author: ELY, C. J.

text:
    SUNSET WOOD CO. v. KELLY et al.
    (No. 6021.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 1, 1918.
    Rehearing Denied May 29, 1918.)
    Garnishment <&wkey;88 — Affidavit — Garnishee’s Residence- — Partnership.
    The statute requiring affidavit for garnishment to state the residence of garnishee is substantially complied with by allegation that garnishees K. and S. are engaged in business under the name of Army Bank, in B. county, the presumption being that members of a partnership reside in the county where, as a partnership, they are engaged in business.
    Appeal from Bexar County Court for Civil Cases; John PI. Clark, Judge.
    Garnishment by the Sunset Wood Company against E. A. Kelly and another. From an adverse judgment, plaintiff appeals.
    Reversed and remanded.
    J. D. Dodson, of San Antonio, for appellant. Leonard Brown, of San Antonio, for ap-pellees.
   ELY, C. J.

This is an appeal from a judgment quashing a writ of garnishment sued out by appellant against E. A. Kelly and F. G. Saunders, doing business under the name of the Amy Bank of Ft. Sam Houston. It was alleged that appellant had sued E. Koerner on a debt due by him to appellant, and that the same was pending in the county court in which the application for garnishment was made. Koerner intervened in the suit and filed a motion to quash, because the affidavit for garnishment failed to state the residence of the garnishee. It was alleged in the petition that:

“E. A. Kelly and F. G. Saunders, engaged in business under the name of Army Bank of Ft. Sam Houston, in Bexar county, Texas, are indebted to the defendant, or have in their possession effects belonging to the defendant, held in the name of E. Koerner, or in the name Army Building Company.”

We are of the opinion that the allegation that Kelly and Saunders were engaged in business under the name of the Army Bank of Ft. Sam Houston, in Bexar county, Texas, was an allegation that they resided in Bexar county. If they are engaged in business as a firm in Bexar county, the cogent presumption would be that they resided in the same county in which they were engaged in business. The writ was issued to Bexar county, and was served on Kelly and Saunders in that county, and they made no answer, as appears from the bill of exceptions agreed to by counsel for appellees and approved by the court. The provision o£ the statute as to residence, requiring that it be named in the affidavit, was to guide the issuance of the writ and to fix the venue. This is necessary, because a judgment by default may be taken against a garnishee if he resides in the county where the proceeding is pending; but, if he resides in another county, a commission must be issued to take his answers, if he fails to make an appearance. Articles 282-292, Rev. Stats. We think there was a substantial compliance with the statute in the statement as to res-, idence.

Courts have been very strict in requiring compliance with the statute as to the terms of the affidavit for garnishment, but we have seen no case going as far as was gone in this case. In the case of Dickerson v. Grocery Co., 147 S. W. 695, it was alleged that the garnishee, an insurance company, had agents in a certain county, but it was not stated that they resided therein, and the court held:

“It is not alleged in terms in the application that the agents of the garnishee named therein reside in Henderson county; but we think the language used is equivalent to such an allegation, and substantially meets the requirements of the statute.”

To the same effect is Harris v. Cozart, 178 S. W. 733.

It may be, as held in the ease of Freeman v. Rice & Irr. Co., 188 S. W. 444, that an allegation that a corporation is doing .business in a certain county is not equivalent to an allegation that it resided there; but that is different from an allegation that a partnership, naming its members, is engaged in business in a certain place, which difference is recognized in the case cited.

The judgment is reversed, and the cause remanded.
      cgsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    KIRBY LUMBER CO. et al. v. BRADFORD HICKS LUMBER CO.
    (No. 399.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 20, 1918.)
    Appeal from District Court, Tyler County; J. Llewellyn, Judge.
    On motion tfor supplementary findings. Motion granted.
    For former opinion, see 203 S. W. 418.
    Andrews, Streetman, Burns & Logue and ICennerly, WJilliams, Lee & Hill, all of Houston, for appellants. Fisher, Campbell & Amerman, of Houston, Greer & Nall, of Beaumont, and Coleman & Lowe, of Woodville, for appellee.
   HIGHTOWER, C. J.

Subsequent to the action of the court reversing the judgment in this case, appellee filed a motion requesting ■this court to let its opinion show that appel-lee’s petition contained the following allegations, in addition to those stated in the original opinion, to wit;

“Plaintiff would represent and show to the court that it has purchased from various and sundry parties title to a portion of the north and middle Plooe surveys, and also an undivided interest in the south Ilooe survey, and owns the same by fee-simple title, which title was acquired by plaintiff, and is in addition to the title hereinafter mentioned.”

And further:

“That, under and by virtue of the facts here-inbefore set forth and conveyances hereinbefore mentioned, this plaintiff acquired and now owns. an undivided interest in, and became a joint owner with said defendants in and to, the-north and south Hooe surveys.”

And further:

“Plaintiff would further represent and show to the court that it has entered upon said north and south Hooe surveys for the purpose of taking possession of that part thereof described in the deed from W. D. Gordon et al. to this plaintiff, and that, notwithstanding it and those under whom it claims own an undivided interest therein, and are tenants in common with defendants, the defendants herein and each of them are now threatening to eject plaintiff from said land, and plaintiff fears that, unless granted the relief hereinafter prayed for, said defendants will eject it from said land and refuse to permit it to remain in possession of any part thereof; that said defendants are now claiming that they are entitled to the exclusive possession of the north Hooe survey and the south half of the south Hooe survey, and are entitled to hold the same as against this plaintiff; that the portions-of said surveys taken possession of and now in the possession of plaintiff are not of any greater. value than the remaining portions of said land, and the parties under whom this plaintiff claims are entitled to a much larger part of said surveys than that conveyed to this plaintiff, and that has been taken possession of ’ by it, which it is using for the purpose of constructing its tram road thereon.”

While the court is of the opinion that most of what the motion requests us to incorporate in the opinion as additional allegations in ap-pellee’s petition is already reflected in the original opinion, still we have no hesitancy in granting the motion for the additional findings above specified, and the same is granted, and it is here now stated that the above allegations were contained in appellee’s petition, upon which the judge of the Seventy-Fifth judicial district acted in granting the temporary injunction in this case, and it is ordered • that these supplemental findings be filed as a part of, and to be considered with, the original opinion of the court in this case.


author: BAINEY, C. J.

text:
    BOWMAN v. BAILEY et al.
    (No. 7964.)
    (Court of Civil Appeals of Texas. Dallas.
    May 4, 1918.
    Rehearing Denied June 1, 1918.)
    1. Usury <&wkey;100(2) — Payments — Application.
    Where notes, on their face, do not show usury, and there is nothing to show that any payment was made on usurious interest, the payments will be applied to the principal, and not to the usury.
    2. Usury <&wkey;139 — Penalty — Necessity of Payment of Interest.
    Where the amount received by borrower for notes not showing usury on their face had not been paid in full, and there wap nothing to show that payments made were made on usurious interest, there could be no recovery of double the amount of usurious interest paid, as provided by Bev. St. 1911, art. 49S2.
    3. Usury &wkey;>129 — Claim for Penalty — Assignment.
    Where, at time claim for usury was assigned, the maker assignor had) not paid any amount as interest on the notes, and the amount paid did not exceed the amount received from payee, lender, !the assignment lamounted to nothing, since no claim for usury existed.
    4. Usury <&wkey;130 — Parties Entitled to Plead — Purchasers.
    Plaintiff, who purchased the automobile mortgaged to secure notes and assumed the notes, is in no position to plead usury, since his liability arises from assumption of notes.
    Error from Dallas County Court; T. A. Work, Judge.
    Action by Charles E. Bowman against -J. W. Bailey and others. Directed verdict for defendants, and plaintiff brings error.
    Judgment affirmed.
    Geo. Clifton Edwards, J. L. Goggans, and Albert Walker, all of Dallas, for plaintiff in error. Israel Dreeben, of 'Dallas, for defendants in error.
   BAINEY, C. J.

We adopt the statement of the case from defendants in error’s brief as follows:

“Plaintiff in error, plaintiff below, on the 19th day of February, 1916, filed this suit in the county court of Dallas county, at law, Dallas county, Tox. He sues, for himself and as the assignee and legal representative of G. C. Wood, the defendants in error, J. W. Bailey, Charles Mott, N. E. Harper, and B. L. Walkup, both as individuals and as a partnership under the name Dallas Loan Company, for twice $70,-15, alleged to have been paid defendants in error as usurious interest by G. C. Wood, and which claim for penalty amounting to $140.30 is alleged to have been transferred by said AYood to plaintiff in error, and for $140, double the amount of usurious interest plaintiff in error .alleges he personally paid defendants in error. Plaintiff in error asks for cancellation of certain notes, and a chattel mortgage against a Ford car, and for judgment for $280.30, penalty for the payment of usurious interest. By trial amendment, filed October 10, 1916, plaintiff in ■error pleads, in lieu of written assignment alleged in his original petition, an oral assignment of date February 10, 1916, and a written assignment, the same as set up in his original petition. Defendants in error answered the original petition March 6, 1916, by general demurrer and general denial, by amended answer, setting up various exceptions, general denial, plea of no partnership, and cross-action on the .notes sought to be canceled by plaintiff in error, for the balance due; also sworn denial of partnership. To plaintiff in error’s trial amendment, defendants in error filed general and special exceptions, general denial, and that the transfer of cause of action was fraudulent and without consideration. The case was tried October 11, 1916, before a jury. After all the evidence was in, the court, at the request of defendants in error, peremptorily instructed the jury for defendants in error as per charge requested, and the jury returned a verdict accordingly for defendants in error for the sum of $110, etc., and foreclosure of mortgage on the Ford car.”

G. C. Wood borrowed from N. E. Harper on September 29, 1915, $100, and executed his promissory note to said Harper for $130, and 10 per cent, interest, payable in twelvé equal weekly installments, and to secure same executed a mortgage on a B’ord automobile. Subsequently, October 22, 1915, Wood borrowed $37.30, and executed his note for $47.30, secured by the same mortgage on the Ford car. The $130 note bears this indorsement: “Without recourse. N. E. Harper” — and credits aggregating $52.55. The evidence shows that $90 was paid on said notes, but there is no evidence stating that said amount was paid as interest. Then Wood sold the automobile to Bowman, and also assigned to him his (Wood’s) claim for usury paid, and Bowman assumed the payment of the two said notes and the mortgage securing the same. It is assigned that the court erred in giving a peremptory charge to find a verdict in favor of defendants in error.

The proposition is urged that:

“Plaintiff, having introduced evidence to support a verdict in his favor, was entitled to have the issues submitted to the jury, no matter how strong the contradictory evidence might be. In determining this question the evidence must be considered in its most favorable light for plaintiff in error, disregarding’ conflicts and contradictions; they raised the issue of credibility, which was a question for the jury.”

The evidence fails to show that any payment was made on usurious interest. The notes on their face do not show usury. At the time the notes were assigned to plaintiff in error there had not been paid on the notes more than $90, and the evidence shows that the borrower had received $137.50 in cash, leaving due on the notes $130, and no witness testified as to what was jiaid as interest. Payments thus made will be applied by the law to the principal, and not to usury, if there be any in the contract.

Under the facts as established the plaintiff in error was not entitled to recover double the amount paid as usury, but only entitled to have said amount so paid credited on the principal of the note, and the court was justified in instructing the jury to find a verdict for defendants in error against plaintiff in error. On the question of usury, article 49S2 provides, in effect, that when usurious interest is received and collected double that amount can be recovered as a penalty, but as none was shown to have been received and collected, the plaintiff in error was not entitled to recover. Clayton v. Ingram, 107 S. W. 880; Rosetti v. Lozano, 96 Tex. 57, 70 S. W. 204; Long v. Moore, 59 Tex. Civ. App. 579, 126 S. W. 345; Allen v. Bank, 175 S. W. 485; Stewart v. Briggs, 190 S. W. 221.

At the time the claim for usury was assigned by Wood he had not paid any amount as interest, and the amount paid did not exceed the amount received by Wood in cash from Bailey, and therefore no claim for usury existed. Such transfer amounted to nothing, and plaintiff in error is not entitled to recover thereon, as defendants in error had “not received or collected” usury.

Besides, plaintiff in error in purchasing the Ford car from Wood had assumed to pay the notes executed by Wood to Bailey, and he is not in an attitude to plead usury, as his liability arises from the assumption of the notes. Building Ass’n v. Hay, 23 Tex. Civ. App. 98, 56 S. W. 580; Association v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825; Vaughn v. Association, 36 S. W. 1013; Connor v. O’Donnell, 55 Tex. 167; 39 Cyc. p. 931, IV.

Under the facts in this case, we are of the opinion the court was fully justified in directing a verdict for the defendant in error, and the judgment is affirmed.
      (&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    WUNSCHEL v. FARMERS’ STATE BANK OF BURKBURNETT et al.
    (No. 1352.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 29, 1918.)
    Chattel Mortgages <&wkey;>150 (1) — Record — NiOTICE.
    \Tlie record of a chattel mortgage, made by one who is not the owner of the property, is not constructive notice to one dealing with the owner. \
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    Suit by the Farmers’ State Banlc of Burk-burnett against Max Wunschel and others. Judgment for plaintiff, and the named defendant appeals.
    Affirmed in part, and reversed and rendered in part.
    Martin & Oneal, of Wichita Falls, for appellant R. E. Huff, of Wichita Falls, for ap-pellees.
   HALL, J.

Appellee bank instituted this suit against Arthur Day, M. L. Moore, and appellant, Wunschel, praying for judgment against Day and Moore on:^ix promissory notes, dated November 6, 1W.6, executed by them, and seeking the foreclosure of-a chattel mortgage executed by Arthur Day at the same time to secure the above-described notes. The mortgage contains a description of two wagons, two sets of harness, two cows, and four horses, two of the horses described as follows; “Two black horses named Sam and Coley.” It is alleged that the mortgage was duly filed for registration; that appellant, Wunschel, had purchased and had in his possession the two horses, named Sam and Coley, and the wagon and set of harness first described in the mortgage. A writ of sequestration was issued by plaintiff and levied upon said horses and wagon.

Appellant answered that on the date of the filing of the suit he had the two horses, Sam and Coley, the Studebaker wagon, with oil tank and piimp, and the nearly new set of harness, as described in plaintiff’s petition, which was then of the reasonable market value of $600; that he purchased all of said property on December 2, 1916, from his co-defendant M. L. MooreNÉoNfSOO cash, without any notice, constructive or actual, of any claim to, interest in, or lien upon such property by any other person whatsoever; that he was a bona fide purchaser thereof for value; that said property was on the date of his purchase, and had continuously theretofore, since prior to November 6, 1916, been tire property of said M. L. Moore, use'djcontrol-led, and possessed by him, and that neither on November 6, 1916, nor at any other time, did said Moore execute a mortgage on the same; that he had no knowledge of the execution by Arthur Day and M. L. Moore of the note sued upon, or of the execution by Arthur Day of the mortgage which plaintiff sought to foreclose upon said property; and that the defendant Arthur Day at no time had any right, title, or interest in said property to mortgage. I-Ie reconvened for damages for the levy of the writ, prayed for possession of the property, and judgment for his damages for the wrongful sequestration. Defendant Moore filed no answer. Arthur Day answered that he executed the notes and mortgage, but that he was a minor, and was only 17 years of age when he executed the same, that he received none of the proceeds, of the notes or mortgage, and that the horses, named Gingger and Charlie, were-his own horses.

There are other pleadings in the record not necessary to be set out here. It was agreed in open court that appellant purchased the horses, Sam and Coley, and the Studebaker wagon, oil tank, immp, and set of new harness from M. L. Moore, in good faith, without actual notice of the bank’s mortgage or claim on said property. It was further agreed that at the time of the execution of the writ of sequestration upon said property appellant was in possession of it in Archer county, and that bis actual damages, by reason of the levy of the writ of sequestration and depriving him of the use of his said team, amounted to $30.

In reply to special issues submitted, the jury found that the defendant Day was not 21 years of age when the notes and mortgage were executed; that he did not represent to the bank that he desired to purchase the property mortgaged by him, or any portion of it, with the proceeds of the note, nor did he represent that he already owned other property discxibed in the mortgage, and desired to obtain the loan with the security of the property being purchased and with what he already owned; that he did not represent to the bank that he was 21 years old at tlie time of executing said notes; that the officers of said bank did not believe him to be 21 years of age; that a person of ordinary prudence would not have believed him to be 21 years of age; that the horses, Sam and Coley, and the Studebaker wagon, with oil tank and pump, and the set of harness purchased by Wunschel, were in the possession of defendant Moore from November 6, 1916, the date of the mortgage, up to and at the time the defendant -Wunschel purchased them on December 2, 1916. The court fore-., closed the mortgage upon the property owned by defendant Wunschel. Wunschel alone appealed.

Upon the findings Wunschel moved the court for judgment in his favor. This motion was overruled, and this ruling is the basis of the first assignment of error. The proposition 'under this assignment is that, If Arthur Day did not represent to the agent of plaintiff that he intended to buy the property from defendant Moore, and not only the title to said property, but also the possession of same, remained in Moore from the time of the making of the mortgage by Day to the time of the sale of the property by Moore to Wun-schel, and Wunschel was the purchaser of said property from Moore for a valuable consideration, in good faith, without actual notice of the bank’s claim to a mortgage upon the same, by reason of the mortgage executed by Day, then Wunschel took the title and possession of said .property clear of any in-cumbrance upon same in favor of said bank, and was entitled to judgment in his favor, clearing said property of said claim by plaintiff bank, and for damages for the wrongful sequestration of the same. This proposition submits th'&^-bnly question necessary to be considered. V The law with reference to this question is stated in 11 C. J. p. 540, § 228, as follows:

“The record of a mortgage of personal property made by one who is not the owner of the property is not constructive to one dealing with the owner.”

And in 5 R. C. L. pp. 413, 414, § 40, the rule is announced in this language:

“The weight of authority is that a mortgage on personal property, made by one who was not the owner of the property, or executed by the owner in a fictitious name, although placed on record, is not constructive notice to any one dealing with the owner in his true name. The reason of the rule is that such conveyances in fictitious name lie outside of the chain of title, and therefore impart no notice. So, where a mortgagee advances money to the person in possession of the property, he is not obliged to look for mortgages on his interest in the property in any fictitious name, nor in the name of any one acting for him.”

See Beaumont Rice Mills v. Bridges, 45 Tex. Civ. App. 439, 101 S. W. 511; Mackey v. Cole, 79 Wis. 426, 48 N. W. 520, 24 Am. St. Rep. 728; New England National Bank v. Northwestern National Bank, 171 Mo. 307, 71 S. W. 191, 60 L. R. A. 256; Brayton v. Beall, 73 S. C. 308, 53 S. E. 641; Bradford v. Lembke, 118 S. W. 159; Fish Furniture Co. v. Reliable Storage & Van Co., 187 Ill. App. 6.

It has been stated in this court that the property purchased by Wunschel has been sold by the. bank, and that its value was $600. It is therefore ordered that the judgment of the court below be affirmed, except in so far as it decrees a foreclosure of the chattel mortgage lien upon the property purchased by Wunschel. In this particular the judgment is reversed, and here' rendered that appellant, Max Wunschel, recover of appellee bank the sum of $600 being the value of the mortgaged property, together with interest thereon from the date of the levy of the writ of sequestration, and that he recover the further sum of $30 damages for the wrongful levy of said writ together with his costs.

Affirmed in part, and reversed and rendered in part.

HUFF, C. J., not sitting, being absent in Austin, sitting with committee of judges passing on writs of error for Supreme Court.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    INGRANDO v. GULF, C. & S. F. RY. CO. et al.
    (No. 366.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 17, 1918.
    Rehearing Denied June 5, 1918.)
    1. Waters and Water Courses &wkey;>124 — Mandatory Injunction.
    Where a railroad dug a ditch upon its own property, and the whole damage to land of an adjoining owner could be repaired completely, and a revetment constructed which would prevent further damage, such adjoining owner was not entitled to mandatory injunction to compel the railroad to restore to its former natural surface a washout in his land.
    2. Waters and Water Courses <&wkey;119(4)— Railroads — -Right to Drain.
    A railroad had a right by digging a ditch on its own property to drain the right of way, thereby maintaining its tracks in the interest of the public, and, so far as an adjoining owner was concerned, had a legal right to continue the ditch on the property of some one else so as to connect with a gully, so that if a washout resulted from maintenance of the ditch, legally constructed, the only question to determine in the owner’s suit against the railroad is one oi negligent-maintenance and damage.
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Suit by I. Ingrando against the Gulf Colorado & Santa Fé Railway Company anc others. To review judgment for defendants, plaintiff brings error.
    Affirmed.
    J. M. Gibson, of Houston, for plaintiff in error. Andrews, Streetman, Burns & Logue, of Houston, and Terry, Cavin & Mills, of Galveston, for defendants in error.
   BROOKE, J.

This suit was brought by plaintiff in error, I. Ingrando, by petition for a mandatory injunction against the defendants in error to compel said defendants 'to fill and restore to its former natural surface condition a gully or wasliout that had .been formed in plaintiff’s premises, which ■were situated adjoining the defendant railroad and right of way, and to enjoin them from permitting said gully to remain unre-paired, so as to prevent future washing away •of plaintiff in error’s property. Plaintiff also asked for damages by loss of rents. It seems in this ease the railway company dug a ditch on its .own property, connecting with a natural draw which led to the bayou, and said ditch or the draw at no point touched the property of Ingrando, and as a matter of fact Ingrando did not own the property in question at the time the ditch was dug, but the property was untouched by either the ■ 'ditch or the draw, and if affected by washing later, it is a question whether or not the •ditch had anything to do with it. If, however, it did, it was only by reason of the fact that water washed the banks along which it flowed to such an extent as to cause damage. The ditch seems to have been dug by the railway company upon its own property perhaps at some time prior to 1911, and was upon property partly adjacent to that which later was purchased by Ingrando, and it permitted the surface water to flow through the ditch into the natural draw, which led to the bayou. The fact that the ditch extended somewhat beyond the property of the railway company, in order to connect it with the draw, does not alter the case, in so far as Ingrando is concerned, for the reason that there is no complaint that the ditch was at any place dug upon the land of said In-orando. The defendants filed a joint answer, •demurring generally to plaintiff’s petition, with a general plea of not guilty and special •defense of the statute of limitation of two years. After the evidence was heard,, the plaintiff moved the court to submit the question on special issues, and defendants moved the court for a peremptory charge. The court overruled the motion of plaintiff to submit the special issues requested, and sustained the motion of the defendants, and gave a peremptory charge to the jury to find for the defendants. The verdict of the jury was rendered in accordance with said instruction. Plaintiff filed a motion for new trial, which was overruled. Plaintiff excepted and gave notice of appeal, and the cause is properly before this court by transfer from the First district at Galveston, by order of the Supreme Court.

It seems that the first assignment of error has been passed. The second assignment, however, is insisted upon, which calls in question the action of the lower court as being error in giving the following charge to the jury, instructing them to find a verdict for defendant, as follows:

“Gentlemen of the jury, in this case the plaintiff in open court having announced that he waived the claim of damage to his property, that is, for permanent injuries ’thereto, the measure of which would be the difference, if anyT between the reasonable market value of said property before and after the alleged damage or injury; and the plaintiff, in the opinion of the court, not being entitled to the remedy of injunction as prayed for; and it appearing from the face of plaintiff’s petition that his claim for use of rent on said land as claimed is below the jurisdiction of the court — you are therefore instructed to return a verdict for the defendant.”

It seems that there was a trial amendment, which was as follows:

“Comes now the plaintiff, and by leave of the court first had and obtained files this his trial amendment to his first amended original petition herein, to wit: The plaintiff amends said petition by withdrawing therefrom in the concluding paragraph of same and at the end thereof all of the language which reads as follows: ‘And, that if mistaken in this, he have damages for the full value of the depreciation in the market value of said premises in the sum’ of $900,’ it being the intent of the plaintiff hereto to abandon his claim in said original petition for any depreciation in the market value of said premises by reason of said washout or ditch.”

In opposition thereto, it is insisted that the allegations of plaintiff’s petition must be taken as conclusive that there was no irreparable damage to the land and property of plaintiff, such as would entitle him to the relief by way of mandatory injunction as prayed for.

The testimony of F. W. Bobbitt is that the ditch cut by the railroad must have been cut in 1909 or 1910, that he was in charge of those matters from 1911 on, and that the ditch was in existence when he entered the employment of the Houston Belt & Terminal Railway Company in 1911. Bobbitt made a drawing, showing the construction of the ditch on the property.of the railway company, and connecting with a draw, as he calls it, which was in existence at the time the ditch was dug, making a channel for the surface water to pass into Bray’s bayou. The ditch itself can be traced backward to the railroad right of way, and the witness testified that at no point in the construction of the ditch would it touch the property of Ingrando, and further testified that he estimated the cost of the work referred to to be about $280.50 for the filling and $15 for the revetment. Two witnesses familiar with real estate values testified in the case, One of them testifying that he was in the real estate business, acquainted with real estate values in and about the Luke Moore league in Harris county, that he had been upon the Ingrando property not far from Bray’s bayou, near the Santa Fé bridge, and that he was acquainted with the market value of property in the vicinity. I-Ie estimated the market value of the land at about' $100 and the house at about the same amount. He testified that the washout which he observed .on the property, which he visited a short while before the trial, would depreciate the value only about <r25.

The other witness testified that he was acquainted with the Ingrando property, and that he had visited it at the request of the defendant’s attorneys, and he estimated the total valuation, including the house, at about $500, the land being worth about $500 per ' acre. He stated that if the washout had seriously cut into the property, it would proportionately depreciate the value, but he testified that upon his inspection the washout had not done any damage to it, and had caused no depreciation in the market value of it.

Considering the damage was such as could be deemed irreparable in its nature, these witnesses state that the whole damage could be repaired completely, and that a revetment could be constructed which would prevent further damage. Therefore, if it be conceded that the railway company dug the ditch, plaintiff abandoned his claim for damages, and, in our opinion, the court appropriately instructed the jury peremptorily to return a verdict for appellees, and denied the injunction. In this connection, it may be appropriate to quote the language of the Supreme Court in the case of Barnett v. Matagorda Rice & Irrigation Co., 98 Tex. 355, 83 S. W. 801, 107 Am. St. Rep. 636, as follows:

“There is no such thing known to the law as a right to any particular flow of surface water, jure natura;. * * * If the right to run in its natural channels was annexed to surface water as a legal incident, the difficulties would be infinite indeed. Unless the land should bo left idle, it would be impossible to enforce the right in its rigor; for it is obvious every house that is built and every furrow that is made in a field is a disturbance of such right. If such a doctrine prevailed, every acclivity would bo and remain a watershed, and most low ground become reservoirs. It is cer•tain that any other doctrine but that which the law had adopted would be altogether impracticable.”

While the plaintiff in error seeks to bring his case under article 4643, Vernon’s Sayles’ Civil Statutes, relating to injunctions, we are cited to the case of G. H. & S. A. Ry. Co. v. De Groff, 110 S. W. 1006, as supporting his contention. We find that the Supreme Court has overruled in this case, the opinion being reported in 102 Tex. 433, 118 S. W. 138, 139, 21 L. R. A. (N. S.) 749, in which opinion Judge Brown lays down the proposition that where the damage could be ascertained and recompensed fairly upon a monetary consideration, there was not such injury as would justify an injunction. In addition, it might be well to say that this case does not come within the statute relating to the duties of railway companies as to construction of sluices and drains underneath the roadbed, but is entirely different from the cases arising under that statute.

It is earnestly insisted, however, that it was error for the court below, in view of the evidence, to have withdrawn the case from the jury, and it is argued that the evidence discloses that plaintiff’s lot had been very badly washed by reason of defendant’s diverting the water from the ditch along its right of way out to the fence upon plaintiff’s property, and that if the ditch be permitted to remain in its present condition, it will continue to wash, and that a railway company is bound to take in consideration, not only the existing situation of the land, but future changes therein that would be caused by a drain, and, further, the evidence shows that the owner of the land adjacent to the railroad right of way has been injured, and that' this injury will probably continue in the future.

On the contrary, it is urged that the obstruction of the surface water or an alteration in the flow of it affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil. This suit is predicated upon the theory that the ditch in and of itself, even though constructed on the property of the railway company, constituted an illegal thing violating the rights of Ingrando and entitling him to the injunction. The eases of Wellborn v. Wellborn, 185 S. W. 1041, and Walenta v. Wolter, 186 S. W. 873, were decided by the Court of Civil Appeals at San Antonio, and involve the principles relied upon. A quotation made by the court in the latter case from the decision in Gramann-Eicholtz, 36 Tex. Civ. App. 309, 81 S. W. 756, is as follows:

“Under the common-law rule, which seems to prevail in this state, one may protect his own property from the effects of surface water percolating or flowing through or over it, and this without reference to the effect it may have on his neighbor’s land. Booker v. McBride, 16 Tex. Civ. App. 348, 40 S. W. 1031.”

It is also urged by appellees that, even though the plaintiff would otherwise have been entitled to an injunction, in view of the lapse of time subsequent to the digging of the ditch in 1909 or 1910, any right to enjoin the maintenance of said ditch was lost, and in no event could there be a right of action other than for damages.

Ingrando himself testified:

“I do not tell the jury there was no washing there in 1910, the latter part, say from September on, due to a ditch in that vicinity. I do not tell the jury there was no washing in 1911 due to a ditch in that vicinity. I mean there was no washing. 1912 was the start of the washing due to a ditch in that vicinity. I don’t remember exactly the time, but it was beginning to start.”

Tobe Wilson, who lives in a house adjacent to the one owned by Ingrando, testified:

“This ditch connected with that raili’oad rjghl; of way, and the property they brought it across was my fenced property, but I don’t know— they got out of it some way — the railroad company fenced it in. I don’t know exactly how near it come to my property, but about 100 feet, maybe 120 feet, something like. It didn’t touch the lot that Mr. Ingrando owns next to me when it was first cut; it went kind of south of both of our properties. There was a ditch run right into the road, and all this going into there, it commenced washing. It didn’t touch Mr. Ingrando’s property when it was first cut. I disremember how long after it was cut before it formed a wash, somewhere about 1913. This wash started in the ditch, and then that sliding clay kept caving back.”

He further testified:

“There was washing back up there in the vicinity of Mr. Ingrando’s property before 1913. The point that I told Mr. Gibson about is what I am speaking about. I won’t undertake to say how long the ditch had been there.”

He further testified that the railroad connected the ditch with an old gully, which ran back toward Ingrando’s house. 1-Ie says, with reference to this gully:

“The gully, I reckon, was there before the bayou got there. I reckon it has been there since the bayou is there. I reckon what made the bayou made the gully. That gully has been always there.” >

It is further urged by defendants in error that, the plaintiff having abandoned his claim for damages, predicated upon the depreciation in the market value of his property, and having asserted only his right to an injunction, the court appropriately refused the injunction upon the hypothesis that to grant and enforce the injunction prayed for would relatively cause more injury to the railway company and the public interests served by it than to the plaintiff, should the injunction- be denied, and they argue that there is no sufficient basis to determine just what effect upon the railway company’s property in the vicinity a closing of the ditch in question would have. If there was such an amount of surface water passing off of the railroad right of way through this ditch as to cause serious damage to, plaintiff’s property, to the extent that same would be deeui-ed irreparable, it would logically follow that such water handled through a ditch else: where would have a similar effect, and that the railroad had a right to drain its right of way, thereby maintaining the highway of commerce in the interest of the public. There is nothing in-the record as to what method could be adopted by the railroad company other than such ditch as the one in question to properly drain the right of way in the vicinity. The railroad had a right to dig this ditch on its own property, and in so far as this plaintiff was concerned, it had a legal right to continue the ditch on the property of some one else so as to connect with the gully in question. If, therefore, the washing of plaintiff’s land resulted from tire maintenance of this ditch, which was legally constructed, the only question to determine would be one of negligent maintenance and damage.

We have carefully considered this record in the light of the photographs, the diagram prepared by the engineer showing the situation of the land and condition of the property, the pleadings of the respective parties, and the testimony admitted, and the action of the court, and we are of opinion that no substantial injustice has been done, such as would warrant this court in reversing and remanding the cause.

The judgment of the court, therefore, in our opinion should be affirmed. It is so ordered.
      (&wkey;Por other casesj^e same topic and KBY-NUMBER in all Key-Númbered Digests and Indexes


text:
    CAMERON v. WILLIAMS.
    (No. 358.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 22, 1918.
    Rehearing Denied June 5, 1918.)
    1. Bills and Notes &wkey;>476(2) — Action — Pleadino.
    In an action on notes, answer setting up contemporaneous oral agreement for future determination of the amount to be paid, and alleging that it was found that only a small part of the notes was to be paid, was not a good plea of failure of consideration, but was an attempt to vary the notes by parol.
    2. Limitation oe Actions <&wkey;63 — Offsets.
    Where defendant gave notes to his partner, and they agreed that on dissolution of the partnership the amount clue him should be remitted from the notes, and more than four years after dissolution suit was brought on the notes, the agreement was no defense, but in the nature of a set-off, and barred.
    Appeal from District Court, Harris County; Chas. E. Asher, Judge.
    Action by C. S. Williams against H. S. Cameron. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    G. P. Dougherty, of Houston, for appellant. L. C. Kemp, of Houston, for appellee.
   BROOKE, J.

This suit was filed in the Eleventh district court of Harris county on January 25, 1917, by C. S. Williams, as plaintiff, against H. S. Cameron, as defendant. A jury was demanded by defendant, but on the trial of the cause and before the conclusion thereof, by agreement of parties, the jury was waived, and all issues of fact, as well as of law, were submitted to the court. The case went to trial on March 7, 1917, and a judgment was rendered in favor of the plaintiff and against the defendant for the sum of $912,80, and all costs of suit. The suit was upon two promissory notes for the sum of $456.90 each, both dated November 27, 1912, executed and delivered by plaintiff to defendant, and due and payable 60 and 90 days after date, respectively, bearing 8 per cent, interest from date, and containing a clause providing for 10 per cent, attorney’s fees. The defendant answered by plea of four-years statute of limitation, and alleged that the two promissory notes sued on by plaintiff were executed without any consideration of any kind or character.

The court sustained exceptions to defendant’s answer, setting up facts connected with and surrounding the execution of the notes sued on, upon the ground that parol evidence could not be admitted to show that the consideration had failed, for the reason that said evidence tended to vary tb'e terms of a written contract, although said answer was presented as a plea of want of consideration and duly verified as required by statute. Tbe court also sustained exceptions to tbe answer upon tbe ground that all of tbe matters pleaded as defenses to tbe cause of action sued on were barred by limitation, and beld that so much of tbe plaintiff’s cause of action as sought to recover $3,136.59 upon tbe contract of sale alleged to bave been entered into between plaintiff and defendant on October 1, 1917, was barred by limitation, and proceeded to render judgment in favor of tbe plaintiff and against the defendant on tbe two promissory notes sued on. The' court having sustained the special exceptions, which in effect eliminated tbe defendant’s defenses to tbe notes sued on, no evidence was offered in support of tbe defenses set forth in paragraph 4 of tbe defendant’s answer. Tbe defendant duly excepted to tbe judgment entered, and perfected his appeal to this court.

Tbe first, second, and third assignments of error are grouped and will be considered together, as follows:

(a) “The court erred in sustaining the plaintiff’s first special exception, contained in the second paragraph of plaintiff’s first supplemental petition, to the fourth paragraph of the defendant’s first amended original answer.”
(b) “The court erred in sustaining plaintiff’s second special exception, contained in the third paragraph of plaintiff’s first supplemental petition, to the fourth paragraph of the defendant’s first amended original answer.”
(c) “The court erred in sustaining plaintiff’s third special exception, contained in the fourth paragraph of the plaintiff’s first supplemental petition, to the fourth paragraph of the defendant’s first amended original answer.”

The proposition under tbe foregoing assignments is:

“In a suit on a promissory note between the original parties to the note, where a sworn answer is filed alleging that the note was executed without consideration, and alleging all of the facts of the transaction out of which the note arose, the question of consideration is open and parol evidence is admissible tó show all the facts, just as in the case of allegations of fraud, accident, or mistake in the execution of an instrument sued on, and the objection that such evidence tends to vary the terms of a written contract has no application.”

On the contrary, it is urged:

“An answer alleging that defendant bought property of plaintiff, and executed the notes sued on by plaintiff as a consideration therefor, and alleging a contemporaneous parol agreement that defendant was to be allowed certain credits on the notes, is not in law a pleading of want or failure of consideration.”

And further:

. “An answer to a petition setting out a cause of action on promissory notes executed by the defendant, which answer alleges as a defense a parol agreement contemporaneous with the execution of said notes, to the effect that defendant in certain • contingencies" was not to pay the whole amount of said notes and was to be allowed certain credits thereon' to be afterward determined, is an attempt to vary, change, and contradict a written contract by parol evidence, . and such facts, if true, constitute no defense to plaintiff’s cause of action.”

And further:

“A defendant cannot plead as a defense to a cause of action on promissory notes executed by said defendant certain money demands or claims which he has against the plaintiff, but, if he wishes to urge said demands or claims, he must set them up as offsets or counterclaims to plaintiff’s cause of action.”

Nowhere does the defendant allege that tbe property sold by plaintiff was not of tbe full value as agreed on at that time, nor does be allege that be failed to get possession of said property, nor does be allege that after getting possession thereof tbe title to .said property or any part thereof failed. But appellant bases his .plea of want of consideration wholly on tbe alleged fact that there was a parol agreement contemporaneous with tbe execution of said notes that tbe mutual debts between tbe parties were to be afterward adjusted and defendant was to be allowed as a credit on said notes any alleged sum found to be due defendant by plaintiff, and that afterward it was found that certain sulms were due defendant from plaintiff which reduced tbe amount due on said notes to the sum of $368.33; and nowhere does defendant seek; to set up tbe amount alleged to bave become due him from plaintiff as an offset or counterclaim, but urges said matters strictly as a defense.

Without undue consumption of splice in this opinion, it will only be necessary to say that in our opinion tbe action of tbe court was correct, and the assignment is in all things overruled. Newton v. Newton, 77 Tex. 512, 14 S. W. 157; Saunders v. Brock, 30 Tex. 421; Leavell v. Seale, 45 S. W. 171; Ablowich v. Greenville National Bank, 22 Tex. Civ. App. 272, 54 S. W. 794; Bailey v. Rockwall County National Bank, 61 S. W. 531; Key v. Hickman, 149 S. W. 277; Norton v. Wochler, 31 Tex. Civ. App. 522, 72 S. W. 1025; Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S. W. 436.

Tbe fourth and fifth and sixth assignments will be considered together, as follows:

(a) “The court erred in sustaining. the plaintiff’s fourth special exception, contained in the fifth paragraph of plaintiff’s first supplemental petition, to the fourth paragraph of the defendant’s amended original answer.”
(b) “The court erred in sustaining the plaintiff’s fifth special exception, contained in the sixth paragraph of plaintiff’s first supplemental petition, to the fourth paragraph of defendant’s first amended original answer.”
(c) “The court erred in sustaining the plaintiff’s sixth special exception, contained in the seventh paragraph of plaintiff’s first supplemental petition, to the fourth paragraph of the defendant’s first amended original answer.”

Under these assignments, tbe following propositions are urged:

(a) “In a suit by one partner against another for the recovery of money, growing out of their partnership relation, such cause of action is not barred until the expiration of four years from the time the indebtedness or cause of action sued on was ascertained by settlement of the affairs of the partnership.”
(b) “Offsets and counterclaims not barred at the time of the filing of the plaintiff’s suit can be urged as a defense to the suit, or to reduce the amount of the plaintiff’s demand, where no affirmative relief is sought, although such offsets and counterclaims may be barred at the time they are set up, as independent causes of action, and as such no affirmative relief could be granted upon them.”
(c) “The statutes of limitations operate upon causes of action only, and do not bar facts offered in evidence as a defense to a cause of action asserted, where no affirmative relief is prayed for by reason of such facts.”

On the contrary, it is contended that actions by one partner against his copartner for a settlement of the partnership accounts are barred after four years from the time the cause of action accrued, and the cause of action shall be considered as having accrued on a cessation of the dealings in which they were interested together; and, further, that offsets and counterclaims can never b@ set up as a defense to a cause of action, hut are separate causes of action in defendant’s favor against the plaintiff, and defendant is barred by limitation from all relief as to such offsets and counterclaims where such offsets and counterclaims became due more than four years before the institution of plaintiff’s suit. It seems from this record that defendant’s answer shows that the notes which he attempts to set up as a defense became due August, 1912, October, 1912, and December, 1912, respectively; that the account of $312.93 was due before the partnership was dissolved; and that the Bay Shore Iron Works property was sold to plaintiff November 27, 1912.

The following cases support the contention of appellee: Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S. W. 430; Holliman v. Rogers, 6 Tex. 91; Walker v. Fearhake, 22 Tex. Civ. App. 61, 52 S. W. 629. In the case of Nelson v. San Antonio Traction Co., supra, the Supreme Court used this lauguage:

“The conclusion then" is necessarily reached that if it was the subject of an independent action by the traction company against Nelson, and did not constitute payment to Nelson for any part of the contract made with the traction company, the statute of limitation would begin to run from the time each item of the claim against Nelson originated; and if due and payable more than four years before the institution of the action by Nelson against the traction company, such claims of tlie traction company were barred by the statute of limitation.”

It is evident in the ease at bar that the claims of defendant against plaintiff, as alleged, are the subjects of independent action by defendant, and did not constitute payment of plaintiff’s claim, and under all the authorities of this state are barred by the statute of limitation, and ave not causes of action or defenses which the courts of this state could recognize or upon which they can grant any relief. The fourth, fifth, and sixth assignments are in all things overruled.

The appellant has 'had a fair and impartial trial in the trial court. No error has been C03nmitted that is manifested in this record, and therefore the judgment is in all things affirmed.
      ©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    CLAUNCH v. CLAUNCH.
    (No. 8120.)
    (Court of Civil Appeals of Texas. Dallas.
    May 11, 1918.)
    1. Appeal and Error &wkey;>837(3) — Review— An s web.
    Answer filed after orders for receiver and injunction had been made in divorce suit cannot be considered on appeal from orders.
    2. Divorce <&wkey;27(l) — Grounds—III Treatment.
    When a separation is sought under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4631, subd. 1, the general rule is that, in the absence of physical violence or fear of it, the conduct complained of must be such as is reasonably calculated to produce a degree of mental distress that will impair the health of the complaining spouse or render living together insupportable.
    3. Pleading <&wkey;8(3) — III Treatment — Divorce.
    There being no allegation showing the language used or how it was applied, the allegation that defendant husband would curse and abuse plaintiff unmercifully, or that he abused her severely, was a mere conclusion, and insufficient under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4631, subd. 1, providing that either spouse may be granted divorce when the other is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable.
    4. Divorce <&wkey;27(15) — Grounds—Drunkenness — Cruelty.
    Drunkenness alone is not a ground for divorce as cruelty.
    5. Receivers <&wkey;35(l) — Notice to Defendant.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 212S, subds. 1 and 4, as to appointment of receiver, that defendant was threatening to withdraw certain money from the bank and sell certain personalty would not warrant the appointment of a receiver, pending trial of divorce suit, without notice to defendant.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Divorce suit by Bertha Clauncli against W. D. Clauncli. Prom orders appointing receiver and granting injunctive relief, defendant appeals.
    Reversed and remanded.
    Miller & Miller, of Athens, for appellant. Justice, Coker & Justice, of Athens, for ap-pellee.
   RASBURY, J.

Appellee sued appellant in the court below for divorce and certain equitable relief pending trial. Omitting formalities, the petition, in substance, alleges that parties were married November 27, 1900, and lived together until April 8, 1918. To them were born seven children, the eldest 15 years of age, and the youngest 4 years. During marriage appellee demeaned herself with propriety, managed their household affairs with prudence and economy, and at all times was kind and forbearing towards her husband. Soon after their marriage appellant, in disregard of his marriage voys, formed the drink habit, as a result of which he frequent-iy squandered money, remained away from home at nights in a drunken condition, returning cross and irritable, often cursing and abusing appellee without provocation. Due to such conduct, appellee, after their marriage, left appellant and returned tp the home of her. father. Upon the promise of appellant that he would refrain, from drinking and treat her with kindness she returned to him. Appellant observed his promise for a period of about four years, or until the year 1906, at which time he resumed drinking, and due thereto would frequently remain away in the city of Dallas two or three days at a time, without knowledge by appellee or her children of his whereabouts. During the latter part of the year 1917 appellant would frequently sell the farm products, and with the proceeds go to the said city of Dallas, remaining there three or four days, returning under the influence of drink, cross añd ill, and would curse and abuse appellee unmercifully. About April 2,191S, appellant, without advising appellee whither he was going, went to the city of Dallas, and remained there four days, returning home under the influence of drink, at which time he cursed and abused appellee severely. Appellant has taught their -two older children the use of intoxicating drinks and has brought them home intoxicated. Appellee has pleaded with appellant to refrain from drink . and abuse of her and to assist her in accumulating but he has refused so to do. Appellee owns in her separate right, by gift from her father, 07% acres of land. Appellee and appellant own community property consisting of 42 acres of land, live stock, household furniture, vehicles, personalty, farm implements, and supplies of the value, excluding the realty, of $4,537150 (against which there are incum-brances aggregating $750), and have as well on deposit in bank $165. The parties have 25 acres of land planted in corn, 10 acres in cotton, and 30 acres prepared for planting with cotton. Appellant has threatened to convert their personalty to his personal use by sale thereof, and for same purpose withdraw their money from the bank. Prayer ■was for custody of the children, for injunction, and receiver.

On the clay it was filed the petition was presented to the I-Ionorable John S. Prince in chambers, who, upon the sworn allegations thereof, without notice to appellant, appointed T. M. Pippin, appellee’s father, receiver of the community estate of appellant and ap-pellee, with authority to take possession thereof, and to finish planting the crops on the land thereof, etc.; and enjoined appellant from interfering with the receiver or the 67% acres of land, separate estate of appel-lee, and enjoined the First National Bank of Mabank from paying to appellant any money in said bank to his credit. Prom the foregoing orders appellant has appealed and filed briefs. Appellee has filed no briefs.

Incidentally, it appears that appellant, after the action of the court in the respect stated, filed answer to the petition, but, since the answer was not before the district judge when his order was made, it cannot be considered here. City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Jelinek v. State, 52 Tex. Civ. App. 402, 115 S. W. 908; Houston Electric Co. v. Glen Park Co., 155 S. W. 965.

The first contention presented by appellant is that the allegations of cruel treatment contained in the petition are insufficient to support a decree for divorce, and as a consequence present no cause of action. After a careful analysis of the allegations and a review of the cases we have reached the conclusion that the petition does fail to state a cause of! action.

The proceeding is brought under subdivision 1 of article 4631, Vernon’s Sayles’ Civil Statutes, providing that either spouse may be granted divorce when the other “is guilty of excesses, cruel treatment or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable.” There has been much discussion in the past concerning precisely what meaning should be given to the terms excesses, cruel treatment, and outrages, but the judicial meaning is at this time, in our opinion, reasonably clear. Omitting any discussion of the claim, urged in the past, that the terms in every case contemplate personal violence, it may be said that in this state the general rule is that, in the absence of physical violence or the fear of it, it must appear, when a separation is sought under the subdivision cited, that the conduct complained of is such as is reasonably calculated to produce that degree of mental distress as will impair the health of the complaining spouse, or is of such a character, considering the relation of the parties, their sex, refinement, respectability, and morality, as renders their living together insupportable.

In the early case of 'Sheffield v. Sheffield, 3 Tex. 79, it was held that the terms quoted included “a series of studied, vexatious and deliberate insults and provocations,” unaccompanied by bodily harm or fear of it, which, if intolerable, would authorize divorce. In Jones v. Jones, 60 Tex. 451, it was held that words impeaching a wife’s chastity, unaccompanied by personal violence, was within the meaning of the terms. In Eastman v. Eastman, 75 Tex. 473, 12 S. W. 1107, the cases cited are reviewed and approved, and it is said, “We believe that no decision of this court can be found in which a judgment for divorce on the ground of cruelty has been permitted to stand, in the absence of some degree of * * * violence,” save in the instances cited. But the court in substance declared that it did not follow from such holding that other acts, sufficient under the statute, might not arise. In fact in case cited the court holds that the defendant’s conduct towards his wife, a woman tenderly reared and of fine sensibilities, which consisted of habitual drunkenness, a failure to support her, addressing her with oaths and in an unfeeling and insulting manner, neglecting to administer medicine prescribed by physicians, resulting in serious injury to her health, discharging her physician during a critical illness, requiring her while pregnant to milk cows in inclement weather, and refusing to secure her a physician, resulting in miscarriage, were the excesses, cruel treatment, and outrages contemplated by the statute, even in the absence of personal violence.

There are many other cases, but those cited are typical and suggest the meaning which ought to attach to the terms in the absence of personal violence or reasonable fear of it. What, then, is the application of the rule-to the facts alleged in appellee’s petition? Those facts, aside from drunkenness, which alone is not grounds for divorce, are generally that the appellant would frequently without appellee’s knowledge, after selling the farm products, go to the city of Dallas and remain three or four days, returning intoxicated, cross, and ill, and would curse and abuse her unmercifully, and specifically that on April 2, 1918, without her knowledge, went to and remained in Dallas four days; and when he returned intoxicated abused her unmercifully. To say that one cursed and abused another unmercifully or abused him severely is but a conclusion. In divorce proceedings much depends upon the character and manner of the curse invoked or the abuse administered. The words used and how applied might or might not be sufficient. Blasphemy, resulting from irritability caused by illness produced by drink would, however, hardly justify such relief. No) studied, vexatious or deliberate insults and provocations are alleged. No moral aspersions are shown. No conduct such as is detailed from the Eastman Case, supra, is claimed. The ease, it occurs to us, comes directly within the ruling in Camp v. Camp, 18 Tex. 528, where the evidence is stated in full, and which presents a condition much more aggravated than is presented in the present proceeding, and where the court say that the defendant—

“was drunk during the period mentioned, about two-thirds of the time, and at times would use very abusive and insulting language to his wife. But this language is not stated, and neither the jury nor the court could judge of the extent or character of the insult. Whether the language was that, or mere rudeness, or charged h'er with a want of purity or infidelity to Her conjugal relations, whether it was only grossness of behavior, or that which, aggravated by his brutal intoxication, .would amount to the cruel treatment which under the statute, would be ground of- divorce, we cannot judge, as we have only the opinion of the witness that it was abusive and insulting.”

The contention is also made that the appointment of a receiver without notice to appellant was unwarranted by the allegations of the petition. In this contention we also agree. The appointment of the receiver was warranted, if at all, under subdivision 1 of article 2128, Vernon’s Sayles’ Civil Statutes, which provides, among other things, for the appointment of a receiver in actions “between partners or others jointly owning or interested in any property or fund * * * where it is shown that the property or fund is in danger of being lost, removed or materially injured”; or under subdivision 4 of said article, which declares that receivers may be appointed “in all other cases where receivers have heretofore been appointd by the usages of the court of equity.” The substance of the allegations of the petition on which the receiver was sought was that appellant was threatening to withdraw certain money from the bank, and to sell certain personalty, and convert all to his personal use. Such facts, in our opinion, will not warrant the appointment of a receiver without notice to the defendant in the proceeding in any ■event, particularly over the property which the defendant could not sell and convert to his use. We have reference to the community land .and crops thereon of the parties. The injunction issued by the court would have afforded ample remedy as to the personalty. Haywood v. Scarborough, 41 Tex. Civ, App. 443, 92 S. W. 815; Security Land Co. v. South Texas Development Co., 142 S. W. 1190; Williams v. Watt, 171 S. W. 266. The eases cited furnish the reason of the rule in such cases, and for that reason we omit any discussion thereof.

There is in the petition for divorce the general allegation that appellant taught the two older children the use of intoxicating drink and “has brought them home to her in a state of intoxication.” While we think the allegation too general to warrant the relief granted upon ex parte hearing on sworn petition, we are not prepared to. say that, upon allegation and proof-of the circumstances and facts surrounding the charge, they would not he sufficient to sustain an action for separation by divorce. Eor that reason the cause will be reversed and remanded, and the receiver dismissed, hut the interlocutory injunction will remain in force pending the filing of amended petition by appellee and further hearing by the district court upon notice to appellant.
      <&wkey;For otiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MASSILLON ENGINE & THRESHER CO. v. BARROW et al.
    (No. 367.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 13, 1918.
    Rehearing Denied June 5, 1918.)
    1. Homestead &wkey;=84 — Extent — Tenants in Common.
    Where tenants in common live upon a large tract of land, each occupying different parts as their respective homesteads, the homestead interest of each extends through the entire tract, and upon partition each of the cotenants is entitled to a homestead containing not exceeding 200 acres.
    2. Homestead <&wkey;84 — Cotenancies — Partition.
    Where several cotenants live upon a common piece of land as their homestead, a subsequent partition does not disturb the respective homesteads which the cotenants had originally acquired.
    3. Homestead <&wkey;143 — Rights of Widow and Children.
    Where a surviving widow and several children live as cotenants upon a common piece of land, the legal title of which is owned by one of the children, their mother is not entitled to 200 acres of the land as her homestead ; she having' recognized the interest of the children, and they also claiming homestead rights in the land.
    4. Homestead <&wkey;>145 — Designation—Estop-pel.
    In a suit wherein defendant children, as tenants in common, claimed homestead rights in the land as against foreclosure of a lien, evidence Held not to' sustain an allegation that they had designated such homestead, so as to estop them from claiming homestead rights in a large tract.
    5. Judgment <&wkey;693 — Husband and Wipe-Res Judicata.
    In a suit for an injunction against a foreclosure action, wherein the wives of petitioners did not set up their homestead rights in the lands sought to be sold, the decree in the foreclosure action did not conclude them from claiming such rights; the wives of petitioners not being joined in the foreclosure action.
    Appeal from District Court, Chambers County; J. Llewellyn, Judge.
    Action by Clarence Barrow and. others against the Massillon Engine & Thresher Company for an injunction. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    1-1. E. Marshall, of Liberty, and A. W. Marshall, of Anahuac, for appellant. Stevens & Stevens,, of Houston, for appellees.
   BROOKE, J.

On the 7th day of October, 1903, J. M. Barrow and wife, Jane Barrow, Lee Barrow and wife, Josephine Barrow, and Clarence Barrow and wife, Rosa Barrow, executed to B. R. Garland, trustee, in favor of,the Massillon Engine & Thresher Company, a deed of trust on 540 acres in the F. Banda survey and 160 acres in J. S. Barrow preemption survey, to secure the payment of certain notes given by J. M. Barrow, Lee Barrow, and Clarence Barrow to the Massillon Engine & Thresher Company. Afterwards, on the 13th day of March, 1905, in the district court of Chambers county, Tex., the Massil-lon Engine & Thresher Company recovered judgment against J. M. Barrow, Lee Barrow, and Clarence Barrow for the amount of the notes above described and for foreclosure of their deed of trust lien on the land described. An order of sale was issued on said judgment, and on April 27, 1905, the appellees in this court, plaintiffs in the district court, Clarence Barrow and wife, Lee Barrow and wife, and J. M. Barrow and wife, secured a writ of injunction from the district judge of Chambers county, Tex., prohibiting the sale of said property under the order of sale issued in the forclosure case, upon the ground that the property involved was at the time of the execution of said deed of trust the homestead of the plaintiffs.

Plaintiffs allege that J. M. Barrow and wife, Clarence Barrow and wife, and Lee Barrow and wife are, respectively, the owners of 62 acres undivided interest in and to the 700 acres of land described in. said deed of trust, and claiming said 62 acres undivided interest as their homestead. A temporary writ of ihjunction was granted by the court, and upon trial of the case on the 4th day of June, 1917, the court entered Judgment for the plaintiffs, appellees in this court, perpetuating the injunction granted theretofore. Some of the original plaintiffs had died before the case was tried, but it is agreed by the parties that all necessary and proper parties, plaintiffs and defendants, were before the court on trial.

It might be well, however, to state that during the pendency of the suit the land was partitioned among several tenants in common, including the original plaintiffs. The contention of appellees was that they were entitled to acquire homesteads upon the urn-divided tract of land. J. M. Barrow and Lee Barrow having died since the suit was instituted on the 6th day of June, 1917, théir heirs were made parties plaintiff by an amended pleading. The undisputed evidence shows that all three of the original plaintiffs were married men, and were either living upon the land covered by the mortgage at the time of its execution as their respective homes or were using parts of same as homestead property, and that each of said original plaintiffs so owned and used less than 200 acres of land.

Appellant’s first assignment of error challenges the action of the lower court in rendering judgment for the plaintiffs, in that the great weight of credible testimony in this cause discloses that the land described in the mortgage executed by J. M., Lee, and Clarence Barrow and their wives to the Massillon Engine & Thresher Company was not the homestead of said Barrows at the time of the execution of said mortgage, in that it had not been appropriated, designated, and named as a homestead, or used in such a manner as to make it a homestead, and because the preponderance of the credible testimony was that only a small part of said land was being used or claimed as a homestead by said Barrows at the time of the execution of said mortgage.

The proposition under this assignment is that, in order for appellees to have claimed a homestead of their interest in the undivided estate of J. S. Barrow, deceased, they must have lived upon and inclosed and used such portion of said undivided estate as they claim as homestead; and appellees, in this case, could not and cannot claim as a homestead more than such amount in the undivided estate as they actually lived upon, used, and enjoyed as homestead, and as was afterwards set apart to them in the partition of the J. S. Barrow estate, and, the evidence showing un-disputedly that they did not so actually live upon what they now attempt to claim as a homestead, they are not entitled to recover.

On the contrary, it is contended that the judgment of the court sustained the contention of plaintiffs that the property covered by the lien included the homestead^ of each of them, and that the evidence was sufficient to show that the appellee Clarence Barrow and his brothers, J. M. Barrow and Lee Barrow, were living upon the land with tlieir respective wives as their homesteads at the time of the execution of the mortgage; that the subsequent partition of the land among the cotenants did not have the legal effect to disturb the respective homesteads which the original plaintiffs had thus acquired. We' are of opinion that the facts sustain appellee’s contention, and we are of opinion that, where tenants in common live upon a large tract of land, each occupying different parts of the same as their respective homesteads, the homestead interest of each extends through the entire tract, and upon partition each of said cotenants is entitled to a homestead containing not exceeding 200 acres of land. Brown v. McLennan, 60 Tex. 43; Luhn v. Stone, 65 Tex. 439; Griffin v. Harris, 39 Tex. Civ. App. 586, 88 S. W. 493; Powell v. Ott, 146 S. W. 1019.

Without going into the testimony in detail, it is sufficient to say that the evidence was sufficient, in our opinion, to show that the said Barrows were living upon the land with their respective wives as tlieir homestead at the time of the execution of the mortgage, and in our opinion the subsequent partition of the land among the cotenants did not have the legal effect to disturb the respective homesteads which the original plaintiffs had thus acquired. Clements v. Lacy, 51 Tex. 150; Morgan v. Estate of Morgan, 1 Posey, Unrep. Cas. 400; Parr v. Newby, 73 Tex. 468, 11 S. W. 440; Jenkins v. Volz, 54 Tex. 639. The assignment is therefore overruled.

The second assignment of error is that the court erred in rendering judgment herein and perpetuating the injunction, because 200 acres of the land described in the mortgage executed by the Barrows to the Massillon Engine & Thresher Company, including the homestead of J. S. Barrow, deceased, where his widow lived at the time of the execution of the mortgage, could not, on the date of the execution of the mortgage, be the homestead of said Barrow, who executed the mortgage, for the reason that it was tlieir mother’s homestead, and said Barrows only acquired a right in and to said 200 acres of land at the death of their mother, which occurred after the date of the execution of the mortgage, and said 200 acres was subject to be sold in satisfaction of the judgment in favor of the Massillon Engine & Thresher Company.

The proposition under this assignment is that, so long as a surviving widow lives on a homestead, even if the children own the legal title, she is entitled to 200 acres as her homestead, and the children cannot waive homestead rights therein until her death or abandonment of her homestead rights.

On the contrary, it is contended that the question of the rights of the widow in the homestead, as between herself and children, as raised by the appellant’s proposition, has no application to this case under the facts of this ease, since it was shown that the widow recognized the respective interests of the children, and Clarence Barrow had a fee-simple title to the homestead upon which his mother was living, such fee-simple title being an undivided interest and the same being duly recognized; further, said Clarence Barrow lived on said property as his homestead with his said mother, and in the partition of the estate the same was allotted to him.

In our judgment, we see no necessity for going further than making a statement of their contentions, for we are of opinion that this assignment must be overruled.

The third assignment of error is that the court erred in rendering judgment herein, and perpetuating the injunction herein, for the reason that Clarence Barrow, as the undisputed evidence in this case shows, is not entitled to a homestead in any of the land described in plaintiff’s petition, because, when said mortgage was executed by Lee, John, and Clarence Barrow and their wives to the Massillon Engine &, Thresher Company, Clarence Barrow lived with his mother, who was the widow of J. S. Barrow, deceased, and under the law was entitled to 200 acres of land as a homestead, including the place they used at the time of the execution of said mortgage, and she was actually living on the old homestead place, using said place as a homestead, and the said Clarence Barrow was living with his mother, and subjected no part of said land described in said mortgage as his homestead property, and did not claim his homestead rights in any part of the land-

The proposition under this assignment is that a child cannot acquire any homestead interest in a tract of land occupied and used by the surviving widow as the homestead of herself and deceased husband, so long as she elects to occupy it.

On the other hand, it is contended that Clarence Barrow was living upon the land, having an undivided interest therein of less than 100 acres, and claimed the land as his homestead.

Clarence Barrow testified that he was living upon the place which he got in the partition, and that he cultivated nearly all of his land, except the timber part of it; that he lived on'the old homestead with his mother at the time of the execution of the mortgage, and that he had lived there ever since the death of his father; that he rented no land from his mother, but just worked there with her. The assignment is overruled.

The fourth assignment challenges the action of the lower court as being error in rendering judgment herein, because the undisputed proof shows that the Massillon Engine & Thresher Company loaned the money, to wit, about $2,500, in consideration of said mortgage, and that said three Barrows and their wives executed said mortgage, and represented that they only claimed 10 acres each as a homestead and thereby perpetrated a fraud on said Massillon Engine & Thresher Company; none of said Barrows occupying but small portions of the tract mortgaged, and no evidence of occupancy or of subjection of homestead uses appearing at the time said mortgage was made. Said Barrows and the plaintiffs in this case who hold under them, are estopped from urging the homestead rights to more than ten acres each.

The proof in this ease shows that neither of the parties who executed the mortgage owned in excess of 200 acres of the tract of land; hence the deed of trust, with the following declaration:

“I, Evander Light, hereby certify that all the parties each for themselves do not claim / any homestead rights, save and except (10) ten acres out of the above-described land, to be by each family selected when it may be necessary, should it ever happen. This is meant thirty acres all told for homestead purposes, ten acres for each family.”

Clarence Barrow testified that, while he signed the said mortgage, he denied any recollection of such language being used, and his statement is as follows:

.“I do not remember telling him that we did not claim this land as a homestead. My brothers might have told him that they did not claim the land as a homestead. I don’t know whether they did or not. My brother John did most of the talking.”

However, said pretended designation, in the light of the fact that the land was being used as a part of land for homestead purpose es, that only 62 "acres were set aside from the 700 acres, in the light of the further fact that the wives were not made parties to the original suit and their rights were not litigated, did not, in our opinion, estop the tenants. Suffice it to say that they were living on the land and using at least a part of same, and had the right, under the law, to claim their exemption. For the sake of brevity, we may say that it is well settled in this state that the contentions of appellant cannot be sustained. Therefore the assignment is overruled.

The fifth assignment of error complains that the court erred in rendering judgment herein, because said Barrows and the plaintiffs herein have had their day in court, and the judgment heretofore rendered in the old case is binding upon the parties to this suit, because it was mot necessary, in the original suit, for the wives of said Clarence, John, and Lee Barrow to be made parties to the suit, in that the petition for the injunction in the present suit does not set up that the peculiar homestead rights of the wives of said parties were affected, or that the homestead rights that they are asserting could not have been asserted and were not asserted by the Barrows in the original suit, and for that reason they set up and plead no fraud, and the judgment in the original suit is res adjudicata on the homestead question, and the present plaintiffs and wives of the original Barrows are bound by the first judgment.

On the contrary, it is urged that a sale under a judgment foreclosing a mortgage upon a homestead, the wife not being party to the suit, is void, and does not preclude the wife from asserting her homestead rights in any subsequent proceeding.

In cause No. 551, which was filed by the Massillon Engine & Thresher Company for the foreclosure of the mortgage, the wives of J. M. Barrow and Clarence Barrow and Lee Barrow were not made parties defendant, and the amended petition in said cause No. 551, and the judgment in said cause No. 551, which was attached by the plaintiffs in this cause, did not foreclose the lien against the wives of the said J. M. Barrow, Lee Barrow, and Clarence Barrow. Without going further, in our opinion, this assignment must be overruled. See Odum v. Menafee, 11 Tex. Civ. App. 119, 33 S. W. 129; Campbell v. Elliott, 52 Tex. 151; Thompson v. Jones, 77 Tex. 627, 14 S. W. 222; Jergens v. Schiele, 61 Tex. 255; Freeman v. Hamblin, 1 Tex. Civ. App. 157, 21 S. W. 1019; Mexia v. Lewis, 3 Tex. Civ. App. 118, 21 S. W. 1016.

We have examined this record carefully, and we believe that the rights of appellant were . fully protected, its case was fairly tried, and we have found no error of such magnitude as would cause us to reverse and remand the cause.

The judgment is in all things affirmed.

       cg3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes