author: BROOKE, J.

text:
    HENNEGAN et al. v. NONA MILLS CO. et al.
    (No. 203.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 23, 1917.
    Rehearing Denied June 6, 1917.)
    1. Courts <&wkey;99(l) — Decision oe Higher Court as Controlling.
    Where the Supreme Court in an action of trespass to try title has determined that a deed was admissible and sufficient to show superior title, such holding will be adopted by this court in a later case between parties similarly situated where the identical deed is sought to be introduced in evidence.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 310.
    2. Trespass to Try Title <&wkey;41(l) — Contract op Deceased to Convey — Evidence.
    In trespass to try title by those claiming to be heirs of a remote owner, recitals in deed by the legal representatives of such owner together with surrounding circumstances held sufficient to support a court finding that owner before his death executed and delivered a contract to convey the land.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62.]
    3. Trespass to Try Title <&wkey;47(l) — Action Against Trespasser — Title Necessary.
    In trespass to try title against a naked trespasser, the owner of an undivided interest may recover the entire tract.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 69.]
    Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.
    Trespass to try title by Elizabeth Hen-negan and another against the Nona Mills Company and others, in which defendants brought a cross-action. Plaintiff took a non-suit, but defended in the cross-action. From part of the judgment for defendants in their cross-action, plaintiffs appeal.
    Affirmed.
    Maco & Minor Stewart and R. W. Horn, all of Houston, for appellants. E. B. Pickett, Jr., of Liberty, and Minor & Minor, of Beaumont, for appellees.
   BROOKE, J.

Elizabeth Hennegan and her daughter, Cornelia Shaffer, sought to recover the Philip Miller league, claiming to be the widow and daughter of James M. Miller, who was a son of Philip Miller, the original grantee, and his wife, Lucinda Miller.

The proof showed, and the court below found, there being no jury, that Elizabeth Hennegan never was the wife of James M. Miller, and that Cornelia was an illegitimate child, which findings of the court are in no way challenged by the appellants.

The plaintiffs thereupon took a nonsuit, and the court rendered judgment for the defendants upon their cross-action, for the defendant Mrs. Camilla G. Davis for the land claimed by her in the north half of the league, and for the Nona Mills Company for the 2,057 acres claimed. by it in the south half. The appellants abide by the judgment below in favor of Mrs. Davis for the land adjudged to her in the north half, but seek to reverse the judgment in favor of the Nona Mills Company for the 2,057 acres adjudged to it in the south half of the league, on the ground that a deed in the Nona Mills Company’s chain of title, made by James Knight and Lucinda Miller, who was the widow of Philip Miller, the original grantee, as the legal representatives of Philip Miller, deceased, to W. D. Smith for the south half of the league, was void, and not a title-passing paper, b.ut admitting ■ that, if that instrument did pass title, the Nona Mills Company has' title to the-2,057 acres. The appellees are Nona Mills Company and its warrantors, S. W. Blount and Mrs. Itasca Blount, E. A. Blount’s widow, and sole devisee and independent executrix.

The findings of fact and conclusions of law filed by the court are as follows:

“Findings of Fact.
“(1) I found that Philip Miller and Lucinda Coombs were married about the year 1827.
“(2) I find that in 1835 the league of land in controversy in this suit was granted to Philip Miller during his marriage with the said Lucinda. He died in 1839.
“(3) I find that Philip Miller and his wife, Lucinda, had several children, all of whom died unmarried without issue, the throe last of said children being John J. Miller, who died' about 1861, Benjamin Franklin, sometimes called Frank Miller, who died in about the year 1862, and James M. Miller, who died on or about January 9, 1864.
“(4) I specially find that James M. Miller and the plaintiff Elizabeth Hennegan were never-married and were never husband and wife, and that the other plaintiff, Cornelia Shaffer, born on April 1, 1864, was the illegitimate child of the said James M. Miller and the said Elizabeth Hennegan.
“(5) I find that about 1S41 Lucinda, the widow of Philip Miller, after the death of her husband, Philip Miller, married Thomas Cope, who died in 1847, and afterwards, in about 1849, she married one Brame, who died about 1852, and that the said Mrs. Lucinda Brame died in 1867, having had no child by her marriage with Brame, and leaving surviving her only one child by her marriage with Thomas Cope, that one child being Charles W. Cope, who was. -born February 18, 1847, and is living. .She and Thomas .Cope-had other children, but they died in infancy, or when young children, and before her death.
“(6) That the records of Liberty county, including the deed records and the records of the probate court, and all other records of the counj ty, were destroyed -by fire on or about December 12, 1874.
“(7) That prior to Philip Miller’s death he-exeeuted and delivered to William D. Smith a contract to convey the south half of the Philip Miller league upon the payment of a given consideration.
“(8) That after Philip Miller’s death his widow, Lucinda, and James Knight, as legal representatives of Philip Miller, deceased, did convey the said south half of said league to William D. Smith and received from William D. Smith $500 in pyament therefor, said deed of conveyance being acknowledged on September 1, 1840, filed for record February 4, 1882, and now of' record in the Deed Records of Liberty County, Tex, in Book F, page 197.
“(9) That William D. Smith by deed acknowledged by him on January 1, 1861, conveyed the-same south half of the league to Noel G. Roberts, filed for record February 4, 1882, of record in Book F, page 199, of liberty County Deed Records.
“(9a) In a ease styled C. W. Cope v. E. A. Blount et al., No. 3690 on docket of district court of Liberty county, plaintiff, Chas. W. Cope, sued in trespass to try title to recover the entire south, one-half of Rhilip Miller league, and on March 4, 1904, said court rendered judgment against him, and to the effect that plaintiff take nothing by his suit against the defendants E. A. Blount and E. W. Tucker.
“(10) That by written agreement it appears that the defendant Nona Mills Company has such title as Noel G. Roberts had to the 2057 acres in the south half of the league, particularly described in the answer of the defendant Nona Mills Company by mesne conveyances from a)jd under Noel G. Roberts.
“(11) That the Nona Mills Company ever since their purchase of the 2,057 acres in question has assessed the same for taxation, paid the taxes thereon, had the land surveyed, and exercised other acts of ownership, said purchase having been made by the Nona Mills Company in 1906, from E. A. Blount and S. W. Blount.
“(12) That the said E. A. Blount and S. W. Blount for many years prior to 1906 had assessed said land for taxation, paid taxes thereon, and exercised other acts of ownership thereover, and claimed the same by mesne conveyances under Noel G. Roberts.
“(13) That Lucinda Miller never claimed any part of the south half of this league, though she lived until 1867 on the northern half of the league, and that up to the time of their death neither of the three surviving children of Philip and Lucinda ever claimed any interest in the south half of the league.
“(14) That Philip Miller and his wife, Lucinda Miller, made their home upon the league of land in question until his death in 1839, and after his death, and after she married, Thomas Cope, Lucinda, the widow of Philip Miller, continued to reside upon the said league, having in cultivation a farm thereon, a residence, and other home improvements, and also a pasture for stock, and that she continued to so use and cultivate the place each year continuously up until her death in 1867, and her son, C. W. Cope, lived with his mother at her said home upon this league, and after her death he continued to make use of same, and to cultivate the same farm, and continuously each year used and cultivated the said home place and farm until about December, 1890.
“(15) That in 1859 the widow of Philip Miller, who was then Mrs. Lucinda Brame, and her three sons, James M. Miller, Jno. J. Miller, and B. E. Miller, partitioned among themselves the north one-half of this Philip Miller league, and by this partition they divided said north one-haif of the league among themselves as follows: To James M. Miller was allotted a tract of 160 acres, more or less, fronting on the Trinity river, and in the northwest corner of the league, and also a tract of 264% acres, more or less, in the southeast corner of the league, and the field notes of these two tracts are shown by deed dated April 6, 1859, from Lucinda Brame, Jno. J. Miller and B. F. Miller to James M. Miller. To John J. Miller was allotted a tract of 191 acres, more or less, in the northern part of the league and just east of the said James M. Miller 160-acre tract, and also a tract of about 266 acres in the eastern part of the league. And to B. F. Miller was allotted a tract of 61 acres in the north part of this league just east of the said John J. Miller 191-acre tract, and also a labor of land in Hardin county, Tex., the land so allotted to said B. F. Miller being shown by deed dated April 6, 1859, from Lucinda Brame, Jno. J. Miller, and J. M. Miller. And to Mi-s. Lucinda Brame there was allotted the old homestead tract of 200 acres and an additional tract adjoining same, making a total of 568 acres, which is situated in the southwest part of the north one-half of said Miller league, being bounded on the north by the above-mentioned James M. Miller 160-tract, Jno. J. Miller 191-acre tract, and B. F. Miller 61-aere tract, and on the east by the Ohas. Wilcox 640-acre tract out of this league, on the south by the line which divides this league into north and south halves, and on the west by Trinity river.
“(16) That, after the said partition among Mrs. Brame and her three sons, the said B. F. Miller conveyed to his mother, Mrs. Brame, the said 61-aere tract which had been allotted to him in said partition.
“(17) That during her lifetime Mrs. Brame regularly paid each year all taxes assessed against that part of the land in the north one-half of the Philip Miller league claimed by her, and that after the death her son, Chas. W. Cope, regularly paid each year all taxes assessed against that part of the land in the north one-half of said league claimed by him; that he so continued to pay such taxes up to and including the year 1899.
“(18) That on June 27, 1879, the old Miller home on said Miller league, it being then the home of Chas. W. Cope, was burned, and all tax receipts and other papers pertaining to this land which were then in his possession were burned in that fire.
“(19) That neither of the plaintiffs herein have ever paid any taxes on any part of this Philip Miller league.
“(20) That on May 16, 1873, Chas. W. Cope, by duly executed deed conveyed to Geo. W. Davis all his right, title, and interest in and to the headright league of land granted to Philip Miller on the 13th day of June, 1835, lying in said Liberty county, on the east bank of the Trinity river, ‘save and except out of said league my homestead tract consisting of 629 acres (in two surveys of 568 and 61 acres) lying on the road leading from Liberty to Livingston, the interest hereby conveyed being estimated at 800 acres, more or less, and situated in the northeast corner of said league, and bounded on the west by 640 acres out of said league known as the Charles Wilcox tract, embracing the several shares or interest of Benjamin Miller, John J. Miller, James M. Miller, and my mother, Lucinda Brame, as heirs and distributees of my estate of said Philip Miller in the said headlight league.’ And this deed was filed for record first on July 21, 1873, and again on December 18, 1891, and is now of record in Volume J, page 504, Liberty County Deed Records.
“(21) That on the 27th day of October, 1890, Chas. W. Cope, by duly executed deed, conveyed to Geo. W. Davis 629 acres, more or less, of said Philip Miller league, described as follows: ‘Six hundred and twenty-nine acres of land more or less, being part of that certain league titled to Philip Miller as a colonist on the 13th day of June, 1835, and being that part of said league conveyed to Lucinda Brame, and also including sixty-one acres conveyed to B. F. Miller, by the other heirs in the division of the estate of the said Philip Miller, deceased. [Here field notes are omitted.]’ And this deed was filed for record on January 5, 1891, and is now of record in Volume J, page 277, Liberty County Deed Records.
“(22) That the said Geo. W. Davis died in the year 1898, and the defendant Mrs. Camilla G. Davis is his widow, and by his will, which has been duly probated, she was made his sole dev-isee and independent executrix.
“Conclusions of Law.
“(1) I find that the league in question was the community property of Philip Miller and Lucinda, his wife.
“(2) That the deed made by Lucinda Miller and James Knight, as legal representatives of Philip Miller, deceased, conveyed the superior title to William D. Smith to the south half of the Philip Miller league land, and that the same title passed by deed from William I>. Smith to Noel G. Roberts, and that the title of Noel G. Roberts by mesne conve3Tances passed unto E. A. Blount and S. W. Blount and from them to the Nona Mills Company, as to the 2,057 acres described in the answer of the Nona Mills Company. All of the parties to the transaction evidenced by the deed from Lucinda Miller and James Knight, as legal representatives of Philip Miller, to William D. Smith, are dead. The deed is over 70 years old. All of the records of Liberty county have been burnt. Lucinda Miller and James Knight, making the recitals in their deed to William D. Smith, were acting in their official or representative capacity, and those recitals were against their interests. They received the $500 from William D. Smith. They were authorized to receive it and were liable therefor to the estate which they represented. They were in position to easily discover, and it was their duty to ascertain whether in fact Philip Miller had executed a contract with Smith. These facts and other facts and circumstances in evidence are sufficient to sustain the conclusions that Philip Miller had entered into a contract to convey the land to Smith, and that the purchase money was paid as recited, and it would be unreasonable to assume that the contrary was the fact.
“(3) I conclude, as a matter of law, that Elizabeth Hennegan was never married to James 'Miller, who was the surviving son of Philip Miller and Lucinda Miller, and that their relations were not those of husband and wife, and that the other plaintiff, Cornelia Shaffer, was not their legitimate child.
“(4) I conclude that on the death of John J. Miller in 1861 he left surviving him as his sole heirs Mrs. Lucinda Brame, his mother, B. E. or Frank Miller and James M. Miller, his brothers, and Chas. W. Cope, a half-broljher, and that they inherited from said John J. Miller all the land owned by him in the Philip Miller league at the time of his death, and that on the death of said B. F. Miller, he left surviving him as his sole heirs, Mrs. Lucinda Brame, his mother, his brother, James M. Miller, and his half-brother, Chas. W. Cope, and the said sole heirs of B. F. Miller inherited all land in said Miller league owned by him at the time of his death, and on the death of said James M. Miller in 1864, he left surviving him as his sole heirs the said Mrs. Lucinda Brame, his mothei’, and his half-brothei’, Chas. W. Cope, and they inherited from said James M. Miller all land in said Philip Miller league which he owned at the time of his death, and on the death of the said Lucinda Brame in 1867, she left surviving her as her sole heir her son, Chas. W. Cope, and he inherited all land in the said Philip Miller league, which was owned by the said Mrs. Brame at the time of her death.
“(5) I conclude that by virtue of the two deeds made by Chas. W. Cope to Geo. W. Davis, one on May 16, 1873, and one on October 27, 1890, the said Davis acquired a fee-simple title to all lands in the Philip Miller league described in said two deeds, and that now his widow, Mrs. Camilla G. Davis, a defendant herein, is vested with fee-simple title to all those certain tracts of land in the north one-half of said Philip Miller league, which are described in her first amended oi-iginal answer, filed in this cause, and being the same lands desci’ibed in paragraphs 20 and 21 of the foregoing findings of fact.
“(6) And I conclude that the defendant Nona Mills Company, upon its cross-action, should have judgment against plaintiffs for -the 2,057 acres out of the south half of the Philip Miller league particulaidy desci'ibed in the answer of said defendant filed in this cause, and that the defendant Mrs. Camilla G. Davis upon her cross-action should have judgment against the plaintiffs for those certain tracts out of the north one-half of said Philip Miller league which are described in her first amended original answer filed in this cause.”

The deed referred to is as follows:

“Republic of Texas, County of Liberty,
“Whereas, by a decree of the honorable probate court of the republic and county aforesaid, made on the 31st of August, A. D. 1840, by which the legal repi’esentatives of the estate of Philip Miller were authorized and empowered to make a title unto Wm. D. Smith to one-half league of land agreeably to the terms of a contract entered into by said Miller in his lifetime and said Smith:
“Now, therefore, know all men by these presents: That we, James Knight and Lucinda Mill-eii the legal representatives of the estate of Philip Millex-, late of the republic and county aforesaid, deceased, by virtue of the authority aforesaid and in consideration of the sum of five hundred dollars to us in hand paid, the receipt of which is' hereby acknowledged, have this day granted, bargained, sold, and by these presents do grant, bai'gain, sell, and convey, unto the said Wm. D. Smith, of the county of Jefferson, all that certain piece and parcel of land, the same being the south half of the league of land granted by his headright, lying and being situate in the county of Liberty, on the oast side of the Trinity river, fronting upon said river, adjoining lands claimed by Prince Blen-chet and Sam Houston, the said half commencing on the southwest corner of said Miller survey, on the east bank of the Trinity river: [Description of land here omitted.]
“To have and to hold the said bargained premises unto him, the said William D. Smith, and his heirs and assigns forever.
“And he, the said James Knight, and Lucinda Miller, legal representatives aforesaid, do covenant and agree to and with the said William D. Smith, his heirs, etc., to warrant and defend this sale against the successor of said P. Millei’, his heirs, etc., or any person or persons claiming under him or them.
“In witness whereof we have hereunto set our hands and seal this 1st day of September.
“James Knight, [Seal]
her
“Lucinda X Miller, [Seal]
mark
“Legal Representatives of the Succession of P-Millcr, Dec’d.
“In picsence of Bai’clay Townsend,
“A. W. Desmuke.
“Republic of Texas, County of Liberty.
“Be it remembered that before me, Geo. W. Miller, chief justice and ex officio a notary public in and for the county aforesaid, personally came and appeared James Knight and Lucinda Millex’, to me known, who acknowledged that they signed, sealed, and delivered the foregoing deed of conveyance as legal repi’esentatives of the succession of Philip Millei’, deceased, for the uses and pui’poses therein mentioned and set forth.
“To certify which I have hereunto set my hand and affixed my seal of office, at Liberty, this 1st day of September, A. D. 1840. Geo. W. Milos, Cyess and Ex Officio a Notary Public.
“Pi-esented for record September 2, 1840. I. H. Griffin, R. Leprotm.”

The first assignment of error complains of the action of the court in permitting the introduction in evidence of the purported copy of the deed by the administrators of the estate of Philip Miller, deceased, to W. D. Smith of the south half of the Philip Miller league. The proposition under this assignment is:

“The administrator’s deed, made under the decree of the probate court, in September, 1840, directing a specific performance of the contract by the intestate to convey to the grantee, is void and inadmissible in evidence as a conveyance, because the probate court had no jurisdiction at that time to decree a specific performance of a contract by an intestate.”

It is contended that without reference to the power of the probate court in 1840 to decree specific performance, the deed of September 1, 1840, from James Knight and Lucinda (widow of Philip Miller, deceased), as legal representatives of Philip Miller, deceased, to William E>. Smith, taken in connection with all the other circumstances, was admissible in evidence and is amply sufficient to sustain the conclusion that Philip Miller had entered into a contract with Smith; that the purchase money was paid by Smith to and received by Miller’s legal representatives, whereupon the title to the land, superior to any title remaining in the Miller estate, was vested in Smith, even independent of any deed. And it is also claimed that in the case of Cope v. Blount, 99 Tex. 431, 90 S. W. 868, the admissibility in evidence and the title passing character of this very deed was affirmed by the Court of Civil Appeals, and on certified questions by the Supreme Court, and' by the Court of Civil Appeals again on motion for rehearing, and by the Supreme Court again by the refusal of a writ of error. The latter contention seems to be correct.

In the case of Cope v. Blount, 38 Tex. Civ. App. 519, 91 S. W. 617, the court uses the following language:

“At the last term of this court we affirmed the judgment of the court below in this case, on the ground that the execution by Mrs. Miller of the deed to Wm. D. Smith estopped her and those claiming under her from asserting title to the land against the appellees who claim under said deed. Appellant having filed this motion for a rehearing, we certified to the Supreme Court the question of whether, upon the facts stated, appellant was estopped to assert title to the land. This question was answered in the affirmative in an opinion recently delivered by the Supreme Court. Vide Cope v. Blount [99 Tex. 431] 90 S. W. 868, 14 Tex. Ct. Rep. 636. It is claimed in the motion for rehearing that the fact stated in our former opinion that appellant was only claiming as heir of Mrs. Miller is not supported by the record, but that the record shows that he is the sole heir of Philip Miller as well as of Mrs. Miller, and there being no evidence showing that the land, or any part of it, was community property, or that Mrs. Miller had any separate interest therein, the judgment of the court below should not be affirmed. * * * The deed from James Knight and Mrs. Miller recites that Philip Miller had in his lifetime contracted to convey the land to Wm. D. Smith, and that Smith had paid the grantors, as legal representatives of Philip Miller, the purchase money due under said contract. If these facts are true, the superior title to all of the land became vested in Smith.
“The Supreme Court, in the opinion before referred to, say that Mrs. Miller and those wno claim under her are estopped from denying the truth of these recitals, and that, the contract therein recited being binding upon her to the extent of her interest in the land, her deed passed the legal title to said interest to Smith. These recitals are not binding as an estoppel against the heirs of Philip Miller, but they are admissible in evidence as circumstances tending to show the existence of the contract between Philip Miller and Smith and the payment of the purchase money by the latter, which, taken in connection with the other facts shown, are sufficient to sustain the conclusion that Philip Miller had entered into a contract to convey the land to Smith, and that the purchase money had been paid as recited. All of the parties to the transaction are dead, and the records of the county have been burned. The deed is over 60 years old, its genuineness is not questioned, and the grantors who make the recitals were essaying to act in their official or representative capacity, and such recitals were against' their interests. They were authorized to receive this money, and would be held liable therefor to the estate which they represented. They were also in position to easily discover, and it was their duty to ascertain, whether the contract with Smith had been executed. Under these circumstances, it would be unreasonable to presume that their statements are false. In addition to this, it is shown that Mrs. Miller lived for a number of years after the execution of said deed, that appellant has known of the existence of the deed for 40 years, and that neither he, Mrs. Miller, nor any one claiming under Philip Miller has ever asserted any claim to the land prior to the institution of this suit. On the contrary, it is shown that Smith and those claiming under him have continuously asserted claim to the land ever since the execution of said deed. There were several transfers before the conveyance to appellees, who have held it and paid taxes thereon for a number of years.”

There is a further proposition, upon which reliance seems to be based, that the recitals in the said administrator’s deed were not admissible in evidence to prove title or the contract therein recited by the intestate to convey, on the payment of consideration, because they were hearsay as to appellants, who were not parties or privies thereto, and not affected thereby. •

It is apparent to this court that the identical deed, together with all the circumstances surrounding it, has been determined by the Supreme Court of this state to be sufficient to vest the superior title to this land in Wm. D. Smith. We are acquainted with the authorities cited by the appellant, and, without going over the same in detail, will say that we cannot believe there is merit in this assignment, and that the same should be overruled.

The second assignment of error is submitted as a proposition, and is as follows:

“The court erred in concluding, in his conclusions of law, that the deed by Lucinda Miller and James Knight, as legal representatives of Philip Miller, deceased, conveyed the superior title to W. I>. Smith to the south half of the Philip Miller league.”

The third assignment challenges the action of the court in its finding of fact No. 7, in finding that prior to Philip Miller’s death he executed and delivered to Wm. D. Smith a contract to convey the south half of the Philip Miller league, upon the payment of a given consideration, because such finding is not supported by the evidence.

It is contended that the only evidence that Philip Miller executed a contract to convey, prior to his death, is the recitals in the administrator’s deed, and that the recitals were not admissible, because they were hearsay, because they are only conclusions or infer-enees, and for the further reason that they are not the best evidence.

We are constrained to believe that there is no merit in the contention of the appellants under these assignments, and the finding of the court that .prior to Philip Miller’s death he executed and delivered to Wm. D. Smith a contract to convey is sustained by reason of all the circumstances surrounding the transaction, and from the proper inferences to be drawn from the recitation itself. Being of the opinion, therefore, that there is no merit in these assignments, they are in all things overruled.

The fourth, fifth, and sixth assignments of error are as follows:

(a) “The court erred in finding ‘that after Philip Miller’s death his widow, Lucinda Miller, and James Knight, as legal representatives of Philip Miller, deceased, did convey the said south half of said league to William D. Smith and received from William D. .Smith $500 in payment therefor,’ because the same is not supported by the evidence, and is contrary thereto.”
(b) “The court erred in concluding, as a matter of law, that the facts and circumstances in evidence were sufficient to sustain the conclusions that Philip Miller had entered into a contract to convey the land to Smith and that the purchase money was paid as recited.”
(e) “The court erred in holding' that the evidence showed a contract in writing by Philip Miller, wherein he agreed to convey the south one-half of the league to William £>. Smith in consideration of $500 to be paid, and that the said $500 was afterwards paid by Smith.”

As before stated, we are of opinion that the facts and circumstances in evidence sustain the court’s findings and conclusions; that after Philip Miller’s death, his widow, Lucinda Miller, and James Knight, as legal representatives of Philip Miller, deceased, did convey the south half of said league to Wm. D. Smith, and received from Wta. D. Smith $500 in payment therefor, and we are of opinion that the facts and circumstances in evidence are sufficient to support the conclusion that Philip Miller had entered into a contract to convey the land to Smith, and that the purchase money was received, and that is the reasonable inference, and that a contrary assumption would be unreasonable. Therefore we find no merit in the assignments, and the same are overruled.

The eighth and ninth assignments of error are as follows:

(a) “The court erred in finding ‘that the said E. A. Blount and S. W. Blount, for many years prior to 1906, had assessed said land for taxation, paid taxes thereon, and exercised other acts of ownership thereover, and claimed the same by mesne conveyance under Noel 6. Roberts,’ because the same is not supported by the evidence, but is contrary thereto.”
(b) “The court erred in finding ‘that Lucinda Miller never claimed any part of the south half of this league, though she lived until 1867 on the north half of the league up to the time of her death, and neither of the throe surviving children of Philip Miller and Lucinda Miller ever claimed any interest in the south half of the league,’ because same was not supported by the evidence and is contrary thereto.”

The title of the Nona Mills Company, in so far as dependent on the deed made by Lucinda Miller and Knight, is as follows:

(1) The grant to Philip Miller of the league on July 15,1835.

(2) The marriage of Philip Miller to Lucinda about 1827, and his death in 1839, as found by the court in findings of fact Nos. 1 and 2, and as shown by the undisputed testimony of Chas. W. Cope, a son of Lucinda Miller by her second husband, Thomas Cope.

(3) Deed from James Knight and Lucinda Miller, as the legal representatives of Philip Miller, deceased, in 1840, to W. D. Smith for the south half of the league, of record in Liberty county ever since 1840, except for a period of eight years following the burning of all the records of that county in 1874.

(4) The deed for the south half by W. D. Smith to Noel G. Roberts in 1861.

(5) The written agreement that the Nona Mills Company has such title as Noel G. Roberts had to the 2,057 acres claimed by the Nona Mills Company.

However, we are of the opinion, at the outside, and to say nothing of the deed made by James Knight and Lucinda Miller, as the legal representatives of Philip Miller, and without reference to the contract between Philip Miller and W. D. Smith, and without regard to the recitals in that deed, as to whether Smith did or did not pay the $500 to the legal representatives of Philip Miller, the action of the court was correct in coming to the conclusion that the appellee had the title, for the reason that the appellants in this case came in as defendants in the cross-action of the appellees, and therefore, in the opinion of this court, the appellants are mere trespassers, and the title of the Nona Mills Company is good, and they are entitled to recover thereon, for the following reasons:

First. The appellants, when they took their nonsuit, in effect abandoned the contention made by their evidence that Mrs. Hennegan was the widow and Mrs. Shaffer the legitimate child of James M. Miller, the last surviving child of Lucinda and Philip Miller. The finding of the lower court was:

“I specially find that James M. Miller and plaintiff Elizabeth Plennegan were never married and were never husband and wife, and that the other plaintiff, Cornelia Shaffer-, born in April, 1864, was the illegitimate child of the said James M. Miller and the said Elizabeth Henne-gan.”

Second. In this aspect of the case, discarding the deed to Wm. D. Smith and Smith’s deed to Noel G. Roberts, the title of the Nona Mills Company would be and is:

(1) The marriage of Philip Miller to Lucinda in 1827.

(2) The grant to Philip Miller in 1835.

(3) Philip Miller’s death in 1839, leaving surviving him his widow, Lucinda, all of his children dying unmarried and without issue, the last three -dying in 1861, 1862, and 1864, respectively, leaving their mother surviving them. So, the league being community, Lucinda, on Philip’s death, had an undivided half, and, on the death of the three children by her marriage with Philip Miller, she inherited one half of their interests, the other half of their interests passing to their half-brother, Chas. W. Cope.

(4) In 1841 Lucinda Miller married Thos. Oope, by whom she had one child, C. W. Cope, surviving her when she died in 1867. So Thos. Cope inherited the league from his mother, Lucinda, and from his Miller brothers.

(5) “In a case styled C. W. Cope v. E. A. Blount et al., No. 3690 on docket of district court of Liberty county, plaintiff, Chas. W. Cope, sued in trespass to try title to recover the entire south one-half of the Philip Miller league, and on March 4, 1904, said court rendered Judgment against him to the effect that plaintiff take nothing against the defendants E. A. Blount and IP. W. Tucker.” This judgment was affirmed by the Court of Appeals in 38 Tex. Civ. App. 516, 91 S. W. 615. This judgment vested undivided interests in the south half in E. A. Blount and F. W. Tucker.

(6) In 1906 E. A. Blount conveyed by two deeds two undivided interests in the south half of the league to the Nona Mills Company, being all of the undivided interest of 2,057 acres claimed by the Nona Mills Company, except the undivided interest of 365 acres conveyed to it by S. W. Blount in 1906.

It is unnecessary to cite authorities to show that as against a naked trespasser, the owner of an undivided interest may recover the entire tract. So we may say that the judgment in Cope v. Blount et al. in favor of E. A. Blount for an undivided interest in the south half and the purchase fiom him by the Nona Mills Company of those interests would entitle them to the full recovery of the entire undivided 2,057 acres, without reference to the interest conveyed by S. W. Blount of an undivided 365 acres to the Nona Mills Company.

In addition to what has been said above, it is found by the court, in its twelfth finding of fact, that the said E. A. Blount and S. W. Blount for many years prior to 1906 had assessed said land for taxation, paid taxes thereon, and exercised other acts of ownership thereover and claimed the same by mesne conveyances under Noel G. Roberts. We think this finding of the court was supported by the evidence.

The court, in its thirteenth finding of fact, found that Lucinda Miller never claimed any part of the south half of the league, though she lived until 1867 on the northern half of the league, and that up to the time of their ■death neither of the three surviving children of Philip and Lucinda ever claimed any interest in the south half of the league. We believe this finding is supported by the evidence.

In its fifteenth finding of fact the court found that in 1859 Lucinda and her three Miller sons partitioned amongst themselves the north half of the league, on which her homestead was, and in its seventeenth finding that Lucinda, till her death in 1867, and her son, Chas. W. Cope, till 1890, assessed and paid taxes only on land in the north half; in the nineteenth that neither of the plaintiffs have ever paid any taxes on any part of the Philip Miller league: and the twentieth and twenty-first findings are that Chas. W. Cope never conveyed any land except in the north half of the league. These findings of the court are based upon testimony, and we are unable to say that they are not correct. We have gone over the record carefully, and examined the assignments in the light of the opinions of the Court of Civil Appeals and Supreme Court heretofore rendered. We have concluded that the conclusions of law arrived at by the lower court were sound, and that there was no error in the same.

Believing, as we do, that the appellants have had a fair and impartial trial, and that their rights have been guarded in the trial had in the district court, and finding no error in the action of said court, the judgment herein is in all things affirmed.
      ©=eFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    DORMAN v. BOEHRINGER.
    (No. 5863.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 16, 1917.)
    Brokers <&wkey;99 — Undisclosed Principal — Liability of Principal.
    Where defendant in his own name sold com to plaintiff, he was liable for a breach of the contract, though the paper on which the contract was written bore a printed notice that he was liable as a broker, since an agent contracting in his own name without disclosing the name of his principal is personally liable on the contract, especially as it did not appear that defendant was acting for any -principal.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 140, 141.]
    Appeal from District Court, Maverick County.
    Action by E. Boehringer against C. W. Dorman. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Sanford & Wright, of Eagle Pass, for appellant. J. E. White, of Eagle Pass, and T. J. Murray, of San Antonio, for appellee.

      For opinion on rehearing, see 195 S. W. 1183.

   FLY, C. J.

Appellee sued appellant to recover $600 for a breach of a contract of sale of corn. The cause was submitted to a jury on special issues, and upon the answers thereto judgment was rendered in favor of appellee for $600.

The evidence shows that appellant contracted to deliver to appellee at Eagle Pass, Tex., 12 cars of No. 2 sacked white corn at $1.01% a bushel. He failed to deliver the earn, and appellee was compelled, in order to meet his obligations, to buy corn on the market, which cost him from $1.05% to $1.-07Ys a bushel. Appellant did not make known that he had a principal from whom, as a broker, he was obtaining the corn, but for 10 or 14 days assured appellee that appellant would have the corn in readiness for him and that it was on the road. It was never received. There was in small letters near the top of the letter paper on which the contract for the com was written a printed notice that appellant was responsible only as a broker.

If an agent discloses the fact of his agency, but conceals the name and identity of his principal, and deals in his own name as the contracting partjq he will be personally liable. Mec-hem on Agency, § 2419; Lincoln v. Levi Cotton Mills Co., 128 Fed. 865, 63 C. C. A. 333; Baxter v. Duren, 29 Me. 434, 50 Am. Dec. 602.

The case of Paine v. Loeb, 96 Fed. 164, 37 C. C. A. 434, cited by appellant as authority for the proposition that whether the principal was disclosed or undisclosed appellant was not liable, because the writing on his letter had disclaimed liability, does not support that proposition. The only question in that case was whether Paine & Co. could recover as agents or principals. It was held that they could not recover as agents because there was no principal, nor as principals, on account of their fraudulent conduct. In the case now before the court appellant utterly failed to show that he had any principal, and contracted in his own name for delivery of the corn. The word “principal” is nowhere mentioned in the transaction between the parties. An agent contracting in his own name and failing to disclose the name of his principal at the time of making a contract for the sale or purchase of goods is personally liable for whatever obligation may arise out of the contract. Cobb v. Knapp, 71 N. Y. 348, 27 Am. Rep. 51; Argersinger v. MacNaughton, 114 N. Y. 535, 21 N. E. 1022, 11 Am. St. Rep. 687.

Appellant- could not escape liability by merely stating that he was liable only as a broker, unless he disclosed for whom he was acting as agent. The disclosure of agency is not completely made unless it embraces the name of the principal. Appellant not only failed to show that he was acting for any principal, but failed to show that he ever had any authority for making the contract of sale. On the other hand, the facts tend to show that there was no principal, and that he was contracting for himself, and was therefore liable. Simmons v. More, 100 N. Y. 140, 2 N. E. 640. If appellant is not liable for a breach of the contract, no one is liable, for he had no principal. I-Ie cannot escape by stating on his stationery that he acted as broker only and assumed responsibility'as such. As such broker, he is liable when he discloses no principal.

There is no testimony tending to show that appellant ever accepted any modification of the original contract by appellee. No breach of the contract on the part of appellee was pleaded by appellant, and there was no testimony tending to show a breach. After receiving the telegram as to the quality of corn desired by appellee, appellant still recognized the contract, and from time to time told about the corn being on the way.

It was not controverted that the West Texas Grain Company and appellant were the same. He did not deny the evidence of Louze “that he and the West Texas Grain Company are one and the same; that he simply does business under that name.”

No issue was made as to the readiness, willingness, and ability of appellee to pay for the corn, and the evidence showed that he was anxious to receive the corn, by his constant inquiries about it, and his ability to pay for it was shown by the fact that he bought corn to supply the place of that ordered from appellant and paid a high price for it. The record does not show any error, fundamental or otherwise.

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


author: HARPER, C. J.

text:
    ALLEN v. OREAR et al.
    (No. 713.)
    (Court of Civil Appeals of Texas. El Paso.
    May 17, 1917.)
    PRINCIPAL AND AGENT <&wkey; 194(1) — 'UNDISCLOSED Principal.
    Where plaintiff sued, claiming contract with agent, who failed to disclose his principal, under which he, performed certain work and labor, and sought recovery either of the contract price or on quantum meruit, and there was no evidence that the undisclosed principal knew anything of the work, or that the agent was his authorized agent, or that plaintiff was misled to believe in the agency, it was not error to refuse to charge on the issue of quantum meruit.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 727.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by Ollie Allen against E. D. Orear and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Smith & Palmer, of Comanche, for appellant. H. N. Goodson, of Comanche, for appel-lees.
   HARPER, C. J.

Ollie Allen brought this suit against E. D. Orear and J. D. Bonner, alleging that at the request of Bonner, as the agent of Orear, plaintiff cut and baled and otherwise put in condition for market a crop of hay; that Bonner did not disclose his agency for Orear; that the contract price was $430.41. Second count upon quantum meruit. Defendants answered by general denial. Special denial of agency of Bonner, and that the work was done under contract with one Phifer, who was the lessee or renter of defendant Orear, etc. Tried with jury, and verdict and judgment' for defendants, from which it is here for review.

Appellant presents two assignments of error, raising same issue, to the effect that the court erred in refusing to submit in its charge the issue of quantum meruit pleaded. The second charges that the court erred in refusing to submit a special charge requested to same effect.

The evidence discloses that Orear owned the land from which the hay was cut; that it was rented that year to Phifer, by written contract, which provided that “the said Phifer agrees to cultivate the same in good and farmerlike manner, to harvest the crops of every kind raised on said place in proper time, to cut and bale all hay grown thereon, and to deliver to the said Orear at the city of Comanche,” etc.; that the cutting and baling done by plaintiff was at the instance and request of Phifer. There is some evidence that Bonner, as agent of Orear, authorized it; but the jury have found that no contract was made with Bonner. There is no evidence that Orear knew anything about the work being done by plaintiff. There is no evidence that Bonner was the authorized agent of Orear. On the other hand, Orear and Bonner testify that he had no authority as agent to make such a contract with plaintiff. There is nothing in the record to show that plaintiff was misled to believe that Bonner had such authority as the agent of Orear. Cleveland & Son v. Houston Sporting Goods Co., 166 S. W. 912. The facts further clearly show that the work was done for Phifer, and there is no evidence to indicate that plaintiff was entitled to ^recover upon quantum ^meruit;. Therefore the court did not err in refusing to give the charge.

Affirmed.
      @=xoFor other cases see same topic and ^BY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    WALLING et al. v. MALONE INDEPENDENT SCHOOL DIST.
    (No. 7894.)
    (Court of Civil Appeals of Texas. Dallas.
    May 5, 1917.
    Rehearing Denied June 2, 1917.)
    1. Schools and School Districts <&wkey;97(4)— Bond Elections — Validity.
    Though Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2860, provides that the ballots on a school bond election shall read, “For the Tax” or “Against the Tax,” ballots reading “For the Bond” or “Against the Bond” did not invalidate the election, the levy of the tax following as a matter of course from the issuance of bonds.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 226.]
    2. Schools and School Districts <&wkey;97(6)— Bond Elections — Validity.
    In view of Rev. St. 1911, art. 2737, providing for school bonds to be examined by the Attorney General, who, if satisfied of their validity, shall certify them, where bonds voted for and issued were approved by the Attorney General, their validity was unimpeachable.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 228.]
    3. Schools and School Districts <&wkey;108(4)— Bonds and Tax — Validity.
    Where a school bond is voted for and issued, the tax made to provide a sinking fund to pay interest is necessarily valid if the bonds are valid.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 235, 259.J
    4. Schools and School Districts <&wkey;>118— Bonds — Action by Taxpayer — Defects in Parties — Effect.
    Where a suit was brought to prevent levy and assessment for the payment of certain bonds, but the petition alleged that they had been sold to the state board of education, it was demurrable for failure to make the purchaser a party.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 275.]
    Appeal from District Court, 1-Iill County; Horton B. Porter, Judge.
    Suit by R. T. Walling and others against the Malone Independent School District. Judgment dismissing the petition, and plaintiffs appeal.
    Affirmed.
    Morrow & Morrow, of Hillsboro, for appellants. Shurtleff & Cummings, of Hillsboro, and Chas. L. Black, of Austin, for appellee.
   RAINEY, C. J.

This suit was instituted by appellant against the Malone independent school district and its trustees, to enjoin them from assessing, levying, and collecting taxes for the purpose of paying the interest on and creating a sinking fund to redeem certain school bonds issued by said school district. An answer was filed, and upon a hearing a general demurrer was sustained to plaintiff’s first amended original petition, appellant refusing to amend, and the cause was dismissed, from which action of the court this appeal is prosecuted. Appellant’s first amended original petition sets out substantially the following:

“First. It alleges that the plaintiffs are residents of the Malone independent school district and property tax paying voters therein.
“Second. That said school district is incorporated under chapter 16, title 48 of Vernon’s Sayles’ Civil Statutes of 1914, and that the individual defendants were qualified and acting as trustees; that on the 18th day of May, 193 6, the trustees passed an order to determine whether or not on the 20th day of June, 1916, an election should be held to determine whether or not the bonds of said district in the sum of $9,000, payable 40 years after date, and bearing 5 per cent, interest should be issued, and whether or not a tax sufficient to pay the interest on the bonds and provide a sinking fund should be levied, said bonds being for the purpose of constructing and equipping a brick school building; that thereafter, on the 20th of June, 1916, an election was held, and that result was declared to be in favor of the issuance of said bonds and levying said tax.
“Third. That the defendants, purporting to act by virtue of said order and said alleged election, have issued against said district the bonds in negotiable form to the amount of $9,00C, bearing interest at the rate of 5 per cent, per annum, and since the institution of this suit, as plaintiffs are informed, have sold the bonds to the state board of education of Texas, for the benefit of the permanent school fund of Texas, said bonds having first been examined and approved by the Attorney General of Texas and duly registered by the comptroller, as required by law, and that the defendants have caused to be levied and will proceed to collect taxes on all the property in said district, including the plaintiffs, which tax, when collected, they will use to pay the interest on and create a sinking fund to discharge said bonds.
“Fourth. That the ballots used in said election were not in compliance of the law as prescribed by article 2800, Vernon’s Sayles’ Statutes of 1914, in that the ballots used in the election had printed i on same, in one instance, ‘For the Bond’ and in the other instance, ‘Against the Bond,’ whereas the law requires that they have printed, ‘For the Tax’ and ‘Against the Tax’; that said tickets were the only tickets used at said election; that by reason of the facts aforesaid the trustees were without authority to issue said bonds, and were without authority to levy and collect said tax.
“Fifth. The appellants next set out the statement of the amount of said tax proposed to be levied against each of them and their property consisting of real and personal property situated in the district. .
“Sixth. The plaintiffs allege that the purchasers of the bonds had constructive notice of the tax and the invalidity of the bonds, in that the suit was filed on June 28, 1916, and contained averments charging the invalidity of the bonds and invalidity of the tax, and since the filing of the suit the purchase has been made, and that the filing of said suit with the averments gave constructive notice of the invalidity of the bonds.
“Wherefore the appellants pray for the cancellation of the bonds and for annullment of the tax levy and for the removal of cloud against their property in said district growing out of the tax levy, and further pray for cancellation of the tax levy and for an injunction against the plaintiffs, and all parties acting under them, from collecting same or taking any steps to collect same and they pray .for general relief.”

Appellant assigns as error the action of the court in sustaining a general demurrer to his petition, and contends that the petition stated a good cause of action and submits the proposition that:

“Article 2860, Revised Statutes of 1911, provides that those in favor of the issuance of said bonds shall print or write on their ballots, ‘For the Tax,’ and those against the issuance of said bonds, shall write or print upon their ballots, ‘Against the Tax,’ and it appearing that the ballots used in the election as a basis for the levying of the tax in this case, had printed or written on them in the one instance, ‘For the Bonds’ and in the other instance, ‘Against the Bonds,’ the election is invalid and insufficient to support the tax levy involved in this suit. * * * No tax levy for the purpose of paying interest on bonds and creating a sinking fund to redeem them at maturity in such a school district is valid without an election held as prescribed by law authorizing the levy and collection of such tax.”

Was the manner of voting on the bonds as alleged such an irregularity as to render the levy of a tax to secure their payment void and subject the levy to an injunction? We think not. Voting for the bonds in this instance was substantially voting for the tax, as the law provides for such á levy upon the issuance of bonds, so the voter evidently understood that voting for the bonds was in effect a vote for the tax. It is not alleged that any voter was misled by the wording of the ballot or that any voter misunderstood what he was voting for or that any one voted different than he intended.

The variance complained of in the wording of the ballots was a statutory one, and we think if the statute was substantially complied with the election should be held valid. Another reason why said irregularity should not affect the validity of the election is that said election had been held, said bonds been examined and approved by the Attorney General of Texas, and duly registered by the comptroller, as required by law. This course having been complied with and it being so alleged, we think it renders the regularity of the bonds unimpeachable. Article 2737, R. S. 1911, provides for bonds issued by school districts to be examined by the Attorney General, and, satisfied of their validity, he shall then so certify, and after same has beeu registered by the comptroller, they are authorized to be purchased as an investment for the permanent public free school fund. The petition alleges the bonds, after being so examined and approved, were purchased by the state board of education as an investment, and it is argued that said purchase was made pending litigation, and that they were subject to the defenses pleaded.

The case of Board v. Railway Co., 46 Tex. 316, holds that the doctrine of lis pendens does not apply in such cases.

Appellant contends that no attack is made upon the issuance of the bonds, but it is against the levying of the tax. If there is no power to levy and collect the tax, there was no power to issue the bonds, for if no means were provided for paying the interest and creating a sinking fund, the bonds would be worthless, so in upholding the validity of the bonds, we necessarily hold the levy and collection of the tax legal.

The petition was defective in another particular. It charges that the bonds had been sold to the state board of education of Texas for the benefit of the permanent school fund of Texas. This shows that the bonds had gone into the hands of a third party, which being the case, it was necessary for the holder of the bonds to be made a party defendant in this case. This was not done, and it makes the petition demurrable. Board v. Railway Co., 46 Tex. 316; Boesch v. Byrom, 37 Tex. Civ. App. 35, 83 S. W. 18; Buie v. Cunningham, 29 S. W. 801; King v. Commissioners’ Court, 10 Tex. Civ. App. 114, 30 S. W. 257.

The record shows that neither the state of Texas nor the board of education is a party.

The judgment is affirmed.
      (gz^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    WILSON v. GIRAUD.
    (No. 4004.)
    (Supreme Court of Texas.
    June 13, 1917.)
    1. Courts @=>247(5) — 'Texas Supreme CourIt — Certificate from Court op Civil Appeals. .
    The Supreme Court may decide questions certified to it by the Court of Appeals in cases within that court’s final jurisdiction, provided such certificate is not based on Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1620, authorizing certificates where a judge dissents.
    2. Courts @=3247(5) — Texas Supreme Court — Certificate from Court of Civil Appeals.
    Where Court of Civil Appeals concurred in the original opinion and overruled a motion for rehearing with a dissent, a certificate to the Supreme Court, stating that the order overruling the rehearing motion was set aside. on the court’s own motion and questions certified because of doubt regarding the original decision, the certificate is not based on Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1620, authorizing certificates whei’e a judge dissents, but on article 1619, authorizing certificates where the court deems it advisable, etc.
    Certified Questions from Court of Civil Appeals of Hirst Supreme Judicial District.
    Action between J. M. Wilson and E. A. Giraud. Prom an adverse decision, J. M. Wilson appealed to the Court of Civil Appeals, which certified certain questions to the Supreme Court. On motion to dismiss the certified questions.
    Overruled.'
    B. P. & Otis K. Hamblen, of Houston, for appellant. Baker, Botts, Parker & Garwood, of Houston, for appellee.
   PHILLIPS, C. J.

This case is before the court on certified questions from the honorable Court of Civil Appeals for the First District. The appellant has moved that the certificate be dismissed because of the want of jurisdiction in this court to determine the questions certified. The ground of the motion is that the case is one of boundary, of which the jurisdiction of the Court of Civil Appeals is final, and that the questions were certified because of the dissent from the judgment of the Court of Civil Appeals by one of its members.

The case appears to be one of boundary. Accordingly, if the questions had been certified because of a dissent on the part of one of the judges of the Court of Civil Appeals— that is, under article 1620, we would be .without jurisdiction. Herf v. James, 86 Tex. 230, 24 S. W. 396. The mere fact, however, that a case is one within the final jurisdiction of the Court of Civil Appeals, does not deprive this court of jurisdiction to decide questions arising therein and certified to it by the Court of Civil Appeals. Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567. The question is fully discussed in Wallis v. Stuart, wherein Herf v. James was limited to cases arising strictly on a certificate of dissent.

We do not construe the (present certificate as made because of a dissent. In the decision of the case on its original hearing, all of the judges of the Court of Civil Appeals appear to have concurred. The appellee’s motion for a rehearing was overruled by a majority of the court, Chief Justice Pleas-ants dissenting. The certificate states that the court, of its own motion, had set aside the order overruling the motion for rehearing. It furthermore states that the questions were certified because of the court’s doubt as -to the correctness of its original decision. It does not indicate that the questions were certified merely because of the dissent entered in respect to the court’s original action on the motion for rehearing. The certificate is to be construed as having been made under article 1619, rather than article 1620. The motion to dismiss is therefore overruled.


text:
    GOODWIN v. GUNTER et al.
    (No. 2432.)
    (Supreme Court of Texas.
    June 13, 1917.)
    1. Brokers @=57(2) — Commissions—Procuring Purchaser.
    A broker is entitled to a commission though the sale is made for a price less than limited to him, if he in fact procures a prospective purchaser with whom directly, pending his own negotiation, the principal, with knowledge that such negotiation is pending, concludes the sale on terms satisfactory to himself, though the purchaser was unwilling to pay the price at which the land was listed with the broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72.]
    2. Trial @=404(2) — Finding—Construction.
    Finding in a broker’s action for commission on a sale at $30 per acre of land listed by defendant owner with plaintiff at- $35 per acre, concluded directly by the owner with L., with whom plaintiff was negotiating, “that L. was not willing to pay more * * * than his offer of $30 per acre, and would not have done so, hence he was not procured as a purchaser at a price at which G. [plaintiff] had the land for sale,” is an expression of the trial court’s view of the law, rather than a finding on the issue of fact whether the broker’s efforts were the procuring cause of the purchase being taken up by the purchaser directly with the owner.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 958.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    On rehearing.
    Former opinion (185 S. W. 295) set aside, judgment of Court of Appeals (142 S. W. 664) reversed, and case remanded.
    J. M. Eskridg;e, of San Antonio, and M. B. Templeton, of Dallas, for plaintiff in error. Clark & Bliss, of San Antonio, and Spence, Knight, Baker & Harris, of Dallas, for defendant in error Lindsley.
   PHILLIPS, C. J.

Upon further consideration we are of the opinion that we erroneously construed the trial court’s findings of fact and law in this case as an independent and definite finding that Goodwin was not the procuring cause of the sale of the land to Lindsley; upon which construction it was that we affirmed the judgment. As held in the original opinion, 185 S. W. 295, Goodwin, in the state of the pleading at the time of the trial, was entitled to recover his commission, though the sale made to Lindsley by Judge Bliss as Mrs. Gunter’s agent was for a price per acre less than the land had been listed to Goodwin, provided it was true as a matter of fact that his efforts through Witwer were responsible for the negotiation between Judge Bliss and Lindsley. In this holding we but applied the established rule that in a case of this character the broker is not deprived of his right to his stipulated commission by the circumstance that a sale of the property is made for a price less than as limited to him, if he in fact procures a prospective purchaser with whom directly, pending his own negotiation, the principal, with knowledge that such negotiation is pending, concludes the sale upon terms satisfactory to himself, — it appearing from the evidence that Goodwin’s negotiation, through Witwer, of a sale of the land to Lindsley had riot been concluded when the sale made to the latter by Judge Bliss was agreed upon, and that Judge Bliss had notice at the time of Goodwin’s claim to a commission in the event of a sale to Lindsley. It was therefore our view that the only question in the case was whether Witwer’s efforts were the procuring cause of the purchase being taken up by Lindsley directly with Judge Bliss.

The finding of the trial court was “that Lindsley was not willing to pay more for said lands than his offer of $80.00 per acre, and would not have done so, hence he was not procured as a purchaser at the price at which Goodwin had the land for sale.” This, we think, expressed the trial court’s view of the law of the case, rather than a finding upon the issue of fact to which we have referred. It¡ indicated the opinion that Lindsley could not be regarded as a purchaser procured by Goodwin, unless he was willing to pay for the land the price at which it had been listed with Goodwin, notwithstanding it was Goodwin's efforts through Witwer that caused him to enter upon his negotiation with Judge Bliss. As stated in the original opinion and as we here reaffirm, this is not the law. Under the facts it was possible for Lindsley to be regarded as having been “procured as a purchaser” by Goodwin though he was unwilling to pay the price at which the land was listed with Goodwin and in fact concluded .the purchase for a less price. Goodwin was entitled to have the evidence upon this issue determined in the light of the correct rule of law. The trial court’s view of .the law being as expressed in the above finding, it cannot be said that such right was accorded him. It is. only fair, therefore, that the case be remanded in order that it may be correctly tried.

The Court of Civil Appeals predicated its-view of the case (142 S. W. 664) upon the findings of fact of the trial court.

It is insisted by Goodwin’s counsel that the evidence shows conclusively that Wit-wer’s efforts were the cause of Lindsley’s-taking up the matter of the purchase with Judge Bliss. We do not agree with this contention. We think it reveals a state of conflict.

The judgment of affirmance (185 S. W. 295) is set aside, and the entire case is remanded to the District Court for further-trial.
      (g=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    HOME INV. CO. et al. v. STRANGE.
    (No. 2516.)
    (Supreme Court of Texas.
    June 13, 1917.)
    1. Limitation of Actions <@=>36(2) — Statute-Applicable — Trusts.
    An action for the establishment of a trust and recovery of lots so held, although it contained a prayer for personal judgment in the alternative, was not an action of debt barred by the two year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 171, 172.]
    2. Limitation of Actions <@=3127(17)- — Commencement of Action — Amendment—New Cause.
    In an action for establishment of a trust and recovery of lots so held, an amendment which asked for a personal judgment in the alternative did not set up a new cause of action within the statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 545.]
    3. Limitation of Actions <@=>103(4) — Accrual of Cause of Action — Repudiation of-Trust.
    As against a trustee, the statute of limitations begins to run from the date the beneficiary acquires notice that the trust has been repudiated.
    [Ed. Note. — For other cases, see Limitation of' Actions, Cent. Dig. § 510.]
    4. Appeal and Error <@=>1002 — Findings-Based on Conflicting Evidence — Review.
    A jury finding based on conflicting evidence sufficient to support it is binding on this court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937.]
    5. Trusts <@=>103(4) — Constructive Trust-Attorney and Client — Acquiring Title.
    An attorney acquiring title to lots whilo he-has a contract to secure title for his client will be regarded in equity as holding the legal title-for the client.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 154.]
    6. Equity <§=>65(1) — Trespass to Try Title-<@=47 (3) — Judgment—Reimbursement.
    In trespass to try title against an attorney alleged to have been employed by plaintiff to clear up the title to lots and to have acquired title for his own benefit, return of the purchase-money paid by the attorney, and tendered by plaintiff’s pleading, should have been made a condition precedent to enforcement of the judgment, as he who seeks equity must do equity, although the attorney had a design to defraud, and did not request a return in his pleadings.
    [Ed. Note. — For other cases, see Equity, Cent.. Dig. §§ 185, 187.]

      7. Trusts @=3375(1) — Breach of Trust — Reimbursement.
    Although an attorney employed to clear up title to land expended money to acquire outstanding titles, with the intention and design to deprive his client of the land, he was entitled to reimbursement for actual purchase money paid.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 613, 615.]
    8. Trusts @=>375(1) — Breach of Trust — Reimbursement — Attorney’s Fee.
    Reimbursement for fees for legal services or expense incurred by the attorney should not be required as a condition precedent to enforcement of the judgment.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 613, 615.]
    9. Appeal anb Error @=>1151(1) — Modifying Judgment — Absence of Finding.
    The appellate court has no legal authority to modify a judgment so as to make return of purchase money a condition precedent to enforcement, where the amount of the purchase money has not been ascertained by the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4499-4505.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Trespass to try title by H. B. Strange against the Home Investment Company and others. There was a judgment for plaintiff, which was affirmed by the Court of Civil Appeals (152 S. W. 510), whereupon defendants brought the case here upon a petition for writ of error.
    Reversed and remanded.
    Leake & I-Ienry, N. L. Lindsle’y, and W. J. Moroney, all of Dallas, for plaintiffs in error. L. C. McBride, of Dallas, for defendant in error.
   YANTIS, J.

This suit was instituted in the district court of Dallas county by H. B. Strange, by petition in trespass to try title, against the Home Investment’ Company, a corporation, and W. B. Kendall and his wife, Emma G. Kendall, to recover the title to seven lots situated in Dallas county, Tex., being lots 12, 13,14,15,16,17, and 18 of Huffman subdivision of lots 1 and 4 of Block A, Bowser & Lemon’s addition to the city of Dallas; The original petition was filed February 9, 1907. On June 29, 1908, an amended petition was filed by Strange, making W. J. Moroney a party defendant in the suit. Moroney is a lawyer, and was president of the Home Investment Company. In this amended petition it was alleged by Strange that on or about January 1, 1906, he was the just and rightful owner, and entitled to the possession, of the lands sued for in the original petition; and that on or about said date he employed W. J. Moroney, who was a practicing attorney, and engaged his services to perfect his (Strange’s) title to said lands, and to clear up and acquire for his benefit any outstanding titles which the judgment of said Moroney deemed necessary or proper to be acquired or cleared up; but that instead of said Moroney representing his interests, as he was employed to do, he, in truth and in fact, undertook to clear the title in such manner as to acquire the title of said land for the benefit either of himself or the defendant corporation, the Plome Investment Company, by acquiring the outstanding titles to said lands, and by placing the title thereto in the name of the Home Investment Company, of which Moroney was president. By this amendment the same relief was prayed for as was sought in the original petition by him; that is, that he have judgment for the title and possession of said -lands for rents thereon, and for general, special, and equitable relief.

On March 19, 1909, Strange, the plaintiff in the district court, filed his fourth amended petition, and while still maintaining his right to recover the lots described in the original petition in the form of trespass to try title, he asked also to be permitted to recover in trespass to try title against the said defendants the title and possession of 11 other lots, being numbered 1 to 11, inclusive, which were also located in the Huffman subdivision of lots 1 and 4, Block A, Bowser & Lemon’s addition to the city of Dallas. By this amendment he alleged that with reference to these lots also the defendant Moroney was employed by him to perfect their -titles in him, Strange, and to secure any outstanding titles in his favor; and that Moroney secured the outstanding titles for his own benefit, or for the benefit of the Home Investment Company ; and that as to all of the lots sued for in this amended petition the Home Investment Company had notice when the title was placed in its name of the obligation of' Moro-ney to clear the titles for the plaintiff, Strange, and of Moroney’s fraud in placing the title in fact in the name of the Home Investment Company.

By his fifth amended petition Strange sued in trespass to try title for all of the lots mentioned in the fourth amended petition, and further alleged that since January 1, 1906, the defendants, W. J. Moroney and Home Investment Company, have at all times held and possessed said lots in trust for the use and benefit of the plaintiff, Strange, and that if it should appear on the trial that either or both of said defendants have disposed of said lands, or any portion of the same, then the plaintiff, Strange, would elect upon the trial as to each of said lots whether he should have judgment for, the specific lot or its value, and he alleged the value of each of said lots to be $1,000, and rapidly enhancing. He also alleged in his petition that neither of said defendants is in position to ask for restoration or reimbursement by him of any sums expended by either of them in attempting to gather in or acquire such titles; but that if plaintiff should be in error in this position, and it should be ascertained on the trial that the said Moroney or the Investment Company had actually expended any sum or sums of money in attempting to acquire said titles, and that in law or in equity it was incumbent upon the plaintiff, Strange, to refund or repay them, or either of them, such sums so expended, then the plaintiff, Strange, offers to repay such sums, and requests that the court, as a condition precedent to a recovery by him, require, in the order or decree to be entered, a reimbursement of such sums by him to said defendants.

By answer the defendant Home Investment Company disclaimed any right, title, or interest in lots 1, 2, 9, 10, and 11. It pleaded the statute of limitations of two years as a defense to the cause of action sued on.

The defendant W. J. Moroney filed a separate answer, in which he disclaimed any right, title, or interest in any of the property in controversy, and he expressly disclaimed in favor of his codefendant, the Home Investment Company. He also pleaded the two-years statute of limitations against a personal judgment being rendered against him, alleging that, if Strange had any cause of action against him, it accrued more than two years prior to the institution of suit thereon.

Kendall and wife disclaimed as to any of the lots except lots 17 and 18, of which two lots they claimed to be the legal owners.

The ease was submitted to a jury on special issues. The questions by the court, and the answers thereto by the jury, are as follows:

(1) Did the defendant Moroney agree or undertake to represent the plaintiff as attorney, and to endeavor to clear or acquire for plaintiff title to the land in controversy? Answer: Yes.

(2) Did the defendant Moroney, for himself or Home Investment Company (and which), pay out, in connection with said lands, any money with the object and purpose upon his part of benefiting the plaintiff, wholly or partially, and not with the sole object and purpose of benefiting himself or Home Investment Company? If he did so, then state the amount. If not, simply say so by the answer, “No.” In answering this question, consider only such expenditures, if any, as were shown by the evidence to have been reasonably necessary and reasonable in amount. No.

(3) What is the reasonable market value now of lots 3 to 8, inclusive, and lots 12 to 18, inclusive, involved? State separately the present value of each lot.' Answer:

Lot 3.$1100 00

“ 4. 1100 00

“ 5.:.uoo oo

“ 6. 1100 00

“ 7. 1100 00

“ 8. 1100 00

“12. 800 00

Lot 13.$ 400 00

“ 14. 400 00

“ 15 . 400 OO

“ 16. 400 00

“ 17. 1000 00

“ IS. 1000 00

Upon these findings by the jury the trial court entered judgment in favor of the plaintiff, Strange, for lots' 1 to 18, inclusive, conditioned, however, as to the recovery of lots 17 and 18, upon the plaintiff paying into the registry of the court for Kendall and wife the sum of $438.05, together with 6 per cent, interest, failing in which the title to said lots 17 and 18 to be and remain in said defendant Emma G. Kendall; and, further, the trial court awarded a personal judgment in favor of Strange and against Moroney and the Home Investment Company in the sum of $6,600, with interest, being the value of lots 3 to 8, inclusive. Appeal was taken by Moroney and the Home Investment Company to the Court of Civil Appeals, 152 S. W. 510. The case was decided by the Fourth Court of Civil Appeals at San Antonio and in said court the judgment of the district court was affirmed.' The case is before us on a petition for writ of error by the Home Investment Company and W. J. Moroney.

It is insisted by the plaintiffs in error that the trial court erred in rendering a personal judgment against them for the value of the six lots which they had sold, for the reason that this claim was barred by the two-years statute of limitations. By subdivision 4 of article 5687, Vernon’s Sayles’ Texas Civil Statutes, it is provided that “actions for debt, where the indebtedness is not evidenced by a contract in writing,” shall be commenced within two years after the cause of action shall have accrued, and not after-wards. This suit was not an action for debt. It was an action to establish a trust against Moroney and the Home Investment Company upon the legal title held by them in favor of Strange. The relief sought by the defendant in error was a recovery of the lots themselves ; and by the fifth amended petition, filed June 12, 1910, the relief sought was enlarged by the prayer that, if the lots in question had been sold by the plaintiffs in error, a judgment should be rendered against them for their value in favor of Strange. This amendment did not set up a new cause of action by asking for a personal judgment in case the lots had been sold. This was but a continuation of the same cause of action which was instituted for the establishment of the trust and the recovery of the lots by the fourth amended petition, which was filed March 19, 1909. The prayer in the alternative for a personal judgment was but an enlargement of Strange’s remedies, and not a new cause of action. Hence limitation was interrupted on the 19th day of March, 1909, upon the filing of the fourth amended petition, which set up a claim to the lots in question, and for whose sale a personal judgment was allowed, based on the prayer for alternative relief, as contained in the fifth amended petition. If the suit had been one for the recovery of a debt, it would have been barred by the two-years statute of limitations, since more than two years had elapsed since Moroney repudiated the trust. This repudiation was by letter to Strange dated September 20, 1906.

In a suit of this nature limitation begins to run from the date the beneficiary in the trust acquires notice that the trust has been repudiated. But the suit was not for a debt, but was an action to establish a trust, and thereby to recover the land. This remained its nature when the prayer was made in the alternative for a personal judgment, if tie lots had been sold. But suit, as indicated, was not for a debt, and the two-years statute of limitations would not be available as a defense. If the suit may be regarded as one to recover the land as recoverable in an ordinary trespass to try title suit then the general statutes of limitation applicable to suits for the recovery of real estate would apply. Stafford v. Stafford, 96 Tex. 106, 70 S. W. 75; Bell County v. Felts (Tex. Civ. App.) 120 S. W. 1065. If the suit is not such, then the four-years statute of limitations would apply. McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315; East Texas Land & Improvement Co. v. Graham, 24 Tex. Civ. App. 521, 60 S. W. 472; Gans v. Marx, 25 Tex. Civ. App. 497, 61 S. W. 527; Stroud v. Hawkins, 28 Tex. Civ. App. 321, 67 S. W. 534; Craig v. Harless, 33 Tex. Civ. App. 257, 76 S. W. 594; Sanborn v. Crowdus Bros. & Co. (Tex. Civ. App.) 99 S. W. 444. The question presented for our consideration does not call for a decision of the question involved in said two lines of decisions. Considered together or separately, they establish that the two-years statute of limitations would not apply in this case, as contended by the plaintiffs in error. The trial court and the Court of Civil Appeals, 152 S. W. 510, did not err in so holding.

The verdict of the jury established that Moroney agreed and undertook to represent Strange as the latter’s attorney, and to endeavor to clear or acquire for Strange the title to the land in controversy. The evidence upon this question was in conflict. It was no doubt sufficient to sustain the verdict of the jury had they reached the opposite conclusion. But the jury having settled the conflict favorably to the contention of the defendant in error, and there being evidence to sustain this finding, we are bound by it, and must treat the case from that viewpoint.

Moroney having acquired the title to the lots in question when there existed between him and Strange the relationship of attorney and client, with a contract between them that he would secure the title to the lots for Strange, he must be regarded in equity as holding the legal title in trust for the latter. The cases announcing this rule are numerous. It is very accurately stated in Johnson v. Outlaw, 56 Miss. 546, where the court said:

“If he [the attorney] purchases for himself, the law regards him as holding the legal title in trust for his clients, and not as owner of the property, and any of such clients may claim the property, and, by refunding the money paid out by the attorney, would become entitled to the benefit of the purchase. * * * The law will not stop to inquire into the motives and intentions, nor to calculate whether in fact a profit has been made; but whenever advised that the attorney holds as his own property in relation to which he had been intrusted with guarding the interest of his client, it will compel him to hold as trustee, not as owner.”

The verdict of the jury entitled the defendant in error to a judgment for the lots which were unsold, and to a personal judgment for the lots which had been sold, upon his reimbursement of the plaintiffs in error of the amount which the latter had expended as the purchase money. But the judgment as actually rendered in favor of the defendant in error did not require this reimbursement. The judgment should have required this, and should have been made to depend upon such reimbursement as a condition precedent to its enforcement against the plaintiffs in error. This tender of the purchase money was made in the pleading of the defendant in error, and it should have been required. It is immaterial that it was not asked for in the pleadings of the plaintiffs in error. This burden rested upon the defendant in error. It was an essential ingredient of his cause of action for equitable relief. He had applied to a court of equity for the equitable relief of having the court to decree the title to the lots from the plaintiffs in error to him. In asking for such equitable relief, he was required to do equity by refunding the money to the plaintiffs in error which they had paid for the title. Strange had no standing in a court of equity without he was thus willing to do equity. This is true, even though it be true, as claimed by the attorney for the, defendant in error, that when Moroney paid for the title to the lots he entertained the evil and dishonest design to hold the lots for himself and not for his client. A court of equity would not make Strange a present of the lots because Moroney had intended to defraud him. Such a court would compel the, parties to do right, one towards the other; but it would not thus penalize the wrongdoer, or make of him an outlaw in a court of equity, to the extent of disqualifying him to receive the benefits of a refund required in equity to be made before according equitable relief to an adversary in the suit. It may be that if Moroney were himself suing upon his claim to such refund, and asking affirmative relief, he would be held estopped on account of his fraud. But he was not suing for a reimbursement, or asking for affirmative relief. The question only arises upon whether or not Strange made a case entitling him to the equitable relief prayed for. We think he could not make a case except by offering himself to do equity by refunding the purchase money. Had the purchase money not been paid by Moroney, the title would have remained in his vendor, and would not have reached Strange at all.- Strange’s title resulted to him because Moroney, as his attorney, paid the purchase money. Whatever was paid by him as purchase money for the lots should be required to be returned to him.

We do not think Moroney’s fee for legal services, or the expense incurred by him, outside of actual purchase money, comes within the rule requiring a reimbursement of the purchase money. Such expenses would only be recoverable by Moroney In a prayer for affirmative relief, and not recoverable at all if tbe expenses were incurred by bim, as is implied in the findings of the jury, in an effort to defraud his client, and to acquire the titles for himself. The expenses are not involved in the equity proceedings. The title to the lots did not result or move tó Strange out of Moroney’s vendors by reason of such expenses.’ The vendor only parted with his title by reason of the payment of the purchase money, and not in virtue of such expenses being incurred. The trust resulted in Strange’s favor by virtue of the fiduciary relationship found by the jury to exist and the payment of the purchase money. This excludes the expenses incurred from equitable consideration, and leaves them to be passed upon as in law and not in equity.

We think the trial court erred in rendering a judgment for Strange', the defendant in error, without requiring a return of the purchase money which was paid for the lots by Moroney, and the Court of Civil Appeals erred in affirming the judgment.

We have been asked by the attorney for the defendant in error in his answer to the petition for the writ not to remand the case for another trial should we take the view that a reimbursement should have been allowed, but to render it, requiring at the same time an allowance of such amount by way of refund as we think should be allowed. We are without legal authority to do this, since the amount of the purchase money which was paid by Moroney has not been ascertained by the jury. It is a question of fact for a jury to determine, and we cannot invade their province. .

No other reversible error is presented. The judgments of the district court and Court of Civil Appeals, for the error indicated, will be reversed, and the cause remanded.
      <@=Far4other eases see same topie'and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@e^Foi* otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    KELLY v. STATE.
    (No. 4461.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Indictment and Information <@=>122(4)— Variance Between Complaint and Information.
    In a prosecution for slander, a variance between the date of the offense as alleged in the complaint and that charged in the information, the information only stating the year, without month or day, was fatal to the information.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 324.}
    2. Libel and Slander <@=>152(1) — Information— Sufficiency— Statute.
    Under Yernon’s Ann. Code Cr. Proe. 1916, art. 456, providing that, in alleging the name of defendant or person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname, in a prosecution for slander, an information which failed to give either the Christian name or initials of the injured party, or, if they were unknown, to state that fact, was defective.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417, 420, 423.]
    3. Indictment and Information «^Misinformation — Cure of Defects — Amendment.
    In a prosecution for slander, where the information was defective for variance between the date of the offense alleged and that charged in the complaint, and in failing to state the given name or initials of the injured party, such defects were substantial, and could not be cured by amendment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 518.]
    4. Indictment and Information <®=s>123 — Defective Information — Complaint.
    In a prosecution for slander, allegations in the complaint would not aid the information, defective in substance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 326.}
    5. Libel and Slander <©=>159 — Criminal Prosecution — Instruction—Statute.
    In View of Yernon’s Ann. Pen. Code 1916, art. 1180, providing that if any person shall, orally or otherwise, falseft' and maliciously, or falsely and wantonly, impute to any female in this state, married or unmarried, a want of chastity, he shall be deemed guilty of slander, in a prosecution for slander, a special charge, requesting the court to define “wantonly” and “willfully,” should have been given.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 444.]
    6. Criminal Law <@=>829(1) — Instructions— Requests for More Specific Charge — Refusal.
    In a prosecution for slander, a requested special charge, calling the jury’s attention particularly to the words used in the information which are alleged to have imputed a want of chastity to the injured party, and advising the jury that the interpretation and meaning of these words is for them, should have been given, although the main charge in a general way submitted the meaning of the language used to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011.]
    7. Libel and Slander <@=>154 — Criminal Prosecution — Evidence—Burden of Proof.
    ■ In a prosecution for slander, by imputing a want of chastity to the injured party by the use of the word “whore,” the burden was on the state to prove the innuendo.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 428, 429.]
    8. Libel and Slander <©=>156 — Criminal Prosecution — Evidence—Burden of Proof.
    In a prosecution for slander; the burden was on the state to prove defendant’s guilt beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437-441.]
    9. Libel and Slander <©=>155 — Criminal Prosecution — Evidence—Admissibility.
    In a prosecution for slander, by imputing a want of chastity to “Mrs. W-T-by the use of the words: ‘Will Tingle burned our barn, and his damned whore helped him plan it. Will’s wife is no account’ ” — in which W. T. was not a witness, evidence tending to connect W. T. with burning defendant’s barn was not relevant.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436.]

      Appeal from Hunt County Court; A. X Gates, Judge.
    Earnest Kelly was convicted of slander, and he appeals.
    Reversed and remanded.
    Clark & Reddy, of Greenville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by complaint and information with the offense of slander. A jury trial resulted in conviction, and the assessment of his punishment at a fine of $100 and 30 days’ imprisonment in the county jail.

The complaint charged the offense to have taken place on or about the 1st day of December, 1916, and that a want of chastity was imputed to Mrs. Will Tingle by the use of the following language:

“Will Tingle burned our barn, and bis damned whore helped him plan it. Will’s wife is no account.”

The information alleged the offense to have been committed on-day of-, 1916, and charged the imputation and want of chastity to “Mrs. -Tingle.” We quote from the information as follows:

“Did then and there, in the presence and hearing of John Davis, falsely, maliciously, and wantonly say of and concerning the said Mrs.Tingle: ‘Will Tingle burned our barn, and his damned whore helped him plan it. Will’s wife i® no account’—meaning thereby that said Mrs. -- Tingle was unchaste, and was a whore.”

Motion to quash the complaint and information on various grounds was overruled. It will be noted that there is a variance between the date of the offense as alleged in the complaint and that charged in the information. This, we think, was fatal to the information. Lackey v. State, 53 Tex. Cr. R. 459, 110 S. W. 903, and cases there refen-red to.

The information failed to state the given name or initials of Mrs. Tingle. If the initials or Christian name of Mrs. Tingle were known, it was necessary to give them in the information. If they were unknown, it was necessary to state that fact. Article 456, Vernon’s C. C. P. Construing this statute, it has been held that, where a married woman is the injured party, she should be described by her Christian name or her initials set out. Bell v. State, 25 Tex. 574; Beaumont v. Dallas, 34 Tex. Cr. R. 68, 29 S. W. 157. Other eases in point are Ranch v. State, 5 Tex. App. 363. See Vernon’s C. C. P. p. 204.

An effort was made to amend the information, but the defects were substantial, and could not be cured by amendment. Huff v. State, 23 Tex. App. 291, 4 S. W. 890; Taylor v. State, 50 S. W. 1015, and cases there cited. Nor would the allegations in the complaint aid the information, defective in substance. Branch’s Ann. Penal Code, vol. 1, p. 251; Lawson v. State, 13 Tex. App. 83; Pittman v. State, 14 Tex. App. 576; Smith v. State, 25 Tex. App. 454, 8 S. W. 645.

There were exceptions to the charge urged, some of which present valid objections; but, as they will not likely occur on another trial, they will not be discussed in detail. The special charge, requesting the court to define “wantonly” and “willfully,” should have been given the jury. Rainwater v. State, 46 Tex. Cr. R. 496, 81 S. W. 38; Vernon’s Penal Code, art. 1180, and annotations, page 733. Also a special charge calling the jury’s attention particularly to the words used in the information which are alleged to have imputed a want of chastity, and advising the jury that an interpretation and meaning of these words is for them. The court in its main charge in a general way submitted the meaning of the language used to the jury, but the request for a more specific charge on this subject should have been granted.

It was necessary to prove the innuendo, and to so frame the charge that the jury would understand that the burden was. upon the state to prove the alleged meaning of the words. Vernon’s Penal Code, page 731, and cases cited; also page 733.

A paragraph of the court’s charge submitting the issue to the jury is as follows:

“If you believe from the evidence that Earnest Kelly, in Hunt county, Texas, on or about the 1st day of December, 1916, did orally, falsely, maliciously, and wantonly impute a want of chastity to Mrs. Will Tingle, you will find the defendant guilty; and if yoii do not so believe from the evidence, you will return a verdict ’of not guilty.”

This is criticized as susceptible of the construction that it required the appellant to prove his innocence. On another trial the court will doubtless frame his charge so as to avoid this criticism, and to clearly place upon the state the burden of proof throughout the case to prove the appellant’s guilt beyond a reasonable doubt. Bennett v. State, 30 Tex. App. 341, 17 S. W. 545; Branch’s Crim. Law, § 718.

In some of appellant’s bills complaint is made of the rejection by the court of proffered testimony of a witness who claimed to have followed certain tracks in the direction of appellant’s bárn, which was burned, and other circumstances tending to connect Will Tingle with burning appellant’s barn. As disclosed by the record, we do not regard this evidence as relevant. Will Tingle was not a witness in the case.

Because of the defects in the information, the judgment of the lower court is reversed, and the cause remanded.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes