author: SWEARINGEN, J.

text:
    CITY OF BROWNSVILLE et al. v. FERNANDEZ.
    (No. 5992.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 13, 1918.)
    1. Courts &wkey;>121(3) — County Courts — Jurisdictional Amount — Constitution.
    Under Const, art. 5, § 16, the county court has jurisdiction to enjoin an injury threatened to property alleged to be $400.
    2. Intoxicating Liquors <&wkey;74 — Mandamus —Arbitrary Action — City Manager — Refusal of Liquor License.
    If the action of a city manager in refusing a retail liquor dealer’s license is arbitrary and unreasonable, the courts will review and control such action by mandamus.
    3. Appeal and Error <&wkey;S74(2) .— Appeal from Order Granting Injunction — Consideration of all Orders.
    Where the case is before the Court of Civil Appeals on appeal from an order granting a temporary injunction, the court must consider all the orders presented for consideration.
    4. Municipal Corporations <&wkey;105 — Ordinance-Beginning Phrase — Charter.
    Under charter of the city of Brownsville, requiring that ordinances begin with the words “Be it ordained by the city of Brownsville,” an ordinance so beginning was not void because it did not begin “Be it ordained by the council of' the city of Brownsville.”
    5. Intoxicating Liquors <@=3130 — Ordinance Establishing Saloon District.
    An ordinance of a city establishing a saloon-district was not void because it failed to provide a penalty for its violation.
    6. Municipal Corporations <&wkey;lll(3) — Saloon District Ordinance — Unreasonableness.
    Under Brownsville City Charter, § 22, authorizing the establishment of districts or limits-wherein saloons may be located, and authorizing the city to prohibit the location of saloons outside such districts, the mere fact that a saloon, district created had more residences than business houses within it, and the fact that the limits without the-district contained more business-houses than residences, do not warrant the legal conclusion that the ordinance establishing the-saloon district is void as unreasonable.
    Appeal from Cameron County Court; H.. L. Yates, Judge.
    Action by Jose Fernandez against the City of Brownsville and others. From an order-granting temporary .injunction, defendants, appeal.
    Reversed, and cause remanded.
    . Amos Rich, of Brownsville, for appellants.. E. T. Yates, of Brownsville, for appellee.
   SWEARINGEN, J.

This action was brought in vacation by petition to the county judge in chambers, presented on August 25,. 1917, by Jose Fernandez, alleging that he is. a citizen of the state of Texas; that he had taken all of the necessary steps under the-law to procure a retail liquor dealer’s license-to pursue the business of a retail liquor dealer in a storehouse located on lots 11 and 12, in block 57, in the city of Brownsville; that thfe city of .Brownsville was incorporated under the general laws of the state of Texas in the year' 1885, and that during the year 1915, at an election held for that purpose, adopted a<. new charter under the laws of the state of Texas passed in 1913, authorizing cities of more than 5,000 inhabitants to adopt or amend their charters; that defendants A. A. Browne, C. H. More, R. B. Rentfro, W. H. Putegnat, and E. c. Garcia are the duly elected commissioners of said city; that the other defendants named in said petition are officers of said city duly appointed as provided by said charter; that on October 20, 1916, an ordinance was enacted by the city of Brownsville establishing a saloon district in the city of Brownsville; that the location of plaintiff’s saloon is outside of said saloon district, and that said ordinance establishing a saloon district is void and unreasonable in that it does not provide a penalty to secure its enforcement; that the charter of the city of Brownsville does not confer upon said city power to enforce said ordinance; that the charter of the city of Brownsville provides a penalty not to exceed $200 for violation of its ordinances; that said established district does not include all of the business section of said city; and that it includes blocks having more residence houses than business houses and leaves out blocks that have more business houses than residence houses.

Plaintiff prays for an injunction to restrain the city officers of the city of Brownsville from interfering with plaintiff and for writ of mandamus to compel the city manager, F. II. Williams, or other officers, to issue to him an occupation tax receipt and a permit to pursue his business on lots 11 and 12, in block 57, as a retail liquor dealer.

On August 25, 1917, the court made an order in chambers requiring all of the defendants to appear on August 29, 1917, to show cause why plaintiff should not be granted liis occupation tax receipt and license as prayed for and to show cause why plaintiff should not be granted his injunction and mandamus as prayed for and provided the character of notice to be served. At the request of the defendants this hearing was reset for September 3, 1917, and on September 5, 1917, after hearing evidence, an order was made and entered by the court declaring the ordinance void and unreasonable and granting the plaintiff’s prayer for injunction and for writ of mandamus and further ordered the clerk of the county court to not issue said writs until this appeal should have been passed iv- liy the Court of Civil Appeals of the Fourth supreme judicial district of San Antonio, Tex.

Appellee’s petition for injunction and mandamus alleges that plaintiff is a resident of Cameron county, Tex.; that C. H. More, R. B. Rentfro, W. H. Putegnat, A. A. Browne, and E. C. Garcia are the commissioners of said city, Amos Rich is 'its attorney, F. H. Williams is its business manager, Elmores Grider is its tax collector, Santiago Garza is its secretary and clerk, and W. B. Linton, Henry Gordon, Francisco Villareal, Joaquin Trevenio. Fred Tate, Roy H. Weller, Manuel Flores, Pauline Ramos, Emelio Munez, Oo-nardo Barreda, Desedirio Cavazos, Oscar Gennett, M. Y. Dominguez, and J. L. Bradshaw are its police; that all of said defendants reside in Cameron county, Tex.; that the city of Brownsville is a municipal corporation, incorporated in 1875, under the, general laws of 1875; that said city adopted a new charter in 1915, under the laws of 1913, and retained all its former powers in its adopted charter; that said adopted charter provides that said city can levy a fine of $200 for violations of its ordinances; that said charter provides that said city can establish a saloon district for the sale of intoxicating liquors, and can forbid the location of saloons or the sale of such liquors outside the limits of such district; that on October 20, 1916, said city established such a saloon district; that said district leaves out half of the business section of the city of Brownsville, and includes numerous residence blocks; that policing would be easier if the district had been confined to the business section of the said city; that said district runs down a back alley -to cut plaintiff’s location out of the district; that said adopted charter cannot confer power upon said city to enforce' any ordinance; that said ordinance and district are unreasonable and are void; that appellee was engaged in the business of retail liquor on said location when said ordinance was passed; that his license expired on the 10th day of July, 1917; that he applied to the comptroller of the state for a permit to continue to engage in said business on said location, and said permit has been granted and issued to him; that appellee has applied to the county judge of Cameron county, Tex., for a state and county license to continue to do business as a retail liquor dealer on said location, and said judge has granted him said state and county license; that defendants refuse to issue him a city license and occupation tax receipt as such liquor dealer; that said location is out of said saloon district, but is in the heart of the business section of said city; that appellee tenders in court the full amount of his- license fees for his state, county, and city license, and demands such license, and tenders, in court his liquor dealer’s bond; that plaintiff has spent $400 for saloon fixtures on said location, and unless he is granted the relief' prayed for these fixtures will be worthless, and he will be damaged in the said sum of $400; that plaintiff wishes to continue to engage in his said business, but is afraid of defendants, and fears he will be arrested and humiliated and forced to employ counsel, and that his business will be injured if these things are done; that he has no- adequate remedy at law, and will be irreparably damaged; that he cannot be granted relief by injunction alone; that Elmores Grider and Santiago Garza have heretofore issued such license an" occupation tax receipt, but now-claim they have no such authority; that F.. H. Williams is business manager of said city, and lie or said Grider and Garza have such power and authority, and the court can determine who of them has such power and authority and compel him to issue such license and occupation tax receipt. Plaintiff prayed for a writ of injunction against the city of Brownsville, its commissioners, attorney, and police, restraining them from interfering with plaintiff in engaging in said business on said location, and prayed for a writ of mandamus against F. H. Williams, Elmores Grider, and Santiago Garza, and the officer among these three who had such power an¡i authority, and compel such officer to issue said license and occupation tax receipt. This petition was sworn to.

Appellants presented general demurrers and special exceptions, directed to the jurisdiction of the court, and a special exception directed to the point that the defendants were required to perform an act that requires the exercise of judicial discretion. Appellants then filed a general denial, admitting their refusal to issue the license and occupation tax receipt, but denying that appellee had been injured or that his location was in the main business section of the city. They also set up that they were required to perform an act that requires the exercise of judicial discretion. Grider and Garza plead their lack of authority to perform the acts in question, and prayed that the suit -be dismissed as to them. The trial court set the case for hearing on the 29th day of August, but at the request of appellants postponed the hearing till the 3d day of September. The case was not closed and a judgment rendered until the 6th day of September. The court overruled all of appellants’ exceptions, to which ruling they excepted and tendered their bill, which was allowed. The appellants also filed a motion to dismiss the application on the ground that appellee did not prove that he was damaged, which the court overruled.

At the request of appellee the trial court filed his findings of facts and conclusions •of law. The court found that the city of Brownsville was incorporated in 1875, under the laws of 1S75; that it adopted a new charter in 1915, under the laws of 1913, and retained all its former powers in its adopted charter; that the laws of 1875 have never been repealed; that the laws of 1875 provide that the style of all ordinances shall be, “Be it ordained by the city council of the city of •-and provide that no city can levy a greater fine than $100 for violations ■of its ordinances; that the city of Brownsville is not given power to enact ordinances by the law or its charter, but such power is given to the commissioners; that the adopted charter provides that the style of all ordinances shall be, “Be it ordained by the city of Brownsville;” and provides that said city can levy a fine of $200 for violations of its ordinances; that said adopted charter provides that said city can establish a saloon district for the sale of. intoxicating liquors, and forbid the location of saloons or the sale of such liquor outside of such district; that on the 20th day of October, 1916, said city established such a saloon district; that the style of ordinance creating such district was, “Be it ordained by the city of Brownsville”; that said district includes 24% blocks; that said district leaves out at least half of the actual business section .of said city, and that 16 blocks, out of a total 24% are residence blocks; that appellee’s location is out of the district, but is the main business section of the city; that appellee has applied to the comptroller of the state for a permit to engage in the business of a retail liquor dealer on lots 11 and 12, in block 57, in the city of Brownsville, and said permit has been granted and issued to appellee; that appellee has applied to the county judge of Cameron county for a state and county license, and has been granted his state and county license; that appellee has tendered in court the full amount of his state, county, and city license, also his liquor dealer’s bond, and has demanded his license: that appellee owns the business on said location; that he has placed fixtures for saloon purposes there, of the value of $450, and he owns these fixtures; that unless he is granted the relief prayed for these fixtures will be rendered worthless, and he will be damaged in the said sum of $450; that the defendants refuse to issue him a city license and occupation tax receipt, permitting him to engage in said business in said city; that F. H. Williams, business manager of said city, is the proper person to issue such license and occupation tax receipt, which he refuses to do; . that plaintiff cannot be granted complete relief by injunction alone, as the plaintiff cannot engage in said business without his said city license, except in violation of law. In his conclusions of law the court held the ordinance to be void, because the style of it was, “Be it ordained by the city of Brownsville,” and because the adopted charter provides that said city can levy a fine of $200 for violations of its ordinances. The court held the ordinance to be unreasonable and void, because it leaves out half of the business section of the city and takes in 16 residence blocks out of a total of 24%. The court also held that an ordinance or law must in fact be enacted by the body to which lawmaking power is delegated, and that the enacting clause must show that the proper lawmaking body has, in fact, enacted it.

The first assignment insists that the county court had no jurisdiction over the cause of action alleged in the present case, because not ancillary to an alleged cause of action, and because the amount in controversy fails to show jurisdiction.

The injury threatened to property is alleged to be $400, which is sufficient to confer jurisdiction upon the county court. Constitution of Texas, art. 5, § 16; Dean v. State, 88 Tex. 296, 30 S. W. 1047, 31 S. W. 185.

The first assignment is overruled. The third assignment presents a similar question and is also overruled.

The proposition asserted under the second assignment is:

“Where the duty to be performed by a public official is judicial in its nature or involves the exercise of discretion upon the part of an official and no appeal is permitted by law, courts will not undertake by mandamus, or otherwise, to control or review the action of such official.”

If the action of the city manager of the city of Brownsville is arbitrary and unreasonable, the courts will review and control such action. City of Brenham v. Holle, 153 S. W. 345; Zucht v. San Antonio School Board, 170 S. W. 840. Appellee, objecting to consideration of this assignment, urges the law announced in Dunnagan v. Wingfield, 141 S. W. 288, that no appeal is allowed from an order made in vacation, granting a mandamus. The present case is before us on an appeal from an order granting a temporary injunction, and under these circumstances we must consider all the orders of the court presented for consideration. Turner v. Turner, 47 Tex. Civ. App. 392, 105 S. W. 237; Gulf Nat. Bk. v. Bass, 177 S. W. 1019; Swearingen v. Swearingen, 165 S. W. 16.

The trial court had jurisdiction to grant the mandamus if the action of the city manager was unreasonable. The second assignment is overruled.

The fourth assignment presents a question similar to that submitted in the second assignment, and the fourth is also overruled.

The fifth, eighth, ninth, and tenth assignments contend that the trial court erred in granting the temporary injunction and holding that the ordinance establishing the saloon district was void.

It seems that the trial court found that the said ordinance was void for three reasons: Because the ordinance began with the words “Be it ordained by the city of Brownsville,” instead of “Be it ordained by the council of the city of Brownsville”; because no penalty was enacted for the enforcement of the ordinance; and because the ordinance is unreasonable. The Legislature granted the charter under which the city of Brownsville operates; and section 3 of that charter expressly requires that the ordinances begin with the words “Be it ordained by the city of Brownsville.” The court erred in its first reason for holding the ordinance void. The objection that no penalty was provided is without merit, and requires no discussion. The court was also in error in its conclusion that the ordinance was void because- unreasonable. If all the facts recited in the petition in support of the allegation of unreasonableness were true, it cannot be said as a matter of law that they are sufficient to establish that the ordinance is unreasonable. Section 22 of the charter authorizes the city of Brownsville to provide for the establishment of districts or limits wherein saloons may be located, and authorizes the city to prohibit the location of saloons outside these established districts. The foregoing provision of the charter authorized the ordinance herein attacked. The fact that the district created for saloons has more residences than business houses, and the fact that the limits without the district contain-more business houses than residences, do not warrant the legal conclusions that the ordinance is void.

Appellee relies upon the case of Cohen v.. Rice, 161 S. W. 1052, to support the judgment that the ordinance is void because unreasonable. In that case the ordinance attacked was passed by the city of Marshall which received a special charter from the Legislature. Section 16 of article 11 of the charter of the-city of Marshall was as follows:

“The city council shall have the power to prescribe by ordinance that no intoxicating liquors shall be sold or given away within the corporate limits of said city in any certain prescribed district in said corporation in which-there are more residence than business houses, said districts to be accurately defined by said ordinance.”

It wall be observed that the Marshall charter itself requires that the prohibited district be a district containing more residence-than business houses, and that the Brownsville charter contains no such requirement. The case of Cohen v. Rice, supra, is not applicable to the case at bar.

We are of the opinion that the facts pleaded are not sufficient to show that the ordinance is void because unreasonable, and it follows that the evidence also fails to. prove-it unreasonable. Austin v. Cemetery Association, 87 Tex. 330, 28 S, W. 528, 47 Am. St. Rep. 114; City of Brenham v. Holle, 153 S. W. 345; M., K. & T. Ry. v. Matherly, 35 Tex. Civ. App. 604, 81 S. W. 589; H. & T. C. Ry. v. Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850; Zucht v. San Antonio School. Board, 170 S. W. 840.

The fifth, eighth, ninth, and tenth assignments are sustained.

The sixth and seventh assignments complain of the judgment because there was no-evidence that appellee was a citizen of Texas, or that he had procured a permit from the-state comptroller, or that he had been granted an order from the county judge for a license to pursue the business of a retail liquor-dealer, and that there was no evidence that plaintiff had paid the license fee to the state of Texas and to the county of Cameron. The court found all the above facts in favor-of appellee and there is evidence to support the court’s findings. The sixth and seventh, assignments are overruled. ,

The judgment granting temporary injunction is reversed, and the cause remanded..
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and. Indexes


source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    DODGE et al. v. YOUNGBLOOD et al.
    (No. 6040.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1918.
    Rehearing Denied March 20, 1918.)
    1. Statutes &wkey;109 — Title—Sufficiency.
    The constitutional requirement that statutes contain only one subject to be expressed in the title is met where a law has but one general object fairly indicated by the title.
    2. Statutes &wkey;>121(4) — Title—Sufficiency— Transfer Tax.
    Act May 16, 1907 (Acts 30th Leg. [1st Called Sess.] e. 21), entitled “An act to tax property passing by will or by descent or by grant or gift; taking effect on the death of the grantor or donor,” does not unconstitutionally extend beyond the title’s scope because providing for the appointment of an administrator to collect inheritance taxes.
    3. Executors and Administrators <&wkey;20(4) —Appointment—Inheritance Tax.
    Rev. St. 1911, art. 7491, authorizing the county court to appoint an administrator in inheritance tax proceedings without notice if no application for letters has been made within three months, etc., is • not invalid because not requiring that notice be given, especially as the property cannot be sold to satisfy inheritance tax claims until after notice.
    4. Constitutional Law &wkey;>67 — Judicial Power — Sufficiency of Notice.
    Under the inheritance tax law of May 16, 1907, providing that property cannot be sold for taxes until notice is given, the sufficiency of the notice is a judicial question.
    5. Taxation <&wkey;859(l) — Inheritance Tax-Appraisers.
    Act May 16, 1907, providing for the appointment of appraisers in inheritance tax proceedings, is constitutional.
    6. Constitutional Law &wkey;>283 — Due Process-Inheritance Tax — Administrator.
    Rev. St. 1911, art. 7491, authorizing appointment of an administrator in inheritance tax proceedings, does not deny due process of law contrary to the federal Constitution.
    7. Statutes <&wkey;95(l) — General or “Special Law” — Inheritance Tax.
    Act May 16, 1907, imposing inheritance.taxes, is not a special, but a general, law, applying equally and uniformly to every class affected by it.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Special Law.]
    S. Statutes <&wkey;77(l) — “Special Law” — What Constitutes.
    A “special law” is one operating upon a portion of a class instead of upon all of the class.
    9. Taxation <&wkey;S95 (9) — Inheritance Tax-Attacking Appraisal.
    The appraisers’ report to the county court in inheritance tax proceedings may be attacked before such court, although the inheritance tax law of May 16, 1907, does not provide for an appeal from the report.
    10. Taxation <&wkey;905(l) — Inheritance Tax-Nature of Proceedings.
    Under Act May 16, 1907, inheritance tax proceeding's are purely in rem, and no personal judgment can be obtained.
    11. Executors and Administrators &wkey;>91 — Inheritance Tax.
    An administrator appointed under the inheritance tax law of May 16, 1907, is governed by the general statutes relating to the administration of estates.
    12. Taxation <&wkey;900(l) — Inheritance Tax-Appeals.
    An appeal may be taken to the district court from inheritance tax orders made by the appraisers or the county court.
    13. Taxation <&wkey;900(l) — Inheritance Tax-Certiorari.
    Under Rev. St. 1911, art. 733, providing that a county court’s proceedings regarding a decedent’s estate may be reviewed by certiorari, the writ may issue to correct inheritance tax proceedings in the county court.
    14. Injunction <&wkey;16 — Grounds — Legal Remedy.
    An injunction will not be granted where appeal or certiorari affords an adequate legal remedy.
    16. Taxation <&wkey;905(l) — Inheritance Tax Sale.
    Although Act May 16, 1907, authorizes the sale of property in inheritance tax proceedings after notice, such sale is subject to the requirements of Rev. St. 1911, arts. 3479-3607, relating to the sale of decedents’ property.
    16. Injunction <&wkey;2S — Grounds — Legal Remedy.
    An injunction will not be granted to prevent a county judge from enforcing a contract for excessive attorney’s fees in an inheritance tax proceeding, since an adequate legal remedy would be afforded by certiorari proceedings in the district court.
    17. Executors and Administrators <&wkey;31 — Inheritance Tax.
    Under Rev. ,St. 1911, art. 3289, providing that an executor under a foreign will filed in Texas should supersede an administrator previously appointed there, an inheritance tax administrator appointed under Rev. St. 1911, art. 7491, is superseded by the executors under a probated foreign will.
    Appeal from District Court, Real County; R. .1-1. Burney, Judge.
    Suit by N. P. Dodge, Jr., and Greenville D. Montgomery, as executors and trustees, against T. A. Youngblood, C. L. Bass, and D. D. Thompson, County Judge. Decree for defendants, and plaintiffs appeal.
    Affirmed.
    W. D. Love and L. Old, both of Uvalde, for appellants. O. L. Bass, of San Antonio, and E. F. Vanderbilt, of Leaky, for appellees.
   ELY, C. J.

Appellants, N. P. Dodge, Jr., and Greenville D. Montgomery, describing themselves as executors and trustees of the estate of G. M. Dodge, deceased, brought this suit to restrain T. A. Youngblood, O. D. Bass, and D. D. Thompson, county judge of Real county, Bass and Youngblood from collecting any money or other thing of value belonging to the Dodge estate and from serving notice on tenants on the land of such estate or from canceling any lease or attempting to make any lease of said lands, and the county judge from granting any further orders or decrees in cause number 11 in the county court, wherein Youngblood was appointed administrator. It was alleged in the petition that appellants had been duly appointed executors and trustees of the estate of G. M. Dodge in Pottawattamie county, state of Iowa, and had qualified as such; that administration of the estate was pending; that in their capacity as executors they had, on September 15,1917, filed in the county court of Real county, Tex., their application for the probate of the will of G. M. Dodge, as provided in articles 3278, 3288, and 3289 of the Revised Statutes of Texas, giving legal notice of the same, and that the hearing had been set down for November 5, 1917; that said estate owned a large amount of land in Texas, the larger portion of which was situated in Real county, the reasonable value of the same being $150,000, the reasonable annual rental value being $4,000. It was further alleged that, without any notice, Youngblood had been appointed administrat- or of the estate of G. M. Dodge, in May, 1917; that he has attempted to qualify as such by giving a bond for $1,000, and is acting as administrator and taking control and management of said estate; that Bass is the attorney of record of Youngblood, and Thompson is the county judge; that Young-blood, has applied to the county court, and has been granted an order authorizing the employment of Bass and approving a contract between Bass and Youngblood for a large and exorbitant attorney’s fee, and also ordering a suit to he filed to obtain a construction of the will of G. M. Dodge; that all charges were to come out of said estate, and that the same were wholly unnecessary and useless; that Bass and Youngblood had colluded with each other to damage and defraud the estate; that, in pursuance of the advice of C; L. Bass, Youngblood has served notice on the tenants of the estate that they must attorn to and pay the rents to him, or have their lease contracts set aside; and that Bass and Youngblood have offered to compromise large claims against the estate for small sums. A temporary restraining writ was granted, and the case set down for October 13, 1917. An amended petition was filed. On December 8, 1917, the cause was heard, and the temporary writ of injunction was dissolved, and the prayer for a permanent injunction denied.

In the answer it was alleged that the administration had been granted by the county judge on a report of the county attorney that the estate owed an inheritance tax to the state, and Youngblood had been appointed temporary administrator, and he had retained Bass as his attorney; that the court, upon the advice of Bass, had made Young-blood permanent administrator, without notice, and had appointed appraisers of the estate, who had not made a report, but had notified appellants of their appointment and duties.

Without the petition being aided by the allegations of the answer, which placed the administration upon the provisions of the inheritance tax law alone, this case would be considered under the general' provisions as to the administration of estates. This court is forced by the allegations in the answer to consider the constitutionality of the inheritance tax law, and especially that part of it relating to the appointment of administrators.

In the act of 1907, appearing in the Revised 'Statutes of Texas as chapter 10, arts. 7487 to 7502, inclusive, provision is made for the collection under certain conditions of an inheritance tax. In the title to the act it is described as:

“An act to tax property passing by will or by descent or by grant or gift; taking effect on the death of the grantor or donor.”

In section 5 of the act, being article 7491, Revised Statutes, it is provided:

“If within three months after the death of a decedent leaving property subject to taxation under this chapter, no application for letters testamentary or of administration shall be made, it shall be the duty of the county court to appoint an administrator. It shall be the duty of the county attorney to report to the judge of the county court all such estates, whether the property passes by will or by laws of descent or otherwise.”

Article 7492 provides that the tax shall be assessed upon the actual or market value of the property, and that two appraisers, competent, disinterested persons, shall be appointed by the county judge to fix the value of property subject to the tax. It is also provided :

That the appraisers, after being sworn, shall give notice to all persons “known to have a claim or interest in the property to be appraised, including the executor, administrator or trustee, and the collector of taxes of the county, of the time and place when they will appraise the same.”

The act in question is assailed as being unconstitutional, because it contains more than one subject, which is not expressed in its title. It is the rule that the requirement as to expressing the subject in the title to laws is to be liberally construed keeping in view the object to be attained and the end subserved by the constitutional provision. The object of such provisions is to prevent the grouping of diverse subjects of legislation under one head, with the view of combining advocates of any one subject, thus securing the passage of laws that would not stand on their own merits. Again, vicious legislation was often smuggled through legislatures by means of misleading titles to acts. Cooley, Const. Lim. pp. 203-205. The end desired is obtained when a law has but one general object, which is fairly indicated by the title. As said by Judge Cooley (Const. Lim. pp. 205, 206):

“To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone would not only be unreasonable, but would actually render legislation impossible. * * * The generality of a title is therefore no objection to it, so long as it is not made to cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.”

The test is well supported by good authority. People v. Briggs, 50 N. Y. 553; Donnersberger v. Prendergast, 128 Ill. 229, 21 N. E. 1; People v. Hang, 68 Mich. 549, 87 N. W. 21; Montclair v. Ramsdell, 107 U. S. 147, 2 Sup. Ct 391, 27 L. Ed. 431; Jonesboro v. Railway, 110 U. S. 192, 4 Sup. Ot 67, 28 L. Ed. 116; Ackley School Dist. v. Hall, 115 U. S. 135, 5 Sup. Ct. 371, 28 L. Ed. 954; Carter v. Sinton, 120 U. S. 517, 7 Sup. Ct. 650, 30 L. Ed. 701; Battle v. Howard, 13 Tex. 345; Robinson v. State, 15 Tex. 311; Giddings v. San Antonio, 47 Tex. 535; Stone v. Brown, 54 Tex. 330.

It has been held that the word “subject,” used in our present Constitution, is less restrictive than the word “object,” used in former Constitutions, and .it is held that the test under the present Constitution is:

“Does the title fairly give such reasonable notice of the subject-matter of the statute itself as to prevent the mischief intended to be guarded against? If so, the act should be sustained.” Stone v. Brown, 54 Tex. 330.

In the ease of Fahey v. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182, a law was attacked as being unconstitutional, in that it embraced more than one subject, and the court held, through Judge Hurt:

“Most clearly the subject of these acts is the regulation of the sale of spirituous, vinous, and malt liquors and medicated bitters. Now, if there be but one subject in the act, but more than one object, the act would not be obnoxious to the Constitution. We could concede, for the argument, that the objects of these acts are to regulate the sale of these liquors, to collect revenue, and divers other purposes and objects; still, unless there was more than one subject in the act, it would be valid — constitutional. Again, suppose that there be more than one subject mentioned in the acts. If they be germane or subsidiary to the main subject, or if relative, directly or indirectly, to the main subject, have a mutual connection, and are not foreign to the main subject, or so long as the provisions are of the same nature and come legitimately under one general denomination or subject, we cannot hold the act unconstitutional.”

In addition to the Texas cases herein cited, Judge Hurt cites Breen v. Railway, 44 Tex. 306; Austin v. Railroad, 45 Tex. 267; Webb v. Maxan, 11 Tex. 678; and Tadlock v. Eccles, 20 Tex. 792, 73 Am. Dec. 213.

Under the authorities cited, as well as many others, we hold that the act of May 16, 1907, is not unconstitutional. That portion in regard to the appointment of an administrator to collect the taxes is in perfect harmony with the subject expressed in the title, and is not obnoxious to the constitutional provisions requiring the subject to be expressed in the title. There is but one subject treated in the act, and that is . the collection of inheritance taxes.

Our statutes permit the appointment of a temporary administrator of estates, without notice to any one, and that power has never been questioned, and we fail to see that it would be unconstitutional to appoint an administrator of an estate as provided in the act under consideration, without notice, especially where the law definitely and clearly puts every one interested in an estate upon notice that, if they take no action in a certain time, an administrator must be appointed. Certainly it cannot be reasonably contended that nonresidents are favored above the citizens of the state, and must have notice of the appointment of an administrator. The law gives all the notice that can be demanded.

No property under the provisions of the act can be sold for taxes until notice is given to the interested parties by the appraisers, when the parties notified can appear and contest if they see proper. What would be proper or sufficient notice is a matter of construction. The statute says notice must be given; and the sufficiency of the notice would be a question to be addressed to a court. In regard to a similar law to this, it has been held:

“The Legislature not having prescribed the kind of notice, it may be personal or by mail.” Atty. General v. Roche, 219 Mass. 601, 107 N. E. 667.

The Legislature had the right to provide for the appointment of appraisers, and no constitutional right of the appellants was infringed thereby. The appointment of an administrator is a part of the procedure in the county court prescribed for the collection of taxes, and it is not obnoxious to the due process clause of the federal Constitution. Due process of law has been exercised when the law of the state on the subject has been followed. White v. White (Sup.) 196 S. W. 508.

The law in question is not a special, but a general, law, applying equally and uniformly to every class of persons affected by its terms. It is a general law because it bears on every part of the state and on every person coming within its terms. A special law is one operating upon one or a portion of a class instead of upon all of a class. The law under consideration operates alike .upon all brothers or sisters of the deceased, or a lineal descendant of such brother or sister, alike on all uncles or aunts or their lineal descendants, and alike upon any other persons, natural or artificial, that may inherit the property.

The statute empowers the county court to appoint the administrator and gives authority to the county judge, upon the filing of the report of the appraisers, to calculate the amount of the taxes. The law fixes the rate of taxation, and it is only a matter of calculation for the county judge to ascertain the taxes.

No provision is made in the law for any appeal from the report of the appraisers, nor is there any provision for the report being considered by the county court. The only provision is that the report shall be made to the county judge, “who shall file such report.” Still notice from the appraisers is required, and any one feeling aggrieved could assail the report before the county court, through and by. which the whole scheme for collecting the inheritance tax is administered. From the time the administrator appointed by the county court is in charge, every step in the proceeding is taken under its supervision and review of a court. After the administration is opened every step taken to collect the taxes is a part and parcel of the administration. It is the ruling in all the states that the jurisdiction as to the tax proceedings is based on the authority to grant administration. Gleason & Otis, Inh. Tax. pp. 404, 405, 406.

No personal judgment against any one is contemplated or provided for in the inheritance statute. It is purely a proceeding in rem, and we think that the inheritance law, while not in terms so stating, intended that the administrator under its provisions ■should administer the estate in the same manner as any other administrator would, and that the rules provided in the general statutes as to administrations would apply to the administrator provided for in the inheritance tax law. He would take possession of the property belonging to the estate, would allow or reject claims, and perform all other duties required of other administrators or executors. This would appear from the fact that in the law he is placed on the same footing as the executor ■or trustee or administrator appointed under the general law. He would be compelled to take the required oath, would give the required bond, and be governed in all particulars as would any other administrator or executor. In article 7494 the administrator, executor, or trustee is required to deduct the amount of the tax from any money that comes into his hands, in article 7495 provision is made for payment of legacies, in article 7497 provision is made for suits for the taxes against the executor, administrator or trustee, and in article 7501 provision is made as to final accounts by the ■executor, administrator, or trustee. It was evidently the intention of the Legislature that the act for the collection of inheritance taxes should be read into and become a part of the law of administration of estates. If this construction of the law is tenable, then, if any one interested in the estate be aggrieved by any of the proceedings, whether of the appraisers or the county judge, he could appeal to the district court and have the matter reviewed.

Appellants could have applied to the district court for a writ of certiorari to the county court in order that any proceedings in the county court might be revised and corrected. Article 733, Revised Stats.; Williams v. Steele, 101 Tex. 382, 108 S. W. 155. As said in the case cited:

“The orders of the county judge made in this estate constitute ‘proceedings of the county court,’ which the district court may review by certiorari. The fact that a proceeding is void does not prevent the district court from exercising its appellate jurisdiction.”

While in Texas the rule as to the applicant for injunction having an adequate legal remedy has been greatly relaxed, still it will not be granted to revise the orders of a court of competent jurisdiction, when the applicant has a legal remedy by appeal or certiorari. No decision has held that the judgment of a court can be reviewed through a writ of injunction when there is a plain and efficacious remedy by appeal or certio-rari.

The inheritance tax law provides that the appraisers shall give notice to all persons known to have a claim or interest in the property appraised, and there could be but one reason for such notice, and that would be to give such persons the opportunity to be heard as to the valuation of the property and file objections to the report when filed with the county judge. The interested person could contest the valuation before the county judge and could appeal from his order fixing the amount of the taxes, because such decision would be a proceeding of the county court from which appeal or certio-rari would lie. Clearly the interested parties would have their day in court.

Although the law in question gives the authority to the executor, administrator, or trustee, after due notice to persons entitled to the property, to sell the property or so much thereof as may be necessary, stilly we hold that such sale would be made under the terms and requirements as to sales of property of decedents provided in the general statutes as to administration, that is, by order of the court, on the terms and in the manner prescribed by the court, upon a written application of the executor or ad ministrator in the form provided by law, and in full compliance with all of the provisions of title 52, c. 22, Revised Statutes ol Texas. We think that the administration provided for in the law of inheritance taxes, whether it be one inaugurated to collect' such taxes, or one already existing, will be governed by the same laws as all .other administrations of estates, and that the same opportunity to be heard will be .extended in the one case as the other.

If the county judge approved an unconscionable contract for attorney’s fees, the district court could by certiorari review the order of the county judge and prevent the exploitation of the estate. Appellants had a full, complete, and adequate remedy for everything of which complaint is made by means of a writ of certiorari, and did not show themselves entitled to an injunction.

When the will is probated, the executors will supersede the administrator appointed by the court. Article 3289, Rev. Stats. The will in this case had not been probated when the application for injunction was made.

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


author: LANE, J.

text:
    BOESE et al. v. PARKHILL et al.
    (No. 7253.)
    (Court of Civil Appeals of Texas. Galveston.
    March 7, 1917.
    On Motion for Rehearing, Jan. 9, 1918. Second Rehearing Denied Feb. 4, 1918.)
    1. Appeal and Error <&wkey;139 — Parties Entitled to Appeai^-Nominal Party.
    A husband having no interest in the subject-matter, being joined with his wife to meet the requirements of law that in suits by a married woman the husband shall be joined, is only a nominal party, and where he alone executes an appeal bond the appeal will not be considered.
    On Motion for Rehearing.
    2. Judgment &wkey;5688 — Between Same Parities — Res Judicata.
    In suit by an only; son of deceased’s first wife against the administrator of deceased’s estate, deceased’s third and surviving wife, and all the children of his second and third wives, to recover such part of the estate as belongs to his deceased mother, decree setting aside to such son one-fourth of the property and to the administrator and tho other defendants the other three-fourths will be held to have no other effect than to partition the interest of the son from the interest belonging to the estate of deceased; there being no adjudication of the rights of defendants as between themselves.
    3. Partition <&wkey;7T(l) — Jurisdiction—Suit by Administrator.
    The district court had jurisdiction of a suit by an administrator with will annexed to have partitioned and set aside to the estate for purpose of administration, as against children of deceased’s second wife, the interest of the estate in certain land, and authority to render decree establishing the interest of the parties, decreeing the land incapable of partition, and ordering it sold by a special commissioner, in view of Rev. St. 1911, art. 1836, providing that suits for possession of lands may be instituted by executors or administrators in like manner as they could have been by their testator or intestate, and the judgment rendered therein shall be as conclusive as if rendered in favor of or against such testator or intestate, and article 6111, providing that if the court is _ of the opinion that a fair and equitable division cannot be made it shall order a sale, etc.
    4. Partition <&wkey;48 — Suit by Administrator —Parties.
    In view of Rev. St. 1911, art. 1836, it was not necessary, in suit by administrator with will annexed to partition land of the estate in which children of deceased’s second wife had a certain interest, to make the children of deceased’s third and surviving wife parties, to bind them by decree entered; heirs not being necessary parties in suits by administrator of an estate in which they have an interest.
    5. Adverse Possession &wkey;>41— Sueficienoy Under Ten-Year Statute.
    Whore commissioner, pursuant to decree in partition suit, conveyed land by deed dated December 11, 1896, and the grantee who took immediate possession and those holding under him down to and including defendant have had continued adverse and uninterrupted possession of the land, using and cultivating the same from the date of purchase until November 9, 1914, defendant would have title under ten-year statute.
    Appeal from District Court, Burleson County; Ed R. Sinks, Judge.
    Suit by Ethel Boese and others against Nettie Massey Parkhill and others. From decree rendered, plaintiffs appeal.
    Affirmed.
    M. G. Cox, of Cameron, and Thos. C. Hall, of Temple, for appellants. R. J. Alexander and W. M. Hilliard, both of Caldwell, for ap-pellees.
   LANE, J.

For a better understanding of the opinion to follow, we at the outset deem it advisable to make a statement of the nature of the case and the proceedings of the trial thereof as follows:

One H. -H. Massey, Under whose will appellants claim their right to recover in this suit, was married three times. His first wife was named Jane, by whom he had one child, to wit, James F. Massey. The name of his second wife was “Frances,” by whom he had seven children — Mack, Homan, Cassandra, Gus, Eugene, George, and Andrew. His third wife was named Fannie, by whom he had three children — Rnth, Ethel, and Mart; the last three known in these proceedings as the “young set.” On the 25th day of October, 1894, said H. H. Massey died and left surviving him his third and last wife, Fannie, the mother of Ruth, who married Claude Vinton; Ethel, who married R. L. Boese; andi Mlart. All his children hereinbefore named also survived him. He left a will, in which is to be found the following:

“All my last debts and funeral expenses shall first by my executors hereinafter named be paid out of my estate as soon after my deceased has shall by them be found conviant.
“I give, devise and bequeath to my beloved sune James Massey, five dollars of my estate, and all so my interest in my land estate in Missipuy. I want to presant wife to hav her part intrust in my undervided half of my old homestead. Jim to have 5.00 and my intrust in Miss. The young set to have in tliare mothers intrust in my homestead the balance of my real estat to go to my decease wife, F. E. Massey, children to be rented and kept together until Gus and Baby becomes of age then to be equally divided between F. E. Massey’s children, and I want the Ned Hill place to be equally divided between Mack, Homan, Cassey and Gus, and I want Gene to cultivate the Hill place, and take care of the four children, and to take charg of all my 6 head of horses, wagon, bugga, farm implements and household goods. I want Faney children by me to have three cows and ■ calves and also a reasonable suply of corn and meat for tulve month suply. I want Gene to make deed to Lexington place if the negro comes with paymen in Oct. which 47.00 too notes, 50.00' each, due 1895 and 1896, this to fill contract I made. If payment is not made in Oct. 1894 to be nul' and void, then then I want it to be rented for the suport of Myne and F. E. Masseys children and want the balance of my cattle to be kept on the place for the suport of family $387.00 to be pad Gene Massey, then the Millard place to want the Oort to make Gene a deed to 40 acres none as the Mialard place, of which the money to go to mine and F. E. Massey children.”

At the time of his death, said H. H. Massey was purported to be the owner of some property in Mississippi, and five tracts of land in Texas, a lot in the town of Lexington, and some personal property. Some of this property, however, belonged to the community of one marriage, and some to another; none, however, to the third marriage, so far as ■ the record discloses.

The will of H. -H. Massey was duly probated, and M. L. Womack qualified as administrator of the estate of said Massey with the will annexed.

James Massey, son of the first wife, refused to accept under the will of his father, H. H. Massey, and brought suit in the district court of Burleson county against M. D. Womack, administrator, Fannie Massey, the third wife of H. H. Massey, deceased, and all the children of the second and third marriages for such portion of the entire estate, real and personal, held by his father at the time of his death, as belonged to the estate of his mother, Jane, the first wife of said H. H. Massey. This suit was styled James F. Massey v. M. L. Womack et al., No. 2547, and is referred to hereinafter as suit No. 2547. A decree was entered in said suit No. 2547, on the 20th day of November, 1895, adjudging to James F: Massey one-fourth of all of said property, and to the 'administrator, Womack, and the other defendants, as heirs of H. H. Massey, deceased, the remaining three-fourths of said property. The court also appointed commissioners to partition said property in accordance with said decree, setting aside to James Massey a specific one-fourth thereof, and to the defendants Womack and others in bulk the remaining three-fourths thereof. Thereafter said commissioners made partition o'f said land and made their report of said partition to the court, which was by the court approved. In the decree approving said report the following language appears:

“And it further appearing to the court that said commissioners have set apart to the defendant heirs the 178% acres, a part of the S. C. Bobertson league, 40 acres, a part of the N. W. Thornton survey, and 160 acres, a part of the Edward Hill survey, all in Burle-son county, Tex., it is therefore ordered, adjudged, and decreed that all of the rights, title, and interest of the said Jamos F. Massey in and to that property so set apart to the defendants be and the same is hereby divested out of him and vested in the defendants forever,” etc.

This judgment became final and has never been appealed from, nor otherwise vacated.

Thereafter, and while M. L. Womack was administering the estate of said II. H. Massey, as such administrator, joined by James Massey, guardian of the minors, Mack Massey, Homan Massey, Gus Massey, and Cassandra Massey, four of the children of Frances, the second wife of H. H. Massey, brought suit in the district court of Burleson county against Eugene, George, and Andrew Massey, three other children of said second wife, for a partition of the 178% acres of land in controversy in this suit. This suit was styled M. L. Womack et al. v. Eugene Massey et al., No. 2596, and will be referred to hereinafter as suit No. 2596. It is alleged in the petition in said suit No.. 2596 that the estate of H. H. Massey was the owner of a one-half undivided interest in said 178% acres of land and that the other parties, plaintiffs and defendants, were the owners of the' other one-half thereof; each owning an equal portion thereof. The suit was for partition of said 178% acres and for commissioners of partition. The court sustained the allegations of the petition, and relief as prayed for upon a finding that said land was the community property of H. H. Massey, deceased, and his second wife, and therefore one-half undivided interest therein was in the possession of M. L. Womack, as administrator of the estate of I-I. H. Massey, and that the other one-half was owned by the children of the second wife, who were parties to said suit. Judgment was accordingly rendered, and commissioners of partition appointed to partition the land, who later reportea that said land was incapable of fair and equitable partition in kind. Said. report was approved, and later one E. B. Bell was appointed special commissioner to sell said land for the purpose of making a partition of the proceeds arising from such sale among those entitled thereto. The land was sold by Bell on the 11th day of December, 1896, to one G. W. Price for $1,000. Bell made a report of such sale to the court, which was by the court approved, and upon proper orders of the court Bell, as such special commissioner, by proper deed, conveyed the land to G. W. Price. The proceeds of such sale were distributed in accordance with the decree of the court, one-half thereof being paid to M. L. Womack, as administrator of the estate of H. H. Massey.

On the 23d day of March, 1898, M. L. Wo-mack, administrator, filed his final account and showing in the probate court of Burle-son county and asked for his discharge, and on the 20th day of August, 1898, the court approved said final account and showing, discharged the administrator, and closed the administration of said estate.

It may be here stated that the only answer filed by defendants in suit No. 2547, James Massey v. M. L. Womack, Administrator, et al., was a general demurrer, and that there was no answer filed in suit No. 2596, so far as shown by the record.

Mrs. Fannie Massey, the third and last wife of H. H. Massey, deceased, the mother of plaintiffs Ethel Boese, Iiuth Vinton, and Mart Massey, was put in possession of 100 acres' out of the 160 acres of land, a part of the Ed Hill survey, owned and occupied by said Massey and family, at the time of his death, as the homestead of herself and children. She was also paid out of the effects of the estate of H. H. Massey the sum of $350, together with other property delivered to her. Mrs. Fannie Massey resided upon her said homestead within a few miles of the tract of land in controversy in December, 1896, at the time Special Commissioner Bell sold and conveyed said land to G. W. Price, and continued to so reside until her death in 1902.

G. W. Price bad bis said deed recorded shortly after bis purchase in December, 1896, and be and those bolding under him, down to and including the present owner, O. V. Massey, have since said purchase held and used the same continuously to the date of this suit, on November 19, 1914, and have paid all taxes due thereon. Whatever title G. W. Price had to the land in controversy passed by mesne conveyances to, and is now in, ap-pellee O. Y. Massey.

On November 19, 1914, appellants Mart Massey, Ruth Massey Vinton, joined pro for-ma by her husband, Claude Vinton, and Ethel Massey Boese, joined pro forma by her husband, R. B. Boese, brought this suit against O. V. Massey, the present owner of the land in controversy, and others not necessary to mention, to recover a one-half undivided interest therein, upon the theory: That by the terms of the will of H. H. Massey, deceased, one-half undivided interest therein passed to their mother, Fannie Massey, during her life,, and that by the terms of said will the fee to said one-half interest passed to plaintiffs herein Ruth Vinton, Ethel Boese, and Mart Massey. That in cause No. 2547 the court construed the will of said Massey as now construed by plaintiffs, and by a decree in said cause adjudged one-half of the land in question to be the property of plaintiffs. That M. L. Womack, administrator of the estate of H. H. Massey with will annexed, had no authority to bring, nor the district court of Burleson county to entertain and try, said cause No. 2596, and grant the relief prayed for, as was done in said cause, because: First, at the time said suit was filed and disposed of in said district court an administration of the estate of H. H. Massey was pending in the probate court of Bur-leson county, and that said court had exclusive jurisdiction of said estate and was the only court which had authority to order the sale of property belonging to said estate for any purpose, and that, as said district court had no authority to try said cause No. 2596 and to order the sale of said land as it did do, the sale made by E. B. Bell, special commissioner, by order of said district court, was and is void and of no force and effect, and therefore the deed of said Bell to G. W. Price did not have the effect to convey the title to said land to said Price; second,, that as plaintiffs were not parties to suit No. 2596, and as they were the owners of an undivided one-half interest in said lands under the will of X-I. H. Massey and also under the decree in cause No. 2547, the sale made under the decree in cause No. 2596, if otherwise valid, did not have the legal effect to divest plaintiffs of their title to said land, and that they are therefore still the owners thereof.

Defendants answered plaintiffs’ allegations by specially pleading the facts set out in the preliminary statement herein, and further specially pleading that the title to the whole of the tract of land in controversy was in defendant O. V. Massey, and they further pleaded the three, five, and ten year statutes of limitation in bar of plaintiffs’ right to recover in this suit.

Plaintiffs by supplemental petition pleaded their disabilities as minors in avoidance of defendants’ plea of limitation.

The case was submitted to the court without a jury, who upon the pleadings and evidence found every issue in favor of defendants, and rendered judgment that plaintiffs take nothing by their suit and that defendants recover of plaintiffs all costs by them incurred. From this judgment, R. L. Boese, husband of Ethel Boese, alone has appealed.

It is apparent, from the brief filed in this court by counsel who represented the plaintiffs in the trial court, that they are laboring under the impression that all of the plaintiffs have perfected their appeal to this court. But such, we think, is not true. The only appeal bond found in the record is one executed by R. E. Boese alone, as principal, and Thos. O. Hall, M. G. Cox, and U. S. Hearrell, as sureties, which, after an attempt to describe the judgment rendered by the court, reads as follows:

“Now, therefore, we, R. L. Boese, as principal, and Thos. C. Hall and M. G. Cox and U. S. Hearrell, as sureties, acknowledge ourselves bound to pay to Mrs. Nettie Massey Parkhill and other defendants (appellees herein) in the sum of two hundred and no/100 dollars; conditioned, however, that the said Ethel Boese and other plaintiffs (appellants herein) shall prosecute their appeal with effect, and shall pay all costs which have accrued in the court below and which may accrue, in the Court of Civil Appeals and the Supreme Court.
“Witness our hands this the 26th day of November, A. D. 1915. R. L. Boese, Principal. Thos. C. Hall, M. G. Cox, U. S. Hearrell, Sureties.”

It is apparent from the bond above mentioned that it is not an appeal bond executed by any one except R. L. Boese, as principal, and that he is the only one of the plaintiffs in the court below who has perfected an appeal to this court in this case.

The pleadings of plaintiff and the undisputed evidence show that appellant R. L. Boese has no interest in the subject-matter of the litigation, except as the husband of his wife, Ethel Boese, and that he was joined with his wife in the suit only for the purpose of meeting the requirements of the law that in suits by a married woman she . shall be joined by her husband. Appellant, therefore is only a nominal party, -without any interest in his own right in the subject-matter of the litigation, and could not appeal.

In the case of Hawley v. Whitaker, 33 S. W. 688, presenting practically the same proposition as here presented, it is said:

“It appears from the foregoing facts that Hawley was a mere nominal party to the suit, as such interest in the land as was acquired by the conveyance from Cummings to Hawley was really for the benefit of the iron company. It follows that, as Hawley had no real interest in the land, he is not injured by the judgment of the court below. Hawley having no real interest in the land, and the iron company being a party to this suit, and not having appealed, wo will not review the action of the court at the instance of appellant Hawley.”

This cause being before this court solely upon the appeal of R. E. Boese, a nominal party only, and it appearing that Ethel Boese, Ruth Vinton, and Mart Massey, who are the parties for whose benefit the suit was brought, were parties to the suit and not appealing, we will not review the action of the trial court at the instance of appellant R. L. Boese.

The judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

In our original opinion we held that this cause was before this court alone upon the appeal of R. E. Boese, a nominal party only, who had no interest in the subject-matter of the litigation, being joined in the suit only pro forma as the husband of plaintiff Ethel Boese. This holding was upon the theory that the appeal bond filed in the trial court was the bond of R. L. Boese only, and that it did not have the effect to perfect the appeal in behalf of the other plaintiffs, to wit, Ethel Boese, Ruth Vinton, and Mart Massey. Having reached such conclusion under the authority of Hawley v. Whitaker, 33 S. W. 688, we refused to review the action of the trial court at the instance of R. E. Boese.

The plaintiffs Ethel Boese, Ruth Vinton, Claude Vinton, and Mart Massey, as well as R. L. Boese, have filed their motion for rehearing, and therein insist that we erred in our said holding and that said appeal bond was sufficient to perfect the appeal of all of said parties.

While we are still inclined to the views expressed in the original opinion, we are not without some doubt as to the correctness of same, and therefore have concluded to grant the motion and consider the assignments of the parties, who will hereinafter be referred to as appellants. Before beginning to discuss the assignments, however, we make the following statement in addition to the statement made in the original opinion:

The trial court, before whom the cause was tried without a jury, found as facts the following :

That by said suit No. 21547 James E. Massey sued M. L. Womack, administrator of the estate of H. H. Massey, deceased, with will annexed, and the children of the second and third wives of said H. H. Massey and Mrs. Fannie Massey, his surviving widow; said children and surviving widow being the devisees under the will of said H. H. Massey. That said suit was for the purpose of having set aside to him, James F. Massey, all the interest his deceased mother, the first wife of H. H. Massey, had in tho property held by his father, H. H. Massey, at the time of his death, which said interest he inherited as the sole heir of his deceased mother. That in said cause a decree was duly entered setting aside to said James F. Massey said interest and setting aside the balance of said estate to the defendants as property of the estate of H. H. Massey, deceased. “That thereafter, on November 20, 1896, in a suit No. 2596, styled M. L. Womack, Administrator, et al., v. Eugene Massey et al., in the district court of Burleson county, Tex., the said M. E. Womack, as such administrator, sought to have partitioned and set aside for the estate as against the said Eugene Massey et al., children of the second wife of said H. H. Massey, deceased, the interest of the estate in said land from the interest of the defendants, as heirs of their mother, the said second wife of said H. H. Massey, deceased. That a decree was rendered in said coux-t establishing the interest of the parties, and decreeing the land incapable of partition, and ordering it to be sold by a special commissioner, E. B. Bell, and that thereafter the said E. B. Bell did make a sale of the land in controversy, 178% acres, described in the pleadings, and made his report to the court, in which he showed that he had sold said 178%-acre tract of land on December 4, 1896, to George W. Price, as appears by the Deed Records of Burleson county, vob 15, p. 105, conveying said land. That the proceeds of such sale were partitioned in accordance with_ said decree, and the said M. L. Womack l'eceived as administrator the portion allotted by the court to the said estate of H. H. Massey, deceased, and that he administered the same in accordance with his final account, which was approved, as aforesaid, by the county court of Burleson county.”

He further found that said Price paid the cash for said land, as appears in said court proceedings in said last-named suit; that through mesne conveyances from the said P'rice the defendant O. V. Massey is now the owner of said land, and that he, and those under whom he claims, have been in possession of said land, under deeds duly recorded, from the date of the purchase of the said G. W. Price from E. B. Bell, special commissioner as aforesaid, for more than ten years prior to the institution of this suit; that the administration with the will annexed of the estate of H. H. Massey, deceased, was duly closed and distributed in the probate court of Burleson county on or about the 28th day of August, 1898; that said H. H. Massey, deceased, was .married three times, and had three sets of children, the last set being the plaintiffs in this suit.

As conclusions of law the court found:

“Under my conclusions of law in this case I am of the opinion that the will of the said H. H. Massey, deceased, gave to the last wife, who was the mother of the plaintiffs herein, her part interest in the undivided half of his old homestead, which is the land in controversy, and which is the same land that was sold by the decree of the district court in cause No. 2596, styled M. L. Womack, Administrator, v. Eugene Massey et al.
“The contention of counsel for plaintiffs before the coui't was that the decree in the first named 'cause, J. F. Massey v. M. L. Womack et al., No. 2547, in the district court of Burleson county, after vesting the title to a certain property in the plaintiff, as the mother’s interest, then vested an absolute title to an interest in the plaintiffs in this cause. In my judgment it was a simple suit brought by said J. F. Massey to pai'tition and set aside that part of the land inherited by him from his mother, who was the first wife of the said H. H. Massey, and that the administrator of the said H. H. Massey, together with all the heirs and children, were made defendants for the purpose of having a final settlement of the plaintiffs’ interest. The pleadings and the judgment in said cause being construed, it is clear to my mind that there was no intention of vesting any title in the plaintiffs in this cause, but the purpose of the suit, and the decree rendered therein, was to merely turn over to the administrator that part which the plaintiff in that suit did not claim, and that it was thereby placed in the hands of said administrator to be administered in the probate court of Burleson county. That the district court would have had no jurisdiction to have vested any of the title to the land in the plaintiffs in this suit, as against such administrator; the administrator having full charge and control of the estate to administer the same.
“I am of the opinion that the second suit filed by said M. L. Womack, as administrator, was merely for a like purpose, i. e., to separate and partition the property that really belonged to the estate of H. H. Massey, deceased, from the interest of the children of the second marriage that they inherited from their mother, and that he had the authority under the law to bring such suit and for such partition made, in order that he could properly administer that portion of the property that belonged to the estate of the said H. H. Massey, deceased. As the property was held incapable of partition and sold under the decree of the court, the proceeds of such sale that belonged to the estate of H. IT. Massey, deceased, were properly decreed to be paid over to the said M. L. Womack, as administrator of the estate of IT. H. Massey, deceased, and to be administered by him in the probate court. Said estate has long since been closed in said court, the administrator accounting for all moneys received, and for the money received from the sale of this property, and it was distributed by the court, in that case, and as a finality.
“I see nothing from the evidence in this case that would vest title in the plaintiffs, for certainly all the land belonging to the estate of II. H. Massey, deceased, was subject to his debts, regardless of any of the devisees in said will of said H. H. Massey, deceased. The district court was the only court that had the power to partition and separate the interest of the estate of IT. IT. Massey, deceased, from the interest of the children of the second wife, and, having jurisdiction to do so, its decree stands, and everything litigated therein is a finality, and cannot be collaterally attacked. Inasmuch as the district court, in the last-named case, had the jurisdiction and the authority to order the land sold, and to turn over the proceeds belonging to the estate of IT. H. Massey, deceased, to his administrator, M. L. Womack, the said M. L. Womack was the only person that could be authorized to receive such money to be distributed and disbursed in accordance with the orders of the probate court of Burleson county, which had jurisdiction over such estate.
“Even if the will in question had specifically devised to the plaintiffs herein the land in controversy, still according to the law it was subject to the payment of the debts, and was not exempt property; and the sale under the decree of the district court divested the estate of H. H. Massey, or any devisee of his estate in his will, or any right, title, or interest that they might have by reason of any bequest in said will. If the will of H. H. Massey, deceased, had devised the whole of his interest in this tract of land in controversy to the plaintiffs, it would have been held by the administrator with the will annexed subject to the debts of the decedent, and when that land was sold under the order of the district court for partition all of their title in and to the same would have been divested out of them and out of all of the other parties claiming thereto, and vested in George W. Price under the deed from E. B. Bell, as special commissioner, and the proceeds of such sale would have been what the plaintiffs in this case have looked to — and not the land.”

With this statement, together with the statement in the original opinion, we will now discuss and dispose of the contentions of appellants.

By assignments 1, 2, 3, and 4, grouped in appellants’ brief, it is, in substance, insisted that the district court of Burleson county was without authority to entertain and try said cause 2596, and render and enter the decree and orders it did so render and enter therein, and such decree and orders are void, and that the deed executed by E. B. Bell to G. W. Price, by which he purported to convey the land involved in this suit to said Price, is void and of no effect, and consequently said deed did not have the effect to divest plaintiff of title to said lands and vest the same in said Price: First, because by the decree in cause No. 2547, James F. Massey v. M. B. Womack, Administrator, et al., the land involved in this suit was decreed to plaintiffs and their mother, Mrs. Fannie Massey, and none of them were in any manner made parties in said cause No. 2596, and hence the decree entered therein in no way affected their rights in and to said land accruing to them by virtue of said decree in said cause No. 2547; second, because at the time the decree in cause 2596 was entered an administration was pending upon the estate of H. H. Massey, deceased, in the county court of Burleson county, Tex., which said court had exclusive jurisdiction of all proceedings on the part of the administrator and legatees of H. H. Massey, deceased, to partition the estate of said H. IT. Massey or any part thereof, and the district court in which said decree was entered was without jurisdiction to entertain said suit and enter said decree or to make any orders therein affecting said estate, and therefore said decree is void and of no effect. There is no merit in any of these contentions, and they are overruled.

The contention that the decree in cause No. 2547 set aside to, or vested title in, Mrs. Fannie Massey or her children, the plaintiffs in this suit, to any specific lands belonging to the estate of IT. H. Massey, deceased, is wholly untenable. That suit was one brought by James F. Massey, son of the first wife of said IT. H. Massey, against M. L. Womack, administrator of said IT. IT. Massey’s estate with will annexed, Mrs. Fannie Massey, the third and surviving wife of said H. PI. Massey, and all the children of the second and third wives of H. H. Massey, to recover such portion of the entire estate, real and personal, held by his deceased father at the time of his death, as belonged to the estate of his deceased mother, Jane Massey, the first wife of said IT. H. Massey. A decree was entered in said cause setting aside to the plaintiff James F. Massey one-fourth of said property, and to the administrator of H. H. Massey and the other defendants the other three-fourths thereof in bulk. By the decree of partition in said cause there was set aside to defendants Wo-mack, administrator, -and others, three separate tracts of land, first, the 178% acres, called the old homestead in the will of H. H. Massey, being the tract involved in this suit, a part of the S. 0. Robertson league, 40 acres, a part of the N. W. Thornton survey, and 160 acres, a part of the Ed Hill survey, referred to in said will as “my homestead.” When we look to the whole proceedings in said cause No. 2547, we think it clearly apparent that it was not intended by that suit, or by the decree entered therein, that any of the defendants should be vested with title to any lands which had not theretofore vested in them; or to divest any of them of any title to any lands whatever, except as between them and plaintiff James F. Massey, and that such decree had no other effect. We think the trial court correctly found that the only effect of said decree was to partition the interest of James Massey in said properties from the interest therein belonging to the estate of H. H. Massey, deceased. There was no adjudication of the rights of the defendants as between them in said cause. If the appellants ever had any interest in the land involved in this suit, it was by bequest in the will of H. H. Massey, and not by virtue of the decree in cause No. 2547.

We also agree with the trial court in his finding that suit No. 2596 was brought by M. L. Womack, administrator, to have partitioned and set aside for the estate of H. H. Massey, as against Eugene and other children of the second wife of said Massey, the interest of said estate in said land from the interest of said children therein, as heirs of their deceased mother, who owned an undivided one-half interest therein at the time of her death, so that he might take possession thereof and administer the same as the administrator of said estate, and for no other purpose. We are of the opinion that the district court had the power and authority to entertain said suit and to render the decree entered therein, and to have the lands involved sold for the purpose of partition.

It is provided by article 1836 of the Revised Civil Statutes that suits for the possession of lands may be instituted by executors, administrators, or guardians appointed in this state, in like manner as they could have been by their testator or intestate; and that judgment in such cases shall be as conclusive as if rendered in favor of, or against, such testator or intestate. Let us suppose that after the death of his second wife, and prior to his own death, H. H. Massey had instituted suit against his second set of children, as was done in cause No. 2596 by M. L. Womack, his administrator, and had pleaded the same identical facts that were pleaded in that ease by the administrator ; would there have been any question as to his right to bring such suit? Of course not. That being true, then, in our judgment, article 1S36, supra, would be meaningless if it does not confer the same right upon the administrator of his estate. It is not necessary to make the heirs parties to suits brought by an administrator of an estate in which they have an interest, so as to bind them by the decree entered thereon. Lawson v. Kelley, 82 Tex. 457, 17 S. W. 717; Boggess v. Brownson, 59 Tex. 417; Gunter v. Fox, 51 Tex. 383; Rogers v. Kennard, 54 Tex. 36; Zacharie v. Waldrom, 56 Tex. 116,

The district court of Burleson county had the authority by special commissioner to sell the land in question for the purpose of partition in cause No. 2596. Article 6111, Revised Statutes. It is provided by article 6111, cited above, that:

“Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall order a sale of so much of such real estate as is incapable of partition, which sale shall be for cash, or upon such other terms as the court may direct, and shall be made as under execution, or by private sale through a receiver, if the court so order, and the proceeds thereof shall be returned into court and be partitioned among the persons entitled thereto, according to their respective interests.”

We conclude that the deed from E. B. Bell, special commissioner, to G. W. Price, conveyed good title to the land sold to Price as against the estate of H. H. Massey and his heirs or devisees, and that appellee, who holds title by onesne conveyances from Price, now has title to said land.

We also conclude that the trial court correctly found and held that appellee has title to the land in question under the ten-year statute of limitation pleaded by him.

We sustain the conclusion of the trial court that the land involved in this suit was bequeathed to Mrs. Fannie Massey, the third wife of H. H. Massey, by the will of said Massey, and that she was the owner of the same a.t the time it was sold and conveyed to G. W. Price, by order of the district court on the 11th day of December, 1896, subject only to the payment of debts against the estate of H. H. Massey in the possession of M. L. Womack, administrator of said estate.

The evidence shows the land was conveyed by Bell, special commissioner, to G. W. Price by his deed of date December 11, 1896; that Price took possession of said land immediately after his purchase in 1896, during the life of Mrs. Fannie Massey, who died some seven years later; that Price, and those holding under and through him, had held continued peaceable, adverse, and uninterrupted possession of said land, using and cultivating the same, from the date of the purchase by Price up to the date of bringing this suit by appellants on the 9th day of November, 1914, a period of about 18 years.

We have considered all of appellants’ assignments and what has been said disposes of all of them, and they are therefore overruled.

We find no error in the trial of the cause, nor in the judgment rendered in the court below; therefore the same is affirmed.

Affirmed.
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