author: DAVIDSON, J. HARPER, J., and PRENDERGAST, P. J. DAVIDSON, J.

text:
    HEMPHILL v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.
    On Motion for Rehearing, Feb. 4, 1914.)
    1. Criminal Law (§ 723) — Trial—Misconduct oe Prosecuting Attorney.
    On the trial of a negro for rape, the remarks of the district attorney, that the people had often taken the law in their own hands and mobbed persons committing such crime, that if the jury turned accused loose the people could not be blamed for taking the law in their own hands, and that it would be much worse than convicting an innocent man to turn him loose and then in a week or two for him to attack “one of your wives, sisters, or daughters,” were improper and required a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676; Dec. Dig. § 723.]
    2. Criminal Law (§ 1092) — Bill oe Exceptions — Bystanders’ Bills.
    A bill of exceptions in a criminal case to the prosecuting attorney’s argument, disallowed by the court on the ground that he could not recall such argument, but bearing an approval by citizens of the state, attesting that they were fully informed and understood its contents, that they were present when the matters related in the bill occurred and were fully cognizant thereof, and that the bill was correct and truly pre«sented the facts as they transpired, which was 'properly sworn to, was in compliance with the statute, and, not having been contested as authorized by statute, would be taken as true.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    3. Criminal Law (§§ 763, 764) — Instructions — Weight oe Evidence.
    On a trial for rape, an instruction that there was evidence that .the prosecuting witness stated on the night of the crime, when accused was carried before her, that he was not the guilty person, and evidence that the following day she stated that he was such person, and that this latter statement must not be considered as evidence tending to show accused’s guilt, but might be considered for what the jury thought it worth in determining the weight to be given the testimony of the prosecuting witness on that point,' objected to as on the weight of the evidence, was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748,1752,1768, 1770; Dec. Dig. §§ 763, 764.]
    4. Criminal Law (§ 1172*) — Appeal—Errors Favorable to Appellant.
    If there was any error in such instruction, it was in accused’s favor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    On Motion for Rehearing.
    5. Criminal Law (§ 1133*) — Bill oe Exceptions — Bystanders’ Bills.
    A bill of exceptions, proved up by bystanders after its disallowance by the court in accordance with the statute, filed within the time allowed by law, and not contested in the trial court, could not be attacked on a motion for a rebearing in the Court of Criminal Appeals by affidavits.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. § 1133.)
    Davidson, J., dissenting in part.
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Will Hemphill was convicted of rape, and he appeals.
    Reversed and remanded.
    H. E. Short, of Seguin, for appellant. Lester Holt, Dist. Atty., of Columbus, E. T. Simmang, of Giddings, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

This negro was convicted and given the death penalty for rape on a woman whose age is shown by the testimony to be 66 years.

After giving an account of her trip leaving her residence in search of a horse that she wanted, supposed to be somewhere around the neighborhood or close by, prosecutrix says she met a negro, and told about his movements; that he passed her a time or two. We quote her testimony in this connection from the record: “I went up there to the west fence, and I looked around, and then I started back and was picking flowers and looking at the flowers, and all of a sudden the same negro I met on the road was in the pasture. I could see him very plain in the face. He was about as far as from here to that second window there from me; and, when I saw the same negro that I had met on the road, I got so scared I turned around. I didn’t want to meet him, and I turned around and went to the fence, and when I was at the fence I looked back, and he still was after me, and then I went under the fence, and then I thought, ‘What shall I do?’ and then I thought that I had talked, about that horse two times with him, so he might want nothing else only he might want some money out of me for bringing that horse, and I didn’t want to show how scared I was, and so I came back and asked him what he wanted, and he didn’t say anything. So I offered him a dollar and a half if he brings my horse back. He didn’t say anything about that. He didn’t say a word to that, and he came to me and grabbed me on my arm, and then he said something what he wanted. I didn’t know what it was. I told him, T don’t know what that is,’ and then he said it again, and then I thought wha,t it was, and I said, ‘Oh, God! what do you want with an old woman like I am?’ Then he caught me on my neck, and I cried out, and then I asked him to let me go, and he said, ‘No,’ and when he said, ‘No,’ I got so scared and I was so excited that I was half dead, and that is nearly all I can tell you. Then I closed my eyes, and he'dragged me in some bushes and some trees. Q. Just state to the jury what he did then. A. I don’t know. I couldn’t tell you very plain, because I was so excited. I was nervous. I don’t know what— Q. You will have to state just exactly what he did. A. When I felt him I got unconscious. Q. What do you mean by ‘feeling,’ just tell these gentlemen here? A. I can’t tell that; no, I can’t. I could tell it to women, but I can’t tell it to men. Q. After he grabbed hold of you, you say he dragged you a piece from the fence. Now just state to the jury whether or not he threw you down. A. I don’t know. When he caught me on my arm and said, ‘No,’’ then I lost all control over me. I thought he would first assault me and then he would kill me too. I lost all my nerves and everything. When I looked up again he was gone already. He was going toward the south and had gone a good piece when I opened my eyes. When I regained control over myself, I was lying on my back and my dress was up. Q. Just state to the jury whether or not he actually had intercourse with you? A. Yes, he did. Q. Are you positive of that? A. Yes, he did. I felt him. It sure went through me, and then I was gone, and after I got up everything was in my clothes. I felt him and it was in my clothes. After I came to myself, I saw him going off south, and then I got up and went to the gate of the pasture where I had come in. I did not give him my consent or permission to do anything like that; and I couldn’t get away from him. I was too scared. I was shivering. I couldn’t lift my arm or nothing. I couldn’t do it. T didn’t have the strength to get away.”

This is perhaps enough of the testimony in regard to the immediate facts, and in fact it is about the substance in the concrete. This is the language of the alleged outraged woman. Shortly after she says this occurred, she passed one neighbor’s house whom she said was not at home, and reached another neighbor’s residence and told at that house that she had been assaulted by a negro. There is evidence going to show that appellant was in the neighborhood and could have had the opportunity. For instance, he had gone from his residence up to an uncle’s to get a horse; that he went to the residence of this uncle, got his horse, and returned home. The distance between the two places was about four miles. Upon his return home, approximately about 3 o’clock, he hitched his horse to a buggy, and he and his wife went to visit her father’s some eight or nine miles away. The evidence shows that he reached that place about 4 o’clock, perhaps a little after. Defendant testified in his own behalf that he went to his uncle’s after the horse and returned home, and hitched the horse to a buggy, and he and his wife went to her father’s on an invitation that day received through the mail. It was shown by his employer he received the invitation through the mail. The employer testified to that, and defendant, having no horse, went to his uncle’s after a horse for the purpose of this visit. One or two witnesses in an indirect, rather indefinite, way gave evidence tending to show that they saw defendant between his 'home and the residence of his uncle; but, as that is not a disputed point, it is unnecessary to mention this testimony. Of course, he traveled the distance from his house to his uncle’s and back in getting the horse, and to this he himself testifies, and in fact there is no question about that matter. He denies the whole transaction testified by the prosécutrix. He says he did not have intercourse with her; he did not see Her under the circumstances and at the place that she mentions. He proves an alibi, and in fact he denies the matter from every standpoint of his testimony. He also testifies that while he was going back from his uncle’s he met another negro who was riding a similarly colored horse to his, except that negro’s horse had some white in his face, or bald-faced. So he puts this negro in the neighborhood with practically the same opportunity that he (the defendant) had, or as the witnesses’ testimony goes to show that he had.

This matter occurred on Saturday. Appellant reached his father-in-law’s house something like 4 o’clock in the evening Saturday, and Sunday morning before day, about 4 o’clock, he was arrested and carried into the presence of prosecutrix. She declined to recognize him and gave her reasons why. She says: “I remember them bringing 'the defendant to my house that night, and I examined him closely and had him to take off his coat and stand up, and I said at that time it was the figure and the color of the man that assaulted me, but he didn’t have his hat on, so I said he didn’t look that way that night. I said X couldn’t state that he was the .man. I said the other man’s face was more round, but I told them it was the figure of the man and it was the color. I didn’t say that the man that assaulted me was taller than the defendant. I said the face looked different to me then; but at night I couldn’t see; my eyes are not good.” On the next morning she took another look at him and recognized the defendant as being the man. In connection with her failing to recognize him definitely at night, and her recognition of him the following day, there was quite a lot of questions asked and answers elicited. He did not have his hat on at night was one of the main reasons why she says she failed to recognize him, and he did have on his hat the next day.

Appellant reserved a lot of bills of exception. He excepted to the following charge: ‘‘There is evidence before you to the effect that the. witness Annie Dittmar stated, when the defendant was carried before her on the night of the alleged rape, that the defendant was not the person who raped her, and if there is evidence before you that the next day, with the defendant before her, she stated that he was the person who committed the rape, you are instructed, that you must not consider the latter statement of said witness as evidence tending to show the alleged guilt of the defendant, but you may consider it, for what you may think it worth, in determining the weight to be given the testimony of the said Annie Dittmar as a witness in this cause upon that point.” Various objections were urged to this charge; among others, that it is on the weight of evidence, etc. We are of opinion the charge is upon the weight of evidence. It selects out the fact that, on the morning after she had failed to recognize the defendant the previous right, she did recognize him on the following morning and so testified before the jury. Now the court instructed the jury they could not consider, this as any evidence of guilt, but they could give it what credit they thought it was worth in passing on the credibility of the prosecu-trix upon that particular point. What point? Evidently the identification of the defendant the next morning when he was brought before her. Appellant had introduced evidence tending to show that she did not recognize him the previous night. The state met this to some extent at least, or sought to do so, by showing she did recognize him the next day in the daylight. Her testimony was not attacked as to her recognition of him in the daytime. She had been to some extent attacked by showing that she failed to recognize the negro the night before. The fact that she testified to identity the next morning was a circumstance in the case and evidently used by the jury against the defendant. The court undertook to limit this in passing on the weight of her testimony upon the question of identity. This was a charge, it occurs to us, on the facts on a particular question, one phase of the evidence culled from the other testimony, and called direct attention to the jury, and they were told they might consider that testimony upon the question of identity. Identity was one of the crucial points of the case; it was the point about which the issue of this case hung. The old woman identifying the defendant as best she could, and he denying his presence at the time and place, and proved by facts and circumstances, and his own positive testimony, and that of his wife, that he was at a different place. If the old woman was certain of her identity of the man, then the case was made out, or at least it was cogent evidence going to show that he was the man who had outraged her. If she was not correct about this, then in that event appellant may not have been the man. So it will he seen that one of the crucial questions and points in this case was the identity of this defendant as being the man whom the old woman says outraged her person. It occurs to us this was not introduced to attack her credibility, but to corroborate. Had the charge limited the question of credibility to failure to recognize, there might have been no error. As given, the charge virtually instructs the jury that the “next morning” identification of defendant corroborated prosecutrix’s evidence on trial.

Another bill of exceptions recites that the prosecuting attorney in his closing argument to the jury continually referred to mob violence in such cases, and repeatedly held up before the jury and threatened them with the statement that, unless they assessed the death penalty in this case, then the people would take the law in their own hands in the future, and that such rape fiends as the defendant would.be dealt with at the hands of a mob, and then the prosecuting attorney, Mr. 1-Iolt, made use of such expressions as the following, over the protest of the defendant: “It is true that the people often take the law in their own hands and mob persons that commit rape, and I want to tell you why that is true. Such attorneys as Mr. Short, who represents the defendant, pull the wool over the eyes of a jury and get them to return a verdict of not guilty. I tell you that, if you turn this defendant loose, then you cannot blame the people for taking the law in their own hands. Mr. Short has tried to frighten you with a picture of a scaffold; but, gentlemen, do not allow yourselves to become frightened. It would be much worse than convicting an innocent man for you to turn this defendant loose, and then in a week or two for him to rape one of your wives, sisters, or daughters.” This argument and the like expressions of the district attorney were promptly objected to by the defendant through his counsel, and the court was requested to stop the district attorney from using such expressions, and to instruct the jury not to consider such argument, because the same were highly inflammatory and reasonably calculated to prejudice the minds of the jury against the defendant. The court signs the bill with this qualification: “This bill is disallowed. The court cannot recall the argument of the district attorney, but at no time was the court called upon to stop him, or requested to ‘instruct the jury not to consider such argument.’ ” Then follows an approval by bystanders of the bill: “We, the undersigned citizens of the state of Texas, hereby attest that we are fully informed and understand the contents of the foregoing bill of exceptions; that we were bystanders in the court, and present when the matters related in said bill of exceptions occurred, and we are fully cognizant of said matters, and the said bill of exceptions, which the judge presiding at said trial has refused to sign, is correct, and truly présents the facts as they really transpired. Witness our signatures on this the 24th day of June, A. D. 1913.. [Signed] Chas. A. Wyman. P. H. Ransome. R. B. Mays.”

This was properly sworn to before the -clerk of the district court. This bill seems to be in compliance with the statute; it was in no way contested. The statute provides means and methods by which a contest may be had under such circumstances, but it was not had in this case. We therefore take the bill as we find it. Of course, such speeches, arguments, and remarks as are found in this bill of exceptions ought not to occur. The defendant’s life, if it is to be taken, should be taken under the forms and solemnities of the law. Rape is considered by our people, we may be justified in saying, as one of the heinous crimes, and one which seems to excite our people sometimes beyond the bounds of reason, eventuating in the fury of mob violence even to burning at the stake. Therefore the prosecution and the court should look well that the feelings of the “people” should not be dragged into the courts "and before juries in trial of cases under charges of rape. Here was a negro charged with rape upon an elderly white woman. The passions of the mob feeling were held up by the prosecution in his speech before the jury, and the jury urged to convict this man to prevent mob law, and he appealed to the jury if they should turn this defendant loose they could not blame the people from taking the law into their own hands. Taking the law into their own hands about what, and against whom? Against the negro if he was acquitted, or against the jury for acquitting him. The juries are not to try the accused and hang him to keep mobs from hanging them or him. If the accused in a capital case is to forfeit his life, it should bé done under the most solemn forms of the law. The courtroom and the courthouse and the judicial system are organized, not to convict upon mob law or by mob violence, but to convict under the due process of law guaranteed by the Constitution and laws of our country. No man’s life, liberty, or property shall be taken except under due process of the law of the land. This is one of the solemn guaranties reserved in the Bill of Rights. We call especial attention to this sentence: “It would be much worse than convicting an innocent man for you to turn this defendant loose,” etc. We do not know of a worse condition that could possibly arise in a civilized community and in the enlightened jurisprudence of this country than the proposition to convict an innocent man rather than turn this- defendant loose. If he should be innocent, then under this statement of the district attorney it would be better to convict- him than to turn him loose for fear that in a week or two one of the wives, daughters, or sisters of some juryman might be insulted. Expressions like this should not be indulged in a courtroom, and should not be approved by either the trial or appellate court. The courts of this country cannot subscribe as a part of its jurisprudence that it is worse to convict an innocent man than to return a verdict of not guilty against an accused person. In other words, apply tliat directly to this case: It would be worse to turn this defendant loose for fear he might ravish somebody else than it would be to convict him though he be innocent. If prosecuting officers will continue to make such appeals and to use such arguments, if they be arguments, before a Jury, it will be the duty of this court at all times under such circumstances! to reverse the judgment, and see that the accused is convicted only under the due process of the law of the land. Branch’s Crim. Law, § 62; Smith v. State, 44 Tex. Or. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849; Powell v. State, 70 S. W. 218; Thompson v. State, 33 Tex. Or. R. 475, 26 S. W. 987; Conn v. State, 11 Tex. App. 400; and other cases cited by Mr. Branch.

The judgment is reversed and the cause is remanded.

HARPER, J., and PRENDERGAST, P. J.

We do not think any error is shown in the charge of the court, and if error it would be error in favor of the defendant, but agree to the reversal of the case solely on the remarks of the district attorney.

On Motion for Rehearing.

DAVIDSON, J.

The state, has filed a motion for rehearing, and attaches a lot of affidavits attacking a bill of exceptions found in the record. It is unnecessary to repeat this bill of exceptions, as it is fully set out and discussed in the original opinion. We are of opinion there is no such merit in the motion for rehearing as would authorize or require this court to change its ruling. The affidavits attached to the motion for new trial cannot be considered. This is an appellate court, and matters of the character sought to be brought in review before this court are dehors the record and not permissible. This has been the rule in Texas, and was thoroughly gone over in the opinion by Judge Harper in Pye v. State, 154 S. W. 222. The Pye Case has been followed in several subsequent decisions, some of which have been rendered at the present term of the court.

We are of opinion that the bill of exceptions is sufficient to present the question set forth and contained in it. The bill of exceptions was presented to the judge, and he refused it, stating that he did not know what the remarks of the district attorney were, but that he knew the matter was not called to his attention. Based on this refusal, appellant proved up his bill by bystanders. This was in accordance with the statute. It was filed within the 30 days allowed by law. There was no contest over it, and no attempt to contest it in the court below. That contest is sought to be made here by the affidavits connected with the motion for rehearing. This bill of exceptions is within the provisions of the statute, and is almost, if not identically, the same question decided in Johnson v. State, 42 Tex. Or. R. 298, 59 S. W. 898, in an opinion by Judge Brooks. See, also, Branch’s Crim. Law, § 52, for other cases.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    SUBIA v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1. Homicide (§ 354) — Sentence and Punishment — Nature and Extent of Punishment.
    The death penalty may be assessed for murder committed upon implied malice, as well as upon express malice, where the evidence, from the circumstances attendant upon the crime, authorizes the infliction of so severe a punishment.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 731; Dec. Dig. § 354.]
    2. Homicide (§ 253) — Evidence — Sufficiency.
    In a murder case, evidence held to sustain a conviction imposing the death penalty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig. § 253.]
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Fernando Subia was convicted of murder, and he appeals.
    Affirmed.
    Winfield C. Smith, of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of murder, and his liunishment assessed at death, from which judgment he prosecutes this appeal.

There are no bills of exceptions in the record, and the motion for new trial contains but one ground; it reading as follows:

“Comes now the defendant, Fernando Subia, and moves the court to set aside the verdict and judgment herein rendered on the 26th day of February, 1914, for the following reasons, to wit: Because, first the judgment is contrary to the law and evidence; second, because the penalty assessed is not in accordance with law.”

As to the second ground in the motion, there is now no distinction in law as to the punishment affixed to the crime of murder committed upon implied malice from murder upon express malice, where the offense is committed since July 1, 1913. The law was amended so as to abolish the distinction theretofore existing, wherein murder was divided into two degrees, and the death penalty may now be assessed for murder committed upon implied malice, where the evidence, from the circumstances attendant upon the crime, authorizes the infliction of so severe a punishment. That the evidence in this case will support the verdict, we think, is amply shown by the evidence. T. Y. Moorehead was marshal of the city of Pecos. On Sunday night, as. he came from the Christian Church, he was informed that some persons were misbehaving in the Mexican part of the town, and that Sheriff Harrison had sent him word to come on down there. He and Mr. Roddy went together, and overtook the sheriff and Mr. Prunty, and they went a part of the way together. The sheriff and Mr. Prunty were in an alley, watching a house where some men had been seen going in. Two men came down the street, one apparently staggering, when Moorehead, deceased, said he would see who they were, and whether or not they were drunk. As he stepped toward these two men, appellant fired, killing him. Appellant fired again, apparently at Mr. Roddy, and turned and ran. The sheriff ran out of the alley, and fired at appellant as he fled, apparently shooting him in the back, the ball glancing. Several more shots were then fired by appellant and the sheriff, when appellant escaped; but he was pursued so closely he pulled off his overcoat and dropped it. This was picked up by Roddy, and when appellant was arrested the next day he was wounded in the back. The overcoat was placed on him, and the hole in the overcoat and the wound in the back were in line with each other. He was carried to Midland, and while there made a confession to W. P. Brady, district attorney. The confession reads: “My name is Fernando Subía. I shot T. Y. Moorehead. I thought they were going to kill me. I was with Juan Sabinos. I thought they were going to put me in jail. I knew Moorehead, when he came up to me.” An examining trial was held, at which appellant testified, and on that trial he testified he killed Moorehead, because Charley Gardner had told him to do so. On this trial he testified he shot Moorehead, but claimed he was so drunk he did not know what he was doing. The evidence • further shows that prior to this time appellant had been arrested at Pecos for disorderly conduct, and would suggest animosity towards the officers of the law because of that fact. The question of the drunkenness of appellant in mitigation of the punishment was fairly submitted by the court to the jury.

The judgment is affirmed.


author: PLEASANTS, C. J.

text:
    AMERICAN LUMBER CO. v. STATE.
    (Court of Civil Appeals of Texas. Galveston.
    March 4, 1914.
    Rehearing Denied March 26, 1914.)
    1. Taxation (§ 421) — Action to Collect— Descbiption in Assessment Roll.
    The description of the land in an assessment roll containing all that Rev. St. 1911, art. 7563, requires, except the survey number, will, in an action to collect the tax, be held sufficient to identify the land assessed; there being no evidence that there was more than one survey in the county in the name of the original grantee of the survey in question.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 720-727, 729-735; Dec. Dig. § 421.]
    2. Taxation (§ 593) — Action to Collect— Order oe Commissioners’ Court.
    Under Rev. St. 1911, art. 7692, providing that the assessment rolls or the list furnished by the tax collector, and corrected by the commissioners’ court, shall in an action to collect taxes be prima facie evidence that all the requirements of the law have been complied with, plaintiff in an action to collect a tax need not allege or show the order of commissioners’ court making the levy.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1214-1216; Dee. Dig. § 593.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by the State against the American Lumber Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. J. & C. T. Duff, of Beaumont, and W. O. Huggins, of Houston, for appellant. A. L. Shaw, of Newton, for the State.

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

   PLEASANTS, C. J.

This suit was brought to recover state and county taxes delinquent for the years 1901 to 1905, inclusive, and assessed against the John Carlton survey in Newton county. Appellant, a nonresident corporation, the owner of the land, was made defendant. Defendant answered by general demurrer and by specially excepting to the petition on the ground that the assessment shown by the petition did not sufficiently describe the land assessed to fix a lien thereon. Defendant also denied generally the allegations of the petition and specially pleaded that there was no valid assessment of the land because the description of the land in the assessment was insufficient to identify it. The trial in the court below without a jury resulted in a judgment in favor of plaintiff for the full amount of taxes claimed, together with interest, penalties, and all costs of suit, and for foreclosure of a tax lien upon the tract of 640 acres of land described in plaintiff’s petition, and directing that an order of sale issue to the sheriff of Newton county directing said officer to seize and sell said land as under execution to the highest bidder for cash, “but if the defendant, or their attorney, shall at any time before the sale, file with the sheriff, or other officer in whose hands this order of sale shall be placed, a written request that the property described therein shall be divided and sold in less tracts than the whole, together with a description of said subdivisions, then such officer shall sell the land in said subdivisions as the defendant may request, and in such case shall only sell as many subdivisions as near as may be to satisfy this judgment, interest and cost; and after the payment of the judgment, interest and cost of suit herein against it, the remainder of the purchase price, if any, shall be paid by the sheriff to the clerk of this court to be retained by him subject to the order of the court for a period of two years, after which time the court may order the same paid to the state treasurer, who shall hold the same in trust to be paid to the defendant in the manner prescribed by law.”

Appellant’s first assignment of error is as follows: “Because the court erred in overruling and in failing to sustain the defendant’s special demurrer to the effect that the alleged assessment for the year 1901, 1902, and 1903, for which a lien is sought to be foreclosed, does not sufficiently describe the land to entitle plaintiff to foreclosure of lien upon same.” The proposition advanced under this assignment is as follows: “Where a segregated portion of a larger survey is assessed, in order to support a judgment foreclosing the -tax lien, it is necessary that the assessment so identify the land as to enable the owner to know on what parcel taxes are demanded, and so that, in a deed conveying the land in satisfaction of the judgment, the land conveyed may be identified.”

The land upon, which the lien is sought to be foreclosed' is described in the petition as follows: “All that certain tract or parcel of land lying and being situate in Newton county, Tex., and known as the John G. Carlton 040-acre survey, abstract No. 69, certificate No. 45, patent No. 464, vol.- 2.”

The allegations in regard to the assessment are as follows: “Plaintiff avers that said taxes were duly and legally assessed for each of the years hereinbefore stated against said land and each and every tract thereof as provided by law; that the defendant owns said land or claims some right, title, or interest therein, but has wholly failed and refused to pay the said taxes or any part thereof, and same are now delinquent. Plaintiff further avers that the tax collector of said Newton county has in all things complied with the provisions of the aforesaid amended act, and all other laws relating thereto; and in compliance therewith did make a list of the lands and lots on which on the 31st day of March of each year for which the state and county taxes for the preceding year remained unpaid, ¿nd which delinquent lists include the years hereinbefore mentioned, charging against the same all taxes and penalties assessed against the owner thereof; that for each year he made said lists in triplicate and presented the same to the commissioners’ court of said Newton county for the examination and correction of any errors that may have appeared therein. Plaintiff avers that the commissioners’ court of said Newton county duly and regularly examined each of said lists for the corrections of errors and approved the same; that the said tax collector filed one copy of each of such approved lists with the county clerk of said county, retained one copy thereof to be by him preserved in his office, and forwarded one copy of each of such approved lists to the comptroller with his annual settlement reports; that each of the said lists embraced said lands and lots and includes the several sums due for taxes, as aforesaid assessed and due on said lands, being a lien upon each tract or lot, as hereinbefore described, by reason of such delinquency; and that the taxes herein above set out for which the lands and the owner thereof at the date of the respective levies and assessments were and are delinquent, and which have not been paid, is a correct list and statement thereof, and in accordance with the entry upon the tax collector’s list as corrected and approved by said commissioners’ court. Plaintiff further avers that the commissioners’ court of said Newton county caused the said corrected list to be advertised and published as required and provided for in said act, which publication was duly made and perfected prior to the institution of this suit. Plaintiff attaches a copy of said list, marked ‘Exhibit A,’ to this petition, to the extent only as same is relevant to the lands and taxes herein set forth, and refers to same, and asks that it be made a part hereof.”

Exhibit A attached to said petition shows that for the Scar 1901 there was assessed in the name of “Unknown Owner” 320 acres of the John C. Carlton, original grantee, abstract No. 69, certificate No. 45, and said 320 acres were delinquent for said year. For 1902 it shows an assessment in the name of “Unknown Owners” of 289 acres of the survey described as above by abstract and certificate numbers and name of original grantee, and that said 289 acres were delinquent for said year. It also shows for said year an assessment of 320 acres of said survey in the name of Mrs. W. H. Ford, and that said 320 acres were also delinquent for that year. For 1903 an assessment of 320 acres is shown in the name of Mrs. Ford and 320 acres in the name of “Unknown Owners,” both of which are shown delinquent. For the years 1904 and 1905 the whole 640 acres are shown to have been assessed in the name of “Unknown Owners” and delinquent for each of said years. The exhibit shows the amount of taxes, costs, and penalties due under each of said assessments, and, as before stated, the assessments for each year give the abstract and certificate number and the name of original grantee.

We think the description of the land as shown on the assessment rolls is sufficient. It contains all that the statute requires (article 7563, Rev. St. 1911), except the survey number, and the absence of that number would not prevent an identification of the survey and the land assessed, when there is no evidence that there was more than one survey in the county in the name of the original grantee of this survey. It would be impracticable to require that assessors place upon their rolls a more minute description of the land assessed by them than that prescribed by the article of the statute before mentioned, which only requires that the survey be identified and the number of acres assessed stated.

In support of the contention that ,the assessment was void because the description therein given of the land assessed was insufficient to identify it, appellant cites the cases of Morgan v. Smith, 70 Tex. 637, 8 S. W. 528, and State v. Farmer, 94 Tex. 232, 59 S. W. 541. The first of these cases involved the validity of a peremptory sale by a tax assessor of unrendered land, and in such cases our courts, in order to relieve the owner from thé loss of his property for a debt which was usually an insignificant part of the value of the property, seized upon any plausible grounds for setting such sales aside. The same strictness in the procedure leading up to the sale is not required to protect the owner when such sale is by judicial decree in a suit to which the owner is a party and can present any available defense to the enforcement of the tax lien.

In the Parmer Case a latent ambiguity in the description was developed by the evidence, which showed that there were two tracts of land in the county to which the description given, in the assessment would apply, and it could not be determined upon which tract the assessment was made. No such question is presented in this case.

Neither the assignment nor the proposition raises any question as to the sufficiency of the description given in the assessment rolls to identify the land assessed as that upon which the lien is sought to be foreclosed, but the contention is that the assessment is void because the description is insufficient to identify any land. We do not think this contention should be sustained.

It is further contended, under an appropriate assignment, that the judgment for the county taxes claimed in the petition cannot be sustained because it was not shown that a levy of such taxes was made by the county commissioners’ court. The delinquent assessment roll introduced in evidence shows these taxes.

Article 7692 of the Revised Statutes provides that the assessment rolls or the list furnished by the tax collector and corrected by the commissioners’ court (as said.rolls and list are shown to have been in this case) shall in all suits brought to recover delinquent taxes be “prima facie evidence that all the requirements of the law- have been complied with by the officers or courts charged with any duty thereunder as to the regularity' of listing, assessing, and levying all taxes therein mentioned, and reporting as delinquent any real estate whatsoever, and that the amount alleged against said real estate is a true and correct charge.” Under this provision of the statute it was not necessary for . the plaintiff to show the order of the commissioners’ court making the levy, but the inclusion of such taxes in the list or delinquent roll was prima facie evidence of the fact that they had been properly levied.

This disposes of the questions raised by appellant’s brief, and our conclusions upon these questions require an affirmance of the judgment.

Affirmed.


author: McMEANS, J.

text:
    EMERSON et al. v. PATE et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 26, 1914.)
    1. Deeds (§ 108) — Effect—Time.
    It is the duty of the court, if possible, to give effect to the intention of the maker of a deed, if it appears to have been his intention that it should take effect on his death, subject to the qualification that such intention must be gathered from the face of the instrument.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 294-308; Dec. Dig. § 108.]
    2. Wills (§ 88) — Chabacter op Instrument —Deed oe Will.
    An instrument, in form a deed, purporting to convey land to the grantor’s daughter, having been delivered and recorded as a'deed, may not be construed to be a will because of a clause that it was agreed that the deed and land should be held in the grantors’ possession as a homestead until their death.
    [Ed. Note. — For other cases, see Wills, Cent, Dig. §§ 208-217; Dec. Dig. § 88.]
    3. Deeds (§ 143) — Construction—Estate Conveyed — Statutes.
    Sayles’ Ann. Civ. St. 1897, art. 627, provides that every estate in lands which shall be granted, though other words, necessary at common law to transfer estate in fee, be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed, or devised by construction or operation of law. Held that, where a deed conveying certain real estate to the grantors’ daughter contained a clause that it should be held in the grantors’ possession and the property occupied by them as a home until their death, such clause did not reserve any estate in the grantors, but the deed passed the fee to the daughter, subject to a mere right of occupancy in the grantors as a homestead for life.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 453-455, 465-46S; Dec. Dig. § 143.]
    4. Teespass to Tey Title (§ 6) — Right op Action.
    The owner of the fee may maintain trespass to try title as against defendants, who, without title, are asserting an adverse claim to the land, in which the owner may recover judgment for the land, and also damages sustained by reason of the cutting of timber by defendants, and' an injunction restraining them from taking other timber from the land.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. § 6.]
    5. Logs and Logging (§ 2) — Right op Possession-Cutting Timbee.
    Where grantors, in a deed to their daughter, reserved only -a right to occupy the land as their home until their death, they did not, by virtue of such' reservation, enjoy the right to cut timber from the land or to. authorize others to do so.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 1-5; Dec. Dig. § 2.],
    Appeal from District Court, Sabine County ; A. E. Davis, Judge.

      Trespass to try title by Lizzie W. L. Pate and others against Vick Emerson and others. Judgment for plaintiffs, and 'defendants appeal.
    Affirmed.
    • Hamilton & Hamilton and J. W. Minton, all of Hemphill, for appellants. E. P. Padgett, of Hemphill, for appellees.

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

   McMEANS, J.

This is an action of trespass to try title, brought by Mrs. Lizzie W. L. Pate and her husband, W. F. Pate, against Vick Emerson, J. R. Harris, Robert Henry, J. A. Watson, A. D. Hamilton, J. W. Minton, and the Oulf, Colorado & Santa Fé Railroad Company, for the recovéry of 84 acres of the Elijah Clark survey of land in Sabine county, and for damages for cutting and taking timber therefrom, and for injunction restraining defendants from further cutting and removing the timber. A temporary injunction was granted in the terms of the prayer. The defendant Vick Emerson disclaimed, and the other defendants answered by general denial and plea of not guilty. The case was tried before the court without a jury and resulted in a judgment for the plaintiffs for the land, and for .§110.89 for damages, and perpetuating the injunction, from which judgment the defendants have appealed.

The material facts introduced upon the trial on the issues involved on this appeal are as follows: D. M. Cooper and wife, G. B. Cooper, were thé common source of title, and on November 29, 1904, were the owners of the land in controversy, and were then living on the land, which was a part of a tract of 500 acres owned by them. On said date they sent for L. C. Whittlesey, a justice of the peace, and had him to prepare several deeds conveying certain parcels of land out of the 500-acre tract to their children, one of which was a deed conveying to their daughter, Mrs. Lizzie W. L. Pate, the appellee, the 84 acres in controversy, which deed the said D. M. Cooper and wife duly signed and acknowledged before the said Whittlesey, as ex officio notary public. This deed was in the regular form prescribed by the statute, except that immediately following the description of the tract, and immediately preceding the clause óf general • warranty, the following words were inserted: “And it is further agreed that this deed and conveyance of the within described tract of land is to be held in our possession and occupied by us as a home until our death.” Whittlesey, not having his notarial seal with him, took the deed home with him, and after affixing his seal delivered the deed to the county clerk, who filed the same for record, and afterwards, on December 7, 1904, duly recorded the same in the deed records of Sabine county, in volume T, on pages 140 and 141. Whittlesey could not remember whether the grantors directed him to deliver the deed to the county clerk for record.

•On the 18th day of July, 1905, D. M. Cooper and wife, G. B. Cooper, executed a general warranty deed conveying to their son, G. W. Cooper, the same 84 acres described in their deed to appellee Mrs. Pate. The description given in this deed is as follows: “Eighty-four acres of land heretofore deeded by us to Lizzie W. L. Pate, on the 29th day of November 1904, and recorded in the deed records of Sabine county, Texas, in volume T on pages 140 and 141, to which said deed and the record thereof reference is here made for a complete description of this tract of land.” In this deed, immediately following this description, the following language was inserted: “Hereby revoking any and all deeds heretofore given by us because there was no consideration whatever paid to us as stated in the said deed, and said deeds were only given to express our wills at our death.” The other defendants claim through mesne conveyances under G. W. Cooper.

D. M. Cooper died in 1906, but G. B. Cooper, his widow, still lives, and in 1906, after the death of her husband, moved off of the land and has never returned.

Under an assignment of error complaining of the refusal of the court to grant their motion for a new trial, appellants present three propositions as follows: (1) “The instrument relied upon by the plaintiffs was testamentary in character, and is not sufficient to support plaintiffs’ claim for title to the land in a suit of trespass to try title;” (2) “it is the duty of the court, if possible, to give effect to the intention of the maker, if it appears to have been his intention that it should take effect on his death;” and (3) “the deed from D. M. Cooper and wife to Lizzie W. L. Pate did not, at most, convey more than an estate in futuro, and therefore would not support an action of trespass to try title and injunction during the lifetime of either of the grantors, who had reserved a life estate in the lands conveyed.”

The soundness of the second proposition may be conceded, if there be added that the intention of the maker should be gathered from the face of the instrument. The intention so determined is of primary importance.

The deed from D. M. Cooper and wife to Mrs. Pate appears on its face to be a deed,, was signed by the grantors without witnesses, and acknowledged as a deed. In the deed afterwards made by the grantors conveying the same land to G. W. Cooper, they refer to it as a deed, and refer to the book in which it had been recorded as the “deed records,” and their attempted revocation is of it as a deed and not a will. It has all of the characteristics of a deed and none of a will; and, gathering the intention of the grantors from the language of the instrument, it was a deed and not a will, and was not even testamentary in character. McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 484, 89 S. W. 284.

Being a deed, then, did it pass the title to the land in prsesenti, or did it retain the title in grantors until their death? This also must be determined from the face of the instrument. Article 627, Sayles’ Civil Statutes, provides: “Every estate in lands which shall hereafter be granted, conveyed or devised to one, although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be. not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.” It is clear, we think, that by the deed in question a fee-simple estate in the 84 acres was vested in Mrs. Pate, unless the insertion in the deed of the words, “and it is further agreed that this deed and conveyance of the within described tract of land is to be held in our possession and occupied by us as a home until our death,” has the effect to limit the grant or unless by construction or operation of law it can be said a less estate was granted.

No question is made upon this appeal of want of consideration or of sufficiency of consideration to support the conveyance, nor is there any question as to the delivery of the deed by the grantors to the grantee. For the purpose of this appeal it may be assumed that the grantee paid a valuable consideration, and that the deed was delivered by the grantors to her. Clearly the language quoted above did not in any way limit the estate granted, for the fee-simple title was expressly granted by the clear and unmistakable language of the deed itself. At most it only reserved to the grantors the right of possession as a home during the remainder of their lives, while the deed vested the absolute title in appellee in prsesenti. Under this reservation Cooper and wife did not retain a life estate, nor did the deed convey an estate to commence in futuro, but the fee-simple title immediately passed thereby, and the grantee’s rights in the land became at once superior to that of the grantors, with the single exception of the homestead right, which the grantors reserved. It follows that, as the title had passed out of D. M. Cooper and wife at the time they attempted to convey the land to G. W. Cooper, the latter acquired no title by reason of the execution of the deed to him, and therefore he could not by his deed pass title to the other defendants who claim under him.

Without discussing Mrs. Pate’s right to the possession upon the death of her father and the abandonment of possession by hex-mother, . we think it sufficient to say, in conclusion, that Mrs. Pate, as the owner of the fee, had the right as against the defendants, who are asserting an adverse claim thereto, and who are without title, to maintain an action for the recovery of the land, and for the damages sustained by reason of the taking by them of the timber, and for injunction to restrain them from taking other timber therefrom.

The title to the timber passed with the title to the land, and the right of possession reserved by the Coopers gave them no title thereto, nor right to sell or otherwise dispose of the same, and if, at the time this suit was brought and prosecuted to judgment, Mrs. Cooper still had a homestead right in the property, the title to both the land and timber being in Mrs. Pate, she had the right, not only to maintain her suit for the recovery of the land as against defendants, but to require them to respond in damages for the wrongful taking of the timber belonging to her and to restrain them from further damaging her estate in this way.

The judgment of the court below is affirmed.

Affirmed.


text:
    EMERSON et al. v. RICE et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 26, 1914.)
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Action by Mrs. Berintha H. Rice and others against Vick Emerson and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Hamilton & Hamilton and J. W. Minton, all of Hemphill, for appellants. E. P. Padgett, of Hemphill, for appellees.
   McMEANS, J.

This is a companion case to Emerson v. Pate, 165 S. W. 469, this day decided. The facts in both cases are the same, except that in this case there was a different grantee, and a different tract of land was conveyed. The recitals in the deeds from the Coopers to Mrs. Rice, and from the Coopers to G. W. Cooper, quoted in Emerson v. Pate, are the same, and the assignment of error, and propositions thereunder, and the questions of law involved in both appeals are identical.

For the reasons given in the Pate Cáse, the judgment of the court below is affirmed.

Affirmed.


author: PLEASANTS, 'C. J.

text:
    WOOD et al. v. SMITH.
    (Court of Civil Appeals of Texas. Galveston.
    March 3, 1914.)
    1. Homestead (§ 96) — 'Vendor’s Lien — Liability.
    Neither a vendee nor his grantee can acquire homestead rights as against a vendor’s lien reserved in a note given by the purchaser for part of the price.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. § 96.]
    2. Homestead (§ 96) — Deed of Trust.
    Where a deed of trust was executed as additional security for the payment of a vendor’s lien note, it was not avoided by the fact that the property was used by the purchaser and his wife as a homestead on the day the deed was executed and delivered.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. § 96.]
    3. Vendor and Purchaser (§ 231) — Notice —Innocent Purchaser.
    Where a deed of trust was executed as further security to a vendor’s lien note, and, the purchaser having made default, the ti-ustee executed a deed pursuant to a sale to the beneficiary, which was on record when the original purchaser conveyed the land to another, the latter was charged with notice of the trustee’s foreclosure deed, and was not an innocent purchaser for value.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig.' § 231.]
    4. Subrogation (§ 23) — Discharge oe In-cumbrance.
    W. and wife purchased vacant property for $1,475, and executed a vendor’s lien note for $1,450; it being agreed that $1,100 was to represent the cost of a house to be constructed by a contractor selected by the purchasers, for which the vendor was to pay. The purchasers executed to the contractor a mechanics’ lien and, after the house was built, occupied the same as their home. The $1,100 was paid by the vendor, and the purchasers executed a deed of trust to the vendor as further security for the payment of the original note, but the mechanics’ lien contract was never assigned to the vendor. Held, that the deed of trust was a valid lien, and the vendor was entitled to subrogation to the rights of the contractor under the lien contract, without reference to its assignment.
    [Ed. Note.' — For other eases, see Subrogation, Cent. Dig. §§ 60-66; Dee. Dig. § 23.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Trespass to try title by Brooke Smith against G. L. Wood and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    See, also, 141 S. W. 795.
    J. P. Parris, of Houston, for appellants.

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

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

   PLEASANTS, 'C. J.

This is an action of trespass to try title brought by appellee against the appellants G. L. Wood and wife, Edna Wood, to recover title and the possession of lot No. 4 and the south half of lot No. 3 in block No. 29 of Brooke Smith addition to the city of Houston. At the time the suit was filed, a writ of sequestration was sued out by plaintiff, and the property taken in possession by the sheriff thereunder, but it was subsequently replevied by the defendants. The defendants answered by general and special exceptions and plea of not guilty, and also specially pleaded outstanding title in Robert C. Maes. They further, by cross-action, sought to recover damages against the plaintiff for wrongfully sequestrating the property.

This is the second appeal of this cause. On the former appeal a judgment of the court below in favor of plaintiff was reversed, and the cause remanded. Vide Wood v. Smith, 141 S. W. 795. After this judgment of reversal was rendered, and before- the trial from which this appeal is prosecuted, defendants Wood and wife conveyed the property to John Bowerman- and wife, Addie Bowerman. By an amended petition Bowerman and wife were- made parties defendant. These defendants answered by plea of not guilty. The trial in the court below without a jury resulted in a judgment in favor of plaintiff , against all of the defendants for the land ,in controversy and for the sum of $450 rents.,

No statement of facts has been brought up with the record, but the trial judge, at the request of appellants, filed conclusions of fact and law. The material facts found by the trial judge are as follows:

“On the 8th day of April, 1907, the plaintiff Brooke Smith who was then the owner of and in the possession of the above-described property herein sued for, same being then vacant property, by his general warranty deed of said date conveyed said property to defendants G. L. Wood and Edna Wood for the sum of $1,475, of which consideration the sum of $25 was cash paid, and the remainder evidenced by one promissory vendor’s lien note, of even date, for the sum of $1,450, bearing 8 per cent, interest, payable annually, the principal of said note payable in installments of $25 each, one payable each month on the 8th day of month; payment of said note being secured by vendor’s lien on the premises conveyed by the plaintiff, Brooke Smith.
“At the time of said sale and conveyance it was agreed and tmderstood by and between the plaintiff, Brooke Smith, and the defendants G. L. Wood and wife that for the above consideration of $1,475 the plaintiff, Brooke Smith, should build for the defendants Wood and wife a residence upon said premises to cost $1,100; it being in their contemplation that Brooke Smith should not himself build said house, but that the same should be built by some contractor to be selected by said defendants, they to execute a mechanic’s lien upon said property to said contractor so selected, and the said mentioned sum therefor to be paid for by the plaintiff, Brooke Smith. Thereafter, on the 9th day of April, 1907, the defendants Wood and wife selected a contractor to build said residence, to wit, R. G. & E. I. Brunson, and executed and delivered to said Brunsons a mechanic’s lien upon said property to secure said $1,100; said mechanic’s lien being regular in form and duly acknowledged in accordance with law by both G. L. Wood afid Edna Wood. Said residence was built upon said premises by said Brun-sons, in accordance with the terms of their said contract, whereupon Wood and wife occupied the same as their home. No part of said $1,100 for the building of said premises was ever paid or intended to be paid by defendants Wood and wife; but the plaintiff, Brooke Smith, in accordance with said agreement and understanding between himself and the defendants Wood and wife, paid to said Brunsons the ■ whole of said contract price of $1,100 for the building of said residence, whereupon the defendants Wood and wife executed their deed of trust, dated May 11, 1907, properly acknowledged according to law by both, conveying said property to-George V. Archer, trustee, for the use and benefit of plaintiff, Brooke Smith, as further security for the payment of said $1,450 note, they at said date occupying the same as their home, which said deed of trust was duly placed of record on the 18th day of December, 1907. No assignment of said mechanic’s lien was ever made from the said Brunsons to the plaintiff, Brooke Smith.
“Defendants Wood and wife made default in several payments on said note prior to the month of October, 1909, and they made default in all payments due thereon subsequent to said month of October, 1909, whereupon Brooke Smith, after total default on said note according to its terms, duly requested said trustee, Archer, to make sale of said property under said trust deed, and the property was regularly advertised for sale, offered for sale, and sold by said trustee, in accordance with the terms of said trust deed, on the first Tuesday in -February, 1910, and said trustee thereupon executed proper deed therefor to. plaintiff; said deed being dated February 5, 1910, and was duly placed of record in record of deeds for Harris county, Tex., on the same day.
“No sum of money was tendered into this court, nor offer to do equity made by any of the defendants in this cause. The rental value of said premises, as agreed upon by the parties, plaintiff and defendants, is $12.50 for each and every month during the pend-ency of this suit.”

Upon these facts the learned trial judge based the following conclusions of law:

“The vendor’s lien -and superior title to said premises having been reserved by the plaintiff, Brooke Smith, in his conveyance of said property to the defendants G. L. Wood and Edna Wood, husband and wife, to secure the payment of said mentioned note of $1,450, the said superior title thereto remained in him until said note was fully paid and satisfied, and no title as against his superior title thus reserved passed to either the defendants G. D. Wood and wife, or John Bowerman and wife, and they could claim no homestead rights as against same. Jackson v. Ivory, 30 S. W. 716, 718; Wright v. McCampbell, 82 Tex. 388,18 S. W. 706; Jones v. Male, 26 Tex. Civ. App. 181, 62 S. W. 827; Bayless v. Standard Savings & Loan Ass’n, 39 Tex. Civ. App. 353, 87 S. W. 872; Interstate Bldg. & Loan Loan Ass’n v. Goforth, 94 Tex. 259, 59 S. W. 871; Kalteyer v. Mitchell, 110 S. W. 462; Honaker v. Jones, 102 Tex. 132, 113 S. W. 748.

“The deed of trust mentioned, executed as additional security for the payment of the purchase money vendor’s lien note, is not avoided merely by the fact that the property was used as a home upon the date on which the deed of trust was executed and delivered, and, upon due sale thereunder by the trustee in the deed of trust, title to said property passed to the purchaser, the plaintiff, Brooke Smith (Interstate Bldg. & Loan Ass’n v. Goforth, supra; Kalteyer v. Mitchell, supra), and, the deed to said purchaser being upon record at the date of the deed from Wood and wife to Bowerman and wife, no title passed to them, nor could they be innocent purchasers of the property for value.

“Notwithstanding said property was occupied as a homestead by Wood and wife at the date said deed of trust was executed, they having executed a valid mechanic’s lien upon, said property to Brunsons, property executed and acknowledged -as required by law, and the building having been placed thereon by Brunsons, and wholly paid for by plaintiff, Brooke Smith, under his agreement therefor with the defendants Wood and wife, the deed of trust executed by them to Brooke Smith to secure the payment for said note would be a valid lien upon the premises, and he would be subrogated to the rights of Brunson therein, even though there was no assignment of the mechanic’s lien from Brunsons to plaintiff, Brooke Smith (West End Land Co. v. Grigg, 93 Tex. 451, 56 S. W. 49), and in this respect this case differs from the case of Girardeau v. Perkins, 126 S. W. 633, relied on by the defendants.

“There being no tender made in this court of the amount of the purchase money owing (as evidenced by said note), the plaintiff is-entitled to recover on his superior title reserved in his said deed, if for any reason it be held that said deed of trust was not valid. Rutherford v. Mothershed, 42 Tex. Civ. App. 360, 92 S. W. 1021; Honaker v. Jones, supra.
“The writ of sequestration properly issued in this cause upon the sworn petition filed by the plaintiff herein; it containing all the necessary averments of the affidavit required by statute. Hunter v. Adoue & Lobit, 38 Tex. Civ. App. 542, 86 S. W. 622; Cleghorn v. Boxley, 123 S. W. 438.
“From -the foregoing I conclude that plaintiff is entitled to recover as prayed for; and it is so ordered.”

These conclusions of law sufficiently answer each and all of the assignments presented in appellants’ brief, and it is unnecessary to add anything thereto.

It follows that each of the assignments should be overruled, and the judgment of the court below affirmed; and it has been so ordered.

Affirmed.


author: JENKINS, J.

text:
    ROBERTS et al. v. HART.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 25, 1914.
    Rehearing Denied March 25, 1914.)
    1. Evidence (§ 452) — Parol Evidence — Identification of Subject-Matter — Location of Calls.
    Even though there is no apparent ambiguity upon the face of a grant, parol evidence is admissible to locate the calls upon the land, and to show whether they include the land in controversy.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2093-2101; Dec. Dig. § 452.]

      2. Evidence (§ 452) — Parol Evidence — CONSTRUCTION OF LANGUAGE — LATENT AMBIGUITY.
    Wien all the calls in the field notes of a survey lead to the same,result, there is no ambiguity, and the location must be determined by such calls as a matter of law, but, when the evidence shows that the calls lead to different results, there is a latent ambiguity, and some of the calls must be followed and others rejected.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2093-2101; Dec. Dig. § 452.]
    3. Boundaries (§ 37) — Establishment — Sufficiency of Evidence — Location of Corner.
    Evidence held to show that the first call in the description of a tract of land which read. “Beginning at a stake set on the extremity of the sand bar” of a certain river, located the beginning point at the extremity of the bar furthest from the river.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.]
    4. Words and Phrases — “Extremity.” “Extremity” means the furthest point.
    5. Boundaries (§ 48) — Establishment—Ac-UIESOENCE IN LOCATION.
    Even where there is no estoppel, long acquiescence as to the location of a corner or line is entitled to weight, especially where the owner lives upon the land.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 232-242; Dec.’ Dig. § 48.]
    6. Boundaries (§ 37) — Construction—Particular Call.
    Where a deed called for a point of beginning at the extremity of a sand bar of a river, “thence up the river with the meanders,” and the courses and distances gave the meander of the sand bar, and not that of the river, the deed will be construed as referring to the meanders of the sand bar.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.*]
    7. Boundaries (§ 37) — Establishment—Rejection of Call.
    Evidence held to require the rejection, in the description contained in a deed, of a call for a corner made for a former grantee of the same grantor.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.]
    8. Deeds (§ 38) — Certainty of Description.
    A deed describing the land conveyed as all the land upon the west bank of. a river not theretofore sold by the grantor and not embraced within the lines of certain surveys, and, in fact, including all the land vacant on said west side of the river, commencing at a certain corner, and running thence down the river to a lower corner of a certain survey, and including the islands in the river, is sufficiently certain, under the maxim that “that is certain which can be made certain,” to be admissible in evidence.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action between Cleopatra Roberts and others and Fred Hart. From a judgment in favor of Fred Hart, Cleopatra Roberts and others appeal.
    Affirmed.
    D. H. Doom and Fiset, McClendon & Shelley, all of Austin, for appellants. Hart & Patterson, of Austin, for appellee.

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

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

   Findings of Fact.

JENKINS, J.

The following map will aid-in understanding the facts in this case:

owner of a portion of the Del Valle grant, including the land indicated by the above map. April 12, 1852, Horton executed to Hugh Tinnin a'deed to 400 acres of the land described as follows: “That certain tract or parcel of land lying and Being situated in the county of Travis on the west bank of the Colorado river below the city of Austin, being part of the 11-league grant made by the government of Coahuila and Texas to Santiago del Valle and described according to the survey made thereof as' follows, to wit: Beginning at a stake set on the extremity of the sand bar of the Colorado river at the foot of the high river bottom, and corner made for Mrs. Chalmers, from which a cluster of willow trees brs. S. 36 W. 4 vrs.; thenc^ up the river with the meanders W. 400 vrs.; S. 60 W. 343 vrs. a stake and mound at the head of a sand bar, from which a sycamore 10 in. dia. marked X brs. S. 17 W. 13 vi;s., and an elm 10 in. dia. marked If brs. S. 43 W. 20 vrs.; thence S. 30 W. 3,220 vrs. to a stone mound in a flat about 10 vrs. below the junction of two drains; thence S. 60 E. 689 vrs. stake in the bank of a drain and corner of Mrs. Chalmers tract, from which a double elm marked H. brs. N. 18 W. 12 vrs.; thence N. 30 - 3,420 vrs., with said Mrs. Chalmers tract, to the place of beginning, containing in all 400 acres.”

It is apparent from the face of this deed that the closing call, “N. 30 - 3,420 vrs. with said Chalmers tract to the place of beginning,” was intended to read “N. 30 E.,” as no other course would lead to the beginning, whether such beginning be at the place claimed by appellant or at the place claimed by appellee. It is also apparent that the second call, “S. 60 W. 343 vrs.,” was intended to be “N. 60 W.,” as “N. 60 W.,” the distance called for, will balance both the northings and southings and the eastings and westings, while the call “S. 60 W.” gives an excess of 343 vrs. in the southings. That is to say, if the third corner mentioned in the field notes, and which is identified by the elm tree called for, be taken as the beginning corner, and the survey be run from thence, courses and distances as called for in the field notes, the last line, “S. 60 W.,” as called for in the field notes, will reach a point 343 vrs. due south of the beginning point, and not on any line of the survey; whereas, if such line be run- “N. 60 W.,” the distance called for in the field notes, it will reach the assumed beginning corner at the elm tree.

The issue in this case is as to whether or not the deed above set out includes the land in controversy. If so, the judgment of the trial court should be reversed; if not, the judgment should be affirmed.

Appellee claims under a deed made by A. G. Horton to James B. Shaw and Jas. H. Matthews September 1, 1856, wherein is conveyed: “That certain tract or parcel of land lying on the Colorado river below the city of Austin, in said county of Travis, being all the land binding immediately upon the west bank of the Colorado river not heretofore sold by me and not embraced within the true lines of any surveys heretofore made for the tracts of land owned by Hugh Tinnin, Dennis Walsh, the heirs of Mrs. Chalmers and Thomas E. Chapman, and in fact including, all the land that may be vacant on said west side of the river, commencing at the lower corner of a tract owned by Samuel Stone, and running thence down the river with its meanders to the lower corner of said Horton survey as designated in the field notes thereof on the Colorado river, and including all the islands in the river rightfully belonging to the said Horton survey and lying between the points above expressed.”

If, however, the land described in this deed, and marked “sand bar” on the above map, was included in the prior deed from Horton to Tinnin, the grantees obtained no title, and appellant, as one of the heirs of Tinnin, is entitled to recover in this suit. Appellee by mesne conveyances became the owner of the Shaw and Matthews title to the lower half of the “sand bar” tract, and Mrs. Tinnin, the mother of Mrs. Roberts, in 1878 purchased the Shaw and Matthews title to the upper half of the “sand bar tract.” The Shaw and Matthews title has never been called in question by Tinnin or his heirs until after this suit was filed, which was originally a suit for a right of way by necessity.

If a survey be begun at the original north- ’ west corner of the Tinnin tract, marked on the map “elm tree,” and run thence S. 30 W. 3,220 vrs. as called for in the Tinnin field notes, and thence S. 60 E. 708.9 vrs. an excess of 19.9 vrs., the original southeast corner of the Tinnin tract will be reached; thence N. 30 E. 3,420 vrs. as called for in the Tinnin field notes will reach the top of the slough bank; continuing 33 varas will reach the opposite side of the slough and the edge of the sand bar, the point- marked on the map “iron pin at willow tree”; thence west 423 vrs. and N. 60 W. 343 vrs. will follow the course of the slough and sand bar, and close the survey at the elm tree corner. If the line from the southeast corner of the Tinnin tract be continued to the river,'there will be an excess in this line of about 943 vrs., and,’ if from the point thus reached the meanders of the river be followed to the point on the river coincident with the extension of the west line of the Tinnin tract, this point will be 278.3 vrs. N. 30 E. of the elm tree corner, and there will be an excess in the aggregate length of the calls for the north line of the Tinnin tract of about 440 vrs.

From these facts we find, as a fact, that the northeast corner of the Tinnin tract is at the iron pin at the willow tree; that the Tinnin deed does not include the sand bar tract, but that the division line between the Tinnin tract and the sand bar tract is, as found by the trial court, beginning at said iron pin, and running thence west 423 vrs. and N. 60 W. 343 vrs. to the elm tree corner.

Opinion.

The appellant contends that the unambiguous call in the deed from Horton to Tin-nin fixes its beginning corner on the bank of the Colorado river, and that it runs thence up the river with its meanders to the point where the west line of said tract reaches the river, and that the court erred in admitting any testimony to the contrary.

Though there be no apparent ambiguity upon the face of the grant, at what particular place the calls locate the grant can be ascertained only by parol evidence. For instance, a patent to a section of land may call for natural or artificial monuments at each of its corners. Whether or not those monuments can be found and identified and, if so, whether the lines located by such monuments include the land in controversy cannot be told by reading the grant, but only from the oral testimony of those who know the facts; hence testimony as to such facts is always admissible. The lines of a survey as originally run are its boundaries as a matter of law, but where such lines are is a matter of fact to be ascertained by oral testimony showing the application of the calls in the grant to the facts found on the ground. Bolton v. Lann, 16 Tex. 112; Bass v. Mitchell, 22 Tex. 294; Douthit v. Robinson, 55 Tex. 69; Bently v. Napier, 122 S. W. 182; Colcord v. Alexander, 67 Ill. 583; Reamer v. Nesmith, 34 Cal. 626; Strickland v. Draughan, 88 N. C. 317; Greeley v. Weaver (Me.) 13 Atl. 575.

When all of the calls in the field notes of a survey lead to the same result, there is no ambiguity, and the location must be determined by such calls as a matter of law, and neither the court nor the jury are at liberty to disregard them; but, when the evidence shows that such calls lead to' different results, a latent ambiguity is made to appear, and some -of the calls will be made to control and others will be rejected as having been inserted by mistake. Bassett v. Martin, 83 Tex. 339, 18 S. W. 587; Sloan v. King, 33 Tex. Civ. App. 541, 77 S. W. 48.

Appellant insists that the deed to Tin-nin calls for the Colorado river and its meanders, and that these are the controlling calls. There are no hard and fast rules as to what calls in a grant will control. Booth v. Upshur, 26 Tex. 70. The rule as to the comparative dignity of calls is a rule of logic rather than of law. But we need not here discuss these rules, as we do not think that the Tinnin deed calls to begin on the Colorado river. The call is: “Beginning at a stake set on the extremity of the sand bar of the Colorado river.”

Extremity means furthest point. In this instance we think it means at the furthest point "from the river. We are led to this conclusion for the reasons: First. If the corner had been made on the river, there is no apparent necessity for having mentioned the sand bar; and, if it had been mentioned as a matter of description, there should also .have been a call for the stake to be on the bank or edge of the river. Second. The call is for the stake to be “at the foot of the high river bottom.” The undisputed evidence is that the slough bank at the time the deed was made was from 10 to 20 feet high on the south, but there was no bank on the north. The land to the south of the slough has been known from the time of the-execution of the Tinnin deed to the present as “the high river bottom,” and the land to-the north of the slough as the “sand bar.” Third. A cluster of willows is called for as a bearing; a growth of willows and an old willow stump are found at the point marked “iron pin” on the map, which, is at the outward extremity of the sand bar. Fourth. From this, point, by correcting the error of S. 60 W. so as to read N. 60 W., and extending the first call to 423 vrs., the N. E. corner-of the tract at the elm tree will be reached; whereas, if the meanders of the river be run, there will be an excess of some 440 vrs. in the aggregate length of the meanders, and the point reached will be 278.3 vrs. N. 30 E. from said northeast corner. Fifth. To locate the beginning corner at the iron pin, the survey will contain approximately the number of acres, called for; while to locate the beginning corner on the river will give an excess of about 100 acres. Sixth. From the southeast corner of the Tinnin survey to the iron pin there is an excess of only 33 vrs., while, if this line be extended to the river, there will be an excess of about 943 vrs. Seventh. Tinnin located his home near the-elm tree corner soon after purchasing the-Tinnin tract, and he and some of his family have lived there from that time to the present day. None of them ever claimed that his deed included the sand bar until after this suit was brought. On the contrary, Horton sold this sand bar tract to other parties in 1856, who have continuously claimed it since-that time, and Mrs. Tinnin bought the upper half of it under this title in 1878. In the partition of the Tinnin estate, this place-where the iron pin is was recognized as the-beginning corner of the Tinnin tract, and Mrs. Roberts herself pointed out this place to a surveyor who was surveying for her as-the beginning corner.

There is no estoppel in this case, but long acquiescence as to the location of a corner or line is entitled to weight upon the theory that every one is presumed to know the boundaries of his land, especially when-he lives upon it.

It will be observed that the calls, from the beginning corner in the Tinnin deed do not specifically call for the meanders of the-river. The call is: “Thence up the river with the meanders.” The courses and distances given meander the sand bar, and we think that its meanders, and not those of the river, are intended.

It is true that the beginning corner calls for “a corner made for Mrs. Chalmers,” and no corner is called for at this place in the Chalmers deed. The slough at this point.' turns eastward, and the surveyor who run •out the Tinnin tract may have supposed that one of her corners was at this place. However this may be, this call, in the light •of the evidence, must be rejected..

We overrule appellants’ assignment to the effect that the court erred in admitting in evidence the deed from Horton to Shaw and Matthews, for the reason that the same was void for uncertainty as to the land conveyed. It was sufficiently certain under the maxim that “that is certain which can. be made certain.” This deed furnishes data by which the land therein conveyed can be definitely ascertained.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.


text:
    EDWARDS v. McGUIRE.
    (Court of Civil Appeals of Texas. Galveston.
    March 16, 1914.)
    1. Trial (§ 388) — Findings of Fact and Conclusions of Daw — Failure to File-Reversal.
    Failure of the trial court to file its findings of fact and conclusions of law, when seasonably requested to do so, requires a reversal when a statement of facts is not preserved or brought up with the transcript.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 908-911, 915; Dec. Dig. § 388.]
    2. Appeal and Error (§ 548) — Record-Bill of Exceptions — Contents.
    A bill of exceptions to the exclusion of testimony contained in an offer of proof should show the proof that exceptant could have made had he been permitted to do so.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    3. Justices of the Peace (§ 71) — Holding Court — Establishment by County Commissioners.
    Const, art. 5, § 19, provides that justices of the peace shall hold their, courts at such times and places as may be provided by law, and Rev. St. 1911, art. 2241, declares that county commissioners’ courts shall fix the times and places of holding the various justice courts in their counties. Article 2299 declares that justices of the peace shall hold the regular terms of their courts at their respective offices at such times as may be prescribed by the commissioners’ court of the county. Held, that it is the duty of the county commissioners at the time of the original institution and organization of a justice’s court to designate the time and place for holding the same, and a failure to do so is fatal to the justice’s jurisdiction, though it is not necessary that the time and place for holding court should be fixed at the coming into office of each new incumbent.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 232, 233; Dec. Dig. § 71.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by C. T. McGuire against C. E. Edwards. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    B. F. Pye, of Beaumont, for appellant.

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

   McMEANS, J.

C. T. McGuire brought this suit against C. E. Edwards in the justice court of precinct No. 1, Jefferson county, and upon a trial in that court recovered a judgment for $124.73. Edwards appealed to the county court, where upon a trial before the court without a jury judgment was rendered for McGuire for $155.60. From this judgment Edwards brings this appeal. No statement of facts is brought up with the transcript.

At the proper time and in a proper manner appellant requested the court to file its written findings of fact and conclusions of law, and this the court failed to do, to which failure appellant timely took a bill of exceptions. That the failure of the court to file its findings of fact and conclusions of law when seasonably requested to do so, when a statement of facts is not preserved or brought up with the transcript, requires a reversal, has been too often decided to require discussion or citation of authorities.

When the case reached the county court, appellee, plaintiff there, filed written pleadings in lieu of the oral pleadings relied on in the justice court in showing his cause of action. Appellant excepted thereto upon the ground that the pleadings filed in the county court stated a different cause of action from that pleaded in the justice court. We have examined the pleadings, both those filed in the county court and those in the justice court as shown by a notation on the docket of the justice of the peace, and our conclusion is that both pleadings set up substantially the same cause of action. The .third assignment raising the point is overruled.

In the county court the defendant pleaded in abatement the want of jurisdiction of the county court upon the ground that the justice court was not, at the time of the trial of the case therein, a legally constituted justice court under the Constitution and laws of this state, because no time and place for the holding of said court had ever been fixed by the county commissioners’ court of Jefferson county; that, the justice court never having been legally instituted, no valid judgment could be rendered therein; and that therefore the county court was without power to hear and determine a case brought therefrom on appeal, the amount involved being below the original jurisdiction of the county court.

Appellant offered to prove the facts to substantiate the plea in abatement, but the court declined to hear the proof, and overruled the plea. To this action of the court the appellant took a bill of exceptions, but his bill fails to enlighten us as to what proof he could have made had he been permitted to do so. Whether the court committed error in refusing to receive the evidence tendered in support of the plea, assuming that the allegations thereof could have been proved, depends on whether the failure of the commissioners-’ court to designate a time and place to hold the justice court would deprive that court of power to hear and determine suits cognizable in such courts.

In Koehler v. Earl, 77 Tex. 188, 14 S. W. 28, the only question presented arose upon an assignment of error that assailed the validity of a judgment of a justice of the peace for whose court it was contended no time and place for holding had ever been fixed by the commissioners’ court. In passing upon this assignment the court says: “If the facts sustain the statement made in the assignment that no time and place had ever been fixed as required by law for O. M. Barnes to hold his courts as justice of the peace, then the assignment must be sustained and judgment reversed; for the Constitution (article 5, § 19) provides that justices of the peace ‘shall hold their courts at such times and places as may be provided by law,’ and article 1514 of the Revised Statutes [Rev. St. 1911, art. 2241] provides that county commissioners’ courts ‘shall fix the times and places of holding the various justice courts in their counties,’ and article 1547 of the Revised Statutes [Rev. St. 1911, art. 2299] was amended by the act of 1881 (Gen. Laws 17th Leg. p. 10) so as to read as follows: ‘Justices of the peace shall hold the regular terms of their courts at their respective offices at such times as may be prescribed by the commissioners’ court of the county.’ ”

So far as we have been able to ascertain, this is the last expression of the Supreme Court on this subject, and its opinion does not seem to have been limited or criticised by any subsequent decision. We think therefore the court should have heard the proffered proof, and if it sustained the plea the case should have been dismissed for want of jurisdiction. But the proof should clearly warrant a finding that no time and place had ever been fixed by the commissioners’ court for the holding of the justice’s court. It is not necessary to fix the time and place at the coming into office of each new incumbent, but it is sufficient if the commissioners’ court at the time of the original institution and organization of a justice court then designates a time and place of holding such court. If this has been done, the constitutional and statutory requirements in this regard have been fulfilled. As said in the case cited: “The time once fixed continued so until changed by proper authority. The court continued without interruption, though there may have been frequent changes in the individuals who filled the office of justice of the peace, and it was not necessary that the time for holding the court should be fixed again on the accession of every new justice of the peace.”

The judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.