author: SWEARINGEN, J.

text:
    STOLTE et al. v. KARREN et al.
    (No. 5817.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1916.
    On Motion for Rehearing, Jan. 31, 1917.)
    1. Execution <§=>171(2) — Injunction—Ade-> quate Remedy at Law — Statute—“Clou» Would be Put on Title.” .
    Under Rev. St. art. 4043, prescribing when writs of injunction shall be granted, subdivision 3, providing that judges of the district court may grant writs of injunction where a cloud would be put on the title of real estate being sold under an execution against a person having no interest subject to the execution at the time of the sale, irrespective of any legal remedy at law, the remedy of injunction should not be denied a wife, her husband’s grantee, against the husband’s creditor, seeking to sell the property on execution, on the ground that the wife has an adequate remedy at law precluding the equitable remedy, since the phrase “cloud would be put on the title,” as used in the statute, means a claim of a right in lands, the density of the cloud, since the enactment of the statute, being immaterial to the right to injunction (citing 2 Words and Phrases, 1233).
    [Ed. Note. — Por other cases, see Execution, Cent. Dig. §§ 498, 499 ; Dec. Dig. ⅞=^171(2).
    Por other definitions, see Words and Phrases, First and Second Series, Cloud on Title.]
    2. Execution <§=>171(4) — Injunction—Sale on Execution — Cloud on Title.
    A sale on execution, to satisfy a judgment against a husband in favor of his creditor, of land conveyed by the. husband to his wife, casts a cloud upon the wife’s legal title, because the prevailing title, after sale on execution, would be that one sustained by extraneous facts not apparent upon the record of either chain of title.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 502, 506-516; Dee. Dig. <§=>171 (4).]
    3. Execution <§=>172(4) — Injunction—Pkima Facie Case.
    In suit by a wife, grantee of her husband’s lands, to restrain sale of the property under execution by a creditor of the husband, plaintiff’s deed, executed before the creditor secured judgment, makes a prima facie case in her favor.
    [Ed. Note. — For other eases, see Execution, Cent. Dig. §§ 525-532; Dec. Dig. <§=>172(4).]

      4. Fraudulent Conveyances <⅞=»206 — Enjoining Sale on Execution — Statute.
    Under Rev.» St. art. 3967, avoiding voluntary conveyances as to prior creditors, if the creditor proves that he was a creditor of the husband prior to execution of a deed to his wife, the wife’s prima facie case, made by her deed, fails, unless she proves that her husband had other property with which to satisfy the debt, either when the deed was executed or the execution was levied.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 891; Dec. Dig. <§=> 296.]
    6. Fraudulent Conveyances <§=>295(1) — Enjoining Sale on Execution — Facts Necessary to be Proven.
    Whether or not the husband was indebted to the creditor, whether the indebtedness existed prior to execution of the gift deed to the wife, whether the husband was insolvent when the deed was executed, and whether he was insolvent at the date of levy of execution, were four distinct facts necessary to be proven.
    [Ed. Note. — For other eases, see Fraudulent Conveyances, Cent. Dig. §§ 867-869, 872, 873; Dec. Dig. <§=>295(1).]
    6. Fraudulent Conveyances <S=»287 — Avoidance by Creditors — Evidence—Creditor’s Judgment — 4’Prima Facie Evidence.”
    In suits by prior creditors to avoid a voluntary conveyance because made by an insolvent, the creditor’s judgment, though rendered subsequent to the execution of the conveyance, and though the grantee was not a party to the creditor’s suit which resulted in the judgment for debt against the grantor, is admissible in evidence to establish the indebtedness, and, as to the grantor, is final and conclusive and cannot be collaterally impeached, but, as against the grantee of the gift conveyance, is only prima facie evidence of the facts it purports to adjudicate. “prima facie evidence” of a fact being such evidence as, in the judgment of the law, is sufficient to establish it, and which, if not rebutted, remains sufficient for that purpose (citing 6 Words and Phrases, First and Second Series, Prima Facie Evidence).
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 835; Dec. Dig. <§=> 287.]
    7. Evidence <§=>222(8), 230(3) — Injunction.
    In a wife’s suit to restrain sale on execution of land conveyed her by her husband, neither the declarations of the husband’s creditor, nor of defendant, nor those of the husband, made after his execution of the gift deed to the wife, could be introduced in evidence, since declarations and acts of grantors, made after the execution of the grant, are not admissible in evidence against the grantqe in suits where the validity of the grant is involved.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 794, 837, 838, 846; Dec. Dig. <§=> 222(8), 230(3).]
    8. Judgment <§=3693 — Conclusiveness—Attack by Wife.
    A judgment against a husband in favor of his creditor was a final judgment, forever determining that the husband was indebted to the creditor, so far as they or their privies were concerned, and the wife, a stranger to the suit, could not, in a direct proceeding, have the judgment set aside and the cause retried.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1216; Dee. Dig. <§=3693.]
    9. Fraudulent Conveyances <§=>95(1) — Right to Question — Subsequent Creditors.
    A deed from a husband to his wife vested the legal title in the wife, and neither the husband nor his subsequent creditors or purchasers could question the wife’s deed, which could only be done by the husband’s prior creditor, the grantee’s title not being a trust for the grantor or his creditors, but a valid legal title against the world, unless there was a prior creditor of the grantor, and the grantee fails to prove the solvency of the grantor either at the date of the gift deed or when execution was levied.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 243-247; Dec. Dig. <§=>95(1).]
    10. Husband and Wife <§=47(4) — Separate Property of Wife — Gift from Husband.
    Where a husband conveyed land to his wife, it became her separate property, and the husband could not without her consent divest her of her title.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 236; Dec. Dig. <§=>47(4).]
    11. Vendor and Purchaser <§=>231(3) — Bona Fide Purchaser — Record of Suit.
    Record of the suit between her husband and his creditor was not notice to the wife to whom the husband had conveyed his land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 515; Dec. Dig. <§=>231(3).]
    12. Judgment <§=682(1) — Persons Concluded — Judgment Debtor’s Grantee — Evidence.
    In a wife’s suit against her husband’s creditor to enjoin sale under execution of land conveyed her by her husband, the husband can testify relative to his indebtedness to his creditor, though he is himself bound by the creditor’s judgment against him.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1203; Dec. Dig. <§=>682(1).]
    13. Jury <§=>13(12) — Injunction—Issue of Fact.
    In. a wife’s suit to enjoin sale under execution by her husband’s creditor of land conveyed her by her husband, where the wife introduced evidence that defendant was not in fact a creditor of her husband prior to the execution of the gift deed to her, and defendant introduced his petition and judgment against the husband for his debt, thereby introducing prima facie evidence of the fact that he was a prior creditor of the husband, a material issue of fact was presented, which the wife had the legal right to have determined by a .jury on trial of the main suit, and not predetermined in an ancillary proceeding by the court in chambers.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 49; Dec. Dig. <§=>13(12).]
    14. Execution <§=>172(6) — Injunction—Preservation of Status Quo Pending Litigation.
    A wife suing to enjoin sale under execution by her husbdnd’s creditor of land conveyed her by her husband had the legal right to have the status of the property involved remain as it was until the suit was determined on its merits.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 536, 537; Dec. Dig. <§=>172(6).]
    15. Fraudulent Conveyances <§=>213 — Character of Indebtedness — Statutes.
    ' An indebtedness for services rendered in pursuance of an express or implied contract, or a quantum meruit indebtedness for services, was such an indebtedness as would render a voluntary deed by the debtor void as to his prior creditor, under Rev. St. arts. 3966, 3967, avoiding conveyances made to defraud creditors, and, as to prior creditors, avoiding voluntary conveyances.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 635, 636, 638; Dec. Dig. <©=>213.]
    On Motion for Rehearing.
    16. Statutes <©=>181(2) — Construction.
    A statute cannot be given a construction that will render it futile and purposeless when it can be otherwise construed.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 259, 263; Dec. Dig. <©=>181(2).]
    Appeal from District Court, Bexar .County ; S. G. Tayloe, Judge.
    Suit by Wilhemina Stolte and another against M. Karren and another. From a judgment in part for defendants and in part for plaintiffs, plaintiffs appeal.
    Judgment, so far as for defendants, reversed, with instruction, and cause remanded.
    Carlos Bee, of San Antonio, for appellants. L. H. Porter and Lewright & Douglas, all of San Antonio, for appellees.
   SWEARINGEN, J.

The appellant Wilhe-mina Stolte, joined pro forma by her husband, Christian Stolte, filed suit against appellees, M. Karren and John E. Trainer, constable, and prayed for a temporary injunction to restrain the sale under execution of certain property levied upon as the property of Christian Stolte, claimed by appellant as her separate property. Appellant also prayed to restrain the sale of other property claimed to be homestead and exempt. Appellees answered that the Smith tract was a donation to the appellant Wil-hemina Stolte by Christian Stolte, her husband, and that appellee Karren was a creditor of the donor prior to the date of the execution of the gift deed, which was, therefore, void; and further that the deed was made with intent to defraud appellee Kar-ren. Appellees further alleged that the indebtedness had been merged into a judgment subsequent to the date of the gift deed. The court heard evidence introduced by both parties and granted a temporary injunction restraining the sale of the homestead tract, and refused to enjoin the sale of the Smith tract. However, the court suspended his order refusing the injunction of the sale of the Smith tract pending an appeal to this court. The evidence shows the following facts:

Christian Stolte purchased the Smith tract March 12, 1915, the consideration being property conveyed in exchange. He executed a gift deed to his wife, Wilhemina Stolte, March 19, 1915.

Appellee M. Karren, on March 12, 1915, made claim from Christian Stolte of a debt due on that day as commission of 2½ per cent, for acting as broker and effecting an exchange of Christian Stolte’s property, conveyed as consideration for the Smith tract. At that time Christian Stolte denied the indebtedness; told Karren he owed him nothing. On April 3, 1915, AP Karren sued Christian Stolte for the indebtedness, alleging in detail the nature of the indebtedness. Citation was duly and properly served upon Christian Stolte. Christian Stolte took the citation to his attorney as soon as it was served on him. No answer was filed. Judgment by default was rendered by the court, and in May, 1916, made final. In August, 1916, the judgment creditor, M. Karren, had the execution issued and delivered to the constable, who levied upon the Smith tract and homestead, and was proceeding to sell both tracts when this present suit was filed. Christian Stolte testified at the injunction hearing for appellant that he had never been indebted to Karren.

Appellants’ first assignment complains that the court committed error in its judgment denying an injunction restraining the sale of the Smith tract claimed by appellant Wilhemina Stolte as her separate property, and, as a reason why it was error, recites that the evidence conclusively vested the legal title in Wilhemina Stolte on the 19th of March, 1915, and that defendants were attempting to sell the separate property of Wilhemina Stolte to satisfy a judgment for debt rendered in May, 1916, in favor of M. Karren, one of the appellees, against Christian Stolte; that appellant Wilhemina was not a party to the suit which resulted in the judgment for debt. Under this assignment it is contended by appellees that the remedy of injunction should be denied because appellant has an adequate remedy at law which precludes the equitable remedy.

This contention is in accord with the rules prevailing in Texas until the statute (article 4643) enlarged the remedy. This article of the statutes was construed in the case of Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, in accordance with the views herein expressed. Allen v. Carpenter, 182 S. W. 430.

It is further contended by appellees that the sale by virtue of the execution to satisfy the judgment against Christian Stol-te in favor of M. Karren would not cast a cloud upon appellant’s legal title. We are of the opinion that it would, for the reason that the prevailing title after the sale under the execution would be that one sustained by extraneous facts not apparent upon the record of either chain of title. Texas Mort. Co. v. Worsham, 5 Tex. Civ. App. 245, 23 S. W. 938. For instance, appellant Wilhemina Stolte’s deed makes a prima facie case in her favor.

If, under article 3967, R. C. S., appellee proves that he was a creditor of the grantor in the deed prior to its execution, the prima facie case of the grantee would fail unless the grantees proved that the grantor had other property with which to satisfy the debt, either when the gift conveyance was executed or when the execution was levied.

Whether or not the grantor, Christian Stolte was (a) indebted to appellee (b) and the indebtedness existed prior to the execution of the gift deed, and (c) the grantor was insolvent at the time of the execution of the deed, and (d) was insolvent at the date of the levy of the execution, are four distinct facts necessary to be proven by evidence not of record. Maddox v. Summerlin, 47 S. W. 1022; Id., 92 Tex. 486, 49 S. W. 1033, 50 S. W. 567.

We are of the opinion that the sale under the execution might cast a cloud upon appellant’s title, and that an injunction was an appropriate remedy. An examination of the transcript and statement of facts leads us to believe that the trial court did not refuse the injunction for the reasons as contended by appellee, viz. that a sale would not cast a cloud, and that injunction was not an appropriate remedy. On the other hand, we do not believe the undisputed evidence shows that appellant Wilhemina Stolte had an absolute legal title unaffected by the statute of frauds as contended by appellant. It seems probable to us that the trial court considered that the judgment and execution against Christian Stolte in favor of M. Kar-ren conclusively established the four facts necessary for appellee’s cause, viz.: (1) That Christian Stolte was indebted to M. Karren; (2) that the indebtedness existed prior to the execution of the gift deed; (3) that Christian Stolte, the grantor of the gift deed, was insolvent at the time of the execution of the gift deed; and (4) that the grantor was insolvent when the execution was levied — and further considered that the creditor’s judgment was binding upon appellant Wilhemina Stolte, though she was not a party to that suit, thus in effect holding that the creditor’s judgment could not be collaterally attacked even by a stranger, in suits like the one at bar. There is much apparent authority for such an opinion. The question, what effect will he given to an “in personam” judgment for debt used to establish the status of pri- or indebtedness as a basis for a suit to avoid a gift deed has been considered by the courts of England and America many times since the passage of the English statutes of 13 & 27 Elizabeth, from which our articles 3966 and 3967 were derived. And these many decisions by their conflicts present an interesting illustration of the confusion of clear legal principles made possible by the double meaning of words in our language and the absence or presence of various facts in each individual case. Some courts of unquestioned ability hold that the judgment cannot be admitted at all in the second suit. Inman v. Mead, 97 Mass. 310; Yeend v. Weeks, 104 Ala. 331, 16 South. 165, 53 Am. St. Rep. 50; Hartman v. Weiland, 36 Minn. 223, 30 N. W. 815. Others of equal eminence hold that the judgment can be introduced in the second suit for any purpose and is pri-ma facie evidence. Finch v. Kent, 24 Mont. 268, 61 Pac. 657; Hinde’s Lessee v. Longworth, 24 U. S. (11 Wheat.) 199, 6 L. Ed. 454. Many of the decisions hold that the judgment rendered subsequent to the gift conveyance establishes the indebtedness, and that the grantee of the gift conveyance cannot inquire into its correctness except for fraud or collusion; but does not establish that the indebtedness existed prior to the execution of the gift deed. Schmitt v. Dahl, 88 Minn. 506, 93 N. W. 665, 67 L. R. A. 590.

The correct rule we believe to be: That in suits by prior creditors to avoid a gift conveyance because made by an insolvent, the creditor’s judgment, though rendered subsequent to the execution of the gift conveyance, and though the grantee in the gift conveyance was not a party to the creditor’s suit which resulted in the judgment for debt against the grantor, is admissible in evidence for the purpose of establishing the indebtedness, and as to the grantor is final and conclusive and cannot be collaterally impeached; but, as against the grantee of the gift conveyance, is only prima facie evidence of the facts it purports to adjudicate. Parks v. Worthington, 101 Tex. 505, 109 S. W. 909; Hinde’s Lessee v. Longworth, 24 U. S. (11 Wheat.) 199, 6 L. Ed. 454; Bump on Fraudulent Conveyances (4th Ed.) § 585; 2 Black on Judgments, § 605, note 490; McCamant v. Roberts, 66 Tex. 260, 1 S. W. 260. Against the grantor, the judgment is conclusive. Against the grantee, it is only prima facie evidence. “Prima facie evidence of a fact,” says Mr. Story, “is such evidence as, in the judgment of the law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose.” 6 Words and Phrases, 5549.

To admit a judgment in personam as prima facie evidence in a suit with a stranger to that judgment is an exception to the established rule of law, which is that, as to parties and privies, the judgment is final and cannot be collaterally attacked, but, as to strangers thereto, the judgment can be collaterally attacked. Judgments in rem, or upon public matters, or in prize courts' are final against the world. But judgments “in personam” bind only parties and privies. 1 Bl. on Judgments, § 245; Read v. Allen, 56 Tex. 180; Bradford v. Knowles, 78 Tex. 109, 14 S. W. 307; Cole v. Terrell, 71 Tex. 557, 9 S. W. 668; McCamant v. Roberts, 66 Tex. 260, 1 S. W. 260.

Why an exception to the general rule is made, so that judgments in personam are admissible in evidence as prima facie evidence of the facts determined therein against the grantee of a gift conveyance, a stranger to the judgment, in suits by prior creditors to avoid the gift conveyance, is not clear. We have been unable to find a sufficient reason assigned in any of the text-books or decisions upon the subject in our hasty, though somewhat extensive, research. The reason assigned in note 2, p. 158, in Bigelow on Fraudulent Conveyances (Revised Ed. 1911) consists of a quotation from Mr. Justice Holmes in Brigham v. Fayerweather, 140 Mass. 411, 5 N. E. 265. An examination of that case will disclose that the distinguished judge held that the judgment was binding only upon the parties to that judgment, designated in the opinion as A. and B. Then the court says:

“On the contrary, those judgments, such as sentences of prize courts, to which the greatest effect has been given in collateral proceedings, are said to be conclusive evidence of the facts upon which they proceed only against parties who were entitled to be heard before they were rendered. The Mary, 9 Cranch, 126, 146, 3 L. Ed. 678; Salem v. Eastern R. Co., 98 Mass. 431, 449, 96 Am. Dec. 650; Baxter v. New England Ins. Co., 6 Mass. 277, 286, 4 Am. Dec. 125; Whitney v. Walsh, 1 Cush. (Mass.) 29, 48 Am. Dec. 590.”

The New York cases are not relevant to construction of the Texas statute, article 3967. No Texas case holds that such a subsequent judgment is more than prima facie evidence. On the contrary, Mr. Justice Williams, in Parks v. Worthington, 101 Tex. 505, 109 S. W. 909, holds that if such a judgment is admissible at all in suits lik$ the one here considered, it is only prima facie, and proceeds in the case being considered to determine that the uncontradicted creditor’s judgment introduced in evidence did not warrant a finding in favor of the judgment creditor.

Furthermore, in addition to the general rule that strangers to a judgment “in per-sonam” are not bound thereby, there is the rule, thoroughly established, that declarations and acts of grantors made after the execution of the grant are not admissible in evidence against the grantee in suits where the validity of the grant is involved. De Garca v. Galvan, 55 Tex. 57. The allegations of the petition in the suit for debt by appellee Kar-ren against Christian Stolte, to which appellant Wilhemina Stolte was not a party, were certainly declarations made after the gift deed. Date of gift deed March 19, 1915, Karren petition filed April 3, 1915. Judgment rendered May, 1916.

The judgment for debt was by default. The defendant therein, Christian Stolte, never answered and never appeared. Upon this lack of diligence or failure to act on the part of Christian Stolte, the judgment was permitted. Neither the declarations of Karren nor those of Christian Stolte made after the execution of the gift deed could be introduced in evidence in the suit at bar. What law effects ' the strange alchemy by which these subsequent declarations of Karren and the negligence of Christian Stolte are conclusive against a stranger to that suit? Wilhemina Stolte was not a party to that suit; had no right to introduce evidence, nor cross-examine; no right of appeal; no right to attack it for fraud in a direct proceeding, because not a party to it. It was and is a final judgment forever determining that Christian iStolte is indebted to M. Karren, so far as they or. their privies are concerned, and the stranger, Wilhemina Stolte, could not in direct proceeding have the judgment set aside and the cause retried.

The gift deed vested the legal title in Wilhemina Stolte (Lewis v. Simon, 72 Tex. 470, 10 S. W. 554; De Garca v. Galvan, 55 Tex. 56), and neither her husband nor his subsequent creditors or purchasers could question her deed. Only the prior creditor of the grantor could question its validity, and it would not be void even at the suit of the prior creditor if the grantee proved that the grantor was solvent at the date of the gift deed or was solvent when the execution was levied. Maddox v. Summerlin, 47 S. W. 1020.

The grantee’s title, under our statute and decisions, was not a trust for the grantor or his creditors, but was a valid legal title against the world unless, in truth and in fact, there was a prior creditor of the grantor and the grantee failed to prove the solvency of the grantor either at the date of the gift deed or when the execution was levied. If a valid prior debt against the grantor be proven by the prior creditor, and solvency is not proven by the grantee, then, and in that event only, will grantee’s gift deed be void and as if it had never been executed. Maddox v. Summerlin, 92 Tex. 487, 49 S. W. 1033, 50 S. W. 567. The property became the separate property of the wife, and the husband could not without her divest her of her title. Williamson v. Conner, 92 Tex. 583, 50 S. W. 697.

Stability and certainty of land titles is of greater moment than the prevention of inconvenience to creditors. In this case the gift deed was put of record March 19, 1915, notice of which the creditor had. How simple for him to have joined,the grantee in the suit filed by him on April 3, 1915, and thus have but one trial of the merits of'his claimed indebtedness. This was the course pursued in Cole v. Terrell, 71 Tex. 557, 9 S. W. 668.

On the other hand, the record of the suit between the grantor and Karren was not notice to the grantee, and it would be well-nigh impossible for the grantee or her assigns to know when and where judgments for debt might be rendered against the grantor.

It is our conclusion that the judgment in favor of the creditor, Karren, was admissible in evidence and was prima facie evidence of the facts necessary for that judgment; that unless rebutted by other evidence it would be sufficient to avoid the gift deed. But it is also our opinion that it is only prima facie evidence of the facts necessary to that judgment and that Wilhemina Stolte has the right to introduce evidence in the suit at har for the purpose of proving that there was no indebtedness against Christian Stolte in favor of M. Karren, or that the indebtedness did not exist prior to the gift deed and thus destroy the effect of that judgment in so far as it affects her and her property. In short, Wilhemina Stolte has the legal right to prove in the case at bar that Christian Stolte was not indebted to M. Karren in any sum for anything at any time.

Authority can be found for the objection that Christian Stolte will not be permitted to deny the indebtedness merged into the judgment against him. But in our opinion he can testify to the truth in the suit at bar, notwithstanding that he is bound by that judgment himself.

The record before us shows that appellant introduced evidence that appellee was not in fact a creditor of Christian Stolte prior to the execution of the gift deed; that appellee introduced the judgment and petition, the basis of the judgment, and thereby introduced prima facie evidence of the fact that appellee was a prior creditor of the grantor. This presents a material issue of fact which appellant has the legal right to have determined by a jury upon the trial of the main suit and not predetermined in an ancillary proceeding by the court in chambers. She has the further legal right to have the status of the property involved in this litigation remain as it is until this suit is determined upon its merits. The following authorities contain discussions of the admissibility of subsequent judgments in suits of tne cnar-acter of the instant suit: Hoerr v. Meihofer, 77 Minn. 228, 79 N. W. 964, 77 Am. St. Rep. 674: State Ins. Co. v. Prestage, 116 Iowa, 466, 90 N. W. 62; Willett v. Malli, 65 Iowa, 675, 22 N. W. 922; Homestead M. Co. v. Reynolds, 30 Colo. 330, 70 Pac. 422; Tarbell v. Jewett, 129 Mass. 457; Simmons v. Shelton, 112 Ala. 284, 21 South. 309, 57 Am. St. Rep. 39; Perrine v. Perrine (N. J. Ch.) 50 Atl. 694; Sullivan v. Ball, 55 S. C. 343, 33 S. E. 486; Snodgrass v. B. B., 25 Ala. 161, 60 Am. Dec. 505; Hunsinger v. Hofer, 110 Ind. 390, 11 N. E. 463; Curry v. Curry (Pa.) 11 Atl. 198; Suber v. Chandler, 36 S. C. 344, 15 S. E. 426; Mattingly v. Nye, 75 U. S. (8 Wall.) 370, 19 L. Ed. 380; 67 L. R. A. 590, note citing many cases.

Appellants’ first assignment is sustained.

Appellants’ second assignment complains of error by the court in the judgment because the indebtedness was not the character of indebtedness required by the statute (articles 3966 and 3967) to render the gift deed void. There is no merit in this assignment, for if there was any prior indebtedness at all it was for services rendered by appellee and received by the grantor, Christian Stolte, in pursuance either of an express or implied contract, or was a quantum meruit indebtedness, any of which, if prior to the gift deed, and if the grantor was insolvent at date of gift deed and at time of levy of execution, or intended to hinder the creditor, would constitute the character of indebtedness sufficient to avoid the deed. Bigelow on Fraudulent Conveyances, p. 163, § 3; Holden v. McLaury, 60 Tex. 228.

The second assignment is overruled.

For the reasons given in our discussion of the first assignment the order of the trial court, in so far as it refuses an injunction restraining the sale of the 'Smith tract of land, should be reversed and the trial court instructed to order the issuance of a temporary injunction restraining the sale of said Smith tract of land as well as the homestead, sale of which was enjoined in the order appealed from.

Reversed and remanded, with instructions.

On Motion for Rehearing.

It is contended by counsel for appellees in the motion for rehearing, supported by an elaborate written argument, that the former opinion in the instant case is error because the facts alleged by appellant are insufficient to entitle her to an injunction. The contention is founded upon the mistaken idea that the power to grant an injunction in this case is limited by the rule established in Texas prior to the adoption in 1909 of the amended article 4643. The law announced by those old cases is. thus clearly expressed in the case of Mann v. Wallis, Landes & Co., 75 Tex. 613, 12 S. W. 1124;

“While there is some conflict of decision, the great weight of authority sustains the proposition that a sale of land under execution will not be enjoined at the instance of one not a party to the execution on the sole ground that such third person claims to own the property. To entitle such a person to injunction he must show that his right will be injuriously affected, or that some irreparable injury will follow if the sale be made. This is the settled rule of this court. Carlin v. Hudson, 12 Tex. 203 [62 Am. Dec. 521]; Henderson v. Morrill, 12 Tex. 1; Whitman v. Willis, 51 Tex. 432; Purinton v. Davis, 66 Tex. 456 [1 S. W. 343]; Spencer v. Rosenthall, 58 Tex. 4. It was incumbent on appellant to allege such facts as would show if the sale proceeded that he had not a clear and adequate remedy at law for the enforcement of any right he may have.”

Supporting this rule, counsel for appellee cited Texas Land & Mortgage Co. v. Worsham, 5 Tex. Civ. App. 245, 23 S. W. 938; Brown v. Ikard, 33 Tex. Civ. App. 661, 77 S. W. 967; Chamberlain v. Baker, 28 Tex. Civ. App. 499, 67 S. W. 532; McGoffin v. San Antonio Brewing Association, 84 S. W. 843; Latham Co. v. Shelton, 57 Tex. Civ. App. 122, 122 S. W. 941; Huggins v. White, 7 Tex. Civ. App. 563, 27 S. W. 1066.

All of the above cases were decided prior to 1909, the date of the amended statute of 1909. However, while the rule stated was the settled law in Texas prior to the 1909 amendment, there was a well-established exception to it as clearly announced in Gardner v. Douglass, 64 Tex. 76; Huggins v. White, 7 Tex. Civ. App. 563, 27 S. W. 1066; Van Ratcliff v. Call, 72 Tex. 492, 10 S. W. 578; Barr v. Simpson, 54 Tex. Civ. App. 105, 117 S. W. 1041; Texas Land & Mort. Co. v. Worsham, 5 Tex. Civ. App. 245, 23 S. W. 938.

The facts of the case at bar bring this case within the recognized exception to the rule. The exception was that an injunction could be granted to enjoin the sale under execution, where extraneous evidence was required to establish the superior title, for instance, where the property was a homestead, or the property was the separate property of the wife, but did not so appear upon the deed record, or where the deed had not been placed of record. In the case at bar the deed to Mrs. Stolte was a gift from her husband. The execution was issued under a judgment against her husband, and the judgment showed on its face that it was a debt against the husband existing prior to the gift deed. This judgment was prima facie evidence of the facts shown therein. The statute declared the gift deed void if there was a prior debt due by her husband. After sale under execution, the issue, which was the superior title, would necessarily depend upon evidence dehors the record.

However, a discussion of the old rule and its exceptions is now purely academic and interesting only as an incident of the history of the evolution of law, for the Legislature in 1909 amended the statute pertaining to injunctions by adding to the third paragraph of article 4643 a clause that expressly and completely changed the old rule, destroyed the force of all previous decisions upon the subject, and substituted therefor a new and distinct rule, in the following words:

“Judges of the district court * ⅜ ⅜ may grant writs of r injunctions _ * * * where a cloud would be put on the title of real estate being sold under an execution against a person, * * * laying no interest in such real estate subject to the execution at the time of the sale * ⅜ * irrespective of any legal remedy at law.”

The phrase, “cloud would be put on the title,” as used in the statute, means a claim of a right in lands. 5 R. C. L. 634. Since the enactment of the amendment, the density of the cloud can make no difference in the right to the injunction. 2 Words and Phrases, 1233.

It is true that in the Worsham Case there is defined the density of the cloud on the title that was necessary in order to invoke the equity jurisdiction under the exception to the old rule denying aid of equity where there is a legal remedy at law. But when the old rule was abolished by the statute the density of the cloud became immaterial. Any cloud upon the title could be prevented by injunction irrespective of any legal remedy at law. The proposition that the Legislature, by the use of the phrase, “cloud would be put on the title,” meant such a dense cloud as was declared in the Worsham Case to be sufficient to justify an injunction, and thereby left the law as it was prior to the statute, is untenable. Such an interpretation would make the amendment fruitless and useless. A statute cannot be given a construction that would render it futile and purposeless, when it can be otherwise construed. That the Legislature did not intend to make a meaningless and purposeless change by the amendment is clearly shown by the language used in the emergency clause of the same act, contained in section 6, as follows:

“The fact that there is now no well-defined and settled statutes on law and equity to properly prevent a cloud on title of real estate, ⅜ ⅜ ⅜ being sold under an execution against a person * * ⅜ having no interest in such real estate ⅜ ⅜ * without resorting to the legal remedy at law, creates an emergency and an imperative necessity * ⅜ ⅜ that this act take effect ⅜ ⅜ ⅜ from and after its passage.” Gen. Laws of Texas, 31st Leg. 1909, p. 356; Winkie v. Conatser, 171 S. W. 1017; S. K. McCall Co. v. Page, 155 S. W. 655.

After this act became the law the court, in the case of Latham Co. v. Shelton, 57 Tex. Civ. App. 122, 122 S. W. 941, recognized that it changed the old rule in force up to that time.

The only other decision cited by appellee which was rendered after 1909 was the ease of Ward v. Caples, 170 S. W. 816, but inasmuch as that case has not even the remotest relevancy to the principle of law here involved, its citation must have been an inadvertence.

The motion for rehearing is overruled.
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source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    HOVEY et al. v. SEE et al.
    (No. 5638.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 20, 1916.
    On Motion for Rehearing, Jan. 17, 1917.)
    1. Evidence @=118, 272 — Injuries to Servant — Admissibility—Res Gestae.
    In a servant’s action for injuries, if offered testimony is either a part of the res gestee or against the interest of the party making the statement, its exclusion was error.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 297-302, 1105-1107; Dec. Dig, @=118, 272.]
    2. Evidence @==>236(6) — Injuries to Serv-ani^-Admissibility — Admissions.
    A statement made by an injured engineer to an ambulance doctor on the way to the hospital absolving the railway from all blame is admissible in an action by the widow against the railroad for his wrongful death, as an admission against interest.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 882; Dec. Dig. @==>236(6).]
    3. Evidence @=236(6) — Injuries to Servant —Admissibility—Admissions.
    Since under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4694, 4695. the survivor of one killed in an accident could sue only for such negligence as •would, if death had not ensued, have entitled the injured party to maintain an action, there is such privity between the injured servant and his survivors that an admission-made by an injured servant is admissible in his survivors’ action for wrongful death.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 882; Dec. Dig. <§=>236(6).]
    4. Trial <§=356 — Admissibility oe Evidence —Cumulative Evidence.
    The mere fact that other persons have testified to the same effect does not warrant exclusion of testimony as cumulative, when the other witnesses were subject to the criticism of interest, and the proposed witness was not.
    . [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 131, 132; Dec. Dig. <§=356.]
    5. Evidence <§=3481(2) — Admissibility — Opinions.
    The statement of deceased to an ambulance surgeon on the way to the hospital from the place of the accident that he himself was to blame, and not the railroad, was not such an er-prossion of opinion as warranted its exclusion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2250; Dec. Dig. <§=3481(2).]
    6. Trial <§=>215 — Instructions—Special Issues.
    When a case is submitted on special issues, the court is authorized to give such definitions and explanations as in its judgment may be necessary, and it is error to so explain them as to indicate to the jury the effect of their verdict if they found the existence of fact stated in the special issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 481; Dec. Dig. <§=3215.]
    7. Master and Servant <§=3274(3) — Injuries to Servant — Evidence—Admissibility.
    In an action by the survivors of a locomotive engineer killed when struck by a switch engine while he was inspecting a locomotive, his survivors should have been allowed to show that he had driven the locomotive he was inspecting, and that his mission was to see that it had been rendered safe.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 943; Dee. Dig. <§=> 274(3).]
    Error from District Court, Tom Green County; J. W. Timmins, Judge.
    Action by Mrs. Dora Scott See and another against S. B. Hovey and M. D. Mertz, receivers of the Kansas City, Mexico & Orient Railway Company of Texas. Pending trial the receivers were discharged, and suit was prosecuted as against the company. Judgment for plaintiffs, and defendants bring error. Reversed and remanded. On motion for rehearing.
    Motion overruled.
    H. S. Garrett, of San Angelo, for plaintiffs in error. Hill, Lee & Hill, of San Angelo, and S. E. Stratton and J. N. Gallagher, both of Waco, for defendants in error.
   RICE, J.

A. L. See, a locomotive engineer in the employ of plaintiffs in error, as receivers of the Kansas City, Mexico & Orient Railway Company of Texas, was run over and injured by a backing engine in the yards of said company at San Angelo on the 10th of August, 1913, as a result of which he thereafter died, and this suit was brought against said company and S. B. Hovey and M. L. Mertz, as receivers, by Mrs. Dora Scott See, surviving widow, in behalf of herself and Mrs. K. A. See, mother of deceased, to recover damages therefor. Pending the litigation the receivers were discharged, and the suit was prosecuted against the company and abated as against the receivers.

The negligence alleged consisted in backing the engine at a rate exceeding the speed limit, without ringing the bell or blowing the whistle, as required by the ordinances of the city, and failing to keep a lookout, and in failing to have the engine under proper control, and likewise relied on discovered peril. Plaintiffs in error, after general and specific denials, of the negligence charged, defended chiefly on the ground of contributory negligence, assumed risk, and other defenses not necessary to notice.

A jury trial on special issues resulted in a verdict and judgment in favor of defendants in error in the sum of $6,000, from which judgment the railway company prosecutes this writ of error.

The facts, briefly stated, show that on the morning of the day on which he was injured the deceased, as engineer, had operated a passenger locomotive into San Angelo, which on his arrival he turned over to the yard crew. On the evening of that day deceased, noticing this engine attached to an outgoing north-bound passenger train, which was then partially standing on South Chadbourne street, went over to and was inspecting the engine, and while in a stooping position another engine backing on a parallel track ran over and injured him, resulting in his death.

The fourth assignment complains that the court erred in rejecting the testimony of the witness Robison, offered by the railway company, to the effect that the deceased stated to him, in substance, that he did not blame anybody for the accident; that it was caused simply because he (deceased) stood up there and let an engine run over him, which testimony was offered both as res gestse and as an admission against interest, and for the further purpose of sustaining the railway company’s pleading and theory of the case that the accident was not caused by any negligence on the part of the receivers, their agents, servants, and employés, but was due to the fault, carelessness, and negligence of the deceased himself. By its proposition thereunder the company insists that this statement was admissible as res gestse, and was a declaration against interest, for which reason it should have been admitted, and, further, that the rejected testimony would necessarily have been strongly in favor of the company on a material issue in the case, to wit, contributory negligence vel non of the deceased, which .issue was, in the absence of such testimony, resolved by the jury against the company, for which reason, it is claimed, the rejection of such testimony constituted material error: Among other things, the company pleaded that the accident resulted from the fault of the deceased,-hoth as a sole proximate and as a contributing cause. The accident happened at the Orient station in San Angelo, about 6:30 in the afternoon. The bill shows that during the progress of the trial Robison was called as a witness in behalf of the company, and offered to testify that he lived at San Angelo, and was in the undertaking business; that he saw the deceased at the time of the accident near the depot at which he received the injuries complained of; that he went over there immediately with his ambulance and took him to the sanitarium; that this was about 7 o’clock in the evening; that when he got there Mr. See was immediately placed in the ambulance and taken to a local sanitarium; that he heard See say something about the accident; that he could not remember the exact language; but that it was on the way out to the sanitarium. The witness was then asked by counsel for the railway company to state in substance what See said to him on this occasion, to which question and the proposed answer thereto defendants in error by their counsel objected on the ground that the evidence sought to be adduced was not res ges.tse and was hearsay, which objection was sustained, and the witness not allowed to answer. The witness would' have testified, if permitted, that on this occasion See stated to him that he did not blame anybody for the accident; that it was caused simply because he stood up there and let an engine run over him — to all of which the plaintiff in error objected and reserved its bill. The court overruled plaintiff in error’s motion for an instructed verdict, in which it was alleged, in substance, that the evidence conclusively established the negligence of the deceased. The jury answered yes to the following question:

“Was the deceased, at the time and place at which he was struck and injured, exercising, under all the facts and circumstances, such care for his own safety as a person of ordinary prudence would have exercised under the same or similar circumstances to prevent being struck or injured by passing engines or trains?”

If the proposed testimony was either res gestse, or would have been against the interest of the party making the statement, then it was admissible, and its exclusion error. See I. & G. N. R. R. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Smith v. I. & G. N. R R. Co., 34 Tex. Civ. App. 209, 78 S. W. 556; Georgia R. R. & Banking Co. v. Fitzgerald, 108 Ga. 507, 34 S. E. 317, 49 L. R. A. 175; Walker v. Brantner, 59 Kan. 117, 52 Pac. 81, 68 Am. St. Rep. 344; Hughes v. Delaware & H. Canal Co., 176 Pa. 254, 35 Atl. 190; Holman v. Boston Land & Security Co., 20 Colo. 7, 36 Pac. 797; Lord v. Refining Co., 12 Colo. 390, 21 Pac. 148; Eastman v. Bennett, 6 Wis. 232; Dreher v. Town of Fitchburg, 22 Wis. 675, 99 Am. Dec. 91; Gulzoni v. Tyler, 64 Cal. 334, 30 Pac. 981; Helman v. Pittsburg, etc., Ry. Co., 58 Ohio St. 400, 50 N. E. 986, 41 L. R. A. 860; Southern Ry. Co. v. Cochran, 42 South. 100; Williams v. Norton Bros., 81 Vt. 1, 69 Atl. 146; Brown v. Stutson, 100 Mich. 574, 59 N. W. 238, 43 Am. St. Rep. 462; Pead v. Trull, 173 Mass. 450, 53 N. E. 902; Hurlburt v. Hurlburt, 128 N. Y. 420, 28 N. E. 651, 26 Am. St. Rep. 482; Haynes v. Trenton, 123 Mo. 326, 27 S. W. 622; 1 R. C. L. p. 502, par. 43; 4 Chamberlayne, Modern Law of Evid. § 2773; 1 Greenleaf, Evid. (16th Ed.) §§ 147-150; 2 Jones’ Commentaries on Evid. p. 390; 6 Thompson, Neg. § 7738; 2 Wigmore, Evid. § 1455 et seq.

The writer is inclined to believe that for the both reasons its rejection was error, but, since the court is in accord with the view that it was admissible as a statement against interest, it is not necessary to pass upon the question as to whether it was admissible as res geste.

It is contended on the part of defendants in error, however, that there was no privity between deceased and defendants in error; and hence his declarations were properly excluded. This action is founded upon our statute (articles 4694 and 4695, Sayles’ Civ. Stats. vol. 3). The latter article provides that:

“The wrongful act, negligence, carelessness, un-skillfulness or default mentioned in the preceding article must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.”

It has been held that under this and the preceding article an action cannot be maintained unless the decedent could have maintained an action for his injuries, had he not died therefrom. See Wilson v. Brown, 154 S. W. 322; Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S. W. 179. So in the present case, if no right of action, under the circumstances, could have been predicated by deceased prior to his death against the company on account of this injury, the defendants in error cannot recover. Hence we take it that, by reason of the operation of this statute, there was such privity between the deceased and defendants in error as would constitute the declarations admissible under the rule of being against interest of the party making them. In Smith v. I. & G. N. R. R. Co., supra, treating of a similar question, it is said:

“The admissibility of the declarations of Smith, made a few hours after he was hurt and a short time before he died, to the effect that he was asleep when struck by the train, need not be tested by the rules applied to res gestae, but by those applicable to declarations of deceased persons made against their interest. It was clearly shown that Smith was conscious and his mind clear when he said that he was asleep on the track when struck by the train. The declaration was against his interest. It would be extremely improbable that such declarations would be false. He must have known whether he was asleep or not when he was injured. The declarations were admissible. Sections 147, 149, 1 Greenleaf, Evid.”

The same principle rules the case of Georgia Railroad & Banking Co. v. Fitzgerald, supra, from which we quote as follows:

“This was an action brought by a widow to recover damages for the homicide of her husband, an employé of the railroad company, who was killed while making an effort to couple cars. As has been expressly decided, her right to a recovery must necessarily depend upon a determination of the question whether or not the husband, had he lived, would have had such right; and whatever would have been a good defense to his suit had he lived will be equally available against one brought by her.’ Berry v. R. R. Co., 72 Ga. 137. In other words, she is to be considered in privity with the husband, in so far as her right to complaint of his homicide is concerned. It follows, necessarily, that the company should have been permitted to show, by any competent evidence at its command, that the injuries sustained by him. were occasioned, not by the alleged acts of negligence on its part of which complaint was made, but by other and wholly different causes. Section 5181 of our Civil Code provides in terms that: ‘The declarations and entries of a person, since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case’; while section 5193 undertakes to state the rule that ‘the admissions of privies in blood, privies in estates, and privies in law are admissible as against’ all persons with whom they are in privity... Accordingly we think that in the present case the defendant company should have been permitted to prove that the plaintiff’s husband, in undertaking to state the cause of his injuries, had ‘said he was making an effort to couple cars, and that his foot struck some obstacle on the track, and he fell.’ Even were she not a privy in law with him, this evidence was admissible under the rule that ‘self-serving’ declarations made by a deceased person having peculiar opportunities to know the truth as to the matter under investigation may be proved even in cases between third parties, none of whom claim under or through him. See Field v. Boynton, 33 Ga. 239; 1 Whar. Ev. 226 et seq.; 5 Am. & Eng. Enc. Law (1st Ed.) 366, and cases cited.”

In Walker v. Brantner, supra, where a similar question is- discussed, a like ruling was made.

The second paragraph of the syllabus in Hughes v. Delaware & H. Canal Co., supra, reads:

“In an action by a widow for injuries received by her husband at a railroad crossing, and which resulted in his death, the exclusion of declarations made by deceased after the accident, though not part of the res gestee, on the ground that they were not made by a party to the suit, was error, since plaintiff derived her cause of action from decedent.”

In Holman v. Boston Land & Security Co., supra, which was a suit for damages to a threshing machine by fire, the court held that it was error to exclude evidence that soon after the fire plaintiff admitted that it occurred without defendant’s fault; the court remarking that:

“Much or little weight might have been given it in the discretion of the jury, or its effect might have been entirely overcome by other evidence; nevertheless it was competent, and should have been submitted to the jury” — citing cases in support thereof.

In Helman v. Pittsburg, C., C. & St. L. Ry. Co., supra, as. shown by plaintiff in error’s brief, a statutory action was brought by an administrator to. recover damages for the death of a brakeman, alleged to have been caused by the negligence of the company. Contributory negligence was relied upon on the part of the company, and it sought to show that on the day of the accident the deceased stated to one Heaton that at the time of the accident he (deceased) was standing on the footboard of the car, talking to and watching another employé, who was riding a cut of cars on á parallel track, and that, while so talking and watching the other em-ployé, the cut of cars following him struck his cut and upset him. The evidence was refused, and upon judgment against it the railway company appealed, assigning such refusal as error. The court in passing upon the question said:

“It is contended by counsel for plaintiff- in error that there is no privity between the deceased and his administrator and beneficiaries, and that the action by the administrator is a new and independent action, given by the statute, not connected with nor dependent upon the right of action of the deceased. This contention is not tenable. The statute must be construed in connection with the common law as it existed at and before its passage. While at common law the party injured by the negligence of another had a right of action against such party for damages, such right of action does not survive, but abates at his death. The effect of the statute is to pick up this abated right of action of the deceased, and permit it to be prosecuted by the administrator, for the benefit of the next of kin. It is not a new right of action that is prosecuted by the administrator, but it is the same right of action which the deceased had until his death. Upon the death of the injured party, the right of action, by the force of the statute, passes by succession to the administrator for the benefit of the next of kin. This succession more clearly appears when considered with reference to the defendant. By his wrongful act he caused an injury which caused a pecuniary loss to both the injured party and to his next of kin. The right of action to recover damages in respect to such act rests in the injured party alone so long as he lives, and should he be compensated in his lifetime no action can be maintained by his administrator or next of kin for damages, even though it should be clear that the next of kin sustained a great ecuniary loss by reason of the wrongful act'. n such cases the pecuniary loss sustained by the next of kin is deemed compensated by the increase of the estate of the deceased. Should the defendant fail to make compensation to the injured party during his lifetime, the liability to make compensation for the pecuniary injury resulting from the wrongful act, instead of abating as at common law, is, by force of the statute, kept alive; and the administrator succeeds to the right to bring an action upon such liability to recover damages, in the nature of compensation, for the pecuniary loss sustained by the next of kin by reason of such wrongful act. The liability of the defendant to the party injured and the liability over to the administrator for the benefit of the next of kin is for the same wrongful act, and is the same liability; and such liability does not exist in favor of the injured party and his next of kin at' the same time, but in succession. There is no new liability created by the statute upon the death of the injured party, but the right of succession in the administrator to recover upon the liability. already existing-is created. So that, when viewed from the standpoint of either the administrator or of the party causing the injury by his wrongful act, there is succession in the right of recovery, which succession is created by force of the statute. ' And, where there is succession in rights, there is privity between the parties. It therefore follows that the administrator and the beneficiaries stand in privity with the deceased, and that such damages as may be recovered by the administrator are part and parcel of the damages which the deceased had a right to recover during his lifetime. This being so, the administrator, in his action in behalf of the beneficiaries, is bound by the acts and words of the deceased. Whatever he did or said while in his right mind tending to show that the injury was caused by his own fault, neglect, or carelessness is competent evidence against the plaintiff, and in behalf of the defendant. The evidence offered by the railway company, and rejected by the court, was competent and material, and its rejection was prejudicial. The circuit court was right in reversing the judgment and remanding the cause for a new trial.”

We think the declaration which was excluded was admissible because against the interest of the party making it; and, defendants in error being in privity with him, the court erred in excluding the testimony.

It is suggested, however, on the part of the defendants in error that this testimony was cumulative, and also the opinion of tne deceased, and therefore its rejection, if error, was harmless. It is true, as suggested by them, that evidence somewhat similar in character was admitted without objection, but each of the witnesses who testified thereto was in the employ of the railway company, while Robison was not, for which reason the jury might have discredited their testimony, though not impeached, but might have given full faith and credit to the testimony of Robison. At least, we are not in position to say that they would not have done so, and the testimony, if admitted, might have brought about a different result. Besides this, the declaration in question went further than that of either of the other witnesses, in that the declarant stated that he did not blame anybody for the accident, thereby in effect saying that he absolved any other party from blame; and it was not a matter of opinion, because he knew whether or not anybody was to blame for the accident. We therefore sustain this assignment, and hold that the court erred in excluding the testimony.

The court submitted the case to the jury upon special issues, and plaintiff in error complains that, in addition thereto, it gave a general charge, which is not permissible under the law.

When a case is submitted on special issues, the court is authorized and permitted to give such definitions and explanations as in its judgment may be necessary for the proper disposition of the case, but should not go beyond this. See article 1984a, vol. 2, Vernon’s Sayles’ Civ. Stats., as amended by the act of March 29, 1913 (Acts 33d Leg. c. 59). We think in the present case the objection made to sections 11, 12, and 13 of the charge is well founded, because they were not definitions or explanations, but, in effect, advised the jury as to what would be the result of their verdict if they found the existence of certain facts therein stated. The object of submitting a case upon special issues is in order that the jury might find the facts, regardless of what might be the result of their findings. -So we think the charges mentioned were objectionable for this reason, and should not have been given. We therefore sustain the ninth assignment presenting this question.

The remaining assignments have been duly considered, and, in our opinion, are without merit, and are therefore overruled.

For the purpose of showing the object of the deceased in going to and inspecting the engine, defendants in error alleged in their pleading that the deceased operated the engine (which he was examining at the time he was struck) into San Angelo on the morning of the day of the accident, and that, he had turned the same over to the proper employes of the railway company upon reaching there for necessary repairs; that upon seeing this identical engine standing at or near the depot on South Ohadbourne street on the afternoon of the same day, attached to an outgoing passenger train, and being solicitous as to whether the same had been repaired and rendered safe, he immediately went to where the engine, was standing and began to examine the repairs so made thereon, and while so engaged was struck and mortally injured. On exception urged by plaintiff in error, this pleading was stricken out, and defendants in error urge by their first, second, third, fourth, fifth, and sixth cross-assignments that such ruling was error. We agree with them in this contention, and hold that defendants in error had the right, as explanatory of his mission on said occasion, to show the purpose and object of the deceased in going to the place and inspecting the engine.

This ruling also disposes of the seventh and eighth cross-assignments.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.

Reversed and remanded.

On Motion for Rehearing.

In our original opinion we were mistaken in stating that all of the witnesses who testified for plaintiffs in error as to the declarations of the deceased shortly after he was run over were employés of the railway company. This is true with the exception of Morris, who was an employé of the American Express Company, but operating over the same line of railway.

Wé have carefully examined the motion for rehearing, and are convinced that no error is pointed out therein, for which reason we adhere to our original opinion, and overrule the motion.

Motion overruled.

       Reported in full in the Southern Reporter; reported as a memorandum decision without opinion in 149 Ala. 673.

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