author: WILLSON, O. J. HODGES, J.

text:
    PETTY v. WILKINS.
    (No. 1579.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 1, 1916.
    On Motion of Appellee for a Rehearing, Nov. 23, 1916.
    Dissenting Opinion, Nov. 25, 1916.)
    1. Boundaries <&wkey;36(5) — Evidence — Surveys — Report to Commissioners’ Court.
    It was error to admit against plaintiff’s objection as evidence of a boundary line a report to the commissioners’ court of a survey, where neither plaintiff nor any one under whom he claimed had anything whatever to do with the report, since his rights could not be affected thereby.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 171-176; Dec. Dig. &wkey;36(5).]
    2. Boundaries <&wkey;40(l) — Evidence—Question for Jury.
    Evidence held to make location of boundary line a question for the jury.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-203; Dec. Dig. <&wkey;40(l).]
    3. Frauds, Statute of <§=^103(2) — Contracts for ¡Sale of Land — Option—“Accepted in Writing.”
    An instrument, leasing land for one year and also giving exclusive option to lessee during the year, although signed by both parties, was not an option accepted in writing, and hence was not enforceable in equity, although within the year the lessee undertook to act on the option, since what the lessee accepted by signing the instrument was not lessor’s offer to sell him the land, but lessor’s agreement that he should have the exclusive privilege during the year to purchase it if he should so desire.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 195; Dec. Dig. <@=»103(2).]
    On Motion of Appellee for Rehearing.
    4. Specific Performance <&wkey;97(l) — Performance by Pbaintiff — Option—Tender of Payment.
    Where the title of the giver of an option on land was defective as to part, the option holder was not entitled to specific performance of the option as to the part to which title was good, where he merely expressed a willingness to buy that part and pay therefor a' sum estimated to be its pro rata value, and did not either pay or tender its proportionate value, at the price of the entire tract.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 286-290, 294, 295; Dee. Dig. <&wkey;>97(l)J
    5. Deeds <&wkey;38(l) — Description — Uncertainty.
    A deed, although describing land uncertainly, was not'void for uncertainty, where it also recited that the place was “known as the place built on by Thos. Davis and lastly occupied by G. N. Breckenridge,” since from such description the land might be identified by extrinsic evidence.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 65; Dec. Dig. &wkey;38(l).]
    Hodges, J., dissenting in part.
    Appeal from District Court, Franklin County; H. F.- O’Neal, Special Judge.
    Action by S. A. Petty against J. M. Wilkins, in which defendant brought cross-action. From judgment for defendant, plaintiff appeals.
    Reversed and remanded for new trial.
    For a valuable consideration to be paid to him, appellant, by an instrument dated January 3, 1911, leased certain land situated in the town of Mt. Vernon to appellee for a period of one year from that date, for use by appellee as a site for an electric light plant, and by the same instrument agreed to sell the land to appellee for $400 if the latter should desire to purchase it during the term of the lease. Before the expiration of the lease appellee, having satisfied himself that other parties than appellant owned part of the land, purchased such part of them, ^nd then demanded of appellant a conveyance of tlie part he owned, offering to pay him' therefor a sum representing its ’ value at the rate of $400 for the entire tract. Instead of complying with this demand, appellant commenced and prosecuted this suit against appellee to try the title to the tract he had leased to appellee. Appellee by a cross-action sought, as to the part of the tract owned by appellant, to enforce a specific performance of his contract to convey. The trial resulted in a judgment, in conformity to the verdict of a jury, in appellee’s favor on the issue of title as to part of the tract, and in his favor for a specific performance by appellant as to parts thereof found to belong to appellant'. Much of the testimony •of witnesses offered for the purpose of identifying the land in controversy was with reference to maps and plats admitted as evidence, but omitted from the record sent to this court. As a consequence of this omission this court has been subjected to much greater labor than it otherwise would have been in the effort to understand the testimony referred to, and besides, and what is more serious, feel that they have not understood all of it and may have misunderstood part of it. Where, as is the ease here, the rights of' parties to an appeal depend upon the location on the ground of corners and lines of surveys relied upon to identify tracts and parts of tracts of land they respectively claim, it is of the utmost importance to an understanding by an appellate court of the testimony of witnesses offered to prove the location of such corners and lines on the ground that maps and plats referred to by them and admitted as evidence should be included in the record on appeal, and the parties to the appeal should see to it that they are included.
    R. T. Wilkinson and H. L. Wilkinson, both of Mt. Vernon, for appellant. S. D. Goswick, of Mineral Wells, L. E. Keeney, of Texar-kana, and R. E. Davenport, of Ghickasha, Okl., for appellee.
   WILLSON, O. J.

(after stating the facts as above).

It appears from a deed in the record that L. Collins conveyed to W. H. C. Davenport blocks 10 and 11, in the S.E. corner of the Mt. Vernon :town tract, and a strip •of land 20 yards wide south of and adjoining said block 10 and extending east and west the length of its south boundary line. The rights •of the parties, it seems, depended upon the location on the ground of the south boundary line of the strip of land referred to, and the location of its said boundary line depended upon the location on the ground of the ¡south boundary line of said block 10, which was also the south boundary line of the town tract. Over appellant’s objection the court permitted appellee to introduce as evidence a report made by Cowan and King to the commissioners’ court of a survey of the town tract and of lots and blocks into which it had been subdivided, made by them at the instance of said court. This report and a plat which was attached to and formed a part of it, but which is not in the record, it seems showed the south boundary line of block 10 and the town tract to be 74 feet farther south than the distance called for in the field notes of the town tract, if respected by the surveyors, would have placed same. Appellant insists it was error to admit the report to the commissioners’ court as evidence, and further insists that it was error for the trial court to instruct the jury, as he did, that the south boundary line of the Davenport land was located 20 yards south of said block 10, “as shown by the map or plat of said town by the survey made by Cowan and King.” W,e think both contentions should be sustained. Neither appellant nor any one under whom he claimed had anything whatever to do with the survey and report thereof made at the instance of the commissioners’ court, and his rights could not be affected by it. Therefore the report was inadmissible as evidence against him. It appeared from testimony that, in the survey made at the instance of the commissioners’ court, Cowan and King located the south boundary line of the town tract and block 10 74 feet farther south than the-distance called for in the field notes of the town tract, in order to give lots and blocks shown by an old plat they used in making the survey to be subdivisions of the town tract the dimensions north and south given them on the plat. When and whose instance the old plat was made was not shown. In this condition of the testimony the trial court should have submitted to the jury for determination a question as to the location of the south boundary line of the Davenport land, instead of instructing them as a matter of law that it was 20 yards south of block 10 as located by the Cowan and King survey.

The court instructed the jury to find in appellee’s favor as to a part of the land on his cross-action for a specific performance of appellant’s contract to convey same. The objection urged to the instruction is that it was unauthorized by the testimony because it did not appear that appellee had in writing accepted the option given him in the contract. Under the holding in Patton v. Rucker, 29 Tex. 408, which, though ignored by the Court of Civil Appeals in Anderson v. Tinsley, 28 S. W. 121, it seems has never been overruled, the objection is believed to be a meritorious one. In the Rucker Case, followed by the Court of Civil Appeals in Foster v. Land Co., 2 Tex. Civ. App. 505, 22 S. W. 260, Daugherty v. Leewright, 174 S. W. 841, and other cases, the Supreme Court said:

“In order to their enforcement by the courts, * * * the.sale of land must be evidenced by writing. When the writing relied on contains within itself all the particulars of a concluded contract, it is sufficient if it be signed by the party against whom it is sought to be enforced ; but if, instead of being evidence of a concluded agreement, whatever may be its form, it is really a mere proposal, such a writing is turned into an agreement, and can be enforced in equity by the other party only by bis acceptance of it in writing.”

And see Ansley Realty Co. v. Pope, 105 Tex. 440, 151 S. W. 525; 1 Warvelle on Vendors, § 125 et seq.

Other assignments, not in effect disposed of by what has been said, and also appellee’s cross-assignments, are overruled.

The judgment is reversed, and the cause is remanded for a new trial.

On Motion of Appellee for a Rehearing.

It is insisted we were wrong in holding the instruction to find in appellee’s favor as to part of the land, on his cross-action for a ■specific performance, was unauthorized because “it did not appear that he had in writing accepted the option given him in the contract.” In support of his contention ap-pellee asserts that:

“The testimony is undisputed that there was a written contract for the sale of this land, signed by both parties, and within the time fixed by the contract the appellee accepted the option in the contract and offered to perform.”

The facts as shown by the record are: That appellee signed the instrument, evidencing the lease of the land to him by appellant for a term of one year; that by this instrument appellant agreed that appellee might—

“have an option on said lot for one year, and agrees that the party of the second part [ap-pellee] may have the exclusive privilege of buying said lot at any time within one year from this date [January 3, 1911] by paying him [appellant] the sum of $400; and should the said party of the second part pay or tender him the said sum of $400 within said one year, he [appellant] hereby agrees to make said party a warranty deed conveying to him said lot by a good and perfect title.”

That by said instrument appellee on his part agreed:

“That he will accept the terms of this contract and will furnish the party of the first part [appellant] electric lights in his residence for the term of said lease and accept the use of the lot as before mentioned as payment in full for said lights.”

That appellee afterwards ascertained that appellant owned only a part of the land covered by the lease; and-within one year from its date he advised appellant he was willing to buy that part and pay him for same the sum of $90, which he (appellee) estimated was its value on the basis of the entire tract being worth $400.

We were, and are, of opinion the instrument did not show a concluded contract between the parties, because it did not appear therefrom that appellee had accepted appellant’s offer to sell him the land, but was left free during the time specified to accept it or not as he might choose. As it was not pretended that appellee ever afterwards within that time in writing accepted appellant’s offer, we thought, and think, the rule announced in Patton v. Rucker, 29 Tex. 408, applied to the case. The writing evidenced no more than a “mere proposal” on the part of appellant to sell the land to appellee, and it was not, as the rule required it must have been, to entitle appellee to the relief he sought, “turned into an agreement by his (appellee’s) acceptance of it in writing.” What appellee “accepted” by signing the instrument was not appellant’s offer to sell him the land, but appellant’s agreement that he should have “the exclusive privilege” during the life of the lease to purchase it if he should wish to do so.

As supporting his contention appellee cites Morris v. Gaines, 82 Tex. 257, 17 S. W. 538, Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227, Hazzard v. Morrison, 130 S. W. 244, Black v. Hanz, 146 S. W. 309, and cases decided in other jurisdictions. It is not doubted that the weight of authority outside this state supports the proposition that, appellant’s offer being in writing, appellee could maintain a suit for a specific performance, notwithstanding his acceptance thereof was oral. But, as we understand it, such is not the rule in this state, and the Texas cases cited d’o not hold it is. All of them on their facts are plainly distinguishable from this case, on grounds indicated in Foster v. New York & Texas Land Co., 2 Tex. Civ. App. 505, 22 S. W. 262, cited in the opinion on this appeal.

But if the rule in this state were otherwise, and as appellee contends it is, the instruction of the trial court to find in appellee’s favor on his cross-action for a specific performance would have been unauthorized, because it did not appear that appellee, within the time specified, either paid or tendered to appellant the proportionate value, at the price of the entire tract, of the part thereof owned by appellant. As stated above, all appellee did was to express t'o appellant a willingness to buy that part and pay him therefor a sum he estimated to be its pro rata value.

It is also insisted that we erred when we overruled appellant’s cross-assignment, in which he complained of the action of the trial court in admitting as evidence, over his objection thereto that it was void for lack of a sufficient description of the land it purported to convey, the deed from L. Collins to R. J. Stephenson, dated March 24, 1869. The deed was not copied into the record sent to this court, but is’ referred to therein as follows:

“Deed from L. Collins to R. J. Stephenson, dated March 24, 1869. Recorded in vol. 3, p. 390, Deed Records of Franklin County. Filed for record April 5, 1869. A certain tract or parcel of land better known and described as follows, to wit: Beginning on the east boundary line of a hundred and sixty acre survey made by virtue of the headrigbt certificate of Joseph Stone a stake, thence west 168% vrs. a stake, thence south 1392/n varas a stake, thence east 168% vrs. a stake, thence north 1392Ai to the place of beginning. Also known as the place built on by Thos. Davis and lastly occupied by G. N. Breekenridge, containing four (4) acres being a part of said Stone survey. Together with all and singular the appurtenances thereto belonging.”

The specific grounds upon which it is claimed the description was insufficient are that the land in controversy was a part of the Joseph Sloan survey, whereas it was described in the deed as a part of the Joseph Stone survey; that it did not appear from the deed in what county and state the land it purported to convey was situated; and that “the beginning in the description was not sufficiently located in order to describe any land.” We were, and are, of opinion the deed was not on its face void for uncertainty in the description of the land it purported to convey, because it appeared therefrom that the land therein described might be identified as the land in controversy by proof showing that it wa's “known as the place built on by Thos. Davis and lastly occupied by G. N. Breekenridge.” The rule is that a deed is not void for uncertainty unless on its face the description cannot by extrinsic evidence, be made to apply to any definite land. Waterhouse v. Gallup, 178 S. W. 773; Roberts v. Hart, 165 S. W. 473.

The motion is overruled.

HODGES, J.

(dissenting in part). I concur in the disposition made of this case, but do hot agree to all of the grounds upon which it is based. After quoting a portion of a written contract relied on by the appellee, the Chief Justice in his opinion on a motion for a rehearing uses this language:

“We are of the opinion that the instrument did not show a concluded contract between the parties, because it did not appear therefrom that the appellee had accepted appellant’s offer to sell him the land, but was left free during the time specified to accept it or not as he might choose.”

I am unable to agree to that construction of the Contract referred to, or concur in the holding that the contract was not one which could not have been enforced because no written acceptance had been made during the period mentioned. Our statute, which prescribes the requirements of a valid contract for the sale of land, requires that such instruments be in writing, and be signed by the party to be bound. A contract by which an owner of land grants to another the option or privilege to purchase within a stated period, if supported by a consideration, is valid and enforceable, although the party to whom the option is given is not bound to purchase. National Oil & Pipe Line Co. v. Teel, 95 Tex. 586, 68 S. W. 979. There is no question of a want of consideration in this case. Appellant was the owner of the land and for a sufficient consideration bound himself to this effect:

“Should said party of the second part [appel-lee] pay or tender to him [appellant] the said: sum of four hundred dollars within said one year, he [appellant] hereby agrees to make said party a warranty deed conveying to him said lot by a good and perfect title.”

This agreement was signed by both parties. The portion of our statute of frauds which relates to contracts for the sale of land was enacted for the purpose of providing written evidence of the obligations which the parties assumed. The statute is complied with when in addition to a description of the subject-matter 'of the contract the writing contains the promises and agreements to be performed in the future. It is unnecessary to reduce to writing a stipulation which binds no one. In the contract before us the vendor for a presumed consideration which had already passed sold to the vendee an option or privilege of purchasing for cash the land described and at a specified price. The sale contemplated being for cash, and there being no agreement to purchase, the vendee promised nothing. Hence there was nothing to be reduced to writing.

I do not regard the cases referred to in the majority opinion as being in conflict with what I have said. The practical importance of this dissent is not such as to justify any extended discussion. I think the following cases are in harmony with what I have said: Killough v. Lee, 2 Tex. Civ. App. 260, 21 S. W. 970; Anderson v. Tinsley, 28 S. W. 121.
      <S=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    LANDON v. WM. E. HUSTON DRUG CO. et al.
    (No. 8462.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 18, 1916.)
    1. Bills and Notes <&wkey;365(l) — Good-Faith Pukchase.es.
    A purchaser’ of notes before maturity for valuable consideration without notice of any defense or defect can recover thereon, though the maker has a good defense as against the original payee.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 944, 958; Dec. Dig. <&wkey;> 365(1).]
    2. Bills and Notes &wkey;>334 — Good-Faith Purchasers.
    Notice of defects in notes acquired after purchase by purchasers in good faith without notice does not affect the holder standing as a bona fide purchaser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 812, 813; Dec. Dig. <&wkey;> 334.]
    3. Bills and Notes <&wkey;342 — Good-Faith Purchasers — -Evidence.
    The mere fact that the edge of notes showed perforations, indicating that they might have been attached to other paper, is not sufficient to show notice of defects or defenses against them.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 830-841; Dec. Dig. 342.]

      4. Bills and Notes <&wkey;537(l) — Evidence— Questions eor Jury.
    Evidence held to require peremptory instruction for plaintiff in action by holder of notes upon such notes against the maker and in-dorsers.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862, 1871-1875, 1891-1893; Dee. Dig. &wkey;537(l).]
    Appeal from Cooke County Court; R. V. Bell, Judge.
    Action by A. C. Land on against the Wm. E. Huston Drug Company and others. Judgment for defendants, and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    Garnett & Garnett and James Ralph Bell, all of Gainesville, for appellant. Culp, Murphy & Culp, of Gainesville, for appellees.
   BUCK, J.

After a careful examination of the record in this case, including the statement of facts, we have reached the conclusion that plaintiff’s tendered peremptory instruction should have been given by the trial court. If plaintiff was the purchaser of the notes given by defendants to the Vernon Advertising & Manufacturing Company, before maturity and for valuable consideration, and without notice of any defense or defect, he was entitled to recover thereon, even though the maker of the notes, the Win. E. Huston Drug Company, had a good defense as against the Vernon Advertising & Manufacturing Company. Landon v. Foster Drug Co., 186 S. W. 434; article 589, Vernon’s Sayles’ Texas Civil Statutes; Daniel v. Spaeth, 168 S. W. 509; Kauffman & Runge v. Robey, 60 Tex. 308, 48 Am. Rep. 264; Texas Banking & Insurance Co. v. Turnley, 61 Tex. 365. We do not understand that appellees question the correctness of this proposition of law, but it is urged that the evidence does not show that appellant was a bona fide purchaser of the notes, and hence he is in no position to claim protection as such bona fide holder. We are directed to no evidence, and after a careful consideration of the statement of facts have found none, even tending to establish the contention of lack of good faith in the purchaser of the notes, except the testimony of appellant on cross-examination that:

“These notes had a perforated margin, showing that they had been detached from something, such as is ordinarily used by manufacturing concerns who float serial notes.”

While the appellant further testified that he had had some trouble in collecting some of the notes (other than those in controversy) purchased by Mm from A. J. Boatright of the Vernon Advertising & Manufacturing Company, yet he further testified that at the time of the purchase of these notes he did not know of any trouble that had been experienced by the company (meaning the Vernon Advertising Company), and that at the time of said purchase he did not know of any defense or defenses that the defendants, or any one else, had against the notes, and had no notice of any infirmity of any of said notes, or any fraud or misrepresentation practiced by the company aforesaid in procuring said notes. It is evident, taking the testimony as a whole, that the trouble he experienced in collecting some of the notes purchased from the advertising and manufacturing company occurred subsequent to the purchase of the notes in question.

Of course, any notice received subset quent to his purchase of the notes would not affect his standing as a bona fide purchaser or holder. 1-Ie testified that, when approached by Boatright with regard to purchasing notes held by the advertising company, he agreed to purchase some $4,000 worth a month of such notes, reserving the right to decline any such that, after investigation, he deemed not satisfactory; that before purchasing the notes in question he procured from R. G. Dun a favorable report as to the standing and credit of the defendants; that at the time of said purchase no contract was attached to the notes, nor did the plaintiff know of any such contract in existence.

We are of the opinion that the mere fact that the notes in controversy had a perforated margin, standing alone, is insufficient to show notice, and that, this being the only evidence adduced by the defendants upon the question of' notice, the court should have given the peremptory instruction asked by plaintiff. In Landon v. Halcomb, 184 S. W. 1098, the perforated margin of the notes was mentioned as one of a number of circumstances which tended to show notice to the plaintiff. The case last cited, by this court, is relied upon by appellees in support of the contention that sufficient notice had been shown of an alteration having been made in the notes by their separation from some other-instrument. The strongest case we find in support of appellees’ contention is Stephens v. Davis, 85 Tenn. 271, 2 S. W. 382, where defendant agreed to become the agent for a patented article and agreed to execute his note for $225, the price of 15 sets of springs, provided that there should be inserted in said note the condition that he, the defendant, should have credit on the note at maturity for such of the springs as might then remain unsold. This condition was agreed to by the agent of the payee, but said agent declined to put the condition on the face of the note, on the ground that there was not sufficient space therefor. He did write the condition, however, on the “stub” of the note (the note and stub attached being in a book of blank notes), and defendant signed the note upon the promise of said agent that the stub “should stay there if it was four yards long.” Later the note was detached from the stub and transferred for value, whether before or after maturity does not appear, to the plaintiff in the suit. Upon an action by the latter on the note, the maker pleaded a material alteration by virtue of said detachment, which had altered the instrument as actually made, and as agreed upon between the* parties thereto, by removing therefrom the condition that he should have credit on the note for the springs unsold. The Supreme Court of Tennessee sustained defendant’s plea, on the ground that by agreement of the parties before the signing of the note this condition was a substantive part of the note, and restricted its negotiability the same as if the condition had been indorsed upon the face of the note; that the severance of the condition without the consent or knowledge of the maker was a material alteration of the original contract to his prejudice, and therefore the act was forgery; that the fact that the stub could he easily separated from the note could make no difference, as no rule of law required the maker to anticipate that the payee would commit a felony by the alteration.

There is no contention made by the appellees in the instant case that it was the understanding and agreement of the original parties to the notes in question that they should not be negotiated, nor is there any evidence in the record, so far as we can discover, that the notes were ever attached to any other instrument, or that their negotiable nature was in any way conditioned by a contemporaneous agreement between the parties. Therefore, even though it should be held that the Tennessee court announces the true doctrine with reference to the state of facts there disclosed, the principle has no application to this case.

As the evidence of the understanding that the notes should be freely negotiable, defendant testified that he had paid the first of the series of six notes, and had sent a check in payment of the second note, but later stopped payment on the check and returned said second note to the plaintiff. He further testified that, as far as possible, he had carried out the advertising scheme provided for under the contract between him and the advertising company, and had sold a number of the articles furnished him by the said company, in part consideration, at least, of the notes, and did not even plead a tender to this plaintiff of the articles remaining or the value of the articles sold. The controlling reason he gives for not paying the notes is that he was advised by his attorney that the plan of advertisement offered by the advertising company was a lottery or a gambling scheme. However, even after being so advised, the evidence shows that the defendant proceeded to carry out the plan provided for in his contract with the advertising company.

We are of the opinion that the trial court should have given the peremptory instruction requested, and that therefore the judgment must be reversed. The record showing that the evidence was fully developed in the trial, this court feels impelled to enter the judgment which the trial court should have entered upon the verdict of the jury under peremptory instructions to find for plaintiff, and therefore judgment is here rendered in favor of appellant for the amount of said five notes, with legal interest from maturity thereof, and all costs of suit.

Reversed and rendered.
      (g^jPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    CITY NAT. BANK OF EASTLAND v. KINNEBREW et al.
    (No. 8399.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 10, 1916.
    On Motion for Rehearing, Nov. 25, 1916.)
    1. Execution &wkey;>172(2) — Injunction—Oeeeb To Pay Debt.
    In a suit under Vernon’s Say les’ Ann. Civ. St. 1914, art. 4643, to restrain the sale of a wife’s separate property under execution against the husband, the husband is only a formal party, and it is not necessary that plaintiffs offer to pay the debt for which the execution was levied.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 524; Dec. Dig. <&wkey;172(2).]
    On Motion for Rehearing.
    2. Husband and Wipe &wkey;i266 — Wipe’s Separate Estate — Evidence—Gift by Husband.
    In a suit to restrain the sale of a wife’s property under execution against the husband, where defendant claimed that the property was the proceeds of a partnership and therefore community property, evidence held sufficient to show that the husband had made a gift to the wife of his community interest in the money with which the land was bought, which was valid as against a subsequent creditor under Vernon’s -Sayles’ Ann Civ. St.-1914, art. 3967, providing that a gift is not void as to subsequent creditors though it may be as to prior creditors.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 925-928; Dec. Dig. &wkey; 266.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Suit by Mrs. Lizzie Kinnebrew and another against the City National Bank of East-land to enjoin the sale of property under a levy of execution. From a judgment granting perpetual injunction, defendant appeals.
    Affirmed, and motion for rehearing denied.
    Earl Conner, of Eastland, for appellant. J. R. Stubblefield, of Eastland, for appellees.
   DUNKLIN, J.

An execution issued on a personal judgment for $136.50 rendered against J. J. Kinnebrew in favor of tbe City National Bank of Eastland was levied upon a tract of land which was claimed by Birs. Lizzie Kinnebrew, wife of J. J. Kinnebrew, as her separate property. This suit was instituted by her, joined by her husband, as plaintiff, against the City National Bank of East-land, the owner of the judgment, and C. H. House, the constable who levied the writ of execution, to enjoin the sale of the property ■under said levy. A temporary writ of injunction was issued as prayed for, and later, upon the trial of the case on its merits, the injunction was perpetuated, and from that judgment the defendant bank has prosecuted this appeal.

Mr. and Mrs. Kinnebrew had been married approximately 29 years at the time of the levy of the writ. Prior to her marriage she owned a tract of land which was sold after her marriage for the sum of $2,000 and the proceeds invested in a gin. J. T. Crim was a joint purchaser with Mrs. Kinnebrew of the gin, and at the time of its purchase they entered into a partnership agreement for the operation of the gin, under the firm name of J. T. Orim & Co., by the terms of which Mrs. Kinnebrew and Orim were to share equally the profits arising from the operation. J. J. Kinnebrew assented to that agreement under a further agreement between all of the parties that he should receive a salary of $250 per year for his services in assisting in the operation of the gin, and also such profits as he would be able to realize from the operation of a corn mill which was run as an incident to the gin. It was further agreed by and between Mr. and Mrs. Kinne-brew that all of the profits so realized by Mrs. Kinnebrew should be her separate property, and in compliance with that agreement such profits were deposited to her credit in bank. The land upon which the levy was made in the present suit was paid for out of the profits so realized by Mrs. Kinnebrew during several years’ operation of the gin, and the last payment made thereon was on October 17, 1909, while the judgment upon which the writ of execution in the present suit was issued was rendered November 30, 1914. The deed recites a cash consideration of $3,160, paid by Mrs. Kinnebrew out of her sole and separate estate, and the assumption of the payment out of her separate estate of an outstanding indebtedness of $1,000, against the land secured by lien in favor of the Land Mortgage Company of Texas, and the conveyance was to her for her separate use.

No contention is made in the present suit that the debt of J. J. Kinnebrew, which ripened into the judgment upon which the execution was issued, was incurred prior to the last payment made by Mrs. Kinnebrew for the land in controversy. The statement is made in appellee’s brief that said judgment was for an indebtedness which accrued during the two years next preceding the filing of the suit on July 13, 1915; but we have been unable to verify the correctness of that statement from the reference given in the brief to the statement of facts.

Appellant has cited many cases, such as Green v. Ferguson, 62 Tex. 525, Miller v. Marx, 65 Tex. 132, and Kellett v. Trice, 95 Tex. 170, 66 S. W. 51, announcing the general rule that the wife is incapable of entering into a legally binding partnership for the conduct of a mercantile business, and thereby acquire in her separate right the profits arising therefrom; and the further rule that the husband and wife cannot by their agreements alter the character given to property by the law as applied to the facts under which it is acquired. Notwithstanding those rules, it is quite evident from the record in the present suit that the acts of J. J. Kinnebrew in depositing the profits arising from the operation of the gin to the credit of his wife in bank, the payment of those profits to the vendor of the land in controversy as a consideration for such deed, and the taking of the deed in his wife’s name, stipulating that the title so acquired was for the sole and separate use of his wife, amounted in law, at all events, to a legally binding gift of any community interest he might have had in the funds so paid for the land, and in the land itself. And, in the absence of any showing in the statement of facts that the debt for which the bank’s judgment was rendered accrued prior to such gift, the bank can have no right to question the validity of such a gift, even though it should be said, as contended by the appellant, that at the time of such conveyance Kinnebrew owed other debts which he was unable to pay, and that the finding of the jury that he was then solvent is not supported by the evidence. 3 Vernon’s Sayles’ Texas Civil Statutes, art. 3967.

From the foregoing conclusions it follows that appellant’s second, third, fourth, fifth, sixth, seventh, and eighth assignments are overruled; all of said assignments being predicated upon the assumption that Mrs. Kinnebrew’s part of the proceeds arising from the operation of the gin and the land purchased therewith necessarily were community property of herself and her husband, and that the prior agreement between her and her husband that the same should become her separate property would have no legal effect to make them so.

By another assignment it is insisted that neither Mrs. Kinnebrew nor her husband could maintain the present suit for the equitable relief by injunction without first offering to pay the judgment upon which the execution was levied. Authorities such as Shannon v. Hay, 153 S. W. 360, and Seymour v. Hill, 67 Tex. 387, 3 S. W. 313, cited in support of that contention, have no application to the present suit. The judgment upon which execution was issued was against J. J. Kinnebrew and was not against Mrs. Lizzie Kinnebrew. J. J. Kinnebrew was the plaintiff in the suit, but he was joined pro forma with his wife, who was really the party in interest, and it is quite clear that she had the right to an injunction to restrain the sale of her separate property to satisfy her husband’s debt without offering to pay such debt. Vernon’s Sayles’ Texas Civil Statutes, art. 4643; City of Brownwood v. Brown Telegraph & Telephone Co., 152 S. W. 713, and authorities there cited.

Eor the reasons indicated, thé judgment is affirmed.

On Motion for Rehearing.

In our opinion upon original hearing we did not intend to hold that the acts of J. J. Kinneb'rew in depositing the proceeds arising from the operation of the gin in bank to his wife’s credit, and 'the taking of the deed in his wife’s. name containing the recital that it was for the separate use of his wife, constituted a gift as a question of law; but we meant only that such .acts, in connection with other facts and circumstances in evidence, were sufficient to support a finding of such a gift.

With this correction, the motion for rehearing is overruled.
      For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    PENCE v. GALVESTON, H. & S. A. RY. CO.
    (No. 637.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.
    Rehearing Denied Jan. 5,1917.)
    1. Railroads <&wkey;113(5) — Maintenance—Liability eor Injuries.
    Under Rev. St. 1911, art. 6195, providing that a railroad shall not construct a roadbed without the necessary culverts or sluices, as the natural lay of the land requires, for the necessary drainage thereof, defendant railroad would be responsible to plaintiff in damages for destruction of his property by filling of the basement in his house with water if caused by defendant’s failure to construct the proper culverts, or sluices, through its embankment, necessary to pass off surface water falling on higher grounds as it would have flowed but for obstruction.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 357; Dec. Dig. &wkey;113(5).j
    2. Railroads <&wkey;114(4) — Maintenance—Actions — Evidence— Sufficiency.
    ■ In action against a railroad for damages caused by the flooding of plaintiff’s basement by surface water, collected and diverted from its natural course by defendant’s elevated roadbed, evidence held sufficient to take the question of defendant’s failure to provide proper culverts or sluices, as required by Rev. St. 1911, art. 6495, to jury.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 371; Dec. Dig. &wkey;H14(4).]
    3. Railroads <&wkey;113(5) — Construction—Liability for Injuries.
    As defendant railroad’s liability to the plaintiff for damages suffered by flooding of his basement by surface water must be by reason of the failure of the defendant to construct proper culverts and sluices in accordance with Rev. St. 1911, art. 6495, it owed no duty to notify plaintiff that an opening had been washed out through its roadbed, or that the opening had been cribbed up, or that it intended to put a culvert under its roadbed at any point at any time.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 357; Dec. Dig. &wkey;113(5).]
    4. Railroads &wkey;>114(l) — Maintenance—Action — Pleading.
    In an action against a railroad for damages caused by flooding of plaintiff’s basement by surface water, allegations that the damage was sustained by reason of defendant’s failure to construct necessary culverts .under its elevated roadbed, thereby collecting and retaining water in such large quantities that it flowed through a culvert to plaintiff’s house, filling his basement with water and caused damage, and that by construction of its elevated roadbed defendant interfered with the natural flow of rainfall causing the water to collect in large quantities instead of flowing off in its natural course, and that the waters were thus caught and caused to flow through a culvert under the roadbed in such quantity as to flood plaintiff’s basement, causing damage, although indefinitely stated and confused by failure to separate the two counts and pleading of immaterial facts, were sufficient, in the absence of special exceptions, to state a failure of the duty enjoined by Rev. St. 1911, art. 6495.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 36S; Dec. Dig. &wkey;114(l).]
    Error from District Court, El Paso County-; P. R. Price, Judge.
    Suit by George Pence against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    J. A. Buckler, of El Paso, for plaintiff in error. Beall, Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for defendant in error.
   WALTHALL, J.

This suit was brought by George Pence against the Galveston, Harrisburg & San Antonio Railway Company, to recover, damages alleged to have been sustained by him by reason of the company’s failure to construct necessary culverts under its elevated roadbed and track, thereby collecting and retaining the waters that naturally flowed down to said roadbed, from the north side of its track in such large quantity that, when it reached a culvert placed under its said roadbed by the company, it flowed through said culvert and down to plaintiff’s house, situated on the south side of said roadbed, filling his basement with water to the depth of several feet, thereby destroying certain merchandise stowed in said basement. Plaintiff; alleged that by the construction of its elevated roadbed and tracks, it so interfered with the natural flow of the rainfall upon the higher ground on the north side as to cause the water to collect in large bodies on the north side of said roadbed, instead of flowing off in its natural course and spread itself over a large area of ground to the south and southeast of said track; that the waters were thus caught and retained by said elevated roadbed, and caused to flow into and through a culvert placed under its roadbed in such quantity that it flowed into his basement, causing the damage complained of. Defendant answered by general demurrer and general denial. The court heard the evidence and gave a peremptory instruction to the jury to find for the defendant. The only question presented on this appeal is the sufficiency of the evidence to take the case to the jury. The evidence amply shows that plaintiff sustained the damage alleged, and that it was caused by the water filling Ms basement to the extent of several feet. On the issue as to the defendant’s liability for the damage sustained, the evidence, in part, is as follows: The plaintiff testified in part:

“During the time I lived there, prior to that, there had never been any floods affecting my house. There was no difference in the location and elevation of the streets prior to that time and the time I lived there. * * * The next morning I went out to try to find out where the water came from, to find out what was the cause of it, and I followed the water up — there was still a lake of water there. I went across the street and found out where it came from. I found a eribbed-up condition of the Southern Pacific track, ties on either side the Galveston, Harrisburg & San Antonio track and I found the water had come through there. I don’t know of any other place along the track up there where it could have come through. Yes; I found the culvert under the main line cribbed up. The cribbed-up culvert was a uniform size, cribbed up with ties, an opening of something less than the present opening, and it was probably 4 feet wide and 4 feet high or more. There is a permanent bridge there now, 10 or 12 feet long and about 4 feet high. I am familiar with the construction through that part of the town. * * * There is a network of tracks just at the west end of the El í’aso & Southwestern tracks. They have a board fence across the end of their property there, and between that board fence and the brickyard there on Dallas street there is a network of various tracks; the main line of the Galveston, Harrisburg & San Antonio’s track is laid on an elevated roadbed, beginning, say, 200 yards west of the culvert, or more; it is elevated more or less 4 feet higher than the land below it. I have known that part of defendant’s road about 26 years. Yes, prior to this flood I had observed accumulated bodies of water on the north side of the track at various times, in fact, every time it comes a rain I noticed it there; it filled up the low places and stood there, and there was constantly water there during the rainy season, in more than in one place, in various places around the area where the tracks are. * * * The water came in quantity, and raised very rapidly around my house.”

Photographs were introduced and plaintiff testified, explaining points shown in them. Testifying further, he said:

“Picture No. 5 shows the north side of the track, showing the conditions of the grades and the places that the water accumulates here between the various tracks, and shows the west end of the Southwestern shops, and the water runs towards that end of that fence; being the south end of that north and south fence, and from there all up in here is where the water accumulates, and shows the grade higher, and shows the low ground where the water is held. This culyert was within 20 or 30 feet of this El Paso & Southwestern fence.”

The United States Weather Bureau report for the month was introduced, showing the greatest rainfall in 24 consecutive hours to be 2.06 inches.

Plaintiff, testifying further, said:

“I had lived down there five years prior to 1914. * * * During the time I lived there there had never been any floods over that land. * * * The main track was the same height ever since I have known it. * * * The natural drain in all this country is from the foothills toward the river. * * * There is no depression on the inside of my fence; it is about the same all along there. * * * I went out to that opening and it was cribbed up ; a lot of water had passed through there, and the railroad section men had cribbed it up. I went out to see some time in the forenoon of the next day. • * * I traced the source of the water to find out how it got in there. It came through that place. It ran to the cribbing, I found, on the north side of the track from town — I suppose from the streets in town. I saw where it came from the north side of the Galveston Harrisburg tracks. It came down Dallas street, the regular source; it is the regular drain there. I went up to Dallas street.”

E. B. Stuart testified:

“Since I have been there (the Atlas Brick Company plant) I have noticed water standing north of the Galveston, .Harrisburg & San Antonio track, immediately east of Dallas street, by our plant there. It extended up to the corner of the fence of the Southwestern yards. I have seen water standing there many times. I have seen it probably 3 feet deep there; I don’t know exactly. It ran over the track there. The water comes down Dallas street there and runs around our plant, and runs over the Galveston, Harrisburg & San Antonio track and also the Southwestern track that connects the Southern Pacific with the Southwestern. I have seen it do that when the train is sufficient, when they have a flood in the northern part of the town. The water ran over the Galveston, Harrisburg & San Antonio track right in that immediate neighborhood.”

Speaking in reference to a blueprint offered in evidence, the witness Stuart, after locating certain culverts in the track of the Southwestern, said:

“The Southwestern has a drainage under its tracks so the water would come down the Galveston, Harrisburg & San Antonio tracks. 1 have seen water come down here and run around over this track here, right here and here. I have seen this washed out so the trains could not pass over it. The trend of the water would be down this way; it could not come from this way I am quite sure.”

Lee H. Orndorff, speaking of the Pence place, said:

“It was flooded last year by water from the north. It has been flooded three times since the culvert was put in over there. * * * That property has not been flooded for ten years prior to 1914, before this culvert was cut under the main track of the Galveston, Harrisburg & San Antonio. * * * That is a low part of town down there. If the railroad was not thex'e, I think the water would run across the whole country. * * * If the railroad were not there, the water would go over the whole country. * * * The natural tendency is from the foothills to the river.”

Article 6495, Revised Statutes 1911, provides:

“In no case shall any railroad * * * construct a roadbed without first constructing the necessary culverts or sluices, as the natural lay of the land requires, for the necessary drainage thereof.”

If the evidence quoted was sufficient to show, prima facie, the construction or maintenance by defendant of an embankment along its right of way constituting its roadbed, which obstructed the natural flow of the surface waters falling on the higher ground on the north side of its tracks and roadbed, and thereby caused to be diverted from its natural course, as the lay of the land on the north side requires and collected in such quantity from want of necessary culverts or sluices, as to break through its roadbed, or to flow through a culvert or sluice constructed under its roadbed and to run down on tbe south side of its tracks in such volume as to fill plaintiff's basement and cause the injury complained of, the defendant would be liable in damages to plaintiff therefor. It has long been the law that if a railway company fails to construct the proper culverts, or sluices, necessary to pass off the surface water falling on higher grounds, in the direction the water would have flowed but for said embankment or obstruction, it is responsible for the damage incurred by such failure. G., C. & S. F. R. R. Co. v. Helsley, 62 Tex. 593; G., C. & S. F. R. R. Co. v. Holliday, 65 Tex. 512; Railway v. Donahoo, 59 Tex. 128; Railway v. Tait, 63 Tex. 223; G., H. & S. A. Ry. Co. v. Riggs, 107 S. W. 589; Fentiman v. A., T. & S. F. Ry. Co., 44 Tex. Civ. App. 455, 98 S. W. 939; Texas & Pacific Ry. Co. v. O’Mahoney, 50 S. W. 1049.

We believe, that the evidence quoted, and other evidence in the record somewhat similar but in different language, sufficient to require that the case be submitted to the jury on the facts suggested.

In view of another trial, we think it well to pass upon some features of appellant’s cause of action as pleaded and insisted upon in this appeal.

We are of the opinion that the defendant did not owe to plaintiff the duty of notifying plaintiff that an opening had been washed out through its roadbed, or that the opening had been cribbed up, or that defendant intended to put a culvert under its roadbed at any point at any time. If defendant was liable to plaintiff for any of the damages suffered, it must have been by reason of the failure to perform the duty enjoined upon it by the statute and authorities above quoted.

Plaintiff’s cause of action, whether under the statute, or independent of the statute, is rather indefinitely stated, and confused by not separating the two counts and by pleading immaterial facts, but we are inclined to think it sufficient, in the absence of special exceptions to state a failure to discharge the duty enjoined by the article of the statute quoted.

Por reasons stated, the cause is reversed and remanded.
      <S^Por other eases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    CARRANZA v. HICKS et al.
    (No. 5764.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1916.)
    1. Contracts <@=»141(2) — Illegality — Evidence — Declarations.
    In an action by the head of a faction in a foreign state to recover money intended for the purchase of arms which had been intrusted to an agent, who proved to be a spy of another faction, and who turned the money over to a United States secret service officer, it was not error to exclude declarations of the agent to the secret service officer that he received the money from the commander of one of plaintiff’s armies, and from other adherents of plaintiff, since such declarations did not establish plaintiff’s right to the money.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. § 1785; Dec. Dig. <@=>141(2).]
    2. Interpleader <@=»32 — Judgment—Neither Party Entitled.
    Where, in an action to recover money, the defendant disclaims any interest in the money and an intervener claims it, but neither plaintiff nor intervener establishes title, the money should be left in the hands of the defendant.
    [Ed. Note. — Por other cases, see Interpleader, Cent. Dig. §§ 72, 73; Dec. Dig. <@=>32.]
    3. Contracts <@=>138(3) — Illegal Transaction — Relief of Parties.
    The head of a faction in a foreign state cannot recover money, intrusted to an agent to buy arms in the United States contrary to the president’s proclamation, from a secret service officer to whom the agent delivered it.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. §§ 688, 689; Dec. Dig. <@=>138(3).]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Y. Carranza against Robert D. Barnes, to recover a sum of money, in which Marshall Hicks intervened as a claimant. Prom a judgment awarding the fund to the intervener, plaintiff appeals.
    Affirmed.
    R. L. Edwards and Haltom & Haltom, all of San Antonio, for appellant. Hicks, Hicks, Teagarden & Dickson, of San Antonio, for appellee.
   PLY, C. J.

The appellant, describing himself as a citizen of Coahuila, in the republic of Mexico, and as recognized “First Chief of the Constitutionalist Party of the Republic of Mexico,” instituted this suit against Robert L. Barnes, a resident of Bexar county, Tex., to recover 1,450 pesos, Mexican money of the value of $725 in the money of the United States, claiming to be the owner of the same by virtue of his position in Mexico. R. L. Barnes answered that the money in question is on deposit in a Houston bank, subject to his control and disposition; that it came into his'possession in performance of his duties as a special agent of the Bureau of Investigation of the Department of Justice of the United States; that the money was delivered to him by one M. M. Mirando to be used as evidence in the possible prosecution of parties for violation of the neutrality laws of this country, and that he was willing to deliver the money into the registry of the court. Pie also alleged that Marshall Hicks was asserting a claim to the money, and prayed that he be made a party to the suit. Hicks intervened in the suit, claiming that he bought the pesos from Mirando and paid a valuable consideration therefor. The cause was tried, without a jury, and judgment rendered in favor of Marshall Hicks for the 1,450 pesos, and that appellant pay all costs of suit.

The evidence shows that M. M. Mirando placed the money in the possession of Barnes to be used as evidence in any criminal prosecution thereafter instituted against persons furnishing the money to Mirando, for violating a proclamation of the President of the United States, prohibiting the exportation of arms and ammunition into Mexico from this country. No indictment was returned against the parties, and the money remained in the possession of Barnes, who disclaimed any interest in the same. It was also shown that Y. Carranza was at that time at the head of a faction in Mexico, and was called “First Chief.” Marshall Hicks testified that on September 30, 1913, Mirando sold and assigned to him the 1,450 pesos, for a consideration of over $200 in United States money. He also stated that he was at that time in the employ of the Huerta government in Mexico, as an attorney at law, and that he knew that Mirando was in the secret service of the Huerta government, and that Mirando told him that by pretending to be against the Huerta government, he had induced enemies of that government to let him have the 1,450 pesos under pretense that he would use the same to purchase arms and ammunition to be sent into Mexico and used against the Huerta government. Mirando also told Hicks that he had placed the pesos in the possession of Barnes, to be used in prosecuting the parties from whom he had obtained it.

The first assignment of error assails the action of the court in refusing to allow Barnes to testify what Mirando told him as to how he came into possession of the money. The excluded statement of Mirando is practically the same as the statement made to Hicks, except that there is a general statement that he had received the money from the officers and agents of the Carranza faction, followed by the statement that 1,000 pesos had been received from Gen. Blanco, a general in the Constitutionalist army of Mexico, and that the remaining 450 pesos had been delivered to Mirando by friends and agents of the Carranza army .at Mercedes, Tex. That evidence, if it had been admitted, would not have connected the “First Chief” with the ownership or right to possession of money given by Gen. Blanco and friends and agents of the Carranza army in Texas. It did not tend to show that the money belonged to Carranza, or that he could assert, as did the French king, “I am the State,” and had the ownership of all the money of his followers in Mexico and his friends in Texas. The statement of Mirando had no probative force in establishing the claim of appellant to the money. Its only tendency was to show that Mirando by fraud and deceit obtained money from the adherents of a certain Mexican faction to buy arms to be used against another faction. His statement did not show that he obtained money belonging to appellant, or over which he had any control whatever. The presumption is that Gen. Lucio Blanco gave his own 1,000 pesos to Mirando, and that the friends of Carranza at Mercedes gave their own 450 pesos to Mirando. No right, title, or interest in the money was shown to be held at any time by appellant.

The bill of exceptions reserved to the exclusion of the statements of Mirando does not disclose that Mirando ever told Barnes that the money belonged to the. government of Mexico, as is stated in the brief. It would have taken a more reckless man, perhaps, than Mirando to have been willing to say that there was any government in Mexico in 1913, and to locate it on the map. Of course Miran-do has departed this life, as would be the natural result in the long run to any man following his occupation in Mexico.

There is but the one assignment of error presented by appellant,- and R. L. Barnes has not appealed from the judgment, and there is therefore no assignment of error questioning the right of Marshall Hicks to the money. In fact, appellant advised the court, who seemed to doubt the right of either appellant or intervener to recover the money, that he should render judgment for one of them. This court does not commit itself to the proposition that the two parties could dispose of property to which neither may have shown a title. In that event, the money should have been left in the hands of the bailee to whom it had been committed. The right of intervener to the money not being questioned in this court, we are not called upon to express an opinion on the same.

Even though appellant had shown, as he did not, that he had the right to the money, the courts of Texas would not enforce his right thereto because the possession of the money by Mirando grew out of an illegal agreement to violate the laws of this country and override the proclamation of its President. Courts will not enforce contracts made in violation of law, or relieve the parties thereto, but will leave them in the position in which they have placed themselves.

The judgment is affirmed.
      ®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    BLOCH v. RIO GRANDE VALLEY BANK & TRUST CO.
    (No. 641.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.
    Rehearing Denied Jan. 5, 1917.)
    1. Bills and Notes <©=^74—Acceptance of Bill of Exchange.
    Where drafts were presented to, and accepted by, the defendant, there was a primary contract between him and the owner of the drafts, and he became absolutely liable, regardless of the question whether or not the payee in the drafts was alive or dead when they were drawn.
    [Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 125, 126, 128, 130-135, 137-141; Dec. Dig. «=*74.]

      2. Bills and Notes <®^467(2) — Pleading-Complaint— Sufficiency.
    In an action against the drawee of drafts, an allegation that the drafts were indorsed and delivered by the owner is a sufficient allegation of a legal indorsement without allegation of the name of the indorser.
    [E'd. Note. — Eor other cases, see Bills and Notes, Gent. Dig. §§ 1481-1487, 1490, 1491; Dec. Dig. <®=»467(2).]
    8. Bills and Notes <@z^485 — Pleading.
    Under the direct provisions of Rev. St. 1911, art. 5S8, in an action against the drawee of a bill of exchange, in the absence of a sworn plea raising any issue as to the genuineness of the indorsements, it was not necessary to offer any proof to support the allegations that the drafts had been indorsed and delivered.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1542^-1554; Dec. Dig. 485; Pleading, Gent. Dig. §§ 866, 875.]
    4. Bills and Notes <®=>467(2) — Pleading— Fokeign Laws.
    The holder of drafts belonging to the estate of a foreign administrator and indorsed by the latter can maintain a suit on the drafts in the courts of Texas without alleging the administration laws of the foreign country or state.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§' 1481-1487, 1490, 1491; Dec. Dig. <®=>467(2).]
    5. Bills and Notes <®^489(2) — Acceptance op Bill op Exchange — Pleading—Pkoof.
    In an action against the drawee of a draft, where the pleading does not state whether the acceptance was oral or in writing, it is permissible to prove either a verbal or a written acceptance.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §| 1588, 1589; Dec. Dig. 489(2); Pleading, Cent. Dig. § 1327.]
    Error from El Paso County Court; Adrian Pool, Judge.
    Suit by the Rio Grande Valley Bank & Trust Company against Herman Bloch. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Jno. T. 1-Iill, of El Paso, for plaintiff in error. Goldstein & Miller, of El Paso, for defendant in error.
   HIGGINS, J.

Defendant in error brought this suit against Bloch to recover upon three drafts each in sum of $100 and one in sum of $200, drawn by Juveneio Estrada upon Bloch. The $100 drafts were dated March 2, March 4, and March 5, 1915, respectively, and the $200 draft was dated March 10, 1915. Appellee, in its petition, alleged the facts stated, and these further averments mere made, viz.: That the three $100 drafts were drawn payable to the order of J. Goodman at sight and the $200 draft was drawn payable to the order of Testamentaria de Jose Goodman at sight; that said drafts were presented to and accepted by Bloch on March 10, 1915; that by the execution of the drafts and the acceptance thereof by Bloch he promised, agreed, and bound himself to pay to the order of J. Goodman, at sight, the three sums of $100, evidenced by the first three drafts, and to pay to the order of the Testamentaria de Jose Goodman, at sight, the sum of $200 evidenced by the last draft; that, while the first three drafts were payable to the order of Jose Goodman, they were, in fact, the property of and belonged to the estate of Jose Goodman and were delivered to Testamentaria de Jose Goodman, that is to say, under the laws of Mexico, to the administrator of the estate of Jose Goodman; that the said Testamentaria de Jose Goodman, i. e., the administrator of the estate of Jose Goodman, indorsed and delivered the drafts to plaintiff; and that plaintiff was the owner and holder thereof. Verdict was returned and Judgment rendered in plaintiff’s favor.

It is asserted that the petition is subject to a general demurrer because it shows upon its face that J. Goodman was dead when the drafts were drawn and they were therefore null and void. In support of this contention, our attention is called to authorities holding that a promissory note in favor of a payee who is dead is void. Those authorities are not in point where an acceptor of a draft is sought to be held liable upon his acceptance. The drawee of a draft is not a party to or in any way liable thereon until he has accepted it. Gamer v. Thomson, 35 Tex. Civ. App. 283, 79 S. W. 1083. Upon his acceptance, a privity of contract is created between him and the holder, and such contract is not collateral, but primary. Raborg v. Peyton, 2 Wheat. (U. S.) 385, 4 L. Ed. 268. 1-Iis engagement to pay is general, and he is considered the principal debtor. By acceptance, the bill becomes very similar to a promissory note; the acceptor being the promisor. Mr. Bigelow says:

“By absolute acceptance, the drawee contracts much as the maker of a promissory note contracts; he binds himself to the holder absolutely to pay, according to the tenor of the bill. * * * Besides undertaking to pay, the accept- or ‘admits’ as a legal incident to his contract, the - existence of the drawer, the genuineness of the drawer’s signature, and his capacity and authority to draw the bill, and also the existence of the payee and his .capacity at the time to indorse.” Bigelow on Bills, Notes & Checks (2d Ed.) pp. 51, 52.

See, also, Kildare Lumber Co. v. Bank, 91 Tex. 95, 41 S. W. 64; White v. Dienger, 25 S. W. 666; 1 Daniels on Neg. Insts. (6th Ed.) § 532; 4 Am. & Eng. Ency. Law (2d Ed.) 450;' 7 Cyc. 770.

In this case, it is alleged that defendant in error is the owner of the drafts by indorsement of the administrator of the estate of Jose Goodman; that the drafts were presented to and accepted by Bloch. This showed a new and primary:contract between him and the owner of the drafts, and he became absolutely liable upon this contract regardless of the question of whether Goodman was alive or dead when the drafts were drawn.

It was not necessary to allege the name of tlie indorser of the drafts. It was alleged that they were indorsed and delivered by the administrator of Goodman’s estate, and this was a sufficient allegation of a legal indorsement. There was no sworn plea raising any issue as to the genuineness of the in-dorsement, and, in the absence thereof, it was not necessary to offer any proof to support the allegations that the drafts had been indorsed and delivered. Article 5S8, R. S.

There was no necessity to allege what the administration laws of Mexico were. A foreign administrator can indorse drafts belonging to the estate represented by him, and the holder of such drafts can maintain suit on the same in the courts of this state. Solinsky v. Bank, 82 Tex. 244, 17 S. W. 1050; Abercrombie v. Stillman, 77 Tex. 589, 14 S. W. 196; Keller v. Alexander, 24 Tex. Civ. App. 186, 58 S. W. 637.

It is contended that an acceptance in writing was alleged, and the court therefore erred in submitting the issue of a verbal acceptance. The pleading does not state whether the acceptance was oral or in writing. With such a pleading, it was permissible to prove a verbal or a written acceptance.

Affirmed.
      tfteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «Sz^For other cases see same topic and KÉJY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    FREEMAN v. KLAERNER.
    (No. 5757.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1916.)
    1. Mortgages <©=^497(1) — Foreclosure—Res Judicata.
    A judgment, in a suit in which the junior mortgagees and the mortgagors are joined, foreclosing a first mortgage and directing distribution of the proceeds of foreclosure sale among the parties, is res judicata of the issues determined, and bars suit by a mortgagor and a junior mortgagee to readjust the proceeds of the land sold.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1469, 1471, 1473; Dec. Dig. <§=» 497(1).]
    2. Descent and Distribution @=»91(1) — Suit by Heir — Condition Precedent.
    For an heir to sue a debtor of his ancestor’s estate, he must allege and prove there was no administration and none necessary.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 359-361, 368, 375; Dec. Dig. <®=91(1).]
    Appeal from District Court, Gillespie County; N. T. Stubbs, Judge.
    Action by M. T. Freeman against H. Y. Freeman, in which John Klaerner intervened. From judgment for intervener, defendant appeals.
    Reversed and rendered.
    A. W. Moursund, of Fredericksburg, for appellant. W. O. Linden, of San Antonio, for appellee.
   SWEARINGEN, J.

M. T. Freeman sued H. Y. Freeman for one-sixth of $7,000, or $1,166.66, less a credit of $625.55. The cause of action declared on was that 320 acres of land had been the separate property of Minerva Freeman, the mother of M. T. and H. Y. Freeman. During her life she’ executed a deed of trust on the land to secure the payment of $2,500, with interest and attorneys’ fees, provided for in a note given to A. Grote. After the death of Minerva Freeman, H. Y. Freeman by inheritance and purchase became the owner of a five-sixths interest,, and M. T. Freeman a one-sixth interest, in the' 320 acres of land, subject to the debt of $2,500, made by the mother. After the mother’s death, H. Y. Freeman mortgaged his five-sixths interest to secure a debt to Robinson, and M. T. Freeman executed a mortgage on his one-sixth intereát in the land to secure a debt due by him to John Klaerner. Both junior mortgages were subject to superior mortgage of August Grote. Suit No. 914 was filed by August Grote to foreclose his mortgage lien on the 320 acres of land. The parties to suit No. 914 were August Grote, holder of the superior mortgage, John Klaerner and Robinson, holders of the two junior mortgages, and also M. T. and H. Y. Freeman. The mortgages were foreclosed in suit No. 914 and order of sale issued, the land sold by the sheriff for $7,000, and the proceeds applied in strict obedience to the judgment foreclosing the respective liens, viz., $89.75 was applied to payment of costs of the suit No. 914 and sale; $3,156.90 to payment of the principal, interest, and attorneys’ fee on said note for $2,500; and of the remainder one-sixth, or $625.55, was paid to John Klaerner on his debt secured by the mortgage on M. T. Freeman’s one-sixth interest on the said land. In the present suit, M. T. Freeman attempts to show that all of the $2,500 note was the indebtedness of H. Y. Freeman, and that M. T. Freeman should have received one-sixth of the $7,000 for which the land was sold. In other words, that he should have received $1,166.66 instead of $625.55. John Klaerner intervened in the instant suit and adopted all the pleading of the plaintiff, M. T. Freeman, as his own, and in addition thereto averred that M. T. Freeman had guaranteed that the land when sold would bring enough money to pay in full his debt against M. T. Freeman. The case was tried without a jury, and judgment was rendered holding that M. T. Freeman had assigned all his interest to John Klaerner and that John Klaerner should recover of H. Y. Freeman $266.25. All costs of suit were adjudged against H. Y. Freeman.

It is apparent, from the foregoing statement of the cause of action presented by all the pleadings, that this suit is an attempt to readjust the proceeds of the land sold by virtue of the judgment in suit No. 914. That judgment was final, and definitely ordered the distribution actually made, and it determined the issues sought to be readjusted by this present case, and all the parties to this present' suit are estopped thereby, because they were parties to that suit.

It may be that H. Y. Freeman, owed tbe estate of Ms mother $2,500, and that M. T. Freeman, Ms mother’s heir, was entitled to one-sixth of the $2,500 debt; but no such cause of action is alleged in this case, and could not be, because M. T. Freeman could have no right to sue H. Y. Freeman for the debt due the mother’s estate unless he alleged and proved that there was no administration of her estate or no necessity for one. Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015. Furthermore, M. T. Freeman gave John Klaerner only a mortgage on the one-sixth interest in the 320 acres1 of land and did not give him his one-sixth interest in the estate of Ms mother. M. T. Freeman expressly alleged that he had never conveyed his interest in the estate to any one. This allegation was expressly adopted by John Klaerner, intervener. The proof showed only a mortgage to John Klaerner for one-sixth of the equity in the 320 acres of land.

The judgment recites that M. T. Freeman had assigned his interest in the estate to John Klaerner. The judgment is therefore unsupported by the pleadings and is contrary to the undisputed evidence in this case.

The judgment of the trial court is reversed and here rendered for appellant, H. Y. Freeman.
      .igr^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    SIMMS et al. v. MIEARS.
    (No. 5715.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1916.
    Rehearing Denied Dec. 23, 1916.)
    Process <®=^2¿L-Requisites — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852, requiring a citation to state the date of the filing of the plaintiff’s petition, etc., a citation in a suit for partition of land which, failed to give the true date of filing of plaintiff’s petition, but gives another and different date, is fatally defective, and the court acquired no jurisdiction over the defendants by reason thereof.
    [Ed. Note. — For other cases, see Process, Cent. Dig. §§ 9, 19; Dec. Dig. <@=»24.]
    Error from District Court, Caldwell County; Frank S. Roberts, Judge.
    Suit for partition by A. J. Miears against E. V. Simms and others. From a judgment for plaintiff by default, defendants bring error.
    Reversed and remanded.
    J. B. Hatchitt, of Lockhart, for plaintiffs in error. Nye H. Clark, of Lockhart, for defendant in error.
   RICE, J.

Defendant in error Miears brought this suit for partition of three certain tracts of land in Caldwell county against E. V. Simms, D. C. Simms, Matthew Simms, Vinie Simms, Nathaniel Simms, Lee .Simms, and Ida and Henrietta Petty, the last two of whom are minors, making the usual allegations necessary in such suits. At a former term of the court defendant in error acquired by purchase at a foreclosure sale the interest of E. V. Simms in said land.

None of the plaintiffs in error (defendants below) having answered, judgment went against them by default; and the court having found that the land was incapable of partition, the same was sold under order of the court and bought in by defendants in error, and tMs writ of error is sued out for the purpose of setting aside said judgment, on the ground that plaintiffs in error were not legally served with citation herein, as required by law.

It appears from the record that the plaintiff’s original petition was filed in said court on the 6th of October, 1915; whereas the citations served upon Henrietta Petty, Lee Simms, and Matthew Simms, as shown by the sheriff’s return, states that the petition was filed on the 5th of October, 1915. Article 1852, vol. 2, Vernon’s Sayles’ Civ. Stats., prescribes what a citation shall contain; and, among other things, requires that it shall state the date of the filing of the plaintiff’s petition, the file number of the1 suit, the names of all the parties, and the nature of the plaintiff’s demand, and shall contain the requisites prescribed in article 2180. It has frequently been held that the requirements of this article are mandatory, and a failure to comply with its provisions will vitiate the citation. See Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060; Pruitt v. State, 92 Tex. 434, 49 S. W. 366; Dunn v. Hughes, 36 S. W. 1084; Leavitt v. Brazelton, 28 Tex. Civ. App. 4, 66 S. W. 466; Duke v. Spiller, 51 Tex. Civ. App. 237, 111 S. W. 787; Crenshaw v. Hempel, 60 Tex. Civ. App. 385, 130 S. W. 731.

The citation in this case, we think, is fatally defective, in that it fails to give the true date of the filing of plaintiff’s petition, but gives another and a different date. Defendant in error contends, however, that this defect was technical, and could not affect the rights of the parties; and he therefore insists that plaintiffs in error’s assignments presenting it should be overruled. It does not appear to be immaterial, however, and in the •instant case might become a matter of serious importance to the plaintiffs in error. Suppose, for instance, that they wished to interpose the statute of limitation, and their right became perfect thereunder on the 6th of October, but believing that the suit was filed, as stated in the citation, on the 5th, before their right had accrued, they made default. It will thus be seen that they would have lost a material right by reliance on the date stated in the citation.

On account of the failure of the citation to state the true date of the filing of the plaintiff’s petition, we hold that the same is void, and that the court acquired no jurisdiction over plaintiffs in error by reason thereof, for wMch reason the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      <£=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    LE GOIS v. STATE.
    (No. 4283.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Intoxicating Liquors <@=130 — Illegal Sale — Ordinances—Validity.
    An ordinance of á city prohibiting license to sell liquors in certain territory is not subject to the criticism that it does not prohibit the sale of liquors, since Pen. Code 1911, art. 130, prohibits pursuing occupations taxed by law, without license, and, under Acts 31st Deg. c. 17, § 1, the business of dealer in intoxicating liquors is an occupation taxed by law.
    [Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 138%, 139; Dec. Dig. <©=>130.]
    2. Municipal Corporations <@=48(1), 58— Adoption op Charter — Powers — Delegation by Legislature.
    Under Const, art. 11, § 5, providing that cities of over 5,000 population may adopt or amend charters, subject to limitations prescribed by the Legislature, and not inconsistent with the Constitution or general laws, the power of the city to adopt a charter or pass an ordinance is not dependent on grant from the Legislature, but is to be governed only by the limitations found in the acts of the Legislature.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 127, 128, 145-147; Dec. Dig. <@=>48(1), 58.]
    3. Intoxicating Liquors <@=10(3,4) — Illegal Sale — Statutes—Construction.
    Under Acts 33d Leg. c. 147, § 4, authorizing cities to provide for establishment of districts wherein saloons may be located and liquors sold to be drunk on the premises, and to prohibit the sale of such liquors or the location of saloons within such deiine.d district, the city is empowered either to license saloons and wholesale houses in certain districts or to prohibit absolutely the sale of liquor in certain districts.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 10, 11; Dec. Dig. <@=10 (3, 4).]
    4. Intoxicating Liquors <@=10(3) — Illegal Sale — Statutes—Construction.
    Under Acts 33d Leg. c. 147, § 5, providing that the enumeration of powers shall never be construed to preclude a city from local self-government, the city is empowered to prohibit the sale of liquors in certain districts even if the specific power of section 4 of such act did not cover such prohibition.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent Dig. § 10; Dec. Dig. <@=10(3)J
    5. Intoxicating Liquors <@=12 — Prohibition op Sale — Elections.
    Where a city at a special election adopted a charter provision prohibiting sale of liquor in certain districts, such charter provision was not in violation of Const, art. 16, § 20, authorizing the people to adopt prohibition by a vote.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 14; Dec. Dig. <§=12.]
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    J. B. Le Gois was convicted of selling intoxicating liquors in the corporate limits of the city outside the territory wherein saloons could be licensed, and he appeals.
    Affirmed.
    W. T. Carlton, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of selling intoxicating liquors in territory in the corporate limits of the city of Wichita Falls outside the territory in which saloons were authorized to be licensed by the charter of said city.

The facts show that appellant was running a retail saloon outside the saloon limits fixed by the charter; that upon adoption of the charter he ceased to run a retail liquor house but thereafter opened, on the advice of counsel (other than the one engaged in the trial of the case), a wholesale liquor house in the prescribed territory, and sold beer by the gallon, not permitting it to be drunk on the premises where sold. He moved to quash the indictment on the ground that this section of the charter is void because in conflict with the federal and state Constitutions, and because the laws of the state nowhere give the city of Wichita Falls, under its charter, the authority to limit the sale of intoxicating liquors within certain bounds of said city. This motion brings into review section 5 of article 11 of the Constitution, adopted in 1912. It provides that:

“.Cities having more than 5,000 inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state,” etc.

After the adoption of this provision of the Constitution it is affirmatively shown and conceded by appellant that the city of Wichita Palls had amended its charter, the agreement reading:

“It is agreed that section 23 of the charter of the city of Wichita Palls was a part of the charter of said city adonted by the city of Wichita Falls at an election held'for the adoption of said charter on the 26th day of November, A. D. 1913, the results of said election being duly canvassed and the result declared as shown by ordinance on page 8, Statement of Facts, and it is further agreed that this section 23 of the charter of the city of Wichita Falls was in force at the times of the alleged sales of liquor herein; that said section had never been repealed or amended since the adoption of said charter."

Section 23 provides, among other things:

“No license shall issue for a longer period than one year, and such license shall not bo assignable except by permission of the board of aldermen, provided that no person shall be licensed to sell intoxicating liquors except within the following described boundaries in said city.”

Here follows the field notes of the territory in which license may be granted to sell intoxicating liquors, but, as appellant admits he made the sales within the corporate limits of the city of Wichita Falls and outside of the territory- thus defined, we do not deem it necessary to set forth the boundaries of the territory. Sec. 23 then provides:

“And no person shall be licensed to sell intoxicating liquors in any building fronting on any alley in said city, and the county judge of Wichita county and the comptroller of the state of Texas are hereby forbidden to issue any license to sell intoxicating liquors in any building in violation of the foregoing provisions and any license so issued shall be void and any license to sell intoxicating liquors in violation of this section shall become void.”

One of appellant’s contentions is that this section only prohibits the issuance of license to sell, and does not prohibit the sale of, intoxicating liquors. We think such criticism hypercritical, as the laws of this state prohibit a man from engaging in the business of selling intoxicating liquors without first obtaining license to sell, and when you prohibit the issuance of license it necessarily carries with it the prohibition to sell. Article ISO of the Penal Code prohibits the pursuing of any occupation taxed by law without obtaining a license, and the business of wholesale dealer in intoxicating liquors is an occupation taxed by law. Section 1, c. 17, Acts 31st Leg. p. 293, Session Acts. Séction 23 'of the charter makes it plain, for it says:

“The board of aldermen shall not make any additional regulations of said business than now or hereafter fixed by the laws of this state, except to enforce the provisions as to selling outside of the limits above described”

—thus reserving to the council the right to pass ordinances in aid of the enforcement of the provision prohibiting the sale in territory where no license is allowed to be issued.

The contention that we must look to the laws passed by the Legislature for all power for a city to act cannot be sustained since the adoption of section 5 of article 11 of the Constitution. That was the rule prior to the adoption of this provision of the Constitution—that a city must be able specifically to point out the authority to act in the grant given it by the Legislature; otherwise it was powerless to act. Ex parte Heidleberg, 51 Tex. Cr. R. 583, 103 S. W. 395; McNeil v. State, 29 Tex. App. 48, 14 S. W. 393. It was because of this well-recognized rule of law that article 11, § 5, of the Constitution was adopted in 1912. Our Legislature meets but once in every two years, and, as new evils arose to require the different cities and towns to rush to it and ask and secure a grant of authority and power to suppress the evil, it was regarded as too ineffectual a rule of law, and it was intended by this amendment to give the cities the power to act, without the specific grant of authority from the Legislature, and for the Constitution by its terms to confer this power on the cities and towns, and it did do so, only limiting the power thus granted to such limitation as may be prescribed by the Legislature, and provided that such power should not be so exercised as to be inconsistent with the Constitution of the state or the general laws of the state.

The Legislature of a state has all power to enact laws, except as it may be inhibited by the Constitution of the state or nation. It does not have to look to the Constitution for a grant of power to enact laws, but only to see if it is inhibited from acting. And a city does not since the adoption of section 5 of article 11 longer have to look to the Legislature for a grant of power to act (this being given by the Constitution), but only look to acts of the Legislature to see if it has placed any limitations on the power to act granted by section 5 of article 11. If the Legislature has placed no limitations on the power of a city to act, and the provision is inconsistent with no provision of the Constitution or the general laws of the state, the power of the city is as general and broad as is the power of the Legislature to act. We no longer must look to the Legislature to grant to a city power to amend its charter or to insert therein any given provision, but we only look to the acts of the Legislature to see if that body by any provision adopted has placed any limitations on. the power of a city to act in the matter. If therein we find no limitation placed on the city to amend its charter in any given particular, and such provision is inconsistent with no provision of the Constitution and no general law of the state, the city has the authority to so amend its charter and adopt such provision without any grant of power further than that conferred by section 5 of article 11 of the Constitution. The authority and power is therein granted and conferred on the city by a higher power than the legislative body— the sovereign speaking through its written Constitution.

While not necessary for the Legislature to have passed an enabling act putting in force this provision of the Constitution, as it was self-enacting, and became effective immediately upon its adoption by the people, yet the Legislature did in 1913 pass an enabling act, and the first section thereof is an exact copy of section 5, article 11, of the Constitution, granting all the power to cities conferred by the constitutional amendment, if it was necessary for the Legislature to pass an enabling act. Chapter 147, Sess. Acts 33d Leg. p. 307. In section 4 of this act it is de-dared: That by the provisions of this act it is contemplated to bestow upon the city adopting the charter or amendment thereunder the full power of local self-government, and among other powers that may be exercised by any such city, the following are enumerated for greater certainty (omitting all except what relate to the question here involved) :

“To provide for the establishment of districts within said city wherein saloons may be located or maintained and wherein spirituous, vinous and malt liquors may be sold to be drunk on the premises, and to prohibit the sale of such liquors or the location of such saloons within such defined district.”

Appellant’s contention is that this section grants authority only to establish districts in which the sale of intoxicating liquors to be drunk on the premises may be prohibited, and does not grant authority for the city in its charter to establish districts in which the sale of intoxicating liquors may be prohibited when such liquors are not to he drunk on the premises; in other words, a wholesale house selling by the gallon is beyond the power and control of the city. We do not think this the proper construction to be placed on the language of this section; for the clause “to establish limits wherein saloons may be located wherein intoxicating liquors may he sold to be drunk on the premises” is followed by another clause, “and to prohibit the sale of such liquors.” “Such liquors” means spirituous, vinous, and malt liquors, as they had been enumerated in the preceding clause, and this second clause provides for the absolute prohibition of the sale of such liquors (in any quantity) in the districts authorized to be established.

But, should we be in error in such construction, section 4 is followed by section 5 in the act passed by the Legislature, and it provides:

“The enumeration of powers hereinabove made shall never be construed to preclude, by implication or otherwise, any such city from exercising the powers incident to the enjoyment of local self-government: Provided, * * * such powers shall not be inhibited by the Constitution of the state”

—thus granting and conferring on the cities all power that is not inhibited by the Constitution and general laws of the state, as was done by the constitutional amendment. So, if section 4 did not confer upon the city the power to establish districts in which liquor should be sold, regardless of the quantity, section 5 of the act does specifically grant such authority and power, if it was necessary for the Legislature to give such a grant.

Appellant also contends that this section of the charter of Wichita Ealls is violative of section 20 of article 16 of our Constitution, wherein the people are authorized to adopt prohibition by a vote of the people. This provision of the charter was adopted by a vote of the people, at an election authorized by law to be held, and it by its terms prohibited the sale of liquor in territory defined, and authorized the sale in territory defined in the charter. The question that of authorizing a city to adopt and define limits in which the sale of liquor may be permitted, and define limits in the city in which such sales may not be made, is not violative of this provision of the Constitution, has been discussed so frequently by the courts of this state we do not deem it necessary to do so again. In Cohen v. Rice, 101 S. W. 1054, the Court of Civil Appeals, Fifth District, says:

“The section of the charter quoted above is not a local option statute prohibiting the sale of intoxicating liquors in the city of Marshall, but a statute regulating its sale within that city, and this the state or the city council of Marshall, acting under power conferred by charter, had a right to do under the police power of the state. The ordinance does not prohibit the sale of intoxicating liquors in the city of Marshall, but regulates the sale of the same in the city by confining its sale to the business 'portion of the city.
“Tlie same contention here insisted upon was passed upon by the Court of Criminal Appeals in the case of Ex parte Levine [46 Tex. Cr. R. 364] 81 S. W. 1206. In that case the court had under consideration the charter of the city of Corsicana, which defined the saloon limits and made it unlawful to sell or give away intoxicating liquors outside of such saloon limits. Levine had been convicted of selling intoxicating liquors outside of the saloon limits and taken into custody by the constable, whereupon he made application to the Court of Criminal Appeals for a writ of habeas corpus, claiming the ordinance was invalid. The writ was refused. The court held the provision in the charter was an act of regulation, and not affected by the provisions of the state Constitution affecting local option.”

See, also, Garonizik v. State, 50 Tex. Cr. R. 533, 100 S. W. 374; Ex parte King, 52 Tex. Cr. R. 386, 107 S. W. 549; Ex parte Levine, 46 Tex. Cr. R. 364, 81 S. W. 1206; Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121.

The Legislature, after the adoption in 1912 of the provision of the Constitution herein-before recited, at its session in 1913 (Acts 33d Leg. c. 18) passed a law which provides:

“Selling Outside of Fixed Limits in Cities and Towns. — If any person shall sell any intoxicating liquor in any city or town, after such city or town shall in any manner have fixed the limits in said city or town in which intoxicating liquors may be lawfully sold, outside of such limits, he shall be punished by confinement in the state penitentiary not less than one nor more than three years.. In prosecutions under this law, where it is proven that there is posted up at the place where such intoxicating liquor is sold, United States internal revenue liquor or malt license, to anyone, it shall be prima facie proof that the person to whom such license is issued is engaged in and is pursuing the business and occupation of selling intoxicating liquors within the meaning of this law”

—thus providing a penalty for the sale of liquor in any quantity within limits of a city or town where the city has in any manner fixed the limits in which such sales should not be made. The city followed the mode and method prescribed by law in fixing such limits, and it is made to appear that the limits in which sales can be made are coextensive with the fire limits of said city, showing that the sale of liquor is restricted to the business portions of the city and only prohibited in other portions of the city. Such regulations are reasonable and wise, in our opinion.

While not taking up! and discussing in every detail the contention of appellant, the above opinion disposes of every contention made. The charter provision is not void; is not inconsistent with any provision of the state or federal Constitutions, nór any provision of the general laws of this state. It was enacted in accordance with the power conferred on the city by the Constitution of this state by section 5 of article 11; and, as the Legislature has seen proper to place no limitations on the power of the city to amend its charter, this court can place none. The charter is admitted to have been legally adopted, and by fixing the limits in which license may be issued to sell intoxicating liquors within such city it has acted within the power conferred on it by law. The sales being admitted by appellant to have been outside of the limits so fixed and within the prescribed territory, the judgment should he affirmed.

The judgment is affirmed.

DAVIDSON, J. I do not now express any opinion, but will as soon as I can satisfactorily do so look into the questions and may then write.
      cfcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes