author: DUNKLIN, J.

text:
    JOHN E. MORRISON CO. v. RILEY et al.
    (No. 8731.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 10, 1917.)
    1. Evidence ®=>460(12) — Identity of Property — Parol Testimony — Adding Property.
    Parol testimony is admissible to identify property in a chattel mortgage, but not to add property which clearly appeared from the face of the instrument not to have been covered thereby.
    2. Pleading <®=>15 — Issues—Allegations of Other Defendants.
    In an action by a mortgagee against a mortgagor and a subsequent mortgagee, the subsequent mortgagee, not pleading fraud in execution of plaintiff’s mortgage, cannot profit by such an allegation by the mortgagor.
    3. Evidence 3=441(5) — Parol Agreements —Varying Terms of Mortgage.
    A parol agreement that a chattel mortgage should be subordinate to another .to be later executed cannot be given effect, either by the mortgagor or the subsequent mortgagee, in contravention of a stipulation in the earlier mortgage that the property should be free from all other mortgages and incumbrances.

      4. Trial <&=ol05 — Reception op Evidence-Written Instruments — 'Varying by Parol.
    The rule that the terms of a written instrument cannot be varied by parol is a substantive law, and not merely a rule of evidence, and the legal effect cannot be avoided even though proof of parol agreements be admitted without objection.
    5. Evidence <g=»448 — Written Instruments —Parol Evidence — Privies.
    The rule that a legally binding written unambiguous instrument cannot be varied, added to, or contradicted by proof of prior or contemporaneous agreements, not only applies to the parties, but to their privies.
    Appeal from Throckmorton County Court; A..H. King, Judge.
    Suit by the John E. Morrison Company, a corporation, against J. J. Riley and others. Judgment for plaintiff in part, and it appeals.
    Reversed and remanded.
    B. P. Reynolds, of Throckmorton, for appellant. T. J. Wright, of Throckmorton, for appellees.
   DUNKLIN, J.

The John E. Morrison Company, a private corporation, institi ted this suit against J. J. Riley to recover a personal judgment against him upon two promissory notes for the principal sum of $166.04 each, with interest thereon, and also for a foreclosure of a chattel mortgage upon certain .personal property, which mortgage was given to secure the' payment of the notes. Lev Williams, R. E. Sherrell, Will Sherrell, composing the partnership firm of Sherrell Bros., P. J. Foster and R. Brittain, composing the partnership firm of Throckmorton Mill & Light Company, and the First National Bank of Throckmorton, were all made defendants, and a judgment for foreclosure of the mortgage was prayed for against those defendants, as well as against Riley. It was alleged that the hank was claiming some interest in the property covered by plaintiff’s mortgage under and by virtue of another mortgage executed by Riley of later date than plaintiff’s mortgage covering a part only of the property covered by plaintiff’s mortgage. It was further alleged that defendants Williams, Foster, Brittain, and Sherrell Bros, had all purchased from defendant Riley, subsequently to the execution of plaintiff’s mortgage, certain wheat, all of which was covered by that mortgage, and had converted the same to their own use without plaintiff’s consent, and judgment was sought against them for foreclosure of plaintiff’s lien on the property so converted, or for the value thereof, and for a foreclosure as against the bank. The trial was before a jury, and a personal judgment was rendered in plaintiff’s favor against Riley for the debt claimed against him, but denying plaintiff a foreclosure of the mortgage lien alleged as against each and all of the defendants. From that judgment the plaintiff has appealed.

The mortgage given by Riley to plaintiff was dated February 11, 1916, and was < filed for record February 14, 1916. It covered certain live stock and also SO acres of wheat then growing upon the Howsley farm. Prior to the execution of that mortgage, Riley had executed another mortgage in favor of the defendant bank, of date May 13, 1915, which had been filed for record on October 1, 1915, more than four months prior to the execution of the mortgage in plaintiff’s favor, but that mortgage in favor of the bank did not cover the wheat crop embraced in plaintiff’s mortgage, nor did it cover the mule embraced in plaintiff’s mortgage, which was there described as being a one year old mule colt without a brand. On «February 15, 1916, one day subsequent to the filing of plaintiff’s mortgage for record, Riley executed another mortgage in favor of the bank upon all the property covered by plaintiff’s mortgage, as well as that included in the bank’s first mortgage, and which was intended as a renewal of the bank’s first mortgage, the original debt then being unpaid, and that mortgage was duly filed for record on the same date of its execution. Notwithstanding the .fact that it appears from the face of the instruments themselves that the bank’s first mortgage did not cover the one year old mule and the 30 acres of wheat, which were embraced in plaintiff’s mortgage, Riley was permitted to testify, over plaintiff’s objection, that all the property described in plaintiff’s mortgage was also covered by the bank’s first mortgage, and in answer to special issues the jury found that such were the facts. In this ruling we think there was error. No doubt it was permissible for Riley to testify that the animals described in the two instruments were the same, if there was nothing in the two instruments to show that they were different animals, but the -rule allowing him to testify that the 30 acres of wheat and the one year old mule colt described in the plaintiff’s mortgage were also embraced in the bank’s first mortgage would be to allow him to contradict by parol testimony the plain terms of the two instruments, and by parol testimony to add to the bank’s first mortgage property, which clearly appeared from the face of that instrument not to have been covered thereby.

The bank and also Riley both pleaded specially that at the time plaintiff’s mortgage was executed and in the negotiations immediately preceding such execution, it was understood and agreed by and between Riley and plaintiff’s representative that that mortgage should be secondary and subordinate to the second mortgage which Riley then contemplated giving, and which he gave to the bank four days later. The latter mortgage, which was introduced in evidence, clearly shows that it covered the 30 acres of wheat embraced in plaintiff’s mortgage and also the one year old mule mentioned above. In answer to special issues the jury sustained such special plea, and the evidence was ample to support tlie finding that plaintiffs mortgage was executed by Riley partly in consideration of such parol agreement, and but for which he would not have executed the same.

There was also a special plea by Riley that his execution of plaintiff’s mortgage was induced by fraudulent misrepresentations made to him by plaintiff’s agent that it contained the parol agreement which the jury found was in fact made, and that by reason of such fraud so practiced plaintiff’s mortgage was invalid for any purpose. However, it does not appear that the bank pleaded such fraud. A special issue presenting that defense was also submitted to the jury, but no finding was made thereon. It thus appears that the court in rendering the judgment that was rendered considered a finding upon that issue immaterial, and that plaintiff should be denied a recovery by reason of its parol agreement that its lien should be subordinate to the bank’s second mortgage lien. In 1 Jones on Mortgages, par.' 608, the following is said:

“The narties may, as between themselves, make a valid agreement, though it be verbal only, that one of two mortgages shall be prior to the other, and the order of record is then immaterial, unless they are subsequently assigned to other persons who have no notice of the agreement, although, according to some authorities, the want of notice on the part of the as-signee makes no difference, but the mortgage continues subject to the equity of this arrangement.”

But it is clear to us that the parol agreement relied, on in this case could not be given effect, since it is in plain contravention of a stipulation contained in plaintiff’s mortgage that the property thereby pledged should be free from all other mortgages and incum-brances whatsoever. We have examined several of the authorities cited by the author tosupport the text' quoted above, and in none of them which we have examined ■ is there any indication that the rule announced would be applicable whenever to do so would be to override and set at naught the other well-established rule that, as between the parties thereto, a legally binding written instrument, which is unambiguous in its terms, cannot be varied, added to, or contradicted by proof of prior or contemporaneous agreements. The latter rule is a rule of substantive law, and not merely a rule of evidence, and the legal effect of the written instrument cannot be avoided, even though proof of such parol agreements be admitted without objection, since such parol proof is incompetent to accomplish that result. 4 Wigmore on Evidence, pars. 2400, 2425, 2446; 3 Jones on Evidence, §§ 434, 435; 10 R. C. L. pp. 1017, 1018; 1 Greenleaf on Evidence, § 275; 17. Cyc. 570; Henry v. Phillips, 105 Tex. 459, 151 S. W. 537; Rubrecht v. Powers, 1 Tex. Civ. App. 282, 21 S. W. 318.

While it is stated in 10 R. O. L. p. 1020, that the parol evidence rule now under discussion is not binding upon strangers to the written instrument, and while that prin■ciple was followed by us in Stuart v. Meyer, 196 S. W. 615, yet, as stated in section 213, R. O. L. p. 1020, the rule is applicable, not only to parties to the instrument, but also to' their privies. It cannot be doubted that as between Riley and plaintiff, the parol agreement found by the jury, in the absence of fraud, accident, or mistake inducing the execution of plaintiff’s mortgage, could not be given effect, since to do so would be to set at naught the plain and unequivocal stipulation in that mortgage that the lien thereby given should be superior to all other liens. Under its second mortgage the bank cannot be put in any better position than Riley, since it is privy to him, and the second mortgage, therefore, could not be held to be superior to plaintiff’s mortgage on the mule and the 30 acres of wheat covered by plaintiff’s mortgage, but not embraced in the bank’s first mortgage.

The evidence shows that Lev Williams received some of the wheat covered by plaintiff’s mortgage as compensation for his services in cutting that crop and other crops, but it does not show how much he received for harvesting the wheat upon the particular 30 acres covered by plaintiff’s mortgage. The evidence also shows that tbe wheat which Riley sold to the defendant Sherrell was turned over to the bank and credited on the note, but the amount of the credit was not shown. The evidence further shows that certain of the wheat was turned over to the Throckmorton Mill & Light Company in exchange for flour, but the market value of none of the wheat turned over to any of the defendants was shown. We deem it proper to note further that there is no evidence in the statement of facts to show that the debt to the bank, to secure which Riley executed the two mortgages in favor of the bank, is still unpaid. And even though the proof had shown the value of the wheat turned over to Williams in payment of services rendered by him in harvesting the 30 acres of wheat in controversy, there would still be the further questions to be determined: First, whether or not article 5644, of V. S. Texas Civil Statutes, gives a lien upon a crop for services rendered in harvesting a crop; and, second, even though it gives such a lien, whether or .not it would be superior to plaintiff’s mortgage lien, in view of the stipulation in plaintiff’s mortgage to the effect that Riley w.ould harvest the wheat crop and deliver it to plaintiff without expense to it, in addition to the stipulation already referred to that the lien given in that mortgage should be free from all other incumbrances of whatsoever nature, the plaintiff’s mortgage apparently being of record at the time Williams perform ■ ed ’ that service. In view of what we have i said already, it becomes unnecessary for us to discuss either of those questions, but we will say in passing that in an unpublished opinion rendered by this court January 13, 1917, in cause No. 8494, entitled Gibson v. Wood,* we held that while in the concluding portion of article 5644 of the Statutes there is a proviso reading, “that a lien herein given to a farm hand shall be subordinate to the landlord’s lien now provided by law,” and while in other portions of that statute a “farm hand” is mentioned as one to whom a lien is given, yet in none of the provisions of that statute in which the services for which a lien is given is there any mention of services performed oh a farm, and that in the absence of such a provision the statute did not give a lien for services rendered in threshing a crop of wheat.

For the reasons noted, the judgment is reversed, and the cause remanded for a new trial.

CONNER, C. J., not sitting. Serving on Writ of Error Committee at Austin.
      <g=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®s»For other cases see same topic anil KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    TEXAS & PACIFIC COAL CO. v. READY.
    (No. 736.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.)
    1. Judges <®=j15(1) — Special Judge — Ground for Selection — “Unwilling to Hold Court.”
    Where the regular judge, because of his interest in one of the parties, declined to try the case, but remained at his office and attended to other matters pending, he was not “unwilling to hold court,” within Rev. St. 1911, art. 1678, authorizing practicing lawyers to elect a special judge when the regular judge is absent, unable or unwilling to hold court, and the election of a 'special judge in such case was void.
    2. Judges <®=>15(1) — Special Judge — Ground for Selection.
    Rev. St. 1911, art. 1678, authorizing election of special judge in certain cases, should be strictly construed to preserve the right of litigants to a trial before the regular judge.
    3. Judges <©=^59 — Mandamus ⅞=31 — Refusal to Try Case.
    The mere fact that the regular judge for a personal reason does not desire to try a particular case gives.him no right to decline to do so; and, if he does decline, he may be compelled by mandamus to try the case.
    4. Judgment @=39 — Special Judge — Unauthorized Appointment — Validity of Judgment.
    A judgment rendered by a special judge elected without due warrant as provided by Rev. St. 1911, art. 1678, is a nullity.
    5. Appeal and Error @=3719(3) — Assignment of Error — Fundamental Error.
    Error in electing a special judge in the absence of the conditions for such election provided by Rev. St. 1911, art. 1678, is fundamental, and error need not be assigned.
    6. Appeal and Error @=3544(1) — Record — Bill of Exceptions — Fundamental Error. •
    No bill of exceptions is necessary to preserve the question of the illegality of the election of a special judge to try certain cases.
    Appeal from District Court, Erath County; J. B. Keith, Special Judge.
    Action by Alvin Ready against tbe Texas & Pacific Coal Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    W. J. Oxford and Chandler & Pannill, all of Stephenville, and J. R. Stubblefield, of Eastland, for appellant. Hickman & Bate-man, of Stephenville, G. B. Turner, T. J. Powell, arid Dee Estes, all of Ft. Worth, for ap-pellee.
   Statement of Case.

HIGGINS, J.

The Texas & Pacific Coal

Company appeals from a judgment rendered against it in the district court of Erath county. Hon. W. J. Oxford was the regular judge of that court. The case was tried before Hon. J. B. Keith, special judge elected by the practicing lawyers of the court. The facts in connection with the election of Judge Keith are shown in the court minutes of his election. The minutes read:

“Judge W. J. Oxford, district judge of the Twenty-Ninth judicial district, opened his court on the Monday for the week beginning June 19, 1916, in the regular way, and -dated to ] the bar that there are a number of eases against the Texas & Pacific. Coal Company, sot for the week, but that he, Judge Oxford, was unwilling to try those cases for the reason that he intended to tender his resignation on September 1st following, and accept employment as attorney for said defendant company. Counsel for the coal company, being present in the court, objected to the court's proposed action, and the judge thereupon suggested to the attorneys present that it would he necessary to elect a special judge, and stated that he, Judge Oxford, had a right to refuse to try any cases against the Texas & Pacific Coal Company, and so feeling and believing, was unwilling to try said cases, and he declined and refused to try the cases set for that week against the Texas & Pacific Coal Company. The following cases against the Texas & Pacific Coal Company were set for trial in said week beginning June 19, 1916. No. 4093, Sentí Pacifico v. T. & P. Coal Co. No. 4092, John C. Tidwell v. Same Defendant. No. 4091, Floyd Freeman v. Same Defendant. No. 4090, Gottfried Grabner v. Same Defendant. No. 4158, Alvin Ready v. Same Defendant. No. 4131, Jim Garbugio v. Same Defendant. Judge Oxford read article 1678, Vernon’s Sayles’ Texas Civil Statutes, and suggested that under that article the attorneys present could proceed to elect a special judge to try the cases set for that week against the Texas & Pacific Coal Company, and thereupon the said W. J. Oxford vacated the bench, and the election of the Hon. J. B. Keith was made by the attorneys present, in accordance with the statute governing election of special judges, and he, the said J. B. Keith, then proceeded to try said cases set for said week during the remainder of said week against the Texas & Pacific Coal Company. And during the remainder of that week the said W; J. Oxford remained in his office in the courthouse and transacted other business on other matters as such district judge_, and after the said W. J. Oxford vacated said bench the following proceedings were had: On this the 19th day of June, A. D. 1916. during a regular term of the district court of the Twenty-Ninth judicial district in and for Erath county, Tex., Hon. W. J. Oxford, being unwilling to try the cases set for that week, to which the. Texas & Pacific Coal Company, was a party, vacated the bench, ’ and engaged in the transaction of other business pertaining to his office in the courthouse. The following proceedings were had, to wit: A meeting of the Stephenville bar being called for the purpose of electing a special judge to preside over and discharge the duties of the said district judge in the district court of Erath county, Tex. The following members and practicing attorneys of the Stephenville bar present and participating in said meeting, to wit: R. L. Thompson, J. A. Johnson, Judge J. B'. Keith, F. H. Chandler, G. O. Bateman, Wm., Pannill. W. W. Moores, James W. Swain, and B. E. Cook, Thereupon W. W. Moores of the Stephenville bar, was put in nomination and unanimously elected chairman of said bar meeting, and caused the proclamation of the purpose of said bar meeting to be made as the law directs, by the sheriff of Erath couuty, Tex., and the district clerk then and there made a list of the lawyers present and practicing at this bar. Thereupon Judge J. B. Keith of the Stephenville bar was put in nomination for special judge. Judge J. B. Kgith received 10 votes when said ballots were counted, Judge W. W. Moores received 1 vote for said special judge, and after the votes had been counted and registered by the district clerk of Erath county, Tex., thereupon said district clerk proceeded to administer to J. B. Keith, and did administer to him as duly elected special judge of said district court of said county, the oath of office as prescribed by law. To which action of Hon. W. J, Oxford, and the election of a special judge to try the cases against the Texas & Pacific Coal Company the said Texas & Pacific Coal Company, through its counsc-l, then and there in open court to the said W. J. Oxford, Judge, excepted, on the ground that Judge Oxford was not disqualified and was not absent, unable or unwilling to-hold court, but-had simply declined to try the cases against the Texas & Pacific Coal Company, which objection was overruled by the court, to which action of the court the said Texas & Pacific Coal Company, through its counsel then and there in open court excepted.”

Opinion.

Upon the threshold of this case, we are met with the contention that the judgment rendered is a nullity for lack of authority on the part of the special judge to act as such. The right of the practicing lawyers to elect a special judge is governed by article 167S, R. S., which confers authority upon them when the regular judge “shall be absent, or shall be unable or unwilling to hold the court.” There is no contention, nor is it a fact, that the regular judge was absent or unable to hold the court, so there is no necessity to consider that phase of the statute. Was he unwilling to hold the court? The record discloses that he was present at the court, remained in his office in the courthouse, transacting other business pertaining to his duties as district judge. The record simply shows that the regular judge for personal reasons was unwilling to try the pending cases against appellant, and, believing that he had a right to refuse to try them, did so refuse. How can it be said that a judge is unwilling to hold court when he is present at the court, present in his office in the courthouse, and there transacting business pertaining to the duties of his court? A judge so acting cannot be considered as unwilling to hold the court within the meaning and spirit of the statute.

It is the right of litigants that their cases be tried before the judge -whom the people have chosen to discharge that important function. The right is valuable. It should not be abridged unless conditions arise which imperatively demand the selection or appointment- of a special judge. In determining whether litigants shall be deprived of this right, the statute should be strictly construed, and they should not be required to try their cases before special judges elected by the practicing lawyers of the court, unless some cause exists, clearly recognized by the Constitution or statutes, conferring the right of selection by the practicing lawyers.

It may frequently happen to a regular judge that for some personal reason he may not desire to try some particular case. But this gives him no right to decline to do so. If he does decline, he may be compelled to do so by mandamus. Such a declination, upon his part, to try some particular case or cases, would not constitute an unwillingness to hold his court. It is therefore held, upon the facts reflected by this record, that there was not an unwillingness to hold court upon the part of the regular judge, and therefore no authority existed for the practicing lawyers present thereat to elect a special judge from . among their number. The conclusion being reached that under the facts no statutory authority existed for the election of a special judge, it follows that the judgment rendered is a nullity. This question has been considered and passed upon by our courts. Dunn v. Bank, 181 S. W. 699; Summerlyn v. State, 69 Tex. Cr. R. 275, 153 S. W. 890; Pickett v. Michael, 187 S. W. 426; Cohn v. Seenz, 194 S. W. 685; Rosetti v. Benavides, 195 S. W. 208. See, also, Wynn v. Edmondson, etc., 150 S. W. 311. The rule is there recognized that our constitutional and statutory provisions exclude the idea that one other than the regular judge can undertake to exercise judicial authority except in the instances there mentioned, and that a judgment rendered by one so undertaking is a nullity. The cases cited were instances where the parties had undertaken to agree upon a special judge when no fact existed to authorize the selection by agreement of a special judge to try the case instead of the regular judge. Here the lawyers at the court had undertaken to select a special judge when a state of facts did not exist which under the statute would authorize them so to do. „ The principle involved is the same.

This is an even stronger case. No estop-pel is presented arising out of agreement made by the parties, because the record discloses that appellant by its counsel objected. to the selection of a special judge to try the eases pending against it and took an exception thereto.

We do not consider any of the authorities cited by appellee as applicable to the question presented. Some of them are reviewed in Dunn v. Bank, supra, and their distinguishing features pointed out.

In Railway Co. v. Ankenbauer, 175 S. W. 1090, the record disclosed that the regular judge absented himself from the court and was unwilling to transact any of the further business of the court, and this clearly fell within the statute. Some of the authorities to which appellee refers are cases where a special judge agreed upon by the parties was trying a case and at the same time the regular judge was proceeding with the transaction of other business pending before the court, and it was held that they could at the same time transact business properly coming before each of them. In those cases the question of the authority of the special judge to act as such was not in question. The question presented in this case is quite different, and goes to the very foundation of the authority of the practicing lawyers present at the court to confer judicial authority upon an individual, when under the facts there was no statutory or constitutional authority for them to do so. There is no merit in the contention that the question must have been raised by proper assignment of error in the motion for new trial. The error is fundamental, and it makes no difference whether the error has been properly assigned or not.

As to the contention that there is no bill of exception covering the matter, it is sufficient to refer to the minutes to show that exception was taken. If no bill had been taken, it would be immaterial. The record of the election-shows the facts, and it is apparent that the judgment rendered by the special judge is a nullity, and the taking of a bill of exception was unnecessary to preserve the appellant’s rights. Neither is there any merit in the contention that the facts stated show a mere irregularity of detail in the selection of the judge. Ear more is involved than an irregularity of detail.

AYe do not desire to be understood as in any wise reflecting upon the regular judge by what has been said in the disposition of the question presented. AYe can readily appreciate the motive which disinclined him to try the appellant’s cases. It was prompted by a doubt of the propriety of so doing, in view of the fact that he expected shortly to become appellant’s attorney.

In view of the fact that the trial was an unauthorized proceeding, it is unnecessary, amd we would perhaps not be justified in passing upon the other questions presented for review, arising out of errors urged to have been committed upon the trial. Dunn v. Bank and Picketf-v. Michael,- both supra.

Reversed and remanded.

AYAXTHAXX, X, not sitting, being absent on committee of judges assisting the Supreme Court. •
      ¡SssFor other cases see same toDic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    TEXAS & PACIFIC COAL CO. v. GARBUGO.
    (No. 737.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.)
    Appeal from District Court, Erath County; J. B. Keith, Special Judge.
    Action by Jim Garbugo against the Texas & Pacific Coal Company. Judgment for plaintiff, and defendant appeals.
    Ravqrhed and remanded.
    AY. J. Oxford and Chandler & Pannill, all of Stephenville, and J. R. Stubblefield, of East-land, for appellant. Hickman & Bateman, of Stephenville, and Turner & Powell, of Ft. AYorth, for appellee.
   HIGGINS, J.

This is an appeal from a judgment rendered in the district court of Erath county, tried before Hon. J. B. Keith, special judge. The facts in connection with the election of Judge Keith are shown in the opinion this day handed down in the case of Texas & Pacific Coal Co. v. Alvin Ready, 198 S. AY. 1034, to which reference is here made for the facts.

For the reasons indicated in the opinion in the Ready Case, we hold that the trial in the instant case was an unauthorized proceeding, and the judgment rendered must be reversed.

Reversed and remanded.

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


text:
    TEXAS & PACIFIC COAL CO. v. GRABNER.
    (No. 738.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.)
    Appeal from District Court, Erath County; J. B. Keith, Special Judge.
    Action by Gottfried Grabnter against the Texas & Pacific Coal Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    AY. J. Oxford and Chandler & Pannill, all of Stephenville, and J. R. Stubblefield, of East-land, for appellant. Turner & Powell, of Ft. AYorth, and Hickman & Bateman, of Stephen-ville, for appellee.
   HIGGINS, J.

This is an appeal from a judgment rendered in the district court of Erath county, tried before Hon. J. B. Keith, special judge. The facts in connection with the election of Judge Keith are shown in the opinion this day handed down in the case of Texas & Pacific Coal Co. v. Alvin Ready, 193 S. W. 1034, to which reference is here made for the facts.

For the reasons indicated in the opinion in the Ready Case, we hold that the trial in the instant case was an unauthorized proceeding, and the judgment rendered must be reversed.

Reversed and remanded.

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


text:
    POWELL et al. v. ARCHER COUNTY.
    (No. 8711.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 20, 1917.
    Rehearing (Denied Dec. 1, 1917.)
    1. Appeal and Erro® <©=>1064(1) — Harmless Error — Tax Collectors — Duty to Ac-cottnt — Instructions.
    In action by county to recover from tax collector moneys unlawfully retained by him, where it appeared that he had received credit as for delinquent property for taxes actually collected, and not turned over to the treasurer, instruction that it was his duty to turn over taxes collected to the proper county officers was not prejudicial, though it was his duty to turn them over to the treasurer.
    2. Appeal and Error <©=>501(4) — Scope — Preservation o-f Exceptions.
    An assignment of error in an instruction not embodied in the bill of exceptions taken to such instruction cannot be considered.
    8.Taxation <@=>567 — Action Against Collector — Instructions—Waiver oe Rights.
    In action by county against tax collector for moneys unlawfully retained, refusal of defendants’ requested instruction defining negligence and submitting issues whether the county commissioners were negligent in failing to discover the fraud before certain different dates was not error, such instruction having a tendency to confuse, especially where defendants failed to object to an instruction using words “due diligence,” or to request definition thereof.
    4. Appeal and Error <©=>742(5) — Scope—Assignment op Error — Sueeiciency.
    Assignment of error to refusal of instruction followed by statement containing only conclusions of fact, and not the evidence, cannot be considered.
    5. Taxation <s=j567 — Collectors—Default-Effect.
    Negligence of county commissioners in failing to perform statutory duties in passing on reports of tax collector does not necessarily'constitute notice of his defalcation, so that, in the county’s action for moneys unlawfully retained by him requested instruction declaring statutory duties, without requiring knowledge of facts by commissioners as prerequisite to finding such negligence on their part as would bar recovery under plea of limitation was properly refused.
    6. Evidence <@=>178(3) — Secondary Evidence —Burning Papers.
    Where tax collector’s original returns were burned by order of court, secondary evidence of their contents was admissible.
    7. Evidence <@=>186(9) — Secondary Evidence —Competency.
    Where reports of county taxes filed with commissioners’ court and later destroyed were, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7619, identical as to property covered and taxes collected with reports required to be filed with the state comptroller by article 7618, and, under article 7621, a list of delinquents was filed also with the state, the records of the state taxes were admissible in the county’s action for taxes collected and unlawfully retained.
    8. Taxation <©=>567 — Tax Collectors — Default Actions — Evidence—Admissibility.
    In county’s action against tax collector for taxes collected and unlawfully retained, receipts for taxes given owners of property which he reported as delinquent were admissible in evidence.
    9. Appeal and Error <©=>1051(1) — Harmless Error.
    In county’s action against tax collector for taxes collected and unlawfully retained, the error, if any, in admitting the draft drawn by the tax collector on one of the property owners for taxes due by him was harmless in view of the fact that the receipt for the same taxes was introduced in evidence and showed beyond controversy the receipt by the tax collector of the taxes for which the draft was drawn.
    10. Taxation <©=>567 — Tax Collectors — Default Actions — Evidence—Admissibility.
    In county’s action against tax collector for taxes collected and unlawfully retained, it was not error to exclude testimony that the tax collector was solvent and able to pay his debts while in office.
    11. Taxation <©=>567 — Tax Collectors — Default Actions — Evidence—Admissibility.
    In county’s action against tax collector for taxes-collected and unlawfully retained, it was not error to exclude entire tax rolls, which included much immaterial matter.
    12. Appeal and Error <©=>1052(5) — Harmless Error — Evidence.
    Error, if any, in permitting a witness to give the aggregate of items of shortage in a tax collector’s accounts, computed from testimony of another witness as to the specific items, was harmless where the jury awarded less than the aggregate.
    13. Evidence <©=>471(34) — Conclusions — Computation.
    It was not reversible error to permit a witness to give his conclusions as to a tax collector’s proportionate share of taxes collected; such amount being a mere matter of computation.
    Appeal from District Court, Archer County; Wm. N. Bonner, Judge.
    Action by Archer County against J. D. Powell and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Kay &-Akin, of Wichita Fálls, for appellants. Martin, Bullington, Boone & Humphrey, of Wichita Palls, for appellee.
   DUNKLIN, J.

J. D. Powell was tax collector of Archer county for four terms beginning in December, 1900, and ending in December, 1908, and the county instituted this suit to recover of him and his bondsmen $4,799.01, the aggregate of divers sums of taxes due the county, which plaintiff alleged Powell had collected and converted to his own use.

A judgment was rendered in favor of the county for $3,659.49 principal, and $134.17, interest, against Powell and his bondsmen as sureties, the same being apportioned among the different sets of bondsmen in accordance with an agreemént between them and • the plaintiff made in the trial court with respect to the liability of such bondsmen in the event they should be legally held liable at all. Prom that judgment the defendants have appealed.

In addition to a general denial, defendants pleaded the statute of limitation of four years. Replying to the plea of limitation, plaintiff pleaded the fraud of Powell in converting the taxes to his own use ’ and concealing the fraud from plaintiff.

The accounts of Powell during the period of time in controversy were audited by an expert accountant, who testified fully as to the results of his labors. The principal data used by him were Ijhe tax rolls made out by the assessor of taxes of the county, the monthly reports made by Powell as tax collector to the comptroller of the state, Powell’s report of delinquent taxes, his tax receipt stubs, and tax receipts issued by him to divers property owners who paid their taxes.

The case was submitted to a jury on special issues. By issue No. 1 the court instructed the jury that it was the duty of Powell as tax collector “to faithfully collect and turn over to proper county authorities all money collected by him which may be due the county for taxes.” And in connection with that instruction the jury were asked to determine whether or not he had failed to turn over to the proper county authorities of Archer county any money due the county for taxes theretofore collected by him as tax collector. An affirmative answer was given to that issue.

Appellants insist that the jury should have been told that it was the duty of the tax collector to turn over to the county treasurer all taxes collected by him, and that it was error to charge that it was his duty to turn such taxes over to “the proper county authorities.” This criticism is predicated upon the contention that there was no proof to show that Powell failed to turn over any taxes to the county treasurer in that the county treasurer’s books were not introduced in evidence. The uncontroverted proof showed that in his accounting to the commissioners’ court Powell received credit for taxes collected by him, and with which he should have been charged, on property which he reported as delinquent, and in the absence of any explanation or proof to show that the county thereafter received the same, we think that the error, if any, in the court’s charge was at all events harmless.

March 7,1912, was taken as the date when plaintiff’s cause of action was barred by the statute of limitation pleaded in the absence of proof of facts which would avoid that conclusion. Upon the issue of limitation the jury were instructed:

That, if they returned an affirmative answer to the first question mentioned above, then they would determine “whether or not the fact that said J. D. Powell had collected moneys which he had not delivered to the proper county authorities was known to the officers 'of the county commissioners’ court of Archer county at any time prior to March 7, 1912, or whether said officials should, by the exercise of due diligence, have discovered that he had not.”

A bill of exception was reserved to the charge last quoted upon the ground that it was 'involved and obscure, and did not separate the two1 kinds of notice, and therefore was calculated to confuse the jury; in other words, that the two kinds'of notice, actual and implied, should have been submitted to the jury in separate issues.

The statement and remarks following ■ this assignment show that it is limited to a complaint that the court did not give to the jury a definition of negligence, and a sufficient answer to that complaint is that it was not embodied in the bill of exception taken to the court’s instruction.

The court refused an instruction requested by the defendants, which, after defining negligence, embodied two separate issues, the first whether or not the county commissioners were guilty of negligence in failing to discover J. D. Powell’s fraud before March 7, 1918, and the second whether or not the county commissioners were negligent in failing prior to March 7, 1912, to discover that Powell had collected county taxes which he withheld from the county treasurer. The principal complaint presented in the appellants’ brief to the refusal of this instruction is that it contained a proper definition of the term “negligence,” while the instruction given by the court did not contain such a definition, and did not give the jury any guide to determine what would amount to a failure on the part of the county commissioners to use due diligence to discover Powell’s fraud. We are of the opinion that the requested instruction improperly carved two issues out of one, since there is no question but that, if Powell appropriated to his own use the taxes collected by him, such appropriation was a fraud, and the requested instruction probably would have tended to confuse the jury. Furthermore, the court having properly used the term “due diligence” in the instruction given, which is a term easily understood by the layman, and the defendants having failed to object to that instruction because it did not contain a definition of that term, they are committed to an approval of the use of the term in that charge, and if they desired a definition of what was meant by that term, they should have presented a request for an instruction to that effect. See Gulf, T. & W. Ry. Co. v. Dickey, 187 S. W. 187, by our Supreme Court; Texas Midland R. Co. v. Ritchey, 49 Tex. Civ. 409, 108 S. W. 734.

Article 7619 or our Revised Civil Statutes makes it the duty of a collector of taxes to make monthly reports to the commissioners’ court of taxes collected by him due the county, and to immediately pay over the money so collected to the county treasurer and take receipts therefor and file with the county clerk. That article also makes it the duty of the county clerk to examine the tax collector’s report and the tax receipt stubs filed therewith, and certify their correctness to the commissioners’ court. By other sections of the same article it is made the duty of the tax collector to appear before the commissioners’ court and make a summary statement showing the disposition of all moneys collected by him for the state, and also for the county. Section 5 of the article reads, in part, as follows:

“The commissioners’ court shall examine such statements and vouchers, together with the itemized report and tax receipt stubs filed each month, and shall compare the same with the tax rolls and tax receipt stubs. If found correct in every particular, and if the collector of taxes has properly accounted for all taxes collected, as provided above, the commissioners’ court shall enter an order approving said report. * * * ”

By article 7620 of the statute it is provided that, if the tax collector shall fail to promptly pay over to the county treasurer the taxes collected by him belonging to the county, the commissioners’ court shall ascertain the amounts due by him to the county and enter an order requiring him to pay the same to the treasurer. By article 7692 of the statute it is provided that any real estate delinquent' for taxes shall be advertised as such, and that after such advertisement the commissioners’ court shall order suits to be instituted to collect the same.

The defendants requested an instruction submitting those articles of the statute to the jury. The objection urged upon the trial by counsel for the defendants to the refusal of the requested instruction was that, in order for the jury to properly understand whether or not the county commissioners were guilty of negligence in failing to discover Powell’s fraud prior to March 7, 1912, it was necessary for the jury to know the duties of the county commissioners as prescribed in the statutes quoted in the requested instruction. The statement following this assignment contains nothing but conclusions of fact drawn by counsel from the evidence, and fails to quote such evidence, or to refer to the statement of facts wherein it could be found, and counsel for appellee objects to a consideration of the assignment for that reason, and for the further reason, as claimed, that the conclusions so drawn by appellant’s counsel are incorrect when tested by the evidence.

We are of the opinion that the objection to a consideration of the assignment should be sustained. But, aside from that conclusion, we do not concur in the contention of appellants that any failure on the part of the county commissioners to perform any of those statutory duties prior to March 7, 1912, would be such negligence on the part of the county commissioners as would bar a recovery under the plea of limitation. We are of the opinion that defendants could invoke the negligence of the county commissioners in failing to discover Powell’s fraud only after they had knowledge of such facts, or notice of other facts which would have excited inquiry in the mind of a person of ordinary prudence that, if pursued with reasonable diligence, would have led to a knowledge of such defalcation, and that appellants are in no position to invoke in behalf of their plea of limitation the negligence of the county commissioners in a failure to perform their statutory duties in the absence of some facts amounting to notice of such •defalcation. In other words, negligence of the county commissioners in failing to perform their statutory duties would not necessarily constitute notice of Powell’s defalcations, and for that reason the requested instruction, if given in the form presented without the qualifications suggested, would have been misleading and erroneous.

Several assignments are presented to the admission of testimony over the objections urged by the defendants, including the testimony of J. 0. Kirby, an employe in the state comptroller’s office at Austin, the delinquent tax reports identified by Kirby which were filed by Powell in that office, and tax receipts issued by P'owell to several property owners who paid taxes. It appears that the copy of the reports made by Powell from time to time and filed in the commissioners’ court showing the taxes collected by him had been burned by order of that court dated July 15, 1909. Under those circumstances the plaintiff was entitled to introduce secondary evidence of the contents of those copies.

The reports filed with the commissioners’ court which were destroyed were required by article 7619, Vernon’s Sayles’ Texas Civil. Statutes. That statute expressly states that the reports so required shall be of like character to those required to be filed with the comptroller under and by the virtue of article 7618; the only difference being the latter shall show the amount of taxes collected for the state, and the former the amount of taxes collected by the county. By article 7621 it is made the duty of the tax collector to also file a list of delinquent taxpayers. In his accounting with the state and county he is charged with all taxes that have been assessed, and is given credit for the amount of taxes, collected and paid over to the proper authorities, plus the amount of delinquent taxes. Copies of delinquent lists signed by Powell were found and introduced in evidence. Under the circumstances the records objected to and now under discussion were admissible. We are of the opinion further that the tax receipts referred to were admissible, since they show the collection of more taxes than were reported by Powell upon property covered by the receipts and appearing on the delinquent lists.

The error, if any, in admitting the draft drawn by the tax collector on one of the property owners for taxes due by him was harmless in view of the fact that the receipt for the same taxes was introduced in evidence and showed beyond controversy the receipt by Powell of the taxes for which the draft was drawn.

.The proffered testimony of the witness Walker to show that Powell was solvent and able to pay his debts during his incumbency in office was immaterial, and there was was no error in excluding it. Nor was there any error in excluding the entire tax rolls from 1903 to 1910, inclusive, since the same involved much matter wholly foreign to any issue in the case. We think it was improper to allow the witness Morrison to testify that he kept a list of items of shortage in Powell’s accounts testified to by the expert accountant, Miles, who had audited the books, and that those items aggregated $4,892.36, but that error we hold to be harmless in view of the fact that Morrison did not give the items which he noted down while Miles was testifying, but only testified to the aggregate of them, which was more than $1,-200 in excess of the amount found by the jury against the defendants; it thus appearing that the jury gave no effect to Morrison’s testimony. The conclusion testified to by the witness Miles, who audited the accounts, as to the plaintiff’s proportionate' parts of certain taxes that had been collected, and not reported, did not constitute reversible error since they were mere matters of calculation from figures given at the time by the witness.

We are of the opinion, further, that the evidence was ample to support the findings of the jury of defalcations by Powell and the amounts thereof, especially in .view of tho fact that Powell was not offered as a witness at all, and defendants offered no evidence to contradict that introduced by plaintiff. It follows from the last conclusion that there was no error in refusing defendants’ request for an instructed verdict in their favor.

For the reasons indicated, the judgment is affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J. BUCK, J.

text:
    MASON v. OLDS et al.
    (No. 8720.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 3, 1917.
    On Motion for Rehearing, Dec. 3, 1917.)
    1. Appeal and Error @=^499(4) — Preservation of Exceptions — Instructions.
    In view of Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 2061, providing that the ruling on instructions shall be regarded as approved unless excepted to, and article 2062, providing that where the ruling of the court appears otherwise of record, no bill of exceptions shall be necessary, and article 1971, requiring the charge to be in writing and to be submitted to the parties for objections which shall be presented to the court before the charge is read, and that all objections not so made and presented shall be considered as waived, and in spite of article 1972, providing that the charge shall constitute a part of the record and shall be regarded as excepted to without the necessity of taking any bill of exceptions, where the record fails to disclose, either by bill of exceptions or filed objections to the charge, that any objections were made thereto, the court on appeal is justified in disregarding an assignment of error to the failure of the court to direct a verdict.
    2. Mortgages <@=>3S(1) — Mortgage in Form ,pp Deed — Evidence.
    Evidence held to show that it was the intention of all the parties to the instrument that the writing in form a deed absolute should constitute a mortgage or security for debt.
    3. Vendor and Purciiaser <©=>244 — Notice-Deed Absolute in Form:— Evidence.
    Evidence- held to show that plaintiff, a subsequent vendee, had notice before he purchased that a deed of the actual occupant and claimants was a mortgage, though in form absolute.
    4. Homestead <§=129(1) — Mortgage—Notice —Occupancy.
    As. a rule, possession is notice of the possessor’s title, and where a grantor by deed absolute in form, but in fact a mortgage, conveys a hometead, but is in fact in actual possession at the time of a subsequent conveyance by his grantee, or a subsequent grantee in chain of-title, the purchaser under the subsequent conveyance has notice of the title under which the one in possession is holding.
    5. Evidence <§=>76 — Presumptions—Failure to Answer.
    The fact that plaintiff in suit in trespass to try title against the occupants of a homestead who had given a deed absolute in form intended to be a mortgage declined to state from whom he purchased the property, was a circumstance, proper to be weighed by the jury in determining the weight of his testimony that he did not know, prior to his purchase, of the claims of the occupants.
    On Motion for Rehearing.
    6. Homestead <§=>129(1) — Mortgage—Notice —Questions for Jury.
    The mere fact that a deed absolute in form, though intended by the parties as a mortgage, was of record at the time the plaintiff in trespass to try title purchased from a subsequent grantee under such deed, was not determinative of the sufficiency vel non of notice of the claim of mortgage given by reason of the defendant’s occupancy as a homestead of the premises.
    7. Lis Pendens <§=>22(2) — Notice of Suit-Effect.
    A lis pendens notice places the purchaser of the property on inquiry as to the real facts, and charges him with notice of what an investigation would have disclosed.
    Error from District Court, Jones County; John B. Thomas, Judge.
    Action by G-. S., Mason against F. C. Olds and others. Judgment for defendants, and plaintiff brings error. Affirmed. On motion for rehearing.
    Motion overruled.
    A. H. Kirby, of Abilene, for plaintiff in error. D. M. Oldham, Jr., of Abilene, for defendants in error.
   BUCK, J.

Plaintiff in error, hereinafter called plaintiff, filed suit in the form of trespass to try title against F. C. Olds and wife, Mrs. Frances B. Olds, and D. M. Oldham, Jr., for the recovery of a certain described lot in the city of Abilene, Taylor county, Tex. Defendants answered by general demurrer, gen--eral denial, and a plea of not guilty. The cause was submitted to a jury upon 10 special issues, the answers to which were favorable to defendants, and the court entered judgment in favor of Mrs. Olds and D. M. Oldham, Jr.; F. C. Olds having died subsequent to the filing of the suit and prior to judgment. From this judgment the plaintiff has prosecuted a writ of error.

The property in controversy was deeded by Mattie J. Irvine to Mrs. Frances B, Olds, for a recited consideration of $3,500 paid by Mrs! Olds out of her separate estate, and was occupied and used as a homestead by Mr. and Mrs. Olds from the time of the purchase until Mr. Olds’ death, and subsequently by Mrs. Olds and her son. In 1910, F. C. Olds, who was engaged in the cotton business at Abilene and in partnership with L. B. Blake, became indebted to the F. & M. National Bank of Abilene in a large amount, between $20,000 and $29,000, which indebtedness was unsecured. Negotiations 'between the bank and Mr. Olds, who was sick in bed at the time, resulted in the latter’s agreeing to turn over to the bank all his property, consisting of an automobile, some bank stock, some compress stock, and his home. The testimony of Mr. Olds given on a former trial was used in this trial, and, according to his testimony and the testimony of Mrs. Olds, at the. instance of the bank a deed to the home was made to L. B. Blake, the partner of Mr. Olds, but who was not involved in the indebtedness to the bank. The consideration recited was $4,000, evidenced by two Vendor’s lien notes of $2,000 each. The evidence of the defendants sustains the theory that the execution of this deed was not intended as an actual sale of the property to L. B. Blake, but was for the purpose of enabling the bank to use the notes as a security for the indebtedness owing it by Olds. The Olds were occupying the premises as a homestead at the time of the execution of the deed, and L. B. Blake was boarding with the Olds at said time.

Olds testified that in a conversation between him and the cashier of the bank, Mr. Henry James, at which L. B. Blake was present, he (Olds) agreed to turn over everything he had to secure the bank until the indebtedness could be repaid, and that during that year some $7,000 was in fact paid on the debt. The notes were made payable to Mrs. Olds and indorsed by her, and the bank seems to have required Olds to sign them also. Olds testified that the understanding between him and the bank, of which understanding Blake was cognizant, and to which he agreed, was that the notes were to be held until he (Olds) could “fix it up and then everything was to be turned back to me.” He further testified that it was understood and agreed that the deed was not to be put of record, and no steps taken by the bank or by Blake which would cast a record cloud on the title to the property. Later, these notes were purchased from the bank by Henry James, the cashier, and by him sold to J. B. Adoue, Sr., of Dallas, and a deed from L. B. Blake and wife to J. B. Adoue, of date July 10, 1912,'was executed, conveying the property in controversy, the consideration recited being the cancellation of the two $2,000 notes theretofore executed by Blake to Mrs. Olds. Subsequently, the property was conveyed by Adoue to- G. S. Mason, plaintiff below.

Plaintiff in error’s first assignment complains of the failure of the court to direct a verdict for him, on the theory that he showed the title to the property to be in him,, through the introduction of the deed from Mrs. Irvine to Mrs. Olds, the deed from Mrs. Olds to Blake, the two notes described in the-last-named deed and the cancellation thereof, the deed from Blake and wife to Adoue, and the deed from Adoue to Mason, and that the defendants below failed to show by any competent evidence that plaintiff had not the title evidenced by these several instruments of conveyance. Defendants in error object to the consideration of this assignment, and of the other assignments contained in plaintiff in error’s brief, because, as asserted, the case is not prepared for submission and hearing under the rules; that the cause was submitted to a jury and involves a great mass of facts based on oral and written testimony; that the plaintiff below did not make any objection 'or take any exceptions to the matters submitted to the jury by the court in its general charge, nor were any objections made or exceptions taken to the refusal of the court to give his requested special instructions, either before or after the argument was made to the jury; that the first time any exceptions or objections were made was after the verdict of the jury and contained in the motion for new trial. We find the state of the record to be as claimed by defendants in error. There is not a bill of exceptions in -the record. Article 2061, V. S. Texas Civil Statutes, provides:

“The ruling of the court in the giving, refusing, or qualifying of instructions to the jury shall be regarded as approved, unless excepted to as provided for in the foregoing articles.”

Article 2062, Id., provides;

“Where the ruling dr other action of the court appears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto.”

Article 1971, Id., is in part as follows :

“The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived. * ⅜ * ”

Article 1972 reads as follows:

“Such charge shall be filed by the clerk and shall constitute a part of the record of the cause [and shall be regarded as excepted to, and subject to revision for errors therein, without the necessity of taking any bill of exception thereto.]”

As to whether that part of article 1972 beginning with “and shall be regarded,” etc., and ending with “thereto,” has been superseded by article 2061 heretofore set out has been the occasion of sonM contrariety of opinion by the courts, but the Supreme Court, in G., T. & W. By. Co. v. Dickey (Sup.) 187 S. W. 187, lias held that article 1972 was not repealed by implication by the Acts of the ■33d Legislature, chapter 59, amending Revised Statutes 1911, art. 1974, 2061. But this authority does hold that in order to obtain a review of the general charge of the court on appeal because of an alleged error therein, an objection to the charge in the particular complained of must be presented to the trial judge before the charge is read to the jury. ⅜

Article 1974 provides:

“When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he refused, and' shall subscribe his name thereto, and such instruction shall be filed with the clerk and shall constitute a part of the record of the cause subject to revision for error.”

This article was amended in chapter 177, p. 389, Acts of the 35th Legislature 1917, which amendment specifically provides that the action of the trial judge in refusing a special instruction should be reviewed on appeal in the absence of a formal bill of exceptions. But since this amendment was not in force at the time of the trial, perhaps we would not be justified in determining the issue here presented in the light of such amendment. In the Dickey Case, the Supreme Court says:

“The effect, therefore, of amended article 2061 is to require the taking' of a written bill of exception to the giving or refusing of a special instruction in order to have a revision of the court’s action on the appeal.”

In Pierce v. Supreme Lodge, etc., 190 S. W. 1156, the San Antonio Court of Civil Appeals holds that article 1971 requiring objections to a charge to he presented before it is read to the jury, etc., and where the record fails to show that a peremptory instruction given was objected to, the appellate court will not review the correctness of the ruling on the theory that they are considering a matter of fundamental error.

From what we have said above and the authorities cited, we are of the opinion that since the record fails to disclose, either by bill of exceptions or filed objections to' the charge, that any objections were made to the giving of the general charge, or to any part of the same, that we would be entirely justified in overruling plaintiff in error’s first assignment. But if we are mistaken as to our duty in this respect, we are of the opinion that the assignment should be overruled on its merits. While this suit was in form of trespass to try title, yet the real issue was whether the deed made by Mrs. Olds and her husband, to L. B. Blake was an absolute conveyance of the property, or was intended as a mortgage or a security for the debt of F. C. Olds to the F. & M. National Bank, and whether plaintiff below had notice of the same at the time of the execution of the deed from Adoue to him,,and its acceptance by him. The deed froi$ Adoue to Mason was dated August 5, 1912, and acknowledged August 7, 1912, and recorded on the 24th thereafter in the deed records of Taylor county. On July 17, 1912, there was filed a lis pen-dens notice with the county clerk of Taylor county of a certain suit by Mrs. Frances B. Olds and husband against J. B. Adoue, Jr., and others, to remove a cloud from title to the property in question and to .cancel the deed from Mrs. Olds and husband to Blake, and the two vendor’s lien notes heretofore mentioned. While the deed from Blake was made to J. B. Adoue, Sr. (though he was not designated as “Sr.” in the deed), the father of J. B. Adoue, Jr., yet it appears that the son was attending to this transaction for his father, and apparently it was the understanding and belief of the plaintiffs in this first suit that the deed had been in fact made by Blake to the son instead of to the father. As a result of this suit, on September 4, 1912, Mrs. Olds recovered title and possession to the property involved as against L. B. Blake, Henry James, and J. B. Adoue, Jr. This judgment recited:

“It is therefore the order, judgment, and decree of the court that plaintiff Mrs. Frances B. Olds do have and recover of and from the defendants, L. B. Blake, Henry James, and J. B. Adoue, Jr., the title and possession of the following described property, * * * and it is further the order, judgment, and decree of the court that the above-mentioned deed from -Frances B. Olds and husband, F. 0. Olds, to the defendant L. B. Blake is a pretended sale of plaintiff’s homestead involving a condition of defea-sance, and is void and of no effect. And it is the order, judgment, and decree of the court that the two vendor’s lien notes of date September 16, 1910, and due four and eight months after date, respectively, and for the sum of $2,000 each, with interest from date, executed by defendant L. B. Blake and payable to plaintiff, Mrs. F. B. Olds, or order, and more fully described in said deed from plaintiff to defendant L. B. Blake, are null, void, and of no effect. And the title to said premises is hereby adjudged and decreed free from all rights, titles, or claims existing not heretofore claimed by the defendants L. B. Blake, J. B. Adoue, Ji\, or Henry James.”

It will be noted that in the deed from Blake, so far as the record discloses, the grantee’s name is given merely as “J. B. Adoue,” and the indorsement on the two- notes heretofore mentioned is, “Canceled by deed of L. ,B. Blake and wife to J. B. Adoue for property herein described.”

It is further in evidence that plaintiff in error purchased the property while the litigation under the last-mentioned suit was pending and while the defendants in. error were actually residing upon and using the premises involved as their homestead. The evidence discloses that subsequent to the execution of the deed from Mrs. Olds and husband to Blake, the Olds occupied the premises, paid the insurance and taxes, kept np the repairs, etc. In addition* to the testimony of Mr. Olds, the purport of which upon this point has heretofore Been given, Mrs. Olds' testified, in brief, when the notary came to take her .acknowledgment that she asked Mr. Blake was he going to take her home away from her and he said, no; that he had no money to pay for the house and was only buying it to evade the homestead law; that she asked him when she could get it back and he said just as soon as they could pay off the debt; that she executed the instrument merely as a mortgage and did not intend it as a sale. Blake testified, in substance, that he executed the two $2,000 notes and turned the notes and deed over to Mr. Olds and Mr. Olds carried them to the bank, but he never did have possession of the deed from the Olds to himself and never saw the acknowledgment until he signed the deed to Adoue and mailed it to the latter at Dallas on July 12, 1912. That he wrote to Olds a year and a half later to take care of the notes and pay them; that he (Blake) had gotten mixed up in the matter and wanted to get out of it the best he could; that he took the deed to himself to protect Olds, because it was thought that he was a disinterested party and would do the right thing by both sides; that he agreed to hold the deed off the record; that it was under-, stood by Mr. James, Mr. Olds, and himself that he (Blake) was to act as the agent and attorney for James, or the bank. J. B. Ad-oue, Jr., testified that he resided in Dallas and was engaged in the banking business; that the notes were purchased by his father; that Mr. James came to his father and spoke to him and told him he had those notes, and that he, the son, was sitting about 10 feet away, and that his father told him to take the notes from Mr. James, and that he attended to the rest of the transaction; that this occurred in the spring from March to May, 1912. J. B. Adoue, Sr., testified that he did not know that he had ever owned the two vendor’s lien notes given by Blake, nor that he had ever had any business transactions or connections with Blake, or the Olds; that if he had owned them, the 'transaction was handled by his son, J. B. Adoue, Jr.; that he had no knowledge of the deed from Blake and wife conveying the property to him. The deed was never turned over to him and that he had no recollection of ever having seen it; that he had no recollection of ever selling the property to G. S. Mason; that if it was sold to him, the transaction was handled by his son.

Plaintiff testified by deposition:

“I had no dealings whatever with J. B. Adoue, Jr., or J. B. Adoue, Sr., of Dallas, before I received a deed to this place. I was in San Angelo when I received a deed to this property. I never did go to the county clerk’s office of Taylor county and examine the deed records to see what was there recorded concerning this property. I did not go and look at the property before I purchased it because I was living at San Angelo, some distance from Abilene and purchased the property at the request of a personal friend in whom I have explicit confidence. I had a conversation with Mr. Ed S. Hughes before I purchased this property. He did not tell me that the title was good. I feel quite positive that he did not say to me that I would not lose any money on this property. No one told me that the title to the property was good, that I can remember of, but I relied upon the abstract with opinion of D. M. Oldham, Jr., attached, stating that title was good and the chain of title through the deeds handed me by the bank from_ Irvine down to and including J. B. Adoue. I relied upon these facts in forming my conclusions that the title was good. ⅜ ⅜ * I decline to say who first told me this property could be bought. ⅜ ⅜ * I never did attempt to rent this property to any one. I considered it useless to try to rent it, as the occupant refuses to give up possession. I have had no one directly looking after the property for me sin'ce I purchased it. I did not know before I bought this property that F. O. Olds’and his wife were living on same and claiming it as a homestead. ⅜ ⅜ ⅞ I decline to state with whom I made a trade for this place and at what time and place the trade was made.”

We think enough evidence has been cited to support the findings of the jury to the effect: (1) That it was the intention of all parties to the transaction, to wit, F. O. Olds and wife, L. B. Blake, and the F. & M. National Bank, that the purported deed from Olds and wife to L. B. Blake should constitute a mortgage or security for debt and not an absolute conveyance, and (2) that Henry James at the time of the purchase by him from the bank of the two notes in question had notice that the transaction theretofore made between the Olds on the one hand and Blake and the bank on the other, was intended as a mortgage, and (3) that J. B. Adoue, or his son and agent, J. B. Adoue, Jr., at the time of the purchase of the note by J. B. Adoue from Henry James, had such notice, and (4) that the plaintiff had such notice before he received the deed to the lot in controversy.

As a rule possession is notice of the possessor’s title, and where a grantor by deed, absolute in form, but in fact a mortgage, conveys a homestead, but is in fact in actual possession at the time of a subsequent conveyance by his grantee, or a subsequent grantee in chain of title, the purchaser under the subsequent conveyance has notice of the title under which the one in possession is holding. Henderson v. Wilkinson, 159 S. W. 1045 ; Trammell v. Chamberlain, 61 Tex. Civ. App. 650, 131 S. W. 227, on second appeal affirmed in 195 S. W. 1135, by Supreme Court; Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 459, 83 S. W. 184. There seems to he no question but that the requirements of the lis pen-dens notice provided in article 6837 et seq. Y. S. Texas Civil Statutes, was complied with by the plaintiffs in that suit, defendants in this suit, and that such notice was filed prior to the execution of the deed from J. B. Adoue to plaintiff below, such notice being filed July 17, 1912, and the deed to Mason being executed August 7th thereafter. Hence we overrule plaintiff in error’s first assignment. Paris Gro. Co. v. Burks, 99 S. W. 1135; Latta v. Wiley, 92 S. W. 433; Burke-Simmons Co. v. Konz, 178 S. W. 587.

Dnder his second assignment plaintiff in error attacks the finding of the jury to,the effect that the F. & M. National Bank and Henry James, cashier, and Rich Keeble of the bank had notice that P. C. Olds and wife at the time they executed the deed to the lot in controversy to Blake, and at the time the latter executed the notes in controversy, intended said transactions as a mortgage or security for a debt. In addition to the testimony heretofore set out bearing on this point, Mrs. Olds testified as. follows:

“That indebtedness accrued in the fall of 1910, about the last of August, and we found out about it the middle of September. It was a cotton transaction and we thought we were going to get our money back for the cotton, and we found out we didn’t get any money, but instead we were indebted to the bank, and I was told this loss had occurred, and Mr. Olds and Mr. Blake were both there at the house. ⅜ ¾ * I don’t know that Mr. James came to our house to see about the loss. We were good friends then and he visited our house and he came to see us and Mr. Olds was sick and he couldn’t see Mr. Olds. Dr. Alexander was there and told him Mr. Olds was unable to transact business. At that time he was not permitted to see Mr. Olds, and I told him why. Later on I was asked to transfer my house, and I asked Mr. Blake and Mr. Olds how we were going to do it. I told them we couldn’t do it in Texas, because it was our home, and they told me to evade the homestead law they were going to have Mr. Blake take it in his name and he would give some notes — through Mr. Blake we were going to evade the homestead law and put up the notes to secure Mr. James against the bank examiner. That took several days to decide what we were going, to do, but finally Mr. Reed came to our house just after the noon hour — I know that Mr. Reed was a notary in Mr. Kirby’s office. * * * i asked Mr. Reed what he was going to do and he said he was going to transfer the homestead to Mr. Blake. * * * I had conversations with Henry James about the loss. He just said he would get things fixed up and help Fred out. I never talked to him in regard to what kind of papers we were going to execute. He told me he would see that we got things fixed up all right. I never had any conversations with Mr. Keeble. Neither Mr. James or Mr. Keeble were ever present during the conversations I had with Mr. Blake and Mr. Olds. * ⅜ * I only know that Mr. James told me one night when we were out at the gate, with his elbows on the gatepost, he would see us through all right, but we had no conversation about the homestead. * * * When, he said we would fix it up he was talking about the repayment of the debt to the bank. I was just telling him I would give part of what I had. I had $600 in the bank and I gave that up. * * ⅜ I told him I would do everything in my power to help out. I wanted Mr. Olds to continue in business and I told him it would secure him in such a way as to protect him against the bank examiner so he could show some security. I think Mr. James’ faith was good at the time. We gave up our auto, that was sold, and Mr. Olds got $1,750 for it, * * * and turned it over to the bank.”

Mr. Olds testified:

“At that time” (the time of the conversation between him and Mr. James, at which Blake was present) “there was nothing said about deeding the place to anybody, except that we were going to turn the place over and they were going to fix it up; how they were going to fix it up, I don’t know. It is not a fact that I offered to absolutely deed that place to them in part settlement, of my debt. No sir, only as to hold as collateral against what I owed them. If I had, I certainly would not deed them a place for $4,000 which was worth $5,000. * * * There was not a single, solitary word said up there about me deeding the property to Mr. Blake. His name was brought into it later because they said they didn’t want it to go in their names; they better put it in some outsider’s name to hold. * * * I took those notes in person and delivered them to either Mr. James or Mr. Keeble shortly after they were dated, and nothing was said except that they would be held and would be turned back to me whenever I paid up. I just gave them the deeds and there was nothing said about it. * * * I did not have any conversation with Mr. James relative to the holding of these notes and deeds after the meeting when he said he would have them fixed up; when he said they would hold the deed and nothing would go on record and there would be no transfer made and when the indebtedness was paid they would all be turned back to me. * ⅜ ⅜ He said they would have to fix it some way to get around the homestead law. That is the reason he used Mr. Blake’s name. ⅜ * ⅜ It was told me in the presence of Mr. Keeble and Mr. James, I think it was 'Mr. James, that they would have to fix it that way, on account of the homestead law.”

We think enough evidence has been quoted to justify the jury in finding that the bank, •through James and Keeble, knew of the understanding on the part of Mr. and Mrs. Olds that the deed and notes were intended to be used as security, and the transaction did not partake of the nature of an absolute conveyance. If all parties understood that it was to be an absolute conveyance, there would have been no reason for Mr. James’ thinking that it was necessary to have the property deeded to Mr. Blake, in order to get around the homestead law; for if the grantors had intended the conveyance to be absolute, the deed, might have been made direct to the bank, or to one of its officers for the bank. Therefore we overrule the second assignment, and also the third, which latter assignment attacks the finding of the jury to the effect that Mr. Blake, the F. & M. National Bank and its officers and agents intended that the instrument under consideration should be considered as a mortgage.

The fourth assignment attacks the finding of the jury to the effect that plaintiff below had notice of the claimed mortgage nature of the instrument from the Olds to Blake mentioned. We think that constructive notice, at least, was shown by the lis pendens record introduced. Moreover, the fact that the plaintiff below declined to answer the question as to through whom he purchased the property in controversy, was a circumstance proper to be weighed by the jury in determining the weight of his testimony, to the effect that he did not know, prior to his purchase, of the claim now asserted by defendant Mrs. Olds and her husband. The well-known case of Eylar v. Eylar, 60 Tex. 315, is cited by plaintiff in error to sustain the proposition that a purchaser from a vendee, whose vendor remains in possession; is not required to inquire further if vendee’s property is properly registered. In the. cited case, the Supreme Court held that a purchaser from a vendee whose deed was duly recorded, the vendor remaining in possession, would not be bound to inquire into a secret trust or right by which the vendor remained in possession, and this announcement of the law has been followed by our courts in a long line of decisions, and we are not called upon to decide whether Moore v. Chamberlain (Sup.) 195 S. W. 1135, overrules this line of decisions. Yet we do not understand that the Eylar Case holds, or that any other Supreme Court decision to which we have been referred holds, that a purchaser can shut his eyes to the actual knowledge of an adverse claim, which claim is apparently contrary to the recitations of a deed executed by a claimant. Nor that notice may not be brought to the purchaser of the adverse claim by putting of record under the lis pendens law the nature and character of the claim of title asserted by the vendor in the instrument theretofore recorded. Moreover, the Eylar Case is inapplicable here because ■, the purported deed from the Olds does not appear to have been of record at the time of the conveyance from Adoue to Mason. Hence we overrule the fourth assignment •and affirm the judgment.

Affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.

On Motion for Rehearing.

BUCK, J.

Plaintiff in error calls our attention to an evident error in our original opinion in the use of the following language, to wit:

“Moreover, the Eylar Case is inapplicable here, because the purported deed from the Olds does not appear to have been of record at the time of the conveyance from Adoue to Mason.”

Counsel calls our attention to page 17 of the statement of facts, where it is shown that the deed from the Olds to Blake was “filed for record May 20, 1911,” in the office of the county clerk of Taylor county. We were no doubt led into this misstatement by the unchallenged assertion in defendants in error’s brief to the effect that plaintiff in error “was claiming under an unrecorded deed,” and by the further fact that the statement of facts, page 2, where it records the introduction of this deed by plaintiff in error merely recites that “said deed recorded in volume 42, page 573, Taylor county deed records,” and fails to give the date of said record. Therefore we concluded that the record failed to show the date of the filing and recording of said deed, and assumed that the statement made in defendant in error’s brief referred to this deed and was a statement of an uncontroverted fact. But it appears that the omission to show date of filing and recording of said deed at the time the same was introduced in evidence by plaintiff in error was supplied at the time of the introduction of the deed by defendant in error. The deed from J. B. Adoue to plaintiff was acknowledged August 7, 1912, and recorded August 24, 1912. Hence it follows that the deed from the Olds to Blake was of record at the time plaintiff in error purchased the property, and we desire to withdraw the statement to the contrary.

But we do not think the fact that the deed from the Qlds to Blake was of record at the time Mason purchased the property would be determinative of the question of the sufficiency vel non of notice given, by reason of the Olds being in possession of and occupying as a homestead the premises involved. As is shown in the first appeal of Chamberlain v. Trammell, 61 Tex. Civ. App. 650, 131 S. W. 227, cited in the original opinion, the purported deed from the Chamberlains to Carson, and the deed from Carson to Trammell, were of record at the time.the guardian of Worth Moore purchased the vendor’s lien notes mentioned in the deed from the Chamberlains. While the opinion of. the Court of Civil Appeals in 61 Tex. Civ. App. 650, 131 S. W. 227, on the first appeal expressed the conclusion that the decision, rendered by said court was not necessarily in conflict with the holding in the Eylar Case, because in the Chamberlain Case the premises were in possession of tenants of the Chamberlains, yet it seems to us that such possession by a tenant fails to present any real difference, for the very basis of the decision in the Chamberlain Case was the holding that the possession by tenant under the circumstances did not constitute an abandonment by the Chamberlains of the property as a homestead; that the possession of the tenant was in fact the possession of the real owners. On the second appeal, this court fdllowed the decision of the Texarkana court, as being the law of the case until overruled by the Supreme Court, without attempting to say whether it would have held differently if the question had been an original one with it. See 152 S. W. 195. The Supreme Court affirmed the judgment in an opinion found in 195 S. W. 1135, without attempting to differentiate the facts from those disclosed in the Eylar Case, using the following language:

“We are of the opinion that the deed of conveyance by the trustee, Locket, to the plaintiff in error, Moore, was void, and not voidable. When the plaintiff in error purchased the land from the trustee, it was in possession of the tenants of the Chamberlains. This placed him upon inquiry, as a matter of law, as to whether the deed from the Chamberlains to Carson and from Carson to Trammell were absolute, or were intended only as mortgages. There being no finding that he exercised any diligence by making inquiry, the possession of the tenants constituted actual notice to him that the deeds were intended as mortgages. Ramirez v. Smith, 94 Tex. 191, 59 S. W. 258; Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 459, 83 S. W. 184. Under the provisions of the Constitution a mortgage, as between the parties to it and as to others not innocent purchasers, upon a homestead is void, and not voidable. ' Const, art. 16, § 50.”

In tlie instant case, there was not merely the absence of a finding by the jury that plaintiff in error was an innocent purchaser, but there was a positive finding that he had notice that the jrarported deed from the Olds to Blake was intended as a mortgage, and also that his predecessors in title subsequent to the Olds had such notice. There is some language used in the Ramirez v. Smith Case, supra, indicating an opinion that the holding in the Eylar v. Eylar line of cases must be based on ia Showing that the purchaser examined the record and found thereon a deed in form and purport from the claimant, before he can effectually meet the defense of notice urged by the claimant by reason of the latter’s occupancy of the premises as a homestead at the time of the purchase. In other words, in order for his adversary to overcome the burden of notice of claimant’s right and title by reason of the latter’s possession, such adversary must show that he examined the record and was misled thereby, and that the claimant is thereby estopped from showing the truth. If this be the reasoning indicated in the last-cited case, and it seems to us that the holding in the Eylar Case is evidently predicated on the theory of estoppel, then in the instant case the plaintiff in error fails to show facts entitling him to rely on such a plea. The testimony of plaintiff in error discloses that he made no examination of the deed records, never saw the property, and knew neither of the Adoues, nor Blake, nor the Olds, and relied “on an abstract to this property with opinion signed D. M. Oldham, Jr„ dated November 5, 1909.” This, was prior to the execution of the mortgage by the Olds. Plaintiff in error further testified:

“Mr. James never discussed this property with me at any time. I purchased this property at the request of a close personal friend, but I decline to give his name. I decline to give the name of the party who first offered this property to me for sale. I bought this property because I was requested to do so by a personal friend. I decline to state on whose representations I relied in making this purchase. These representations were made to me in San Angelo, but I decline to tell where the other party was. If I ever saw this property I do not know it. * ⅜ * The fact is the abstract of title, with D. M. Oldham, Jr.’s, opinion, dated November 5, 1909, stating that the title was good in Mrs. Mattie J. Irvine, was turned over to me upon the payment of the $3,500 draft to the San Angelo National Bank. At the same time the bank turned over to me with the abstract and Mr. Oldham’s opinion attached, stating title was good, deed from Mattie J. Irvine to Francis B. Olds, and also deed from Francis B. Olds to L. B. Blake, and deed from L. B. Blake to J. B. Adoue, and deed from J. B. Adoue to G. S. Mason. All these papers were turned over to me at the time of my settlement with the bank, and I have had them in my possession ever since. * * * No one told me that the title to the property was good, that I can remember of, but I relied upon the abstract with opinion of D. M. .Oldham, Jr., at-, tached, stating that title was good, and the chain of title through the deeds handed me by the bank from Irvine down to and including J. B. Adoue. I relied upon these facts in forming my, conclusion that the title was good. I don’t understand that I bought this property from the Mason-Hughes Company, a concern incorporated and doing business at Abilene and San Angelo, Tex. The officials of this Mason-Hughes Company are G. S. Mason, president, and Ed S. Hughes,' secretary and treasurer. I do not know that the property in controversy was ever listed with the Mason-Hughes Company for sale.”

An excerpt from Mr. Olds’ testimony may tend to shed light upon the source of Mason’s information concerning the property in controversy. Mr. Olds testified:

“At the time I testified that I owed them something over $20,000, they didn’t hold my notes at that time. After that Mr. Keeble asked me to come over and see Mr. James and fix it up. I was sick at that time in bed. That was about the 1st of September, 1910. When I got up Mr. James was out of town a few days, and when he came back, Mr. Keeble met me on the street and said Mr. James was in town and wanted me and Blake to go to the bank, which we did, and went up to Mr. Hughes’ office. Mr. Keeble, Blake, Henry James, and myself went up to Mr. Hughes’ office. When we got up there Mr. James asked how bad it was and I told him, etc.”

Apparently, from this testimony, Mr. Hughes had some connection with the bank, whose officers sought to secure an indebtedness owing to it from Olds, by the means disclosed in the record. It is probably justifiable for us to conclude that the relationship of Mr. Hughes to the bank and to the Mason-Hughes Company was made more apparent to the Taylor county jury, who were likely acquainted with Mr. Hughes and his business connections, than would be shown by the mere recitation of the portion of the testimony hereinabove set out. It is often true that during the trial of a case important evidentiary facts rest upon seemingly slight testimony, because special significance is given to such testimony by reason of conditions and circumstances generally known and recognized by counsel and jurors. While we are not disposed to read into the record something there not contained, yet we are not prepared to say that the jury was unauthorized to find from the evidence just quoted that Mr. Hughes was an officer in th.e Abilene bank as well as in the San Angelo company, and that the jury was not justified in concluding that when the plaintiff in error testified that he had a conversation with Hughes before he purchased the property, and when he stated that the representations were made to him in San Angelo, but declined to state where the other party to the conversation was, that the witness thereby practically admitted that the telephone conversation referred to was with Mr. Hughes himself. It is often difficult to present in the dry recitations in a statement of facts the importance and force of a palpable evasion by an interested witness of a question propounded, or the significance to be given of his. refusal to answer, .etc. The jury who heard the testimony and listened to and. saw the witnesses testify reached the conclusion that plaintiff in error knew at the time he purchased the property that the deed from the Olds was intended as a mortgage; the court, who also heard the testimony, declined to set aside that verdict, but on the contrary entered judgment thereon, and we do not feel justified in disturbing that verdict and judgment by holding that the evidence is insufficient to sustain the finding of the jury that the plaintiff in the case did have such knowledge.

By the use of the expression in' the original opinion, to wit, “We think that constructive notice, at least, was shown by the lis- pendens record introduced,” we did not mean to hold that the lis pendens notice provided in the statute constituted constructive notice itself, hut only that it placed the purchaser of the property on inquiry as to what the real facts were; as to what, an investigation would have disclosed. If he had followed the direction of this signpost, the plaintiff in error would have found that suit had been filed by Mrs. Olds on July 12, 1912, in the district court of Taylor county to remove cloud from title and to cancel the very instrument, and the notes thereunder, the validity of which plaintiff in error seeks to rely on in this case. If he had pursued his investigation further, he would have found that a judgment had been entered in favor of Mrs. Olds and her husband, on September 4, 1912, canceling said deed and notes.

We are of the opinion that the motion for rehearing should be overruled and it is accordingly so ordered.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
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