author: HALL, J.

text:
    BROWDER et al. v. MEMPHIS INDEPENDENT SCHOOL DIST. et al.
    (No. 682.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Courts (§ 64) — District Courts — Special. Terms — Jurisdiction — Statutory Provisions.
    Acts 1905, c. 83 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 1720), providing that whenever it may become advisable in the opinion of the-district judge to hold a special term of the district court, in any county, he may order it, authorizes the district judge to call a special term to try cases of general interest and in which the public welfare is involved, regardless of the condition of his docket, and may call a special term to try a taxpayer’s suit to cancel school district bonds brought before the term is called.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 218-229; Dec. Dig. § 64.]

      2. Courts (§ 64) — District Courts — Special Terms — Jurisdiction — Statutory Provisions.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1723, providing that no new civil case can be brought to a special term, does not apply to a suit brought before the special term is called, but prohibits one from filing a suit naming a special term in the petition, and have process issued returnable to the special term.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 218-229; Dec. Dig. § 64.]
    3. Appeal and Error (§ 742) — Questions Reviewable — Assignments oe Error.
    Rulings on evidence not presented by assignments of error or propositions thereunder, as required by Court of Civil Appeals Rules 24, 25 (142 S. W. xii), will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 1057) — Harmless Error — Erroneous Admission oe Evidence.
    Where, in a suit by taxpayers to cancel school district bonds.on the ground that the amount of taxes authorized by law on the valuation would be insufficient to pay interest and provide for a sinking fund, the uncontradicted evidence established the value of the taxable property in the district at such amount as was sufficient to provide for interest and a sinking fund within the constitutional tax rate, the error, if any, in permitting witnesses to testify while using rolls presented to the equalization board of the district by the assessors as to the value of the property in the district was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194 — 4199, 4205; Dec. Dig. § 1057.]
    5. Appeal and Error (§ 736) — Assignments oe Error— Sufficiency.
    An assignment of error that the court erred in overruling motion for new trial for errors previously assigned set out and made a part of the motion, and because the verdict and judgment are not supported by evidence as shown by an assignment of error referred to and made a part of the assignment, is multifarious and too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by John Browder and others against the Memphis Independent School District and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Moss & Leak and H. D. Spencer, all of Memphis, for appellants. Presler, Thorne & Hamilton, of Memphis, for appellees.

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

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

   HALL, J.

This action was brought by John Browder and John Gibson, appellants, against the Memphis Independent School District, and the trustees thereof, to cancel and set aside the order of the trustees of said district, ordering the issuance of bonds to the amount of $40,000, and for the cancellation of said bonds. Appellants, in their petition, allege that they are property owners and taxpayers in the school district; that on the 3d day of December, 1913, the school district was duly organized, including the city of Memphis, and the surrounding territory, to the extent of about 25 square miles; and that during the month of August, 1913, at the called session of the Thirty-Third Legislature, the original district was by an act of the Legislature enlarged so as to include in said district land and territory lying immediately east and northeast and adjacent to said district, aggregating about 18 square miles; that prior to the 3d day of December, 1913, and on said date, there was outstanding against said district school district bonds approximating $15,000; that a tax upon the taxable property of said district had been and was being assessed, levied, and collected for the purpose of providing a sinking fund sufficient to pay the said bonds at maturity, and also for the purpose of paying the interest annually on said bonds, as it should accrue; that most, if not all, of said $15,000 bond issue is still outstanding against the district, and there was also being assessed, levied, and collected a regular maintenance tax; that the aggregate of said bond tax and maintenance tax so assessed, levied, and collected was the constitutional limit of 50 cents on the $100 valuation of the property in said district; that on said 3d day of December, 1913, the said trustees held an election previously called to determine whether or not there should be issued schoolhouse building bonds to the extent of $40,000 and whether or not there should be annually assessed, levied, and collected a tax sufficient to pay the interest annually as it accrues, and to provide a sinking fund sufficient to pay said bonds at maturity, which said election resulted in favor of the issuance of said bonds and of the assessment, levying, and collecting of sufficient taxes to pay the interest annually and to provide a sinking fund to pay off said bonds at their maturity; that a tax of 15 cents on the $100 valuation was levied by said defendant trustees upon the taxable property of the district, and said property has been assessed, and there is and will be an attempt to collect said illegal tax; that there was already a tax of 15 cents on the $100 valuation of property in said district, being assessed, levied, and collected; that the 15 cents so levied was in excess of the amount allowed by the Constitution for bonding and maintenance purposes; that there was no legally authorized tax assessor appointed by the trustees of said district to make an assessment of the taxable property within the limits of said district, and there was never any assessment of the property in said district made by any assessor of taxes for the district, but that in making out the rolls used by said district the assessor’s rolls of the county of Hall and state of Texas, or a copy thereof, was used; that the tax collector of Hall county, Tex., was and is collecting the taxes due the said district, there being no legally authorized assessor and collector of taxes for said district. It is further alleged that- the board of equalization appointed by the trustees, in equalizing the valuations of property in the district, used the rolls made out by the county assessor of Hall county; that said board assumed to and did raise the valuations fixed by the state and county, as shown by the assessor’s rolls of the taxable property in said school district, to an extent of at least 50 per cent, over and above the valuation so fixed by the state and county for taxable purposes, and this excess of 50 per cent, was fixed in estimating the value of the taxable property in said school district to determine the rate of taxes to be levied by the defendant trustees of said district for maintenance and bonding purposes; that the valuation of 50 per cent, over and above the state and county valuation was wholly void; that it was used by said trustees in estimating the value of the taxable property upon which to base the issue of bonds to the amount of $40,000; that the amount of taxes on the $100 valuation authorized by law to be levied by said trustees, estimated on the values fixed by the state and county, by which said defendant district was bound, is and would be insufficient to pay the amount of said bonds so voted and issued by the defendant trustees; and that to pay same at maturity a tax in excess of the amount authorized by law would be required.'

The defendant answered by general demurrer, special exceptions, general denial, special denial, and alleged further that the total valuation as shown by the assessment rolls for the year 1913, as approved by the board of equalization, is $2,062,656, and say that said valuation is not in excess of the fair market value of said property; that a large per cent, of the taxes as shown by said rolls have been paid; that the valuation of the property included in the territory added to the original district by the special a.ct from Hall county, as shown by the assessment rolls for said county, for the year 1913, is $28,800, and that added from Collings-worth county, as shown by the assessment rolls of said county for the year 1913, is $41,483, and that said amounts are less than the fair market value of said property, making a total valuation in said district of $2,-133,221; that the valuations of the district were fixed by a duly appointed and qualified board of equalization for said school district. The defendant also alleged that a tax of 15 cents on the $100 valuation of the property in the district as enlarged was levied for the year 1914, by the order authorizing the $40,000 bond issue to provide interest and sinking fund; and that no tax whatever for the year 1913 was levied or attempted to be levied in connection with said bonds. And it was further alleged by defendants that on about the 20th day of January, 1914, plaintiffs filed an application in the district court of Hall county for a writ of injunction to restrain the salé of the $40,000 bond issue in controversy, charging that the bonds were procured by a fraudulent order entered by said school board; that the tickets found in said election were forgeries; that when said cause came on to be heard in term time or on about the 20th day of January, 1914, the same having been considered by the court, and evidence having been heard upon the allegations of fraud and forgery, and the court having indicated his findings against the plaintiff on both issues of fact and suggested his purpose of denying the writ of injunction and entered up a judgment against plaintiffs on said issues, plaintiffs thereupon took a nonsuit; that thereafter on the 21st day of January, 1914, said district court adjourned its regular term. Forthwith on the 23d day of January, plaintiffs filed this cause, abandoning their allegations of fraud and forgery in the issuance of said bonds. Defendants further alleged that both suits filed by plaintiffs were for the express purpose of harassing defendants, and for delay to prevent the sale of said bonds, and to prevent the construction of the building and improvements, and prayed specially for the court to enter its judgment declaring said bonds to have been issued according to law and to decree them legal and binding obligations upon the school district.

The first error assigned is that the court erred in overruling and in not sustaining the plaintiff’s plea to the jurisdiction of the court to try the case at a special term. Two propositions are urged, as follows:

“(1) No new civil case can be brought to a special term of the district court. (2) Only un-disposed of civil eases which the district court had jurisdiction to try and dispose of at a previous regular term of said court can be tried' and a valid judgment entered at and during a specially called session of said court, there being no statutory authority giving the district court jurisdiction to try a new civil case whose process is issued to a subsequent regular term of said court at a specially called session of said court.”

The original act of 1879, Sayles’ Civil Statutes, 1897, art. 1113, provides that:

“In any county in this state where it may become necessary in the opinion of the district judge of the district in which said county is situated, on account of an accumulation of business, which cannot be disposed of in the time provided for the regular term of the district court, there may be held a special term,” etc.

By the Acts of 1905, p. 116, a radical change was made in the old law, and it is now provided that whenever it may become advisable, in the opinion of the district judge, to hold a special term of the district court, in any county, he may order it. Under the amendment, we think the district judge is authorized to call a special term of the court to try cases of general interest, and in which the public welfare is involved, regardless of the condition of his docket, and the amendment, in our opinion, was enacted to meet such emergencies and conditions as we now have in this case. In providing that no new civil case can be brought to a special term of the district court (article 1723, Yernon’s Sayles’ Civil Statutes), the Legislature, we think, intended that after a special term had been called no one would he allowed to file a suit naming such special term in the petition, and have process issued, returnable to the special term, and that the article does not apply to a suit brought before the special term has been called. This action was brought to the June term, 1914.

What is here said disposes of appellant’s first two assignments.

The third, fourth, fifth, sixth, seventh, eighth, and ninth assignments are based upon the action of the court in overruling objections to the evidence of certain witnesses. As shown by the bill of exceptions, the following is an illustration of the proceedings:

“Q. State whether or not the total value of the property of this independent school district roll exceeds the fair market value of the property in this district? A. I don’t think so. I don’t think, to take it all around, the total would exceed 75 per cent, of the total value; that is, 75 per cent, on the market value. The plaintiff objected to this testimony for the reasons: First, because the same is immaterial and irrelevant and does not tend to throw any light on any issue in this cause; second, because the question calls for a conclusion of the witness; third, that the fair market value as might be testified to by this witness is not and cannot be the proper basis upon which to base a levy of taxes to support a bond issue.”

In the argument following these assignments, appellant insists that this evidence was not admissible to prove the value of the property sufficient to support a bond issue of $40,000, and that a regular assessment by the assessor and collector of the school district should have been shown, and the valuation appearing from his rolls was the only valuation contemplated by the Constitution. We are not called 'upon to pass upon these questions; in fact, they are not presented for our consideration either by the assignments or the propositions thereunder, as is required by Court of Civil Appeals Rules Nos. 24 and 25 (142 S. W. xii).

It appears from the statement of facts that the rolls presented to the equalization board of the district by the assessor were introduced in evidence and used .by the witnesses in giving their testimony. The total amount of the taxable property, according to the valuation, was shown, without objection, to be considerably over $2,000,000. Allegations of both parties, as contained in their sworn pleadings, were introduced without objection, which also established this fact. If the assessor’s rolls were not based upon valid and legal assessments, this objection was not urged in the trial court. The uncontradicted evidence before us establishes that the value of the taxable property in the district is sufficient to provide for interest and a sinking fund at the rate of 15 cents on the $100 valuation, as ordered by the trustees. Therefore, if the admission of the testimony of the witnesses Reed and Webster was error, it was harmless. We think the court did not err in directing a verdict.

The twelfth assignment, “The trial court erred in overruling the motion of plaintiffs for a new trial, in this cause, on account of the errors hereinbefore assigned, all of which was set out and made a part of said motion, and because the verdict and judgment is not supported by the evidence, as shown by the tenth assignment of error, which is here referred to and made a part of this assignment,” is multifarious and manifestly too general to merit consideration. Under this assignment are submitted the propositions under previous assignments. Referring to the propositions under the former assignments, we think none of them are germane to the assignments which they follow, and certainly not to this assignment.

The judgment is affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    BUSHONG v. SCRIMSHIRE et al.

    (No. 7984.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 14, 1914.
    Rehearing Denied Dec. 12, 1914.)
    1. Vendos and Purchaser (§ 308)—Con-tracts—Action by Vendors—Defense—INSUFFICIENCY OF TENDEE — OUTSTANDING Liens.
    In an action by vendors for the price of land which the purchaser denied agreeing to pay for, defendant’s contention that he should not be required to accept the deed tendered by three plaintiffs because there were outstanding vendors’ liens in' favor of one such plaintiff presented no defense, where it appeared that the lien notes were long past due, and did not appear that any recorded transfer of the notes had been made or that defendant had actual notice of any such transfer, especially where defendant had a duly recorded title to the land at the time of the creation of the purported liens.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 862, 877-899; Dec. Dig. § 308.]
    2. VENDOS AND PURCHASER (§ 80) — CONTRACTS—FINDINGS—SUFFICIENCY of Evidence.
    Evidence, in an action by vendors for the price of land which the purchaser claimed to own, and which he denied was included in the contract, held to sustain finding that the land in controversy was pointed out to defendant; that he knew that plaintiffs were claiming same; that he agreed to pay for same in consideration of receiving a quitclaim deed thereto from plaintiffs; and that, though defendant’s title to the land was superior to that of plaintiffs, he made this agreement to preclude any further dispute relative thereto.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 132-135; Dee. Dig. § SO.]
    3. Vendor and Purchaser (§ 314)— Contracts—Petition—Construction.
    In an action by vendors for the price of land, an allegation in the petition that defendants .agreed to accept a quitclaim deed from plaintiffs was equivalent to an allegation that he agreed to take chances on their title, and dispensed with the necessity of a specific allegation that defendant agreed to purchase with notice of defects in plaintiffs’ title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 920-927; Dec. Dig. 314.]
    4. Appeal and EeRok (§ 1071) — I-Iaemless Error — Findings.
    Where, in an action by vendors for the price of land, the evidence supported a finding that one plaintiff had possession of the land during a certain period, error in finding, without supporting evidence, that another plaintiff also had such possession was harmless, where possession, of the one plaintiff was sufficient to authorize the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234^4239; Dec. Dig. § 1071.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by W. B. Scrimshire and others against J. D. Bushong. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    ■J. C. Terrell, of Ft. Worth, for appellant. Cowan & Burney and C. M. Templeton, all of Ft. Worth, for appellees.

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

       writ of error pending in Supreme Court.

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

   DUNKLIN, J.

W. B. Scrimshire, Mrs. Katherine V. Bury, joined by her husband, H. 6. Bury, and Mrs. Ida L. Turner, as parties of the first part, and J. L. Bushong, as party of the second part, entered into the following contract in writing:

“That the said parties of the first part agree and bind themselves to convey to the said party of the second part by warranty deed, except about three acres, which is to be by quitclaim deed, thirty acres of land, more or less, out of the. W. D. Conner survey, lying on the Trinity river’, west of Trinity Parle, and being the same land deeded to George L. Berry and Ida Turner, a two-thirds interest therein, on or about October 5, 1911.
“The said party of the second part hereby agrees and binds himself to pay to the said parties the sum of three hundred dollars per acre as follows: Deed by warranty deed, one house and lot valued at three thousand dollars, situated at 664 Calhoun street, city of Ft. Worth, Tex., and four promissory notes as follows: One note for one thousand dollars, due on or before one year from date. One note for one thousand dollars, due on or before two years from date. One note for one thousand dollars, due on or before three years from date. One note for three thousand dollars, due on or before four years from date. All of said notes to bear 8 per cent, interest, interest payable annually, as it accrues, from date of notes.
“The said party of the second part is to have, with the thirty acres of land, more or less, the pumping plant and all machinery connected therewith, free from all liens whatsoever the house, well, stables, and all buildings situated on said tract, with all the rights and privileges now held by the said parties of the first p.art.”

This suit was instituted by Scrimshire, Mrs. Bury, and Mrs. Turner against Bushong to recover the price which it was alleged defendant was bound by that contract to pay for 3.04 acres of land. In their petition, after setting out the substance óf the contract above quoted, the plaintiffs alleged that, in compliance therewith, they had conveyed, by warranty deed, to the defendant 24.05 acres of land covered by the contract, in consideration of which conveyance the defendant had conveyed to them the house and lot mentioned in the written contract at an agreed valuation of $3,000, and had executed to plaintiffs his three promissory notes in the sum of $1,000 each, and another note for the sum of $1,215, making a total consideration of $7,215, or $300 per acre for said 24.05 acres of land. Plaintiffs further alleged in the petition that they had tendered to the defendant the quitclaim deed for 3.04 acres of land, which was the balance of the land covered by said contract, and had demanded of the defendant the contract price of $300 per acre therefor, but that said tender and demand had been refused by the defendant, and a recovery was sought upon that demand. Plaintiffs also sought to recover the value of a crop of corn grown upon the land which it was alleged defendant agreed to buy.

Defendant specially pleaded that the land which was conveyed to him by the plaintiffs as alleged in the petition was the land pointed out to him by the plaintiff Scrimshire before the contract was executed, and was the only land which the defendant contracted to buy; that the 3.04 acres of land, title to which was tendered to him by the plaintiffs, was not included in the contract, and he did not intend to make any contract for the purchase of the same, for the reason that he at that time owned it and held it by a duly recorded deed, and had owned the same, and had been in possession thereof claiming title thereto, for a number of years prior to the date of the contract and in ignorance of any claim by the plaintiffs. Defendant further alleged that there were two outstanding vendor’s lien notes against the land in controversy, both payable to plaintiff Scrimshire or order, each for the sum of $130, one of which was executed by Mrs. Bury, and the other by Mrs. Turner, and that by reason of such outstanding liens plaintiffs have failed to comply with their obligation to convey or tender him a deed to the property free of all liens, and in no event have they any legal right to a recovery of the purchase price of the land as long as such lien notes remain outstanding. Defendant further alleged, in effect, that it was agreed by and between him and the plaintiffs at the time of the conveyance of the 24.05 acres alleged in plaintiffs’ petition that his acceptance of that conveyance and the payment of the consideration therefor as recited in the deed should be understood and treated by the plaintiffs as full discharge of all his obligations under the written contract, that agreement having been reached in view of the fact, which was discussed and considered at the time, that defendant himself was the owner of the said 3.04 acres of land, and that the plaintiffs liad no title thereto, and by reason thereof defendant would not purchase the same from the plaintiffs.

Judgment was rendered in favor of the plaintiffs for the purchase price of the 3.04 acres of land, but denying them a recovery on the claim asserted for the crop of corn. The defendant has appealed.

The trial was before the court without the aid of a jury, and the following findings of fact and conclusions of law appear in the record, to wit:

Findings of Fact.

I. “I find that on November 9, 1912, the plaintiffs, W. B. Scrimshire, Katherine Bury, H. G. Bury, and Ida L. Turner owned about 30 acres of land more or less in the W. D. Conner survey, lying on the Trinity river southwest of the city of Ft. Worth and just west of Trinity Park; said 30 acres of land more or less, being the same land in which Ida L. Turner and Katherine V. Bury acquired a two-thirds interest from W. B. Scrimshire by three deeds, viz.: A warranty deed dated October 6, 1911, from W. B. Scrimshire to Ida L. Turner and Katherine Y. Bury jointly, by which Scrim-, shire conveyed, by warranty deed, to Turner and Bury an undivided two-thirds interest in and to about 4 acres out of the A. Voght survey and about 21 acres out of the W. D. Conner survey; also two quitclaim deeds from W. B. Scrimshire, one to Ida L. Turner, and one to Katherine Y. Bury, by which Scrimshire conveyed to each of said parties a one-third, undivided interest in about 1.90 acres of the W. D. Conner survey; also to each of said parties a one-third undivided interest in about 2 acres of the W. D. Conner survey — the last two tracts of land being the identical land involved in this suit. The two deeds last mentioned bear date September 22, 1911, but were not signed, acknowledged, and delivered to the grantees until October 6, 1911, the same date of the execution and delivery of the warranty deed to an undivided two-thirds interest above referred to.”
II. “I find that on November 9, Í912, a written contract was entered into by and between W. B. Scrimshire, Katherine Y. Bury, H. G. Bury, and Ida L. Turner, as parties of the first part, and J. L. Bushong, as party of the second part, by the terms of which the parties of the first part contracted and agreed to convey to the party of the second part 30 acres of land more or less out of the W. I>. Conner survey, lj;ing on the Trinity river west of Trinity Park, 'and being the same land a two-thirds interest in which was deeded to Geo. L. Bury and Ida L. Turner on or about October 5, 1911. That by the terms of said contract the parties of the first part were to deed to the party of the second part all of said land by warranty deed, except about 3 acres of same, which was to be deeded to the party of the second part by quitclaim deed. Bushong, the party of the second part, agreed to pay the parties of the first part the sum of $300 per acre for said land, which consideration was to be paid as follows:By the conveyance by Bushong to Scrimshire and Turner and Bury of a house and lot valued at $3,000, situated at No. 664 Calhoun street, in the city of Ft. Worth, and four promissory notes of $1,000, each due on or before one, two, three, and four years after date, and bearing interest at 8 per cent, per annum, the interest payable annually. That Bushong, party of the second part, was to receive with said 30 acres of land more or less the pumping plant and all machinery connected therewith, the house, well, stable, and all buildings situated on said tract, with all the rights and privileges held by the parties of the first part.”
III. “I find that in referring to the land to be deeded by the parties of the first part to the party of the second part in the contract of November 9, 1912, which was prepared by J. L. Bushong, the land was referred to as ‘the same land deeded to Geo. L. Bury and Ida Turner,’ and that a mutual mistake was made between the parties to the contract in the use of the words ‘Geo. L. Bury,’ which should have been ‘Katherine V. Bury.’ ”
_ IV. “I find that a short while after the execution of the contract above referred to, to wit, on or about the- day of November, 1912, W. B. Scrimshire, Ida L. Turner, Katherine V. Bury, and H. G. Bury, acting under said contract, conveyed to J. L. Bushong, by warranty deed, of the land covered by said contract, 24.05 acres of land, being a portion of the land held in common by Scrimshire, Turner, and Bury, and being a part of the land covered by the contract between the plaintiffs and defendant mentioned in the second subdivision of the findings of fact, above.”
Y. “I find that, in closing the deal for the 24.05 acres of land at $300 per acre, on the date mentioned the defendant, Bushong, in payment of the consideration for said 24.05 acres of land, conveyed to plaintiffs, Scrimshire, Turner, and Bury, a lot on Calhoun street referred to in said contract at the valuation of $3,000, and gave his notes for the balance of the consideration as follows: Three notes of $1,000, and one note of $1,215, payable to the order of W. B. Scrimshire, and due on or before one, two,, three, and four years after date, bearing interest at the rate of 8 per cent, per annum.”
VI. “I find that in closing the deal for the 24.05 acres of land, as above stated, that this was not intended as a full and final settlement of the matters covered by the contract, but merely closed the deal between said parties as to the 24.05 acres, the title to which was to be, and was in fact, warranted by plaintiffs to the defendant, and the settlement as to the balance of the land — viz., 3.04 acres — was left for future adjustment between said parties later, without prejudice to the claim of either side; that there was no understanding that the payment for the 24.Ó5 acres should be a final settlement.”
VII. “I find that on or about the —- day of January, 1913, the plaintiffs, W. B. Scrim-shire, Ida L. Turner, Katherine Bury, and H. G. Bury, executed and acknowledged a quitclaim deed conveying the 3.04 acres to J. L. Bushong, and that this deed was tendered to Bushong on or about the same date, and he declined to accept the same, and declined to pay for said 3.04 acres at the valuation of $300 per acre agreed upon. I further find that the same deed was tendered to Bushong at the trial of this cause.”
VIII. “I find that Geo. W. Bayse is the common source of title as between the plaintiffs and the defendant to the land in controversy.”
IX. “I find that Geo. W. Bayse, on March 5, 1897, conveyed the land in controversy to his children, Mrs. Lily O’Connor, Walter Bayse, Mrs. Mary Jones, Florence Bayse, Cordelia Bayse, Oscar Bayse, and Thomas Bayse; that the consideration of said deed was the natural love and affection he had for his said children; that said deed was recorded in the office of the county clerk of Tarrant county, Tex., on March 5, 1897.”
X. “I find that on March 12, 1907, Walter Bayse, Mary Cox, joined by her husband, Harvey Cox, Lily O’Connor, joined by her .husband, Thomas L. O’Connor, Oscar Bayse, Cordelia Cox, joined by her husband, Chas. Cox, Florence Kaufman, joined by her husband, Henry Kaufman, and Thomas Bayse conveyed the land in controversy to John W. Newman by a warranty deed, and that this deed was filed for record on August 3, 1908, in the office of the county clerk of Tarrant county, Tex.”
XI. “I find that on the 21st day of March, 1908, John W. Newman, by warranty deed, conveyed the land in controversy to W. B. Scrim-shire, one of the plaintiffs in this suit, and that Newman and Scrimshire had possession of said property from the date of their respective deeds until November 9, 1912, the date of the contract between the plaintiffs and defendant for the conveyance of same to the defendant.”
XII. “I find that pi'ior to the time of the execution of the contract between plaintiffs and defendant, dated November 9, 1912, that the plaintiff Scrimshire and the defendant, Bush-ong, walked over the identical land in controversy, and that the plaintiff Scrimshire notified Bushong that he (Scrimshire) claimed the 3.04 acres of land in controversy and notified Bush-ong that he (Scrimshire) had a deed to the same, and that he and his associates were claiming title to the same.”
XIII. “I find that on the date of the execution of the contract between plaintiffs and the defendant on November 9, 1912, that the defendant, Bushong, knew that the plaintiffs were claiming the 3.04 acres of land in controversy, and that this was the land referred to in the contract as being the 3 acres to which plaintiffs Scrimshire and others would only execute to defendant, Bushong, a quitclaim deed.”
XIV. “I find that the defendant, Bushong, also claimed title to the 3.04 acres of land in controversy under regular chain of transfers to himself, and that the title under which he held antedated the title of the plaintiffs to the land in controversy, and, if this suit properly involved the question as to who has the superior title to the property in controversy, the defendant, Bushong, in the opinion of the court, held the better title, but I find that in the execution of the contract between plaintiffs and defendant heretofore referred to it was the intention of the plaintiffs to sell by quitclaim deed their claim to the 3.04 acres, and the intention of the defendant to purchase the plaintiffs’ claim to said property, along with the other land he purchased at the same time, so that his title to the 3.04 acres of land would no longer be in dispute.”
XV. “I also find that, in the sale of the house and lot by the defendant, Bushong, to the plaintiffs, the valuation of $3,000 placed on same exceeded the true market value of said house and lot at said time by about $1,200. In other words, the true market value of said house and lot at the date of the exchange, as shown by the evidence, was $1,800, and that, in making said sale and exchange of properties between plaintiffs and defendant, the plaintiffs were disposing of land to a portion of which the title was in dispute, and the defendant was receiving an exorbitant price of his Calhoun street lot in Ft. Worth.”
XVI. “I find that the land in dispute between plaintiffs and defendant, by actual survey, amounts to 3.04 acres of land.”
XVII. “I find that under the evidence the plaintiffs suffered no damage chargeable to defendant, as claimed in the second count in their petition.”

From the foregoing findings of fact I deduce the following conclusions of law:

I. “That under the terms of the contract entered into between the plaintiffs and defendant, dated November 9, 1912, the plaintiffs are entitled to recover of the defendant the sum of $912, which is the value of the 3.04 acres of land at $300 per acre, as fixed by the written contract.”
II. “I conclude that defendant is entitled to pay for the 3.04 acres of land upon the same terms he was to pay the purchase price of the other land covered by the contract, and therefore conclude that he should pay cash $210, the further sum of $234 one year from date of judgment, the - further sum of $234 two years from date of judgment, and $234 three years from date of judgment, with interest upon said sums at 8 per cent, per annum from the date of judgment, and render judgment in favor of plaintiffs against defendant accordingly.”

Appellant insists that he could not be required to accept title to the land in controversy when it was shown that there were outstanding vendor’s liens against the same to secure the payment of two notes of $130 each. The evidence does show that Mrs. Bury and Mrs. Turner each executed to Scrimshire a vendor’s lien note for $130 in consideration of the conveyance to each' of them by Scrimshire of an undivided one-third interest in the land in controversy, due five years after date, which due dates were long subsequent to the institution of this suit, and appellees have cited us to no evidence to show that these notes have ever been paid off, nor who now owns the same, if they are still outstanding. The tendered conveyance by Scrimshire and his coplaintiffs would have the legal effect of extinguishing the lien reserved upon the land if the notes are still owned by Scrimshire. Wells v. Heddenberg, 11 Tex. Civ. App. 3, 30 S. W. 702. Besides, appellant neither pleaded nor proved any recorded transfer of the notes by Scrim-shire to any one, nor any facts aside from the records of deeds and mortgages constituting notice to him of such a transfer. In the absence of such notice, he could, after purchasing the land from appellees defeat the liens recovered in the notes upon the plea of innocent purchaser. Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54. At all events, the purported lien would be of no effect against the land in the hands of Bushong, since, as found by the trial court, he had a duly recorded title to the property at the time the notes were given, and his title was superior to any title then owned by Scrim-shire, which would be notice to any one holding those notes.

The twelfth, thirteenth, and fourteenth findings of fact, are attacked, as being unsupported by any evidence. Scrimshire testified that he was in possession of the land, having it under fence before the contract was made; that before the contract was made he walked over the land with Mr. Bushong and pointed out to him where the corners were. He further testified that in that conversation Bushong told him that he understood there was a defect in Scrim-shire’s title, but that he would take the title in that condition. Bushong testified that in the negotiations with Scrimshire before the execution of the contract Scrimshire claimed to have a deed to the property, and Bushong questioned the validity of Scrimshire’s title and claimed title in it himself. This "testimony was sufficient to support the findings, notwithstanding the further testimony of Bushong that the property was at that time within his inclosure, and that, when he executed the contract, he did not know that the land in controversy was the three acres referred to in the written contract, and for which plaintiffs only bound themselves to give a quitclaim deed.

By another assignment the contention is made that there was error in the judgment, because plaintiffs did not allege that Bushong agreed to purchase the property with notice of defects in the plaintiff’s title. We are of the opinion that the allegation in the petition that defendant agreed to accept a quitclaim deed from plaintiffs to the land in controversy was equivalent to an allegation that he agreed to take chances on their title.

The court’s sixth finding of fact is supported by the direct and positive testimony of Mrs. Turner and plaintiff Scrimshire. Hence appellant’s second assignment of error is overruled; since the same seems to be predicated upon the contention that the evidence shows that, at the time of the conveyance of the 24.05 acres referred to above, it was agreed between the parties that Bushong’s interpretation of the contract, which was, in effect, that it did not embrace the land in controversy, should be accepted by the plaintiffs, and that any further controversy thereafter arising would be adjusted upon that interpretation.

As shown by the evidence already referred to, there was ample support for the finding that Scrimshire had possession of the property in controversy from the date of his deed thereto until the date of the contract. If there was no evidence to show that Newman also had such possession during the time he claimed the same under deed, the error in the finding that Newman did have such possession was harmless; since notice of Scrimshire’s possession at the time of the contract was sufficient.

The fifteenth finding of fact, which is also attacked, is supported by Bushong’s own testimony, to the effect that the house and lot which defendant conveyed to plaintiffs in part consideration for the 24.05 acres was worth from §1,600 to $1,800.

The sixteenth finding of fact is supported by the testimony of Scrimshire and, the plat of the land introduced in evidence.

Other assignments of error complaining of the refusal of the court to reach findings of fact contrary to the findings of fact attacked and discussed already are overruled by reason of the evidence recited in support of the court’s findings.

By the sixth assignment it is insisted that the judgment is erroneous, for the reason, that the quitclaim deed from Scrimshire to Mrs. Bury to an undivided one-third interest in the land in controversy was not recorded at the date of the execution of the contract in controversy, and it was not shown that Bushong knew of that deed and the other quitclaim deed to Mrs. Turner to a like interest in the same land, and because Bushong did know of a prior deed from Scrimshire to Mrs. Bury and Mrs. Turner, conveying a tract of 50 acres of land, which included the 24.05 acres afterwards • deeded by plaintiffs to Bushong. By reason of the court’s findings of fact Nos. 12, 13, and 14. which are amply supported by the evidence, as above noted, this assignment is overruled The judgment is affirmed.


author: ELY, C. J.

text:
    ALAMO OIL & REFINING CO. v. RICHARDS.
    (No. 5341.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Master and Servant (§ 219) — Defective Instrumentalities — Inspection — Duty of Employé.
    While an employs assumes the risks of using a defective instrumentality, when the defect is obvious and apparent, he need not seek for concealed defects or dangers not disclosed by a superficial observation.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.]
    2. Master and Servant (§ 208) — Injury to Servant — Defective Appliances — Assumption of Risk.
    Where the defect in a ladder furnished an employs consisted in the use of nails which were too small, in fastening on the steps, which defect could not have been discovered without a rigid inspection, the employs did not assume the risk of injury therefrom.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 551; Dec. Dig. § 208.]
    3. Master and Servant (§ 217) — Injury to Servani>-Defective Instrumentality — Assumption of Risk — Knowledge.
    A servant, injured from a defective instrumentality furnished by the master, does not assume the risk unless at the very time of his injury he knew, or in the ordinary discharge of his duties must necessarily have acquired knowledge, of the defect.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    4. Appeal and Error (§ . 1066) — Harmless Error — Instructions—Assumed Risk.
    Where, in an employe’s action for injuries, there was no evidence to raise the issue of assumed risk, the charge thereon could not have been prejudicial to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    5. Master and Servant (§ 219) — Employment Contract — Defective Instrumental-ities — Duty to Inspect.
    That the employment contract bound the employe “to examine all other places, ways, works and machinery” did not require him to make such an inspection of a ladder provided for his use as would have disclosed hidden structural defects therein.
    [Ed. Note. — For other .cases, see Master and Servant, Cent. Dig. §§ 610-624; Dee. Dig. § 219.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by S. J. Rickards against the Alamo Oil & Refining Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      O. L. ■ McCartney, of Brownwood, Terrell, Walthall & Terrell, of San Antonio, for appellant. P. H. Shook and John Sehorn, both of San Antonio, for appellee.

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

       writ of error pending in Supreme Court.

   ELY, C. J.

Appellee sued appellant to recover damages arising from injuries inflicted on him by the giving way of the round or step of a ladder furnished him by appellant. The latter pleaded assumed risk and contributory negligence on the part of appel-lee. A trial by jury resulted in a verdict and judgment for appellee in the sum of $10,000.

Appellee, while in discharge of his duties as an employe of appellant, was descending a ladder furnished by appellant, and one of the rungs or rounds of the ladder came loose at one end and precipitated appellee to the floor of the room, in which he was working, and seriously and permanently injured him. No complaint is made of the size of the verdict.

Ordinarily the servant is not charged with the duty of inspection or inquiry. It is the general rule that the servant is under no obligation to inspect the instrumentalities provided by the master to discover concealed defects or dangers not disclosed by a superficial observation. He can assume that the instrumentalities furnished him by his master are not defective, but suitable for the purposes for which they were furnished. He is not called upon to seek for and discover hidden defects, but may be held to have assumed the risk of using a defective tool, implement, or instrumentality, when the defect is obvious and apparent. As said in Railway v. Hannig, 91 Tex. 347, 43 S. W. 508:

“We understand the law to be that when the servant enters the employment of the master he has the right to rely upon the assumption that the machinery, tools, and appliances with which he is called upon to work are reasonably safe, and that the business is conducted in a reasonably safe manner. He is not required to use ordinary care to see whether this has been done or not. He does not assume the risks arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or in the ordinary discharge of his own duty must necessarily have acquired the knowledge.”

See, also, Railway v. Harris, 48 Tex. Civ. App. 434, 107 S. W. 108; Railway v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 783. In the last case cited a defective pinch bar, a very simple tool, was used, and Associate Justice Neill, for this court, held:

“The plaintiff had the right to assume when the bar was handed him by his foreman for immediate use that the defendant had discharged its duty in exercising ordinary care to furnish him a reasonably safe instrument with which to do the work he was directed to do. And, acting upon such assumption, it was not incumbent on him to make an inspection of the bar; and, unless he knew of the defect, or it was of such a nature as to charge him with such knowledge as a matter of law, and with the danger incident to his use of it in doing the work in hand, it cannot be said, as a matter of law, that he assumed the risk of using it, or was guilty of contributory negligence.”

It is the rule that where a tool or implement is so simple that inspection is not necessary and any man of ordinary intelligence can see the defects, if any, in it, the servant will be charged with an assumption of the risk arising from its use. This rule will not apply where the defect is not obvious, but is a latent or concealed defect so far as the servant is concerned. In this case the evidence showed that the step or round of the ladder gave way because the nails used by appellant in constructing the ladder were not large enough for the purpose for which they were used. Appellant knew the kind of nails it used in fastening the steps on the sides of the ladder, and was charged with the knowledge that the nails were too small. The defect in construction was concealed from appellee, and he had the right to assume that appellant had used nails of a size requisite and sufficient to securely fasten the steps. It has been held in Missouri and Tennessee that a ladder under certain circumstances was a tool- so simple that the master would not be liable, as the defects were obvious to the servant. Blundell v. Mfg. Co., 189 Mo. 552, 88 S. W. 103; Sivley v. Nixon Drill Co., 128 Tenn. 675, 164 S. W. 772, 51 L. R. A. (N. S.) 337. In each of those cases the accidents occurred by the ladder slipping on account of not having spikes on the end to hold it and keep it from slipping. But it cannot be held with reason that a ladder, made by the master, with defects not obvious to the servant, but which are concealed from him, is such a simple tool as to shield the master from liability, on the ground of assumed risk. In assumed risk there must be knowledge, express or implied, on the part of the servant. There could be no assumed risk unless the defect in the ladder was so apparent or obvious as to charge appellee with knowledge. The defect in this case was the smallness of the nails, and appellee could not have discovered such state of affairs without a rigid inspection. He was not charged with the duty of inspection, however, nor even the exercise of ordinary care. The ladder was comparatively new, and the accident occurred, not by reason of its getting out of order, but grew out of its defective construction, of which appellee had no knowledge, and which he could not have obtained without drawing the nails and measuring them. If the rounds or steps of the ladder had been loose, appellee could have seen that at a glance, but they were not loose, but had the appearance of being securely fastened.

In this state it has never been held that a ladder is such an instrumentality that the duty of inspection, as a matter of law, does not rest upon the master, but in the case of Cement Co. v. McBrayer, 140 S. W. 388, it was held, where a ladder broke and precipitated the appellee to the floor,, that a question of fact arose to be determined by a jury. But the question ol inspection does not arise, but it is a case of a ladder constructed by appellant in a defective manner, and which defects were hidden from appellee, and which defects in construction caused the accident. Having made the ladder, appellant knew that it was improperly constructed, and no inspection would have given it any more knowledge. The defect was in construction. The first, second, third, and fourth assignments of error are overruled.

The charge complained of in the fifth assignment is in the very language of decisions of the Courts of Civil Appeals and Supreme Court in several cases. Bonnet v. Railway, 89 Tex. 72, 33 S. W. 334; Railway v. Rea, 99 Tex. 58, 87 S. W. 324; Railway v. Hodnett (Sup.) 163 S. W. 13; Railway v. Adams, 121 S. W. 876; Railway v. Harris, 48 Tex. Civ. App. 434, 107 S. W. 108. In each of those cases it was held that where a servant is injured on account of a defective instrumentality furnished by the master, he did not assume the risk of the defect unless at the very time he was injured he knew, or in the ordinary discharge of his duties must necessarily have acquired knowledge, of the defect. The effect of the rule was that there must be knowledge upon the part of the servant, which might be expressly proved, or which might be proved by the circumstances. The rule would have been clearer if it had merely required knowledge without any reference as to how it might be proved. The decisions cited hold further that the matter of assumed risk cannot be measured or tested by the ordinary care of the servant, because the servant is not required to exercise ordinary care to detect defects in instrumental-ities furnished by the master. This the writer of this opinion believes to be the true rule.

However, there are other opinions of the Supreme Court in direct conflict with the decisions cited, which hold the assumed risk of the servant must be tested by the exercise of ordinary care, one of them in the same volume of reports in which the cited case of Railway v. Rea appears, both opinions being written by the same judge. Peek v. Peck, 99 Tex. 10, 87 S. W. 248; Railway v. Hynson, 101 Tex. 543, 109 S. W. 929; Adams v. Railway Co., 101 Tex. 5, 102 S. W. 906, and others. The last enunciation of the Supreme Court, in the cited case of Railway v. Hodnett, has gone hack to the rule announced in Railway v. Hannig.

It is unnecessary in this case to choose between the conflicting eases, because there was no evidence whatever to raise the issue of assumed risk, and the charge on that subject could not have injured appellant. Ap-pellee did not have to inspect the ladder, but that duty devolved upon the master. An ordinary inspection would not have disclosed the structural defect in the ladder.

. The special instruction, the rejection of which is complained of in the seventh assignment of error, was properly refused, if for no other ■ reason, because-there was no evidence to sustain it. All of the testimony tended 'to-show that the defect in the ladder was one of construction, and was concealed from appellee. He did not have equal facilities with the maker of the ladder to know its structural defects. The defects in the ladder were not open and patent and as obvious to the servant as to the master, as in the cases cited by appellant.

The question of latent defects, in so far as appellant was concerned, was not raised by the evidence. Appellant made the ladder, and must have known that the nails used in its construction were too small for safety, and the court very properly refused to inject any such issue into the case, as was sought to be done by appellant in the special charge, the refusal of which is complained of in the eighth assignment of error. Outwardly the ladder presented the appearance of safety to any one not acquainted with its construction.

There is no merit in the ninth assignment of error. There was no effort to impeach appellee’s written contract with appellant. He merely stated that he did not read the contract, but that its contents weré explained to him. Even if the contract, which bound appellee “to examine all other places, ways, works and machinery,” was valid and could be applied to ladders and other tools, a full inspection of the ladder would not have disclosed its structural defects. It is clear that the language of the contract had no reference, however, to ladders in which there were hidden structural defects. This contract could have no greater force than a rule of the employer assented to by the employe, and could not shift the whole duty of inspection owed by the employer to the employe. Bookrum v. Railway, 57 S. W. 919; Railway v. Lindsey, 27 Tex. Civ. App. 316, 65 S. W. 668. It would be an absurdity to hold that the servant could be held by a contract to discover latent defects in instrumentalities made and furnished by the master. That was the effect of the special charge, set out in the twelfth assignment of error.

The special charge set out in the thirteenth assignment of error is argumentative, on the weight of the evidence, and disregardful of the fact that appellant constructed the ladder and was charged with the knowledge that it was not “reasonably safe and sufficient to be used by persons ascending and descending same.” The charge is also incorrect in that it made the liability of appellant depend on the fact that it may have regarded the ladder safe.

Every issue made by pleadings and evidence was presented in an admirable charge by the trial judge to the jury, which found appellant liable under facts sustaining such liability, and the judgment based on the verdict will be affirmed.

Affirmed.


author: FLY, C. J.

text:
    WEST TEXAS BANK & TRUST CO. v. MATLOCK et al.
    (No. 6365.)

    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Trusts (§ 153) — Duration—Interest or Donor.
    S., in making sales of land, issued a pamphlet in which it was stated that he had agreed to pay $50,000 bonus for the first railroad through the land, and that he thereby contracted to pay this bonus when a road was located, or, if no railroad was running' trains before the farm and lot distribution, that he would turn over such sum to trustees to be chosen by the purchasers, to be by them given as a bonus to the first railroad running' trains through the land. These terms were made the basis of every contract of sale. S. delivered the fund to trustees under an agreement by which it was to revert to him unless a railroad was built within a specified time, and they refused to deliver the fund to trustees chosen by the purchasers until a bond was given to comply with this agreement. Held that, by the contract between S. and the purchasers, the donation was absolute and without time limit, and the trustees could not alter that contract nor ingraft conditions as to time thereon, and hence S.’s executor had no claim to the fund, even though no railroad was built within a reasonable time.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 198; Dec. Dig. § 153.]
    2. Trusts (§ 61) — Duration —Reasonable Time.
    A jury finding that a reasonable time for the building of a railroad had not expired, if material, was supported by the evidence, where it appeared that after the distribution of the land S. was engaged in promoting the building of a railroad, and caused all effort to obtain any one else to build a road to cease, and was still so engaged when he died leaving a line of railway 43 miles in length running towards the land; that the suit was filed about 14 months after his death; and that the period had been one of depression when money was not easily obtained for railroad building.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 83-87; Dec. Dig. § 61.]
    3. Trusts (§ 61) — Actions Involving Trust Fund — Parties.
    In a suit by the executor of S. to recover the bonus on the ground that a railroad had not been built within a reasonable time, purchasers of land in reliance on the offer of the bonus were proper parties to the suit, as they were the beneficiaries of the trust.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 83-87; Dec. Dig. § 61.]
    4. Trusts (§ 227) — Actions Involving Trust Fund — Costs and Fees.
    Where a trust fund is involved in litigation, a trustee is allowed out of the fund reasonable attorney’s fees for prosecuting or defending the suit, and, while it is the rule that a trustee who is an attorney and prosecutes or defends a suit connected with the trust fund cannot charge for his professional services, where there is more than one trustee, they may employ one of their number and pay him for his services out of the fund.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 324; Dec. Dig. § 227.}
    5. Appeal and Error (§ 877) — Review-Parties Entitled to Allege Error.
    In a suit involving a trust fund, parties who were adjudged to have no right, title, or interest in the fund could not complain of the allowance of attorney’s fees from the fund to the attorney for the trustees and the attorney for the beneficiaries.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    6. Trusts (§ 153) — Interest on Trust Fund — Persons Entitled to Interest.
    Where an owner of land, in advertising it for sale, issued a pamphlet stating that a specified bonus would be given for the first railroad through the land, and that, if no railroad was running- before the farm and lot distribution, the bonus would be turned over to trustees selected by the purchasers, to be by them given as a bonus to the first railroad, it was the trustees’ duty to place the bonus on interest, and the interest became a part thereof, and the donor had no right thereto.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 198; Dec. Dig. § 153.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by the West Texas Bank & Trust Company, executor, against A. L. Matlock and others, trustees. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    McFarland & Lewright, of San Antonio, for appellant. A. L. Matlock and Butler L. Knight, both of San Antonio, for appellees.

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

       Writ of error pending in Supreme Court.

   FLY, C. J.

Appellant, as the executor of the last will and testament of Dr. O. F. Simmons, deceased, instituted this suit to recover from A. L. Matlock and A. M. Avant, as trustees, a trust fund of $50,000, received by them on or about December 28, 1908, from R. L. Ball, J. P. Barclay, and E. P. Simmons, trustees.

It was alleged in the petition that Dr. Simmons died on November 4, 1910, and that appellant was duly appointed the executor of his last will and testament; that on or about December 28, 1908, there was a deposit in the National Bank of Commerce of $50,000 in the names of R. L. Ball, J. P. Barclay, and E. P. Simmons, trustees, which was deposited by C. F. Simmons as a trust fund to be paid to any railroad company that might build and operate a line of railway through certain lands in Live Oak county and through Simmons City on said land, in accordance with the terms and conditions laid down in a certain booklet circulated by said Simmons, entitled “Home, Sweet Home,” and especially rules 9 and 22 in said booklet, said bonus to be paid to the first railroad company with Eastern or Northern connections which might build its line through said land and town; that if no such railroad was built within a reasonable time, the money was to be returned to C. F. Simmons, his heirs or assigns. It was further alleged that, in pursuance of rule 9 of the booklet, Matlock, Avant, and Eastman, trustees, were elected by the purchasers of the land to receive and hold the $50,000 bonus, and it was placed in their hands to be held by them as it was by the first set of trustees, the interest on the money to he paid to C. F. Simmons, and, if no railroad was built within a reasonable time, the money was to be returned to C. F. Simmons; his heirs or assigns; that more than a reasonable time had elapsed and no railroad had been built, and appellant was entitled to have the money for the estate of C. F. Simmons, deceased.

Walter Brown and others who purchased lands from Dr. Simmons, under the terms set out in the booklet, asked to intervene, in order to protect their interest in the $50,000, which was a part of the inducements held out to them to buy the lands; that the trustees had been elected by them and authorized to receive the money and hold the same in trust for the first railroad that built through the land, said money to be held by them under the provisions of rule 22 in said booklet, without any limitation as to time; that without their knowledge or consent the trustees had agreed that said money should be held for a reasonable time and then paid back to Simmons, and such stipulations were secretly made and were a fraud upon the rights of interven-ers; that said $50,000 was taken out of money paid on the land by interveners. It was further alleged that the contract made with their trustees and Simmons was made without their knowledge or consent, and was in fraud of their rights, and interveners are not bound by the acts of the trustees in accepting the $50,000 upon the secret conditions imposed upon them.

The trustees answered that Simmons had represented to them that he intended to build the railroad and get the bonus; that the money Should not be taken by them, but be left in the National Bank of Commerce of San Antonio; that they afterwards learned that Simmons did not intend to complete . the road, but was claiming that in 2 years the money would revert to him;- that they then demanded the money from Simmons, and were informed by him that the money was in the hands of trustees appointed by him, and they would be compelled to give a bond in accordance with the terms of a private trust agreement between him and his trustees; that in that agreement different stipulations and conditions were attached to the bonus from those made with the purchasers of the land which were contained in rule 22 of the booklet of “Home, Sweet Home”; that in the private agreement made by Simmons with his trustees it was stipulated, if a bond was not made in 12 months from the date of the distribution of the lands to the purchasers thereof, the bonus was to revert to Simmons, and 11 months of the time had expired when ap-pellee trustees discovered that fact, and they immediately demanded the money from Simmons’ trustees and offered to give the bond. It was further alleged that Simmons’ trustees refused to accept the bond, unless it was conditioned in accord 'with the conditions of their private agreement with Simmons, and they were compelled to so execute the bond in order to obtain the money; that Simmons built a railroad from Mac-dona, a station on the International & Great Northern Railroad, to Christine, in Atascosa county, a distance of 43 miles, towards the land in Live Oak county, and thus prevented other railroad builders from building a road to said land; and that a reasonable time had not elapsed for the building of said road.

Only one issue was presented to the jury, as follows:

“Under all the facts and circumstances shown by the evidence in this case, has a reasonable length of time transpired since September 8, 1908, for the construction of a railroad of the character as described in the bonus proposition made by the said Dr. Simmons?”

The question was answered in the negative,' and a judgment for appellees was rendered.

The contracts of sale made by C. F. Simmons and the purchasers were based upon a rose-colored pamphlet or booklet issued by Dr. Simmons under the alluring title of “Home, Sweet Home, A Home in the Sunny South for a Song,” which not only appealed to fhe populace by beautiful descriptions of the land and accounts of its wonderful fertility and productivity, but sought to arouse the sentiments of the lovers of home by copying such songs as “My Old Kentucky Home” and “Home, Sweet Home,” and touched their religious feelings by copying hymns referring to homes across the river such as “Home of the Soul” and “Nearer My Home.” There was contained in the booklet a comparison between the producing capacity of lands in Texas and other states, greatly to the advantage of Texas, and it was declared that Ex-President Roosevelt had said, “Texas is the garden spot df the Lord,” and that “investigation will show that the famous Nueces River Yalley, from 80 miles south of San Antonio [the largest city in the state] southward for 40 miles, is the very cream of the ‘center of the garden.’ ” A veritable Utopia was painted in word pictures that undoubtedly made a strong appeal to the hearts of men, but none of the representations struck with more force than the munificent offer of a bonus of $50,000 to insure the building of a railroad along the valley of the Nueces river until the “center of the garden” was reached in Live Oak county. This was expressed through what is denominated in the booklet “Rule 22,” and is as follows:

“One of the proposed railroads through this property already has ten miles graded, and owner has agreed to pay $50,000 bonus for the first railroad to come through this land down the river on the side of the new town and through it. This bonus owner hereby contracts to pay when road located as above shown is running trains, provided the road is running passenger trains before the day of farm and lot distribution; but, if no railroad located as above indicated is running trains on the day of distribution, then owner hereby guarantees that he will on that day turn over to the three trustees, in trust, fifty thousand dollars in gold, to be by said trustees given as a bonus to the first railroad having an Eastern or Northern railroad connection, which runs passenger trains through this property on line above indicated. This bonus guarantees to each purchaser, free of cost, the first railroad just where it should be, and it will doubtless make a race between the railroads to get there first.”

Around that rule the whole of the land transactions seemed to revolve, and its terms were made the basis of every contract.

According to the terms of that part of the booklet, Simmons bound himself to turn over to the trustees, the election of whom by the purchasers was provided for in rule 9 of the booklet, the sum of $50,000,' to be used as a bonus to secure the building of a railroad to the land sold by Simmons. There was no time limit to the donation, but it was absolute, and was one of the inducements to the purchase of the land by inter-veners. The bonus was not conditioned on the building of a road in a “reasonable time,” but it was absolute and unconditional, guaranteeing, in the language of the rule, “to each purchaser, free of cost, the first railroad just where it should be.” That contract was between Simmons and the purchasers of the land, and the trustees were given no authority to alter that contract or to ingraft conditions as to time thereon. They were trustees merely to receive and safely keep the bonus until the road should be built.

O. P. Simmons by his contract lost all control over and interest in the bonus, which was given to interveners to be used for a specified purpose. They, of course, could not divert it from the purpose to which it was dedicated, and neither could Simmons or the trustees. The contract made by the trustees was made without the knowledge or consent of the purchasers to whom the bonus had been given, and made under stress of circumstances, without authority and without consideration. The secret agreement made by Simmons with his trustees, and the agreement made by the latter with the trustees of the purchasers, cannot destroy the contract-made between Simmons and the purchasers of the land. The men who bought the land were not purchasers of only sunshine and soil and cactus and chaparral many miles from railroad facilities, but they bought the means of inducing the building of a railroad to their land, and cannot be deprived of it without their knowledge and -consent. The documentary evidence was such that a verdict should have been instructed for ap-pellees, on the ground that the bonus was an absolute donation to the purchasers of the land, to be used for certain purposes.

If the issue of reasonable time in which to build the railroad was raised by the evidence, there was.abundant testimony to sustain the finding of the jury. For several years after the final distribution of the land took place Dr. Simmons was engaged in promoting the building of the road, and, , while so engaged, he died, in 1910, leaving a line of railway 43 miles in length running in the direction of the land. He caused all effort to obtain any one else to build a road to cease during his life, and this suit was filed in about 14 months after his death. The financial condition of the country was one of depression during much of the time, and money not easily obtained for railroad building. If there was delay in building the road, it lay at the door of Dr. Simmons during his life and to his representatives after his death. The purchasers were not guilty of laches in connection with the bonus, but naturally were anxious to obtain the railroad and realize something on their investment in the central garden of Texas. Without the railroad the garden was a vision and of “such stuff as dreams are made of.”

Of all men, none had such vital interest in this suit as the purchasers of the land; for upon the bonus depends the protection of the values of their land and prevent them from remaining those of mere pasture lands distant from a market. They had the right to intervene to protect the money they had purchased with their lands. They did not seek to divert the fund from the purpose to which it was dedicated, but intervened to prevent its appropriation by the executor of the estate of O. F. Simmons. They were the beneficiaries in the trust fund, and were proper parties to the suit. Ebell v. Bursinger, 79 Tex. 120, 8 S. W. 77. The interveners asked for nothing except enforcement of the terms of the trust as set out in their contracts with O. F. Simmons. If it “was utterly immaterial where said $50,000 originally came from,” then the allegation that it came out of money paid by the purchasers of the land could not have injured any one.

The answer of the trustees and the plea in intervention of the purchasers were not subject to attack by the general demurrer and the special exceptions of appellant, and the assignments of error from the first to the twenty-fourth, inclusive, which claim error in the overruling of the exceptions, are not sustained.

We construe the contract between Simmons and the purchasers of his lands as giving them a vested interest in the $50,000, as hereinbefore set out, and the money should be held in trust by the trustees for the uses to which it was set apart. Neither the agreement made by Simmons with his • trustees nor the agreement signed by the purchasers’ trustees should be consulted in determining the terms of the trust. The assignments of error from the twenty-fifth to the thirty-eighth, inclusive, are overruled. The thirty-ninth assignment of error is too general and indefinite to be considered.

There are few eases in which attorney’s fees are allowed either party for the prosecution'or defense of the suit. The general rule is that every litigant must pay his attorney, but in cases where a trust fund has become involved in litigation a trustee is allowed, out of the fund, reasonable attorney’s fees for prosecuting or defending the suit. It is the rule, however, that a trustee who is an attorney and who prosecutes or defends a suit connected with the trust fund cannot charge for his professional services. There are exceptions to this rule, however; one being where there is more than one trustee, in which case they may employ one of their number and pay -him out of the trust fund for his professional services. P^rry on Trusts, § 432. The rule as to not allowing an attorney’s fee to a trustee for his services is not favored in Massachusetts. Turn-bull v. Pomeroy, 140 Mass. 117, 3 N. E. 15. We do not feel disposed to hold that two of three trustees could not employ the third to prosecute or defend a suit about the trust fund and pay him out of that fund. It may be, where there is only one trustee, that he cannot contract with himself for professional services, but this does not appeal with force to this court, as the trust fund would be protected by an order of the trial court fixing the fee.

If the fees should not have been allowed for the attorney of the trustees, who is a trustee, and for the attorney of the interveners, we fail to understand what right appellant has to complain about it. It was adjudged that it had no right, title, or interest in the fund, and it cannot be heard to complain about the matter. The trust in this case is for the benefit of the purchasers of the Simmons lands, and they alone can complain of the disposition of it. And in this connection it may be said that the appellant has no right to the interest accruing from the trust fund, which must follow the corpus of the fund. Upon what hypothesis the interest is claimed does not appear. It was the duty of the trustees to place the bonus so that it would bear interest, and, under the terms of their appointment, the interest became a part of the bonus, no matter what contracts the trustees may have entered into with Simmons, who parted title with the bonus and had no authority over it.

Simmons, it seems, made a genuine effort to build the road to Simmons City, but had not accomplished that end when he died, and now that the building of the road was not accomplished by him his executor seeks to recover the money given by him to the purchasers of the land, and thereby prevent them from having that sum to encourage others in building the road. The estate has no ownership in the bonus.

We adopt the conclusions of fact set out in the judgment.

The judgment is affirmed.