.
    (No. 739.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1917.)
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Suit' by Eliza McKenzie against J. L. Sutton and another. From judgment of dismissal, plaintiff appeals.
    Cause reversed and remanded for trial on the merits.
    Hickman & Bateman and B. E. Cook, all of Stephenville, for appellant. Chandler & Pan-nill, of .Stephenville, for appellees.
   HARPER, C. J.

This suit was brought by Eliza McKenzie against J. L. Sutton and Lucas McKenzie, a direct proceeding to set aside a judgment to cancel deed and remove cloud and for title to certain real estate. The trial court sustained a general demurrer to the petition and dismissed the suit.

The allegations of plaintiff’s petition are the same in form and as to facts, except as to parties and land sued for, as is shown in her suit No. 729 (McKenzie v. Frey, 198 S. W. 1009), this day handed down by this court, and the contentions of the parties in their briefs are the same as in that case. So for the reasons there assigned, this cause is reversed and remanded for trial upon its merits.

WALTHALL, J., not sitting, being absent on committee of judges assisting the Supreme Court.


text:
    McKENZIE v. WINTERS et al.
    (No. 740.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 21, 1917.)
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    .Suit by Eliza McKenzie against J. B. Winters and others. From a judgment of dismissal, plaintiff appeals.
    Cause reversed and remanded for trial on the merits.
    Hickman & Bateman and B. E. Cook, all of Stephenville, for appellant. Chandler & Pan-nill, of Stephenville, for appellees.
   HARPER, C. J.

This suit was brought by Eliza McKenzie against J. B. Winters, J. C. Hollingsworth, C. Henry and wife, Cora Henry, a direct proceeding to set aside a judgment .to cancel deed and remove cloud and for title to certain real estate. The trial court sustained a general demurrer to the petition and dismissed the suit.

The allegations of plaintiff’s petition are the •same in form and as to facts, except as to parties and land sued for, as is shown in her suit No. 729 (McKenzie v. Frey, 198 S. W. 1009), this day handed down by this court, and the contentions of the parties in their briefs are the same as in that case. So, for the reasons there assigned, the cause is reversed and remanded for trial upon its merits.

WALTHALL, J., not sitting, being absent on committee of judges assisting the Supreme Court.


author: HIGGINS, J.

text:
    BURTON LINGO CO. et al. v. FIRST BAPTIST CHURCH et al.
    (No. 750.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 15, 1917.
    Rehearing Denied Dec. 6, 1917.)
    Apjpeal and Error @==>80(6) — Final Judgment — Appealability.
    Where verdict disposed of all issues, those in the main suit and those raised by a cross-action, judgment based on such verdict which did not dispose of the issues on the cross-action is not final and appealable.
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    'Suit by the Burton Lingo Company and others against the First Baptist Church and others. From the judgment for plaintiffs against some defendants, plaintiffs appeal.
    Appeal dismissed.
    G. C. Groce and J. L. Gammon, both of Waxahachie, and Sayles & Sayles, of Abilene, for appellants. A. H. Kirby, of Ft. Worth, for appellees.
   HIGGINS, J.

Burton Lingo Company filed this suit against the First Baptist Church, the members of the board of trustees and building committee of said church and E. S. Boze, Geo. P. Bullard, W. A. Crow, R. C. Johnston, J. W. Harrison, and J. L. Gammon to recover a balance due for building material furnished Boze and used in the construction of a church building for said church and for foreclosure of a material-man’s lien. Boze was the contractor for the construction of said church. Bullard, Crow, Johnston, Harrison, and Gammon were sureties upon a builder’s bond given by Boze. Boze pleaded a discharge in bankruptcy. Bul-lard and his cosureties answered to the merits 'and by cross-action against Boze set up that their liability, if any, was as sureties for Boze on the bond sued upon and in ease of recovery against them they asked for judg-‘ ment over against Boze.

An instructed verdict1 was returned as follows:

“We, the jury, find in favor of plaintiff Burton Lingo Company against defendants George P. Bullard, W. A. Crow, R. C. Johnston, J. W. Harrison and J. L. Gammon in the sum of §538.26, with interest thereon from January 1, 1911, at 6 per cent, per annum, and the further sum of §100 attorney’s fees. We further find in favor of the other defendants, on all other issues.

Upon this verdict judgment was rendered as follows: In favor of Burton Lingo Company against Bullard and his cosureties in the amount stated in the verdict; that said company take nothing against the church and the members of its board of trustees and building committee; that said company .take nothing of Boze; that the church take nothing by its cross-action against Boze and the sureties on his bond.

It will be noted that the judgment makes no disposition of the issue raised by the cross-action of the sureties against their principal, .Boze. The verdict was sufficient upon which to predicate a judgment disposing of all issues. But the completeness of the verdict in thus disposing of all issues does not1 dispense with the necessity of a judgment based thereon likewise disposing of all issues. In Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, it was said:

“The Court of Civil Appeals correctly held as follows: ‘It can make no difference that the verdict of the jury does dispose of the defendant’s cross-action, and that such verdict is recited in the judgment. The verdict but constitutes the facts as ascertained in one of the methods provided by the law, and cannot be made to supply the court’s conclusion thereon. To be final, the judgment should further contain the declaration of the court pronouncing the legal consequences of the facts found.’ ”

The judgment here rendered in no wise relates to or affects the cross-action of the sureties, and it cannot be considered as disposed of by implication. For want of finality in the judgment, the appeal must be dismissed. See Finnigan-Brown Co. v. Escobar, 179 S. W. 1127.

Dismissed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court,


text:
    PERRY v. SMITH et al.
    (No. 719.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 13, 1917.
    Rehearing Denied Dec. 6, 1917.)
    Deeds <@=>156 — Conditional Grants — Rights oe Parties — Subsequent Purchasers.
    A deed conveying land to be used for gin and mill purposes, the grantee to erect the gin within a certain time, and if the mill were not erected or operated within such time the land to revert to the grantor, invested the grantee with an estate upon condition subsequent, the right of forfeiture of which was personal to the immediate grantor, so that, when the condition was not fulfilled, and the grantor deeded the land to another person, such person had no cause of action.
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by L. H. Perry against Sidney Smith and others. From the judgment rendered, Pferry appeals.
    Affirmed.

      W. W. Moores, of Stephenville, for appellant. J. A. Johnson, J. B. Keith, and P. L. Pittman, all Stephenville, for appellees.
   ¡Statement of Case.

HARPER, O. J.

November, 1912, S. N. Keith and wife executed and delivered to Sidney Smith the following deed:

“Know all men by these presents: That we, S. N. Keith and wife, Myrilla Keith, of the county of Erath and state of Texas, for and in consideration of the sum of ten dollars as follows : Cash — have granted, sold, and conveyed, and by these px-esents do grant, sell, and convey, unto the said Sidney Smith, of the county of Erath, state of Texas, all that certain lot and tract of land, to wit, 3 acres out of the W. A. Cole survey of land in Erath county, Tex., described by metes and bounds as follows: * * *
“Subject, however, to the following agreements and conditions: Two acres of said land is to be used by me, grantee, for a gin and mill purposes only, and I am to erect a gin and mill building; gin of 4-stand capacity and mill for grinding corn and chops, etc., and I, grantee, agree to dig on said lot a well going to sheet water and to erect a tank above ground and to give to the said Keith a permanent water connection and right, for all home purposes for all time to come, the said Keith to furnish his own pipe and connections. X, grantee, agree to begin erection of gin and mill on said land by December 2, 1912, and to have same ready for operation by August 15, 1913, on the remaining one acre of said land I am to use for resident and garden purposes only none of the land herein conveyed is to be used or sold for the purposes of village lots for store or residence purposes. If from any cause the gin and mill is not erected or ceases operation on said premises the 2 acres of land hereby conveyed and the well thereon is to revert to the said Keith and his heirs, grantee agrees to keep water In tank whether gin is running or not the year around sufficient for household purposes.
“To have and to hold the above-described premises together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Sidney Smith, heirs and assigns, forever, and we do hereby bind ourselves and our heirs, executors, and ádmin-istrators to warrant and forever defend all and singular the premises unto the said Sidney Smith, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

The conditions were not complied with.

January, 1913, Higginbotham Company made a contract with Smith to furnish material for the construction of the said improvements, and fixed its materialman’s lien thereon.

In May, 1914, Smith and wife conveyed the land and improvements to Higginbotham Company in consideration for the debt due from them for the material furnished. Thereafter said company sold the premises to Holt.

April 1, 1915, Keith and wife conveyed the land to plaintiff Perry by the following deed:

“That whereas, by deed dated November 8, 1912, and recorded in Book 122, page 594, of Erath County Deed Records, S. N. Keith and wife, Myrilla Keith, conveyed to Sidney Smith three acres of land out of the W. A. Cole survey in Erath county, Tex., subject to certain conditions therein named and mentioned, which conditions, if not fulfilled, shall make said land
revert back to the said S. N. Keith, or his assigns: Therefore we, S. N. Keith and wife, Myrilla Keith, of the county of Erath and state of Texas, for and in consideration of the sum of ten dollars paid by L. H. Perry, the receipt of which is hereby acknowledged, and that further, we having sold the adjoining land owned by us to the said L. H. Perry, and we intending by this instrument to vest in the said L. I-I. Perry all rights i-eserved by us to said land and the benefits to be derived from same, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said L. H. Perry, of the county of Erath and state of Texas, all our right, title, interest, and claim in and to said three acres of land above mentioned and described, together with all the right, uses, benefits, and title to said land that we now have, as well as that may hereafter acci'ue to us by virtue of the stipulations mentioned and set out in the deed above mentioned, together with all interest in said well and said land and said water rights, fully mentioned and described in said deed, to which deed and the record thereof reference is hereby made for all purposes.”

L. H. Perry brought this suit to recover the three acres of land upon the theory that he, by the deed from Keith and wife to him, had succeeded to the rights of Keith to recover the lands because of the breach of the conditions in the deed from Keith to Smith.

Higginbotham Company answered by general denial, plea of not guilty, and by cross-action that January 24, 1913, it by contract furnished said Smith material and machinery to erect a dwelling, gin, etc., and that by said written contract fixed its lien upon the premises; that in May, 1914, it purchased the land and improvements from Smith, and as a consideration gave the debt owing to it by Smith; that it has a valid, subsisting, and unpaid materialman’s lien upon the land and improvements; that the deed from Keith to Smith contemplated and it was understood in connection therewith that Smith would place the materialman’s lien upon the land and the improvements to be placed thereon; that Keith had full knowledge of the lien consented thereto, and by his acts and conduct ratified the agreement to furnish the material; therefore is estopped to contest the lien to the extent of the value of the material furnished as also is his vendee plaintiff, Perry, and prays that its lien be foreclosed as to all parties.

Tried by court without a jury. Cause dismissed as to Holt without prejudice. Judgment was entered for Higginbotham Company, foreclosing its lien, with a finding that ,the debt amounts to $1,169.23; that plaintiff Perry take nothing.

Opinion.

The stipulations in the deed from Keith to Smith have the legal effect of investing Smith with an estate upon condition subsequent and nobody can take advantage of it but the immediate grantor, Keith. Diamond v. Rotan, 58 Tex. Civ. App. 263, 124 S. W. 196.

This deed conveys a fee-simple title to be defeated by the failure to comply with the conditions. This right to forfeit this class of estate is personal to the immediate grantor, and cannot be taken advantage of by another person. Therefore Perry, Keith’s subsequent vendee, has no cause of action.

Finding no error in the record, the cause is affirmed.

WALTHALL, J., not sitting, absent on committee of judges assisting the Supreme Court.
      ©soFor otter oases see-same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    CITY OF FT. WORTH v. COTTON et al.
    (No. 8727.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 3, 1917.)
    1. Trial <©=34 — Pleas in Abatement — Taking Evidence.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1947, it is within the discretion of the court to hear evidence first and separately upon a defendant’s plea in abatement, before hearing evidence upon the merits of the case.
    2. Appeal and Error <©=3927(2) — Presumptions in Support op Judgment.
    On appeal it will be presumed in support of a judgment of dismissal that on a plea in abatement the plaintiff did not move for a continuance to make necessary parties, where it did not appear of record.
    3. Appeal and Error <⅜=> 189(5) — Reservation op Grounds op Review — Dismissal— Defects in Parties — Muttons.
    A suit against a father and daughter, where the father died before he was cited, and the daughter moved for dismissal on the ground that she was married, was properly dismissed, where plaintiff made no motion for continuance to make her husband a party, although a- motion was made to postpone lie case for a week to be tried on its merits.
    Error from District 'Court, Tarrant County; Ben M. Terrell, Judge.
    Suit by the City of Ft. Worth, for the use and benefit of Roach <& Manigan, against J. T. Cotton and Lucile Cotton. From a judgment dismissing the suit, plaintiff brings1 error.
    Affirmed.
    Charles Kassell, of Ft. Worth, for plaintiff in error. H. C. Shropshire, of Weatherford, and I. W. Stephens, of Ft. Worth, for defendants in error.
   BUCK, J.

This suit was filed July 15, 1913, by the city of Ft. Worth, for the use and benefit of Roach & Manigan, to recover for paving done in front of a lot alleged to be owned by J. T. Cotton, and in which it was alleged Lucile Cotton had some interest. Defendants were alleged to reside in Tarrant county. Citation was issued on date of filing to Tarrant county, and return made by the sheriff as follows: “Not found in Tarrant county, 9 — 3, 1913.” July 23, 1915, plaintiff filed a supplemental petition, containing the allegations that Lucile Cotton was a married woman, and that her name was Mrs. Lucile Short, and that she resided in Franklin, AVilliamson county, Tenn., and praying for the issuance of notice under the statutes as to nonresident defendants. On August 21, 1915, Mrs. Short filed what was termed a plea in abatement, and also an answer, subject to her plea in abatement. In this plea she recited the filing of the petition on date aforementioned, and the grounds for recovery therein contained, and alleged, further, that at the date of the filing of said petition, and at no other time, did either she or J. T. Cotton reside in Tarrant county; that J. T. Cotton resided in Parker county until the date of his death, October 7, 1914, and that she (Lucile Cotton) resided in Parker county till February 14, 1907, when she married Jesse E. Short, and moved immediately to Williamson county, Tenn., where she has resided-with her husband ever since; that J. T. Cotton was never cited in the case up to the time of his death, nor was she ever cited up to July 23, 1915, on which date plaintiff filed his supplemental petition, asking that nonresident notice be served on her in Williamson county, Tenn.; that no steps had been taken by the defendant during the more than two years from the filing of the petition to make her a party defendant, and no notice was served on her of the proceedings on the part of the city of Ft. Worth to fix a lien on the property described in plaintiff’s petition; that at the time such proceedings were alleged to have occurred, and at the time of the filing of the suit, J. T. Cotton did not own the property against which a lien was sought *to be fixed, but that she owned it, as evidenced by a deed of record in Tarrant county, and that said lot was her separate property; that inasmuch as the suit was against J. T. Cotton as owner of the property, and not against her, and inasmuch as no steps had been taken to fix a lien against the property as her separate property for over two years after the filing of the suit, and for over four years after the alleged paving had been done and the alleged lien was claimed to have been fixed, and inasmuch as no effort had been made by plaintiff to make her husband a party defendant, she prayed that the suit be dismissed, and that she go hence and recover her costs. The trial court sustained said plea and dismissed the suit, and plaintiff has perfected its appeal by writ of error.

Plaintiff in error urges error to the action of the trial court in dismissing the cause under the plea in abatement, and in refusing to reinstate said cause, for the following reasons, to wit: (1) That the plea set forth no grounds sufficient in law to support said plea; (2) that the grounds stated in said plea went to the merits of the case merely; (3) that the court should have continued the case to make Mrs. Short’s husband a party; (4) that the court should have postponed the hearing to make J. T. 'Cotton’s administrator or executor a party defendant; (6) that there was no proof offered to establish that Mrs. Short' in fact did own the property against which a lien was sought to be fixed; (6) there was no proof offered to show that J. T. Cotton did not in fact own the property involved at the time the suit was instituted; (7) that at any rate, the cause should not have been dismissed as to J. T. Cotton or his legal representatives.

The court filed his findings of fact and conclusions of law, to the effect that by deed of date November 2, 1886, recorded in the Deed Records of Tarrant county, December 2, 1886, J. T. Cotton conveyed to his daughter, Lucile C. Cotton, now Mrs: Lucile Short, wife of Jesse E. Short, the property in controversy, for a recited consideration of $1,-500, and that the same was at the time of the hearing still her property; that said property was rendered for taxes in 1904 by an agent of J. T. Cotton as the property of J. T. Cotton, and for 1912 by J. T. Cotton himself, and for the intervening years the property was on the unrendered rolls. The court’s conclusions of law were as follows:

“I. I conclude that no sufficient diligence has been shown in the prosecution of this suit to warrant the plaintiff in bringing in Lucile C. Short at this late day as a party to this suit, and without joining her husband as a defendant, in view, of the facts set forth in her plea in abatement.
“II. I adopt the conclusions set forth in the last paragraph of said plea in abatement beginning with the word ‘wherefore.’
“III. I conclude that the findings as to rendition of property for taxes are immaterial.”

In the lone bill of exceptions contained in the record, plaintiff in error admits the facts in the plea of abatement contained are true, and that the deed from J. T. Cotton to Lucile C. Cotton was of record as alleged, but plaintiff in error did not admit that the title to said property was at that time in said Lucile C. Cotton, now Mrs. Lucile Short, placing his reliance that the facts were otherwise upon the rendition for taxes heretofore set out. In this bill of exceptions, it is shown that counsel insisted that the court should not sustain the plea in abatement, but should suspend action thereon until the case was heard on its merits, urging that the case had been set down at plaintiff’s instance for the following week. But neither in this I bill nor elsewhere in the record does it appear that tire plaintiff made a motion for continuance or postponement of the hearing in order that Mrs. Short’s husband, or Mr. Cotton’s legal representative, should be made parties. Under this state of the record, we find no reversible error disclosed.

It was within the discretion of the court to hear evidence first and separately upon defendant Mrs. Lucile Short’s plea in abatement, before hearing evidence upon the merits of the case. Tynburg & Co. v. Cohen, 67 Tex. 220, 2 S. W. 734; Id., 76 Tex. 409, 13 S. W. 315; Railway Co. v. Thompson, 140 S. W. 1148; Producers’ Oil Co. v. Daniels, recently decided by this court, opinion not yet published, No. 8715; article 1947, V. S. Texas Civil Statutes.

In the absence of any record evidence of a request by plaintiff below to continue to-make parties, we are unable to say that the trial court erred. In support of the judgment, we must presume that no such request was made at the time of, or prior to, the judgment of dismissal. The plaintiff in error having admitted in its bill of exceptions that the defendant J. T. Cotton was dead, and had never been served by citation before his death, and having admitted that the defendant Mrs. Lucile Short was a married woman, and having failed to invoke at the proper time, by plea, motion, or exception, the action of the court to continue the cause to make necessary parties defendant, to wit, the husband of Mrs. Short or the legal representatives of J. T. Cotton, deceased, we are of the opinion that the plaintiff in error cannot now complain that the court failed to so continue the cause for such purpose. The trial court having heard the evidence and admissions of counsel on the plea in abatement, and having determined that the necessary parties to a valid judgment were not in court, it would have been a useless and idle thing to do to postpone the case for a week, and then hear it on its merits, which is the only request it seems the plaintiff below made, and upon the refusal of which the claim of error is predicated.

All assignments are overruled, and the judgment is affirmed.

CONNER, C. J., not sitting, serving on, writ of error committee at Austin.
      <gs3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK,' J.

text:
    AIKEN et ux. v. FIRST NAT. BANK OF BRIDGEPORT.
    (No. 8700.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 23, 1917.
    Rehearing Denied Oct. 13, 1917.)
    Husband and Wife <©=>152 — Disabiilties of Wife — Statutes.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624, as to the separate property of the husband and wife and the husband’s liability for the debts of the wife, no general power is given to married women to bind themselves personally or their separate estates by notes or other contracts.
    Error from District Court, Wise County; F. O. McKinsey, Judge.
    Action by the First National Bank of Bridgeport against W. J. Aiken and wife. Judgment by default for plaintiff, and Nellie P. Aiken brings error.
    Reformed and affirmed.
    Bumpass & Crumbaugh, of Terrell, for plaintiff in error. McMurray & Gettys, of Decatur, and H. E. Lobdell, of Bridgeport, for defendant in error.
   BUCK,' J.

The First National Bank of Bridgeport, Tex., sued W. J. Aiken and Nellie P. Aiken upon the latter’s joint note executed to plaintiff for $500, dated December 2, 1914, due October 1, 1915, and secured by deed of trust on two certain tracts of land in Wise county, Tex. Plaintiff prayed for a judgment against both defendants on said note, and for foreclosure of its lien. Judgment was had by default for the amount of the note, interest, and attorney’s fees, and for foreclosure of the deed of trust lien on the land mentioned. Nellie P. Aiken prosecutes her writ of error.

The cause was before this court under another phase and under the same style, No. 8587, on March 31, 1917. See 194 S. W. 610, Advance Sheets. The appeal in that ease was from a judgment and order of the district court dissolving a temporary injunction theretofore granted, which restrained the appellee and the sheriff of Wise county from selling certain lands, other than the lands • covered by the deed of trust heretofore mentioned, alleged to be the separate property of Mrs. Aiken, in satisfaction of the judgment rendered in this cause. The judgment from which the appeal was taken in.the former case was one dissolving the temporary injunction, and the original judgment render- ■ ed, from which the writ of error is prosecuted in this case, being by default, and the petition- in the original suit failing to disclose the coverture of Mrs. Nellie P. Aiken, and the attack on the judgment being collateral, we held in the former case that the door of inquiry was closed, under such collateral attack, as to any irregularities or defects in the original judgment, not apparent on the face of the record. Hence we affirmed the judgment of the trial court. But a different rule obtains in the case of a review under a direct appeal, as presented in the case now before us.

While the petition, as before stated, in this case does not disclose the coverture of Mrs. Aiken nor her relation to her codefendant, W. J. Aiken, yet the statement of facts herein filed containing the evidence introduced under the default judgment discloses such coverture and such relationship. Such statement of facts recites:

“Plaintiff introduced the note sued on, executed by defendant W. J. Aiken and wife, Nellie P. Aiken, given to the plaintiff, First National Bank of Bridgeport,” etc.

Also:

“Plaintiff introduced the deed of trust executed by defendants W. J. Aiken and wife, Mrs. Nellie P. Aiken,” etc.

This deed of trust is shown by the statement of facts to have been duly acknowledged by Mrs. Aiken “in the manner and form as required by law.” Therefore it is apparent that the coverture of Mrs. Aiken was fully disclosed in the court below. There was neither pleading nor proof that the note sued on was given for the benefit of Nellie P. Aiken’s separate estate, nor, in fact, was' there any proof as to the purpose in, or consideration for, the giving of such note and deed of trust. The judgment appealed from provides for a general judgment against both defendants, as well as a foreclosure against the land as to'both defendants, and further provides that in the event the land shall not sell for enough to pay off and satisfy said judgment, then the “officer shall make the balance due as under execution.” This, of course, makes the judgment a personal one against Mrs. Aiken, and such feature constitutes the basis of plaintiff in error’s complaint as shown by his single assignment of error. It has been repeatedly held under the law as it existed prior to the amendment by the Thirty-Third Legislature, 1913 (Acts 33d Leg. c. 32), of articles now numbered 4621, 4622, and 4624, Vernon’s Sayles’ Texas Civil Statutes, that a married woman is not liable for a debt, or under a contract unless the pleadings and proof show that such debt was incurred, or contract made, for necessaries for herself or children, or for the benefit of her separate estate. Trimble v. Miller, 24 Tex. 215; Covington v. Burleson, 28 Tex. 368. If the pleadings and proof do not disclose the conditions under which she may be held liable, a judgment rendered against a married woman, under such circumstances, would be erroneous and subject to be set aside by proper review. Red River National Bank v. Ferguson, 192 S. W. 1088, and cases there cited. We are of the opinion that no general power is given to a. married woman to bind herself personally, or her separate estate, by a note or other contract by reason of the amendment to the three articles of the several statutes heretofore mentioned. Article 4624 prior to tlie 1913 amendment provided that the wife might contract debts for necessaries furnished her4 self or her children, and for all expenses which might have been incurred by the wife for the benefit of her separate property; but no such "power is expressly vested in the wife under the amended article. As noted in Red River Nat. Bank v. Eterguson, supra, the bill as originally passed amending article 4624 contained the following language immediately preceding the language contained in the present amended article, to wit:

“The wife may make any contract which she would be authorized to make but for her_ marriage, except those herein or elsewhere forbidden, and her coverture shall never be a defense in any suit or action based on such contract, but suits may be brought thereon in the manner prescribed by articles 1840 and 1841.”

By a concurrent resolution the bill was recalled from the Governor (House Journal, pp. 1254 and 1351), and the bill finally passed in its present form. It is thus shown that it was the intention of «the Legislature to refrain from conferring general power on the wife to bind herself by her contracts. Since by the caption of this act it is shown that it was the intention and purpose of the Legislature to repeal article 4625 of the Revised Civil Statutes of 1911, which authorized the court, when it appeared to the satisfaction of such court and the jury that the debts so contracted and expenses so incurred were for the purposes enumerated in article 4624, as it was prior to the amendment, and that the debts so contracted, or expenses so incurred, were reasonable and proper, to decree that execution might be levied upon either the common property or the separate property of the wife at the discretion of the plaintiff, we are of the opinion that the evident legislative intent was not to confer general capacity on the wife to bind herself or her separate estate by reason of contracts made or debts incurred. Indeed, there seems to he now no positive statutory declaration authorizing the wife to bind herself or her separate estate for debts contracted, or expenses incurred, for the benefit of such separate estate, and it would appear that the courts are only authorized to read into this statute, by way of implication, such a provision, in order that the wife, in the control and management of her separate estate, may have the means of protecting such separate estate from waste or loss. Article 4621, Vernon's Sayles’ Texas Civil Statutes.

Prom what we have said above, it follows that in our opinion so much of the judgment below as authorized a personal money judgment against the wife is erroneous. The judgment is reformed so as to eliminate and exclude any personal judgment against the wife, and, as so reformed, the judgment will be affirmed.
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