author: HODGES, J.

text:
    JOHNSON v. HALL et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 26, 1913.
    On Motion for Rehearing, Jan. 23,1914.)
    1. Indemnity (§ 15) — Garnishment—InsurANCE — Rueden OF PEOOE.
    Where, in an action against an insurance company on a fire policy, it alleged that it had paid the amount due to a garnishee, and in its cross-bill over against the garnishee, who was made a defendant, alleged that he agreed that, if the insurance company was required to pay any part of such .amount to plaintiff, the garnishee would reimburse the company, the burden was upon the insurance company to prove the promise of reimbursement, in order to entitle it to judgment over against the garnishee.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. § 15.]
    2. Pleading (§ 376) — Admission.
    Admissions in the special answer of a cross-defendant of material allegations in the petition, filed after he had interposed a general denial to the petition, did not relieve the cross-complainant of the burden of proving the allegations of the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. § 376.]
    3. Appeal and Eeeoe (§ 877) — Paeties Entitled to Assert Eeeoe.
    One who became a defendant to an action against an insurance company on a policy, upon allegations by the insurance company that the amount sued for had been paid to such defendant under garnishment proceedings, and that he had agreed to reimburse the company if it were again compelled to pay the loss, cannot complain of the judgment against the insurance company, where, on verdict for plaintiff against the insurance company, he consented that a judgment should be rendered against him in favor of the insurance company, without either pleading or proof to make him liable, being a mere volunteer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3560-3572; Dec. Dig. § 877

    4. Gaenishment (§ 85) — Nattjee op Weit.
    The writ of garnishment is a species of execution provided by statute for the enforcement of money judgments by reaching that class of property which cannot ordinarily be seized by attachment or execution, and defendant in the principal suit is not a party to garnishment proceedings, unless he voluntarily intervenes or is required to interplead.
    [Ed. Note. — For other cases, see Garnishment, Cent Dig. §§ 150-154; Dec. Dig. § 85.

    For other definitions, see Words and Phrases, vol. 4, pp. 3042-3044.]
    5. Gaenishment (§ 148) — Judgment—Effect on Property.
    Under Rev. St. 1911, art. 308, providing that it shall be a sufficient answer to defendant’s claim against a garnishee for the garnishee to show that the indebtedness was paid or the effects delivered in conformity to the judgment in garnishment proceedings, an adjudication upon the garnishee’s answer is final as to defendant in the principal action only as to property rights which may be controlled by the Legislature, and would not affect property exempted by the Constitution, such as a homestead.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 275-279; Dec. Dig. § 148.]
    6. Homestead (§ 79) — Exemptions—Insurance Money — Proceeds of Homestead.
    Money due upon an insurance policy on a homestead is exempt under the constitutional exemption of homesteads; the money standing in place of the property destroyed.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 111; Dec. Dig. § 79.]
    7. Garnishment (§ 235) — Exemptions—Gae-nishment of Proceeds — Paeties.
    A judgment for the creditor in garnishment proceedings, brought to subject the insurance money which represented the debtor’s homestead, would not bind the debtor, where he was not a party thereto, so as tp prevent him from afterwards asserting his constitutional right to the exemption of the money representing his homestead.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 423-427, 443, 444, 447, 450-452; Dec. Dig. § 235.]
    8. Judgment (§ 707) — Persons Concluded— Persons not Parties.
    A judgment is not binding upon one who was not a party to the proceedings, so as to have an opportunity to defend.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig( § 1230; Dec. Dig. § 707.]
    9. Estoppel (§ 118) — Evidence.
    In an action against an insurance company to recover the amount of a policy on plaintiff’s homestead, in which the insurance company alleged that such amount had been garnished by and paid to a creditor of plaintiff, evidence held not to show an estoppel of plaintiff to claim the money by showing that plaintiff knew of the garnishment proceedings in time to have objected to the garnishment ⅞ the fund on the ground that it was the proceeds of his homestead.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 306, 308; Dec. Dig. § 118.]

      On' Motion for Rehearing.
    10. Homestead (§ 79) — Disposal of PROCEEDS of Insurance Policy.
    Since insurance money received for the loss of a homestead is personalty, its transfer is not subject to the restrictions placed upon the alienation of a homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 111; Dee. Dig. § 79.]
    11. Homestead (§ 79) — Right to Proceeds.
    A husband could not be deprived of his constitutional exemption in the insurance money coming from the destruction of the homestead by a proceeding to which he was not a party; such proceeds being protected by the constitutional provision exempting the homestead itself, while the proceeds" from its voluntary sale would be exempt from payment of debts only for a limited statutory period.
    [Ed. Note. — For other eases, see Homestead, Cent. Dig. § 111; Dec. Dig. § 79.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by W. A. Hall against the National Fire Insurance Company, in which J. W. Johnson was made a defendant and against whom the Insurance Company filed a cross-bill. From a judgment in favor of the Insurance Company against Johnson, he appeals.
    Affirmed.
    S. P. Pounders and J. M. Burford, both, of Mt. Pleasant, for appellant. Ward & Ward and Rolston & Rolston, all of Mt. Pleasant, and Crane & Crane, of Dallas, for appellees.

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

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

   HODGES, J.

In November, 1911, the ap-pellee, W. A. Hall, filed this suit against the National Fire Insurance Company, seeking to recover the sum of $400 alleged to be due upon an insurance policy covering a house which had formerly been occupied by Hall as his residence. The insurance company answered by a general demurrer, general 'denial, and in a special plea admitted the execution and delivery of the policy, that the loss had occurred, and that same had been adjusted. It was alleged, however, that before payment to the appellee it had been servpd with a writ-of garnishment sued out by the appellant, J. W. Johnson; that prior to that time Johnson held a judgment against Hall for a sum in excess of $400, which had been recovered in the county court of Titus county; that the writ of garnishment was served on the insurance company on the 29th day of April 1911, and it thereafter made answer admitting that it was indebted to Hall in the sum of $400; that on June 7, 1911, a judgment was rendered on that answer in favor of Johnson for the sum of $400; that this amount was subsequently paid to Johnson in obedience to that judgment That payment was urged as a bar to the appellee’s suit. It was also alleged that during the pendency of the garnishment proceedings Hall was informed that the writ of garnishment had been issued, and that he failed to notify the insurance company of any reason why the sum claimed by him was not súb-ject to garnishment It was further alleged that the insurance company was at the time without any knowledge that the proceeds due upon the insurance policy were claimed as exempt property. In the same answer was a cross-bill, in which the insurance company again set out in detail the existence of the judgment against Hall in favor of Johnson, the issuance and service of the writ of garnishment, the answer filed, and the rendition of the judgment and payment of the money, and asked that Johnson be made a party to this suit. It prayed for judgment against him in the event Hall recovered a judgment against the insurance company. As a basis for the action against Johnson, the answer of the insurance company alleged the following facts: “That the said defendant, Johnson, represented to the defendant that the proceeds of the policy were not exempt, and it was understood and agreed that, in the event this defendant should have to pay said sum or any part thereof to the plaintiff herein, said Johnson would reimburse this defendant to the extent of such payment; that it was under these circumstances that the judgment upon its answer in the garnishment suit was rendered and the payment made to said Johnson.” Johnson answered by a general demurrer and general denial, and for special answer adopted that of the insurance company. Hall replied by a supplemental petition, in which it was alleged, among other things, that the property insured was a part of his homestead at the time it was destroyed, and that the insurance money claimed in this suit was not subject to the writ of garnishment sued out by Johnson, and further alleged that this fact was known to the insurance company at the time. A trial before a jury resulted in a verdict in favor of Hall against the insurance company for the amount sued for, and in favor of the insurance company against Johnson.

Johnson alone has appealed. In the errors assigned, he complains only of those rulings which relate to the controversy between the appellee Hall and the insurance company.

The first question suggested by the record before us is, Has Johnson the right to prosecute an appeal from a judgment rendered against the insurance company alone? Assuming thstt he would have such a right were he properly a party to this suit as an indem-nitor of the insurance company, and was compelled to respond to the judgment recovered against it by Hall, it is doubtful if he can here legally claim to be more than a mere volunteer. A majority of the court are of the opinion that the allegations in the cross-bill of the insurance company whereby it undertakes to make Johnson a party are insufficient to form the basis of a cause of action. That pleading upon its face shows that the contract of indemnity is either wholly without any consideration, or is based upon one which is illegal. But, if it should be held otherwise, the facts adduced upon the trial failed to show that any such an agreement as that pleaded was ever made. To that portion of the answer of the insurance company which sought to make him a party, Johnson plead a general demurrer, a general denial, and added the following special plea: “And, subject to the foregoing pleas and for further special answer herein, this defendant admits that he collected from his code-fendant herein the sum of $390; and further admits that, in the event plaintiff herein recovers of and from its codefendant any sum, equal to or in excess of the said sum of $390, it is liable to its said codefendant in the sum of $390, and of this it prays judgment.” Nor a further special answer, and subject to his previous pleas, he adopts the answer of his codefendant in reply to the original petition of Hall.

Having filed a general denial of what the insurance company pleaded as the basis of its action against him, that company was required, before it could secure a judgment against Johnson, to prove what it had alleged — the promise to reimburse.

The admissions contained in the special answer, coming after this general denial, did not relieve it of that burden. Duncan v. Magette, 25 Tex. 245; H. E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St. Rep. 877. Hence, at the conclusion of the testimony, and when the jury returned a verdict in favor of Hall against the insurance company, there was not the slightest proof of any liability on the part of Johnson. It appears from the record that the court in his charge, and the jury in their verdict, ignored the action of the insurance company against Johnson, and that both the verdict and the judgment over against him was the result of an agreement. The judgment contains the following, after the preamble: “And thereafter on the same day they returned into open court -in charge of the proper officer, and through their foreman, S. W. Webber, returned into the court the following verdict which was by the court received, to wit: ‘We, the jury, find for the plaintiff in the sum of $400, with 6 per cent, interest from sixty days after the house was burned. S. W. Webber, Foreman.’ Thereupon counsel for the defendant insurance company stated that the charge had omitted to direct the jury to also find in favor of the defendant insurance company and against defendant J. W. Johnson, and that defendant insurance company’s counsel and counsel for the said J. W. Johnson had agreed that the verdict of the jury be reformed so as to find in favor of the defendant company against defendant Johnson, whereupon the following additional verdict was under the direction of the court written, signed by the foreman, and received as the verdict of the jury in addition to the foregoing verdict as follows, to wit: ‘We, the jury, further find in favor of defendant insurance company against the defendant J. W. Johnson, the sum of $390. S. W. Webber, Foreman.’ Which said verdicts were by the court received as corrected and the jury discharged.”

Johnson appears to have assumed the role of a volunteer, consenting that a judgment might be rendered against him in the absence of both proof and sufficient pleading. He is therefore in no attitude to complain of the judgment against the insurance company. But, conceding that it is otherwise, and that Johnson has now the legal right to prosecute an appeal from the judgment in favor of Hall against the insurance company, we still think the judgment should be affirmed upon other grounds.

The following is the first assignment of error: “The court erred in the eighth paragraph of his main charge to the jury that the insurance company would be liable to the plaintiff if the jury believed ‘that the defendant through its agent, H. P. Burford, had knowledge that the said house was the homestead of plaintiff, or had knowledge of facts that would have led a person of ordinary prudence to an investigation that would have developed a knowledge that the same was homestead.’ ” It is claimed that the charge quoted is erroneous, because it made the insurance company liable to Hall if it had within its knowledge “facts that would have led a person of ordinary prudence” to make an investigation which would have disclosed the homestead rights of Hall in the proceeds of the insurance policy. It is admitted in the argument of counsel for appellant that it was the duty of the insurance company, in answering the writ of garnishment, to disclose to the court whatever defenses that were known to it which Hall might have urged against subjecting the money in its hands to the claim of Johnson. But it is contended that this duty did not extend to defenses of which the insurance company was not at the time actually cognizant, but which might have been known by inquiry. The determination of that question, however, becomes immaterial, in view of what is hereafter said in disposing of this case.

The writ of garnishment is a specie^1 of execution provided by statute for the enforcement of judgments in which the recovery of money has been awarded. It is intended to reach a class of property which cannot ordinarily be seized through the writs of attachment and execution. The proceeding is merely ancillary to the main suit, and the defendant in that suit is not a party to such proceedings, unless he voluntarily intervenes or is served with notice requiring him to interplead. The statute requires the garnishee to make true answers under oath as to “what, if anything, he is indebted to the said-, and was when the writ was served upon him; and- what, if any, effects of the said-— he has in his possession. or had when this writ was served,” etc. This answer may in all instances be contested by either the plaintiff or the defendant in the original suit. Article 308 of the Revised Statutes of 1911 is as follows: “It shall be a sufficient answer to any claim of the defendant against the garnishee founded on any indebtedness of such garnishee, or on the possession by him of any effects, or where the garnishee is an incorporated or joint stock company in which the defendant was the owner of shares of stock or other interest therein, for the garnishee to show that such indebtedness was paid, or such effects were delivered, or such shares of stock or other interest in such company were sold under the judgment of the court in accordance with the provisions of this chapter.” When the garnishee answers, truthfully and fully the questions propounded in the writ, it would seem that he has done all that the terms of the statute 'exact of him. If a judgment is thereafter rendered against him in favor of the garnishing creditor, and he obeys the mandate of the court by paying over the money, or delivering whatever effects he may have in his hands belonging to the defendant, the language of the statute would- seem to discharge him from further liability to his creditor. But the courts have held otherwise. Ry. Co. v. Whipsker, 77 Tex. 14, 13 S. W. 639, 8 L. R. A. 321, 19 Am. St. Rep. 734; Ry. Co. v. Fulford, 126 Ga. 103, 64 S. E. 68, 6 Ann. Cas. 168 and notes.

In the case first above referred to the plaintiff sued the defendant for the recovery of a sum due for current wages. The defendant answered that it had been garnished by a creditor of the plaintiff, and pleaded the garnishment proceedings and payment of the debt in bar of the plaintiff’s claims. Justice Gaines, in rendering the opinion of the court, after referring to the different statutory provisions, said: “The question, then, is, Will the garnishee, who is indebted to the defendant in the suit for current wages, be protected by a judgment against him, when he fails to state in his answer the facts which show the exemption? We think this question must be answered in the negative. The garnishment proceeding is ancillary to the main suit, and to it the defendant in the principal action is not a party. He is not required to be served with notice of either the issuing or the service of the writ of garnishment. It is true that our statutes, literally construed, require the garnishee to answer only whether or not he is indebted to defendant, and whether or not he has any effects of the defendant in his possession, and does not, in terms, direct that he shall say whether such indebtedness or such effects are exempt from a forced appropriation to the payment of debts or not. Id. (Rev. St.) arts. 188, 189. The statutes of some of the states require him to answer only as to debts or property not exempt. We think, however, that, since the defendant is not required by the statute to have notice of the service of the writ, it was not intended that the garnishee should in his answer confine himself to the literal directions of the statute, when he knows that the debt or property is exempt.” To what extent the defendant would be bound by a judgment to which he was not a party, but in which the garnishee had set up defendant’s exemptions, is not decided. In fact, that question was not involved in that case.

If we assume that it is the purpose of the statute, as construed in the case cited, to make the adjudication upon the garnishee’s answer a finality as to all of the issues involved and binding upon the defendant, although not a party to that proceeding, we think it should be limited to such property rights as may be controlled by legislation. It may be said, in defense of the exercise of that power by the Legislature, that the statutory exemptions are given subject to the necessary conditions and modifications imposed by the provisions of the law with reference to the garnishment proceedings or other statutory enactments which the Legislature has the power to make. But, when the Constitution prescribes that which shall be exempt, the Legislature is without power to directly or indirectly deprive the owner of that right without giving him his day in court.

It has been definitely held by our Supreme Court that money due upon an insurance policy on the homestead is exempt by virtue of that provision of the Constitution which exempts the homestead; that the money stands in the place of that which has been destroyed by fire. Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742. It follows, then, that the claim of Hall and his wife to the money due from the insurance company in this instance was as sacred in the eyes of the law as was the land upon which the house stood before its destruction, and they are entitled to invoke the same constitutional safeguards in defense of the one that are available for the protection of the other.

It has been held that a judgment foreclosing a mortgage on the homestead to which the wife is not a party is a nullity. Odum v. Menafee, 11 Tex. Civ. App. 119, 33 S. W. 130, and cases cited. If the wife is a necessary party to a proceeding which undertakes to subject the homestead to the claim of a creditor, certainly the husband is-also an indispensable party. Hence we conclude that the garnishment proceedings which culminated in the judgment in favor of Johnson against the insurance company and the payment of the insurance money thereunder do not preclude Hall from here and now asserting his right to the exemption allowed him by the Constitution. The controversy is not one involving a question of fairness on the part of the garnishee in disclosing and presenting the defenses of the' defendant, or of his failure to do this, but is one in which the owner of property has the right to set up and claim for the first time his homestead exemption. Such an owner has not only the right to hare the issue of exemption raised and passed upon by a court of justice, but has the constitutional right to be a party to that proceeding.

The binding force of judgments and decrees derive their conclusiveness not merely from the fact that the issues in question were involved and passed upon, but that the individual against whom judgments are invoked was a party to the adjudication. No one should be concluded by the determination of a question affecting his property rights, when he had no opportunity to be heard in their defense. The evidence in this case justified the jury in finding that the property destroyed by fire was the homestead of Hall and his family. That issue having been determined in favor of Hall, it is immaterial whether the insurance company knew or did not know of its character at the time it paid the money to Johnson. It had the right to protect itself by implead-ing Hall and his wife.

The following special charge was requested and refused: “If you find that plaintiff, Hall, had actual notice of the pendency of such garnishment proceedings brought by the defendant Johnson before the money herein sued for was paid by the insurance company to the said Johnson, and in time to have notified the company that said money was claimed by him as exempt, and that he failed to notify the said insurance company of his claim in said money as exempt, you will find for the defendant.” Conceding that the notification to Hall only, without including notice to his wife, would be sufficient to create an estoppel in this proceeding, we still think the' charge should not have been given. The only pleading which in any manner suggests the issue of estoppel is found in paragraph 5 of the amended answer of the insurance company, which is as follows: “Defendant further says that defendant (plaintiff) W. A. Hall knew of the garnishment proceedings, and that if there were any reasons in law why the sum in defendant’s hand was not subject to garnishment that defendant was not advised thereof, so that 'it was the duty of the said plaintiff, W. A. Hall, if he had any objection to máke as to why said fund should not be held liable for the judgment rendered against him in cause No. 168, to intervene in said garnishment proceedings and set same up.”

Assuming that this pleading is sufficient to present the issue of estoppel either by judgment or upon equitable grounds, we do not think the testimony is sufficient to require a submission of those issues to the jury. The proof shows that at the time of the garnishment proceedings Hall was residing in a distant county in western Texas. About the 15th of May, 1911, he wrote a letter to H. P. Burford, the local agent of the insurance company at Cookville, in Titus county, inquiring why the insurance money had not been paid. Burford testifies that within a few days thereafter he answered the letter, informing Hall that the insurance company had been served with a writ of garnishment, and that it was waiting to see what disposition the court would make of the case. He does not state when he mailed this letter, or that he mailed it at all; neither does the record show the facilities avail able to Hall for getting his mail. Hall testifies that he received a letter containing in substance what Burford says he wrote about the 10th or 15th of June, 1911. This appears to have been the first intimation that Hall had that any garnishment proceedings were pending. His receipt of the letter is shown to have been from three to eight days after the garnishment judgment was rendered, but prior to the time the money was actually paid to Johnson. Hall therefore received the information too late for him to intervene in the garnishment proceedings, and is not es-topped by the judgment there rendered on the ground that he had the notice.

Is Hall estopped because he failed to notify the insurance company of his homestead claim before the money was actually paid to Johnson? We think it is a sufficient answer to that contention to say that it does not appear from the evidence concerning the notification sent Hall that Burford as the agent of the insurance company was seeking any information regarding Hall’s defenses, or was intending to furnish Hall an opportunity to give notice. There is nothing in this letter to indicate that the agent was not then fully informed on that subject. The only reasonable, inference that can be drawn from this correspondence is that Hall desired to know why his money had not been paid, and the agent in giving the information merely mentioned the garnishment suit as an excuse for the delay rather than as a notification to elicit any additional information. It is not alleged or claimed that the insurance company would have acted differently had it been furnished with evidence of Hall’s claim of homestead rights in the insurance money. On the contrary, it appears from the allegations in the cross-bill that the question of homestead rights had been discussed between the representative of the insurance company and Johnson, and that, in paying over the money, the insurance company relied upon Johnson’s promise to reimburse it in the event Hall should later successfully prosecute a demand for the money.

The remaining assignments of error will not be discussed in detail.

The judgment of the county court'is affirmed.

On Motion for Rehearing.

In the motion for a rehearing it is contended that, if Johnson is to be considered merely a volunteer in the proceedings in the court below, then the judgment rendered in favor of the insurance company against him was void, because there were no pleadings to support it. We are not called upon in this appeal- to revise that judgment. No complaint in any form is here made of its rendition. It is only the judgment in favor of Hall against the insurance company that is assailed in the briefs here presented in this appeal. We referred to Johnson’s attitude as a volunteer in the discussion of the case merely as a reason why he had no right to complain of that judgment.

From the argument made in this motion, it is evident that the original opinion is interpreted by counsel as holding that Mrs. Hall would be a necessary party to a suit seeking to subject the insurance money to the payment of her husband’s debt. We do not mean to so hold. Indeed, it is not necessary to do so in this instance in order to sustain the conclusions announced. It may be true, as is asserted by counsel, that the husband could, without the consent of the wife, dispose of the insurance money received for the loss of the homestead. Such proceeds being personal property, their conveyance is not subject to the restrictions with which the alienation of the homestead is surrounded.

What we mean to hold is that Hall could not be deprived of his constitutional exemption in the insurance money by a proceeding to which he was not a party. The decisions cited, in which it was held that the wife was a necessary party in order to divest her of her homestead rights, were simply mentioned as supporting the proposition that the holder of a property right cannot be divested of that right in ¿ legal proceeding to which he is not a party. Money collected on an insurance policy for the loss of a home is not in all respects the same as money realized from the sale of the homestead. Where the homestead is sold, the conversion into money is voluntary, and the wife has presumably conformed to all the legal requirements in making the conveyance and in parting with her interest. Where the home has been “destroyed and the insurance money is collected, the situation is quite different. Here the conversion into money is involuntary — the result of a casualty over which the parties have no control. The proceeds from the voluntary sale of the homestead are exempt from the payment of debts for a limited period of time, by virtue of a statute specially enacted for that purpose, while the insurance money is protected by that section of the Constitution which exempts-the homestead itself.

It is again contended that Hall had notice of the pendency of the garnishment proceedings, and that it was his duty to inform the insurance company in some manner of I his claim that the property was his homestead. There is no evidence that Hall knew when the garnishment proceedings would come to a trial, or when the money would be paid over to Johnson after a judgment had been rendered in his favor against the insurance company in the garnishment suit. As stated before, the testimony shows that the notice of the pendency of the garnishment proceedings reached Hall after the judgment was rendered, and there is nothing to indicate that he had any notice that the money had not been paid at the time he received the notice.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    CONNELLEE v. BLANTON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 13, 1913.
    Rehearing Denied Jan. 31, 1914.)
    1. Judges (§ 16) — Disqualification—Calling in Other Judge.
    Rev. Civ. St. 1911, art. 1676, providing that, whenever any case in which the district judge is disqualified is pending, the judge shall certify that fact to the Governor, whereupon the Governor shall designate some district judge in an adjoining district to try the case, does not render it erroneous for a district judge who was disqualified to call in on his initiative a judge of an adjoining circuit to try the case; Const, art. 5, § 11, providing that district judges may exchange districts or hold courts for each other when they deem it expedient, and article 1715 of the Statutes containing a similar provision.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 46, 53-59; Dec. Dig. § 16.]
    2. Libel and Slander (§ 36) — Privileged Communications — Absolute Privilege.
    In view of Const, art. 1, § 27, declaring that citizens of a state shall have the right to apply to those invested with the power of government for redress of grievances, an application to the Governor for a pardon is absolutely privileged, and nothing therein stated, though the statement be made with malice, will expose one applying to the Governor for a pardon for an offender to an action for libel.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 114, 115; Dec. Dig. § 36.]
    Appeal from District Court, Eastland County; W. W. Beall, Judge.
    Action by Thomas L. Blanton against C. U. Connellee. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    See, also, 163 S. W. 407.
    D. G. Hunt, of Eastland, and J. J. Butts, of Cisco, for appellant. J. F. Cunningham, of Abilene, and Stephens & Miller, of Ft. Worth, for appellee.

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

   DUNKLIN, J.

C. U. Connellee has appealed from a judgment against him in favor of Thos. L. Blanton by which plaintiff, Blanton, was awarded damages for libel alleged in plaintiff’s petition. The case was tried by the court without the aid of a jury, and the trial judge filed findings of fact, which appear in the record, and none of which is assailed by appellant. The charge of libel was based upon statements contained in a letter or application, signed by defendant, addressed to Gov. O. B. Colquitt at Austin, Tex., for the pardon of one George Parvin, who had been convicted of aggravated assault upou J. K. Stubblefield. The conviction was in the district court of Callahan county, add Parvin’s punishment had been fixed at imprisonment in the county jail for two months and the payment of a fine of $250, together with costs of suit.

Thé application for pardon contained the statement that the assault was committed in the presence of Hon. Thos. L. Blanton, the district judge who tried the case; that the assault at most was only a simple assault and should have been tried in the justice court of Eastland county, and thus prevented an accumulation of costs by reason of a great number of friends of the party injured having been induced to go to Baird where the case was tried and their attendance charged up as costs of suit. The application contains this statement: “The lick struck did not cause any bruise or erasion, and knocked Stubblefield to his knees, but did not knock him unconscious. Stubblefield got up and walked with Judge Blanton to the post office some 60 feet away, and then walked some 100 feet to a drug store. Had Parvin desired, he could have struck him a number of times, as no one interfered. But the lick he struck him was done under excitement, and without any intention of seriously harming him. But having been done in the presence of the district judge, the judge changed the venue of the case for the purpose of making the costs excessive.” In plaintiff’s petition in this suit the language used in the application, “the judge changed the venue of the case for the purpose of making the costs excessive,” was alleged to be untrue and written and published with actual malice on the part of the defendant without any foundation whatever, and was libelous. The trial judge sustained those allegations in full, and upon that finding rendered judgment in plaintiff’s favor for actual damages in the sum of $3,000, which was the full extent of the judgment. One of the conclusions filed by the trial judge reads: “The court has a discretion not to award any exemplary damages, even though said letter was written and published with actual malice, and exercising such discretion, awards none.”

This suit was instituted and tried in the district court of Eastland county, and Hon. W. W. Beall, district judge of the Thirty-Second judicial district, presided at the trial. Eastland county is one of the counties which composed the Forty-Second judicial district, and plaintiff, Hon. Thomas L. Blanton, was district judge of that district. The following order entered upon the minutes of the district court of Eastland county during the January term, 1913, of that court is the only showing in the record touching the authority of Hon. W. W. Beall to preside at the trial: “January 15, 1913. Now at this time, to wit, ten o’clock a. m. January 15, 1913, all business heretofore set for disposition up to and including this date having been duly transacted, and it appearing to the court that there are three cases on the docket in which I am disqualified, having recused myself in same, to wit: No. 1,539, J. O. Bohannon v. A. C. Bennett et al.; No. 1,848, A. C. Williams v. A. C. Bennett et al.; No. 2,181, Thomas L. Blanton v. O. U. Oonnellee; and it further appearing that Hon. Judge of the Thirty-Second judicial district of Texas has agreed to hold this court for the purpose of disposing of said three cases, and will take charge of this court on this morning, and that all attorneys interested in the above-mentioned cases have been given due and ample notice of such arrangements, the said district court of Eastland county, Tex., is here now turned over to the said Hon. W. W. Beall, judge of the Thirty-Second judicial district of Texas, Presiding. Thomas L. Blanton, Judge Forty-Second Judicial District of Texas.”

Trial of the case was once postponed by Judge Beall upon the written agreement of the parties that he might do so, and, in the trial court, the only challenge- of his authority to hear and determine the suit was made after judgment rendered and in appellant’s motion for a new trial.

In support of an assignment of error presenting the same question here, appellant invokes article 1676, Revised Civil Statutes 1911, which reads: “Whenever any case or cases, civil or criminal, are pending, in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby; but the judge presiding shall immediately certify that fact to the governor, whereupon, the governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and the governor shall also notify both of said judges of such order; and it shall be the duty of said judges to exchange districts for the purpose of disposing of such case or cases,' and, in case of sickness or other reasons rendering it impossible to exchange, then the parties or their counsel shall have the right to select or agree upon an attorney of the court for the trial thereof.” Section 11, art. 5, of our state Constitution, provides: “And the district judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law.” Article 1715 of the Statutes is as follows: “Any judge of the district court may hold courts for or with any other district judge; and the judges of the several district courts may exchange districts when ever they may deem it expedient to do so.”

Thus it will be seen that the authority of district judges to hold courts for each other when they may deem it expedient is conferred by the Constitution, and it cannot be supposed that the Legislature, in enacting article 1676 of the Statutes, intended to contravene that provision of the Constitution. In fact, it would seem from the wording of that article that the only purpose of the Legislature in enacting it was to prohibit a change of venue of any case upon the sole ground of the disqualification of the judge of the court in which the suit is filed, and thus to avoid the additional expenses of a trial incident to such change of venue. At all events, the trial of the case by Hon. W. W. Beall was authorized by the Constitution and was proper.

By another assignment, in which complaint is made of the order overruling defendant’s general demurrer to the plaintiff’s petition, it is insisted that the application for pardon, signed by appellant and delivered to the Governor, was a communication absolutely privileged, and that nothing contained in it would be a proper basis for a judgment for damages even though defendant was prompted by malice in writing the instrument. If the communication was qual-ifiedly privileged only, then appellant could not escape liability because the trial judge found that it was not made in good faith, and that it was prompted by malice. 25 Cyc. 375-385. Mr. Newell, in his work on Defamation, Slander & Libel, p. 504, par. 101 (4), says: “It is the duty of all who witness any misconduct on the part of a magistrate or any public officer to bring such misconduct to the notice of those whose duty it is to inquire into and punish it; and therefore all petitions and memorials complaining of such misconduct, if prepared in good faith and forwarded to the proper authorities, are privileged. * * * Every communication is privileged which is made in good faith with a view to obtain redress for some injury received or to prevent or punish some public abuse. The privilege should not be abused. If such communication be made_ maliciously and without probable cause, the pretense under which it is made, instead of furnishing a defense, will aggravate the case of the defendant.”

The following appears in 25 Cyc. 376: “Memorials and petitions to the Legislature for the redress of grievances are held to be absolutely privileged when pertinent to the proceedings to which the communications relate. On the other hand, it has been held that a communication made by a citizen voluntarily appearing before a legislative committee is not absolutely privileged, although it is qualifiedly privileged; if made in good faith and without malice.” And on page 377 of the same volume it is noted that some authorities in this country have limited to some extent the privileges even of judicial proceedings.

In the case of Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St Rep. 833, which was an action for libel based upon the contents of certain pleadings in court, our Supreme Court, after citing several authorities holding that such proceedings were absolutely privileged, called attention to the fact that other authorities hold that the absolute privilege does not extend to judicial proceedings inspired by malice and not made in good faith. The court then proceeds as follows: “Mr. Townsend, in his work on Slander and Libel, says: ‘The right of appealing to the civil tribunals is more extensive than the right of appealing to the criminal tribunals, for as to the former every one has the right with or without reasonable cause for so doing to prefer his complaint, and whatever he may allege in his pleading as or in connection with his ground of complaint can never give a right of action for slander or libel. * * * The rule as thus laid down has been doubted by some, and it has been said that if the tribunal to which the complaint be made has no jurisdiction of the subject-matter, or if the defamatory matter be irrelevant to the matter in hand, or if the party complaining or defending maliciously insert defamatory matter in his pleading, that in such cases the party aggrieved may maintain his action for slander or libel. Notwithstanding the dicta to the contrary, we believe the better and the prevailing rule to be that for any defamatory matter contained in a pleading in a court of civil jurisdiction no action for libel can be maintained. The power possessed by the courts to strike out scandalous matter from proceedings before them and to punish as for contempt is considered a sufficient guaranty against the abuse of the privilege; but, whatever may be the reason, it seems certain that where there is a perversion of the privilege the policy of the law steps in and controls the individual right of redress.’ Towns, on Slander & Libel, § 221. We adopt the foregoing as expressing our views upon the question. We believe it is and ought to be the law that proceedings in civil courts are absolutely privileged. Citizens ought to have the unqualified right to appeal to the civil courts for redress without the fear of being called to answer in damages for libel. Where property is attached upon false charges, or where there is a malicious prosecution in a criminal court, the law affords ample remedies for the wrong done, but not by a suit for libel.” That case was followed by the Court of Civil Appeals for the Fifth District in Krugel v. Cockrell, 151 S. W. 352.

In Runge v. Franklin, supra, the following language occurs: “Proceedings in courts of justice, legislative proceedings, and petitions and memorials to Legislatures are said to be absolutely privileged. Townsend on Slander & Libel, § 209, note 2; Id., §§ 217-22Í; Stark on Libel & Slander, § 669, top p. 676."

Article 1, § 27, of the Constitution of our state, reads: “The citizens shall have the right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the power of government for redress of grievances or other purposes, by petition, address or remonstrance.”

In 32 Cent. Dig. “Libel & Slander,” § 124, several decisions are noted in which damages were sought for libel based upon statements contained in petitions to the heads of governmental departments relative to appointments to office and removal from office, in some of which cases such communications are held to be conditionally privileged only and in others that they were absolutely privileged. We are of the opinion that the right guaranteed to a citizen by the constitutional provision quoted above “to apply to those invested with the power of government for redress or grievances, or other purposes, by petition, address or remonstrance” is of equal dignity to the right to apply to a court of justice for relief; and that the same principle of public policy which supports the absolute privilege extended to judicial proceedings applies with equal force in favor of petitions to the Governor of the state for the exercise of the pardoning power, a power superior to that of the court which rendered the judgment of conviction. If the judicial proceedings which culminated in the conviction were absolutely privileged, why should not the same immunity be extended to the petition to a higher power to annul that judgment, in part? Whatever may be the rule in other jurisdictions, we are of the opinion that, under the authority of Runge v. Franklin, supra, the application made by appellant to the Governor, who was, by the Constitution, vested with authority to grant a pardon to George Parvin, was absolutely privileged, and that the court erred in overruling defendant’s general demurrer to plaintiff’s petition.

Accordingly, the judgment of the trial court is reversed, and, as the suit is based solely upon statements contained in the application for pardon, and as the insufficiency of plaintiff’s petition cannot be cured by amendment, judgment is here rendered in favor of appellant.


text:
    CONNELLEE v. BLANTON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 13, 1913.
    Rehearing Denied Jan. 31, 1914.)
    Costs (§ 279) — Coelection—1Transcripts.
    Rev. Civ. St. 1911, art. 2032, provides that it shall be lawful for clerks of the district court to demand payment of costs due in every pending case up to the adjournment of the term. Article 2033, provides that, should any person against whom costs have been taxed fail to pay the same, the clerk may make out a bill of costs and give it to the. sheriff for collection, which bill shall have the effect of an execution; and article 2034 provides for the sale of property taken on a levy under the cost bill. Held, that as article 2031, providing that each party to a suit shall be liable for all costs incurred by him, refers only to costs accruing in the trial court, the clerk of the district court cannot before the disposition of the appeal collect costs for the furnishing of a transcript of the record to an appellant after the perfection of his appeal and the filing of a bond, as the action is no longer pending in the trial court, and an injunction restraining the sale of lands taken under levy on such cost bill should be made permanent.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1061-1071; Dec. Dig. § 279.]
    Appeal from District Court, Eastland County; W. W. Beall, Judge.
    Suit by Thomas L. Blanton against C. U. Connellee. There was a judgment for plaintiff, and defendant appealed; the clerk of the court below furnishing a transcript of the record to be filed on appeal. On motion of clerk to vacate a temporary writ of injunction issued by the Court of Appeals to restrain the sale of defendant’s land upon execution for the costs of the transcript.
    Motion denied, and injunction made permanent.
    See, also, 163 S. W. 404.
    D. G. Hunt, of Eastland, and J. J. Butts, of Cisco, for appellant. J. F. Cunningham, of Abilene, and Stephens & Miller, of Ft. Worth, for respondent.

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

   DUNKLIN, J.

C. U. Connellee, defendant in the trial court, perfected his appeal from a judgment adverse to him by giving a super-sedeas bond in compliance with the statutes. After said bond was approved and filed, the clerk of the trial court furnished to appellant a transcript of the record to be filed in this court. He then issued an execution against appellant to collect the costs accruing to him for such transcript. That execution was placed in the hands of the sheriff and levied upon a tract of land belonging to appellant. On a former day at appellant’s instance this court issued a temporary writ of injunction restraining the sale of the land and also restraining the issuance of any further execution for the collection of such costs pending this appeal, and directing that respondent be cited to show cause why such temporary writ should not be made final.

We are now called on to pass upon respondent’s motion to dissolve such temporary writ.

Article 2032, Revised Statutes 1911, reads: “It shall be lawful for the clerks of the district and county courts and justices of the peace to demand payment of all costs due in each and every case pending in their respective courts, up to the adjournment of each term of said courts.”' Article 2033 is as follows: “Should any party against whom costs have been taxed under the provisions of this chapter fail or refuse to pay the same within ten days after demand for payment, it shall be lawful for the clerk or justice of the peace to make out a certified copy of the bill of costs then due, as herein provided for, and place the same in the hands of the sheriff! or constable for collection; and such certified bill of costs shall have the force and effect of an execution. The removal of a case by appeals shall not prevent the district clerk, county clerk or Justice of the peace from issuing his execution for costs at the end of the term at which the appeal is taken.” Article 2034 provides that the bill of costs so issued may be levied upon property the same as an execution and that a sale under such levy should have the same effect as a sale under an execution.

In Wilson v. Simpson, 68 Tex. 306, 4 S. W. 839, land was levied upon and sold under a certified copy of a bill of costs made out by the clerk of the district court, which costs consisted wholly of costs incurred by reason of the proceedings in error from a judgment of the district court; but the plaintiffs in error did not prosecute the writ by filing the transcript in the Supreme Court. In that case our Supreme Court held that the sale of the land under that levy conveyed no title. In discussing the three preceding articles of the statute, then numbered 1420a, 1420b, 1420c, the court said: “We know of no rule that authorizes us to extend the operation of a summary remedy of this character beyond the clear import of the language of the statute. The bill of costs, by virtue of which the sale in question was made, was for fees which accrued after the end of the term 'at which the final judgment was entered, and which were incurred by reason of the suing out of a writ of error. The statute does not give such a bill of costs the force and effect of an execution, and hence the sale was unauthorized by law and was absolutely void.”

Article 2031 reads: “Each party to a suit shall be liable for all costs incurred by him; and, in case the costs cannot be collected of the party against whom the same have been adjudged, execution may issue against any party in such suit for the amount of costs incurred by such party, but no more.” This article 2031 refers to costs accruing in the trial court only, and does not apply until after judgment is rendered for the costs for which execution may issue; and as the costs in controversy for the transcript to this court accrued after the appeal had been perfected and while the suit was no longer a case pending in the trial court, that fact, of itself, renders the three articles of the statute first mentioned inapplicable. We are cited to no article of the statute, and have found none, sustaining the action of the clerk in issuing the execution in question in advance of a final disposition of the appeal; and, in the absence of such a statute, that writ was void.

Accordingly, respondent’s motion to dissolve the temporary writ heretofore issued by this court and noted above is overruled, and said writ is now here made final.


author: HUFF, C. J.

text:
    PATRICK v. BARNES.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1914.
    Rehearing Denied Feb. 7,1914.)
    1.Public Lands (§ 173) — Actions—Questions for Jury.
    In trespass to try title to school lands, evidence held, to make a question for the jury as to whether defendant, at the time of his application to purchase the lands, had settled thereon in good faith, desiring it as a home.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173

    2.Public Lands (§ 173) — Actions—Evidence.
    In trespass to try title by one holding a certificate of purchase from the Land Office against one in possession, who filed his application to purchase subsequent to that of plaintiff, but before plaintiff filed his proof of occupancy and obtained the certificate of purchase, while proof of plaintiff’s application, the award to him, payment of the required amounts, and the certificate of proof of occupancy made a prima fa-cie title, defendant, to defeat a recovery, was only required to show that plaintiff was not an actual settler on the land, and that his proof of occupancy filed subsequent to defendant’s application was false and was not required to show an equitable title in himself, and hence need not show that his application was not rejected because the records of the Land Office showed that he had already purchased four sections.
    [Ed. Note. — For Lands, Cent. Dig. 173.] other cases, see §§ 544-551; Dec. Public Dig. §
    3.Public Lands (§ 173) — School Lands— Powers of Commissioner of Land Office.
    Where, before an applicant to purchase school lands filed his proof of occupancy, another application was filed by a person in possession, the Commissioner had no power to adjudicate the rights of the parties, and the certificate of occupancy did not preclude the party in possession from showing in the courts that the earlier applicant was not an actual settler.
    [Ed. Note. — For other cases, see Lands, Cent. Dig. §§ 544-551; Dec. 173.] Public Dig. §
    4.Public Lands (§ 173) — Actions—Instructions.
    In trespass to try title by one holding a certificate of purchase from the Land Office against a subsequent applicant, whose application was filed before plaintiff’s proof of occupancy, an instruction to find for defendant if, prior to the date of his application in good faith, he actually settled upon the land with a bona fide intention of purchasing it and making his home thereon, and if he was an actual settler in good faith and actually residing upon the land at the time he made his application to purchase, and if plaintiff had not been and was not an actual settler in good faith, was not subject to the criticism that it authorized a recovery by defendant without a finding that he actually settled upon and was in good faith residing on the land as a home at and prior to the date of his application, especially where the court further repeated its charge as to defendant’s required settlement and charged that, unless plaintiff was not an actual settler, they must find for him, even though defendant was an actual settler.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]

      6.Public Lands (§ 173) — Actions—Evidence.
    In trespass to try title to school lands against one in possession, who also applied to purchase such lands before plaintiff’s proof of occupancy was filed in the Land Office, such proof of occupancy was ex parte and not evidence of occupancy by plaintiff, and hence the court properly charged that it was admitted only to show that such proof was made.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    6. Appeal and Error (§ 1050) — Harmless Eeeoe — Admission of Evidence.
    In trespass to try title to school lands by the holder of a certificate of purchase from the Land Office against one who filed his application to purchase the same lands before plaintiff’s proof of occupancy, where the court required defendant to prove, not only that plaintiff was not an actual settler, but that defendant was such actual settler, the admission of defendant’s proof of occupancy and the affidavit of two 'compurgators, limited to the question of whether such proof was made, did not injure plaintiff, as it tended at least to show that defendant asserted a claim of right and kept it up.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    7. Public Lands (§ 173) — Actions—Instructions.
    In trespass to try title to school lands by one holding a certificate of purchase from the Land Office against one who filed his application subsequent to that of plaintiff, but before plaintiff’s proof of occupancy was filed, the court properly refused to charge on the question of defendant’s abandonment of the land, even though the evidence raised that issue, since the only question involved was whether plaintiff was an actual settler.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    8. Trial (§ 260) — Instructions—Cuke by Otbidr Instructions.
    In trespass to try title to school lands by one holding a certificate of purchase against one who filed his application subsequent to that of plaintiff, but before plaintiff’s proof of occupancy was filed in the Land Office, the refusal of an instruction that if plaintiff was an actual settler on the land when he made his application to purchase, and thereafter left and remained away through a well-grounded fear of death or serious bodily harm, his rights would not thereby be prejudiced was not error, assuming that the evidence raised such question, where the court did charge that, if plaintiff actually settled on the land and was in good faith residing thereon at the time he made his application, it did not matter whether he continued to reside thereon or not.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §| 651-659; Dec. Dig. § 260.]
    9. Public Lands (§ 173) — Actions—Evidence.
    A certificate of purchase of school lands by. the Commissioner of the Land Office, if given before an intervening application, is conclusive, but if given after such application is rebutta-ble, if it has any probative force, and if given after the Commissioner is deprived of power to determine the question of settlement, the question is for the courts.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544r-551; Dec. Dig. § 173.]
    10.Trespass to Try Title (§ 6) — Evidence —Burden op Proof.
    The plaintiff in trespass to try title must recover on his own title and not on his adversary’s lack of title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. §6.]
    Appeal from District Court, Donley County; J. N. Browning, Judge.
    Action by W. H. Patrick, administrator, and others, against L. C. Barnes. Judgment for defendant, and plaintiff administrator appeals.
    Affirmed.
    See, also, 105 Tex. 146, 146 S. W. 154.
    Madden, Trulove & Kimbrough, of Amarillo, and J. H. O’Neall, of Clarendon, for appellant. A. T. Cole and H. B. White, both of Clarendon, and D. W. Odell, of Ft. Worth, for appellee.

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

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

   HUFF, C. J.

This suit was originally brought by J. B. Williams in December, 1904, in the usual form of trespass to try title. He afterwards died, and administration was had on his estate, and appellant, W. H. Patrick, was appointed administrator, and the heirs of J. B. Williams also joined in this suit. The appellant, Patrick, amended his petition, setting up the death of Williams, and continued the suit in the form of trespass to try title. The appellee, L. C. Barnes, answered by plea of not guilty and general denial and by special plea to the effect that the lands in question are public free school lands, and that he, on July 30, 1902, made application to purchase in due form of law, causing his application and tender of purchase money to be transmitted and made in due form and time; that prior thereto he had actually settled and was residing on the land and continued to reside and occupy the land as a home, erected valuable improvements, and in all things complied with the law. He also charges that Williams at the time of his application to purchase the land was not in fact an actual settler thereon and had not continued to reside thereon for three consecutive years.

On the 12th day of January, 1901, J. B. Williams applied to purchase, as an actual settler, a half section of la'nd, being half of section 48, block 03, E. L. R. R. Ry. Oo. script No. 838, as his home section under the then existing law, and half of section 54, block 03, D. & P. Ry. Oo. certificate 5, as additional land to half section 48. Both sections were situated in Donley county, Tex. At the same time he executed his obligation for the balance of the purchase money and paid one-fortieth of the purchase money. The lands were awarded to Williams on the above application and obligation by the Land Commissioner February 15, 1901. He also filed a like obligation for the same land, dated January 14, 1901. These last applications were marked rejected by the Land Commissioner. The evidence shows that the interest on the Williams purchase has been regularly-paid and accepted by the Land Office, ami, in so far as that office is concerned, Williams’ purchase is in good standing. On the 30th day of July, 1902, L. O. Barnes made his application to purchase the two half sections awarded to Williams, which were in proper form. The half section of 48 was applied for as his home section, and 54 as additional land. He made the required affidavit as to settlement on section 48. He also executed his obligation as required by law 'for the balance of the purchase money. These two applications by Barnes were filed in the Land Office August 1, 1902, after having been duly recorded in the county clerk’s office of Donley county. These applications were indorsed by the Land Commissioner rejected January 20, 1903. The records show that Barnes tendered to the state, through its proper officers, the required amount of purchase money and the annual interest since that date, which have been by the Land Commissioner and State Treasurer rejected and returned to him. On the 16th day of January, 1904, J. B. Williams filed proof of occupancy, and on the same day the Land Commissioner issued his certificate thereof. It is agreed by the parties hereto that section 54 is within the five-mile radius from section 48.

By the first assignment of error complaint is urged at the action of the trial court in refusing to instruct the jury to find for the appellant. By several propositions it is urged that Barnes was not an actual settler at the time he made his application to purchase, and that the evidence conclusively shows that fact, and for that reason the charge should have been given. It is also urged that Barnes failed to show that at the time he applied to purchase he had not purchased land aggregating four sections, and that there is no sufficient and competent evidence to show he was eligible to purchase ; that, plaintiff having shown a prima facie title, it became the duty and Barnes was required to show such facts before he could recover or defeat the Williams title.

The application of Barnes was made July 30, 1902. The facts show that on the 27th day of July, 1902, Barnes and his two sons went onto the land, taking with them a wagon, some bedding, cooking utensils, and provisions. They commenced work on the land on the evening of their arrival, preparing the ground to sow some turnips, and during the days of the 28th and 29th of July they completed what they termed a half dugout, placing therein some framing timbers and covering it with, and placing around the walls, sheet iron. The dugout was about 10x14 feet and floored with boards of some kind. While the boys were working on the dugout, Barnes returned to town, got a cook stove and table, and brought and placed them in the dugout. At the time of filing by Barnes, his daughter was sick with slow fever, and had been for two or three weeks previous thereto, and his wife had been confined about the 21st of July, before the date of filing. Barnes stayed on the land himself part of the time, but returned to town after intervals to look after his wife and daughter, and as soon as they were able moved them on the land, which was about the last of the following August. He had previous thereto bought two lots in the town of Clarendon, which had a bam situated thereon, only partially floored. During the time he was constructing the dugout, his wife and two daughters lived in the barn. Soon after completing the dugout, they began work on a larger one and completed it. Shortly afterwards, a farm was broken out, fenced, another dugout put in, a house erected, and other improvements, such as lots, sheds, and barns, were placed on the land. Barnes and family have continuously resided upon the land since that date, making it their home, except one year, perhaps, 1906. The facts are sufficient to show that the intention of Barnes, while he was at work on the dugout, was to settle on the land and to make it the home of himself and family, and at that time he and a part of his family and household effects were on the land, and that in about a month all removed onto it and continued to reside upon the land. After constructing the dugout, Barnes went to the town of Clarendon before the county clerk on the 30th of July, who made his application to purchase, and has continuously since that date kept up a tender of the annual interest due on the land; which has been rejected by the Land Commissioner and State Treasurer.

The jury must have found under the charge of the court that, at the time Barnes made his applications to purchase, he had “in good faith settled thereon,” and “that he desired it for a home.” We do not think as a matter of law we can say there was no evidence supporting the finding. The cases cited by appellants (Busk v. Lowrie, 86 Tex. 128, 23 S. W. 983, and McWhorter v. Eriksen, 151 S. W. 624), are both distinguishable from this upon the facts therein and the statute construed by the court in those cases. In one there was nothing done but the piling up of some rock,- and no actual occupancy thereof for some months aft-erwards. In the other, the wife went upon the land, when, by the act of 1905 (Acts 26th Leg. c. 103), under which the land was purchased, the applicant was- required to actually settle in person. Therefore a settlement by the wife was held not a settlement in person. The applicant in that case was not on the land in person. Here the applicant was on the land in person, constructed an abode for a home before he applied, humble it is true, and continued to occupy the same continuously as a home. We find no law which requires all the members of the applicant’s family to be with him when he first settles on the land. The jury must, we think, be left some power in determining what acts on the land will constitute a settlement. The question of whether one is an actual settler on land as a home is one of fact and not of law, and, unless it is clear there is no fact authorizing the jury to so find, we do not believe we are authorized to say as a matter of law there was none. Chesser v. Baughman, 22 Tex. Civ. App. 435, 55 S. W. 132; Corrigan v. Fitzsimmons, 51 Tex. Civ. App. 444, 111 S. W. 793; Borchers v. Meade, 17 Tex. Civ. App. 32, 43 S. W. 300; Willingham v. Floyd, 32 Tex. Civ. App. 161, 73 S. W. 831.

The act of 1901 (27th Leg. p. 292, § 3), under which Barnes applied to purchase, prohibited the Land Commissioner from selling “to the same party more than four sections of land, and all applications to purchase lands shall also disclose the prior lands purchased by the applicant from the state, if any, since the taking effect of this act, and the residence of the applicant at said time. And if it appeared therefrom or from the records in the Land Office that said applicant has already purchased land aggregating four sections since the taking effect of this act, his application shall be rejected.” The application made by Barnes to purchase the two half sections, as we read them, comply with this requirement; but, as we understand the appellant, he contends that Barnes should have also shown that there was nothing in the records of the Land Office evidencing that his application was not rejected on account of his having purchased four sections. The record in this ease shows that Barnes had recently moved from Wise county to Clarendon. The above act took effect April 19, 1901, and Barnes’ file was made July 30, 1902. The record further shows that he owned two lots in the town of Clarendon at the time he applied for the two half sections. There is no testimony that he had ever filed on any other land. We have reached the conclusion that'it was not incumbent on appellee Barnes to prove that he had not filed on other lands. His application was that the two half sections were the lands filed on by him. This application appears to have been on the form prepared by the Land Office requiring the applicant to state the land filed on by him since the passage of the act.

He was in possession of the land at the time Williams brought suit, holding the same under a claim of right. Had Williams been in possession under his award, then, if Barnes had sued for possession, it may be as contended by appellant that Barnes would have to prove all the necessary prerequisites to show that he was eligible to purchase. Under stieh circumstances, the case of Nowlin v. Hall, 66 S. W. 116 and 851, and like authorities, would be applicable. It is urged that, upon the proof of Williams’ application, award and payment of one-fortieth of the purchase money, the annual interest, and the certificate of proof of occupancy, appellant established a prima facie title. This is correct under the authority of the Supreme Court in this case. But that yet did not require Barnes to show an equitable title to the land in himself. He could defeat appellant’s recovery by showing that Williams was not an actual settler. If that was shown, then appellant must fail. The jury, under the charge of the court, found Williams was not an actual settler. If they had found Williams was an actual settler, Barnes could not recover, had he shown that he had in every way complied with the law in regard to the purchase as an actual settler. The Supreme Court said in this ease (Barnes v. Williams, 102 Tex. 444, 119 S. W. 89): “According to repeated decisions of this court and the Court of Civil Appeals, one who shows that his title consists of a purchase of school land which is in good standing and recognized by the officers of the state in the manner prescribed by the statute makes a prima facie case against an adversary who claims under a subsequent rejected application. When the latter contends that the elder sale was void, he must show the facts which invalidate it.” Again, when this case was before the Supreme Court (Barnes v. Patrick, 105 Tex. 146, 146 S. W. 154), that court said: “When Williams instituted his suit against Barnes to recover the land, before the act of 1905 was passed, he put the validity of his claim under judicial investigation, and Barnes had a right to defeat his recovery, which would have adjudicated the rights of the parties. In such proceedings no affirmative action by the court was necessary declaring Williams’ claim to be void or to remove any cloud on Barnes’ title. The defeat of recovery by Williams would have settled the rights of the parties.”

The opinion of the Supreme Court last above quoted was rendered while discussing the question of the necessary allegation in a cross-action by Barnes in order to defeat Williams’ title. We think the Supreme Court has settled the issue; that is, if Williams was not an actual settler when he filed his application to purchase, he cannot recover, and that “a defeat of recovery by Williams” settles the rights of the parties. When Barnes went on the land and filed his application to purchase, he did so before Williams filed his proof of occupancy, and therefore the subsequent acts of the Land Commissioner did not affect the rights of Barnes, and, in so far as he was concerned, the settlement of Williams was a question for the adjudication of the courts. The Supreme Cqurt said on the former appeal (102 Tex. 444, 119 S. W. 89, supra): “He (the Commissioner) may, and often must, pass upon the question involved merely for the purpose of determining his own course of action; but that action, when taken, ordinarily has no conclusive effect on the titles upon which he thus in-cidently passes. These may still be asserted and adjudicated in the courts.” In Barnes v. Patrick, supra, it is said: “Barnes had a right to defeat his (Williams’) recovery which would have adjudicated the rights of the parties.” How could he defeat the recovery? If Williams was an actual settler, there was nothing which could have been alleged or proven that Barnes did or could do that would defeat the recovery. In the last ease it is said: “The answer clearly set out the defects in plaintiff's claim and the reason why the land should not have been awarded to Williams, which, if true, made the award void.”

Actual settlement by Williams was the crucial question in the case. When Barnes filed his application in the Land Office in the form prescribed by law, the law divested the Commissioner of the power to adjudicate the rights of the parties. It was then relegated to the courts for adjudication. The certificate of occupancy did not preclude Barnes. The filing of the application by Barnes as an actual settler before such proof, as we believe, had the effect of admitting evidence of nonsettlement by Williams. Forrester v. Berry, 35 Tex. Civ. App. 175, 79 S. W. 591. This suit was filed in December, 1904, charging Barnes with possession of the land, and the plea of not guilty admitted possession. As a muniment of title, appellant offered a certificate of proof of occupancy. This proof is.shown and found by the jury to be false. Without this proof, Williams’ title is void. How, then, can he be entitled to a judgment of ouster upon a void title against a party in actual possession? The plaintiff must recover on the strength of his own title in trespass to try title, and cannot recover because the defendant has no title. Admitting in this case that the introduction of the certificate of occupancy made a prima facie case, did not the introduction of the application before the issuance deprive the Land Commissioner of that right or power? Can it be said, when that fact is shown, that the certificate is evidence of occupancy? The filing of the application itself challenges the right of the plaintiff. The Commissioner, it appears to us, has no power or right thereafter to adjudicate the question, and therefore force a defendant in possession to prove a perfect equitable title before he can prove that the plaintiff’s title is void. If, as it appears to be the holding of the Supreme Court in this case, the burden shifted to the defendant to show the invalidity of plaintiff’s title, that court did not hold -before defendant could make that proof he must also show he had a perfect equitable title.

In the case of Clark v. Hills, 67 Tex. 149, 2 S. W. 360, the effect to be given to a prima facie title as to the burden of proof is discussed at length. The court there said: “That a party does not shift to his adversary the burden of proof by making out a prima facie case is clear from what we have said, and is a well-settled principle. * * * His case must be disproved, but, when proof having this tendency is produced, it then becomes a question whether, upon the whole evidence, a prima facie ease has been successfully met by the adverse party. If it appears that the preponderance of testimony is not in favor of the party having the onus, the verdict should -be against him. If the testimony is evenly balanced, he failed to establish the issue, but has left it doubtful whether he has sustained it or not, and that doubt must inure to the benefit of his adversary.”

Barnes being in possession under a claim of right, he had the right to show that Williams’ title was void for nonsettlement, and if he did so, in so far as the plaintiff is concerned, he had the right to retain possession. This, we think, is substantially the holding of the Supreme Court on the two occasions when this case was before it. We therefore overrule the first assignment of error.

The second assignment complains of the fourth paragraph of the court’s main charge. The charge is: “Bearing in mind the foregoing, instructions, if you believe from a preponderance of the testimony that the defendant L. C. Barnes, at any time prior to the 30th day of July, 1902, in good faith, actually settled upon half section No. 48, in controversy, with a bona fide intention of purchasing it and making his home thereon, and you further believe from a preponderance of the evidence that he was an actual settler in good faith and actually residing upon said half section 48 at the time he made Ms application to purchase the same on the 30th day of July, 1902, and that he made such application to purchase in good faith for the purpose of making the land his home, and you further find and believe’ from the evidence that J. B. Williams had not been and was not an actual settler upon said half section No. 48, in good faith, with the bona fide intention of making it his home at the time he made his application to purchase the same from the state on the 12th day of January, 1901, you will find for the defendant L. O. Barnes and return your verdict accordingly.” It is urged that the charge authorized a recovery by Barnes “without a finding that he had actually settled upon and was in good faith residing upon the land in controversy as a home at and prior to the time he made his application.” The statute under which Barnes applied is that the purchaser shall make an affidavit “that he desires to purchase the land for a home and has in good faith settled thereon.” The court followed substantially the language of the statute and required the jury further to find “that he was an actual settler in good faith, and actually resided upon said land.” He required the jury to further find that he made the application “to-purchase in good faith for the purpose of making the land Ms home.” We do not think the charge subject to the criticism offered by appellant. By the fifth paragraph the court repeated his charge as to Barnes’ required settlement and further told them they could not find for defendant, even if Williams had not actually settled on the land. Again the jury are told, unless they found from a preponderance of the evidence that Williams was hot an actual settler, they must find for the plaintiff, notwithstanding Barnes may have been an actual settler, and then again repeats the proposition in a different form. We do not think the appellant has any just grounds for complaint at the charge of the court. As stated by us heretofore, we think the only question for the jury to find in order to render a verdict for defendant was to find that Williams was not an actual settler on the land when he made his application. If they found that fact against plaintiff, his title was void, and he could not recover. If they found for him on the issue of settlement, it would make no difference what Barnes did or did not do, Williams would be entitled to recover. This assignment is overruled.

The third assignment is overruled for the reason set out by us in discussing the facts under the first assignment.

The fourth assignment complains of the ninth paragraph of the court's charge, which is as follows: ‘‘The affidavit of proof of three years’ oecupáncy by J. B. Williams of section 48, and the certificate of the Commissioner of the General Land Office, to the effect that such proof had been made, read in evidence before you, were admitted in evidence for the purpose only of showing that such proof had been made, and they are not to be considered as proof of such occupancy.” We think the limitation was a proper one under the evidence in this case. After Barnes’ application was filed in the Land Office, as we understand the proof of occupancy was not proof thereof in a trial of that issue in the court. Our Supreme Court in this case held that such proof was ex parte. To the same effect is White v. Watson, 34 Tex. Civ. App. 169, 78 S. W. 237, in which case the court held the certificate of proof of occupancy was not admissible in evidence.

The fifth assignment complains of the action of the court in admitting in evidence the proof of occupancy by Barnes and the affidavit of two compurgators. The court limited the purpose of the evidence to the proof only that such certificate had been made, and the jury were instructed they were not to consider it as proof of occupancy by Barnes. Under the issue as made and tried in the lower court, the admission of the evidence as limited by the charge did not injure the appellant (article 421Sj, Rev. St. 1895; Pohle v. Robertson, 102 Tex. 274, 115 S. W. 1166); but, as we view the issue in the case, it was harmless. It at least tended to show on the part of Barnes that he asserted a claim of right under the law and kept it up.

We overrule the sixth assignment of error. We think the trial court gave the requested charge substantially in the main charge of the court.

The seventh and eighth assignments are overruled for the reason that the charges are on the weight of the evidence and are argumentative and, as we view the issue, were not applicable to the case, and, in so far as proper to be charged under the issues submitted by the trial court, the main charge given covered the requested instructions.

The ninth assignment will be overruled. Appellant requested the trial court to charge that, if Barnes settled on the land and abandoned it for any length of time as a home, he could not recover. The evidence indicates that Mrs. Barnes some time in 1908 moved into town to send the children to school, and that the father moved them back to the land some time afterwards; also that one of the boys rented a farm in Hall county in 1904 or 1905, and the father passed back and forth between the rented places and the land in question. The evidence indicates that some four years after Barnes settled on the land the old house was sold, but it also indicates that a new one was built “right afterwards.” If this raised the issue of abandonment, we think the court properly refused the charge for the reasons given heretofore. It will be seen all the acts occurred after the suit was filed, unless it was the renting of the land in Hall county. The tenth and eleventh assignments are overruled for the same reason.

The twelfth assignment complains of the action of the court in refusing the sixth specially requested charge to the effect that if Williams was an actual settler on the land when he made his application to purchase, and thereafter he left and remained away through a well-grounded fear of death or serious bodily harm, his rights, in such event, would not be prejudiced. This charge appears to have been requested on the ground that Barnes and his boys testified they did not see Williams on the land except one of the boys saw him there on two occasions, and Williams testified that, acting under the advice- of counsel, he remained away a considerable portion of the time after Barnes jumped it and after having a difficulty with Barnes on the street in Clarendon. We do not think the facts raised the issue, but, if they did, the charge of the court eliminated any injury. The court instructed the jury: “If J. B. Williams had actually settled upon section 48 of the land in controversy, and was in good faith residing thereon as his home at the time he made or caused his application to purchase to be filed with the proper authority, it matters not, so far as this suit is concerned, whether he continued to reside thereon or not.” We do not see what more appellant could ash at the hands of the court, unless it was to give a peremptory charge as requested by instruction No. 1. Requested charge No. 9 of which complaint is urged because of its refusal, was given by the trial court in the main charge in almost the exact language of the charge requested. The above assignments are therefore overruled.

The fourteenth, fifteenth, and sixteenth assignments are overruled. The court fairly presented to the jury the question, as to the settlement of Williams and Barnes. It is urged under the sixteenth assignment that Bames cannot recover for the reason set out under the first assignment (that is, that the evidence is conclusive that Barnes was not an actual settler on the land when he made his application, and that there is no evidence that he had not. filed on four sections of land before he made his application to purchase); that it conclusively shows that he had not continuously resided upon the land since making the application. We do not agree with appellant that there was no evidence of settlement by Barnes or that the testimony conclusively shows that he had abandoned the land. The trial court as to the law evidently adopted the theory of appellant on the main issue in this ease, as evidenced by his charges. When this case was before this court on a former appeal, one of the questions presented was the refusal of the trial court to admit evidence to the effect that Williams was not a settler on' the land when he applied to purchase. This court, on a motion for rehearing, affirmed the judgment of the district court which had been rendered against Barnes. A careful examination of the opinion of the Supreme Court, rendered by Judge Brown, we think clearly indicates that Barnes’ answer showed that the award to Williams was void. It was void on the ground that Williams had not settled. If he had made an actual settlement, then Barnes had no right whatever. The contention, however, appears to be that Barnes had to first show a clear equitable title to purchase the land before he could show Williams’ award to be void. The Sixth Court of Civil Appeals (111 S. W. 432), in discussing this case when before that court, rendered a judgment against Barnes and states that Williams’ title, “could be questioned' only by one having a better right and who, upon a showing of the truth of the facts attending the application to purchase, to the effect that a fraud had been perpetrated, would be entitled to priority in the award of the land over the appellant” (Williams). It is true the court based its opinion for rendering judgment against Barnes mainly on the ground that there had been issued a certificate of proof of occupancy, and the question here presented was not then involved. The Supreme Court, in granting the writ of error and in reversing the case, based its opinion on that proposition and held substantially the certificate was not conclusive against Barnes. The Supreme Court then certainly held that Barnes, under the facts presented, could attack the settlement of Williams, holding that Barnes must show the “facts which invalidate it.”

The line of authorities from Logan v. Curry, 95 Tex. 664, 69 S. W. 129, down, establish the effect of the certificate by the Commissioner as evidence. If given before an intervening application, it is conclusive; if given after, it. is rebut-table, if in fact it then has any probative force. If given after the Commissioner is deprived of power to determine the question of settlement, the law then requires an adjudication by the courts to settle the right. When the courts are resorted to, the rules governing its proceedings must control the trial. Williams resorted to trespass to try title. All the courts in this case have recognized Barnes’ right to assail the settlement made by Williams. They recognize that the certificate is not conclusive; at most the recognition of Williams’ title by the officers of the state made a prima facie case. If Williams had not settled the sine que non by the state, then one of his prima facie links in his title is shown to be a fraud on the state and his title is void. The plaintiff in trespass to try title must recover on his title and not that his adversary has no title. We have never understood it to be the rule that a defendant admittedly in possession of land is required to show a perfect equitable title before he will be permitted to assail the title of the plaintiff. In certain cases he may show an outstanding title to defeat the plaintiff, and that too when he has no connection with it. Whether he could do so in this case we do not decide, but Barnes does show an application to purchase as an actual settler and proof tending to show he was such, which under the charge of the court the jury found sufficient. He was on and in possession of the land under a claim of right. That right the Land Commissioner on false proof could not impair, whatever it was; and, when the plaintiff sought to recover the land, he must show, or the evidence must show, a better right. If his right is shown to be void from his evidence or from evidence produce^ by the defendant, he cannot recover. It may be that the defendant’s right would not support a recovery if he was seeking as a plaintiff to recover on it. Yet he will not be deprived of it as a defensive weapon, when his rights are assailed.

As to Williams’ settlement, there is testimony in the record supporting the finding of the jury that, when he made his application to purchase the land, he in fact had made no settlement thereon; that the house, or shack, as termed by some, was not placed on the land until something like a month after making the application; that he in fact never actually settled or lived on tlie land; and that it was never his intent or purpose in good faith to settle on it as a home.

This ease has been tried before several juries with the same result as upon this trial when they were permitted by the trial court to pass upon the facts. It has twice been rendered against Barnes by two separate Courts of Civil Appeals, and the Supreme Court has each time reversed the judgment of those courts. The trial court upon the last trial has compelled Barnes not only to prove Williams was not a settler but also to prove that he (Barnes) was an actual settler in good faith, with the intention of making it his home. To now require him, in order to recover, to negative every possible reason the Band Commissioner may have had in rejecting his application, and to also show that when his wife took the children to town to send to school, or that when his boy worked or rented a farm and Barnes went back and forth between the places, he had not thereby abandoned the place as a homestead, we think would be placing on him an intolerable burden. It would be forcing him in the attitude of the plaintiff, and not the position of a defendant, where the pleadings and the law placed him. We believe the case should be affirmed, and it is accordingly so ordered.

Affirmed.