author: BOYCE, J.

text:
    IVES v. CULTON.
    (No. 1206.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 30, 1917.
    Rehearing Denied Oct. 3, 1917.)
    1. Vendor and PuRchaseb <&wkey;242 — Notice— Burden of Proof.
    In trespass to try title, the burden was upon defendant claiming under a warranty deed from R. to show that the owner of the judgment against R. at the time he recorded the abstract thereof had notice of the unrecorded conveyance to defendant.
    2. Judgment <&wkey;788(l) — Conveyance — Priority.
    In the absence of notice, a lien is created by the recording of the abstract of judgment, superior to rights of a purchaser under a prior unrecorded deed from the judgment debtor.
    3. Attorney and Client <&wkey;T04 — Notice to Attorney — Imputation to Principal.
    That the attorney for a judgment creditor knew of a prior unrecorded deed by the debtor would not, under the principles of agency, bind the judgment creditor.
    4. Attorney and Client &wkey;>176 — Collection Pees — Provisions of Note — Equitable Assignment.
    The agreement that attorneys were to have all the attorneys’ fees specified in notes, provided they could collect the full amount thereof, constituted an equitable assignment of an interest in the fund realized, or, if not, certainly an equitable lien.
    5. Attorney and Client <&wkey;104r — Notice to Attorney — Unrecorded Deed.
    That attorney who secured judgment had an equitable interest in the fund to be derived therefrom, made him merely co-owner with judgment creditor, so that his knowledge of a prior unrecorded deed could not be imputed to his client.
    6. Attorney and Client &wkey;3l84r — Lien—Unrecorded Deed — Priority.
    An attorney who knew of an unrecorded conveyance by the judgment debtor did not ae-quire a lien for payment of hiS’ interest under, an agreement for fees, as against the grantee.
    7. Judgment <@=»845 — Rights of Assignee— Lien.
    Where a client who did not know of defendant’s prior unrecorded deed assigned part of the judgment to his attorney who did know, that part of the judgment was superior in the attorney’s hands, to defendant’s deed.
    8. Judgment <&wkey;801 — Lien—Enforcement. ■
    If any part of the judgment constituted a valid lien on the land in controversy, such lien could be foreclosed either by execution sale or by decree of foreclosure in a suit brought for that purpose.
    9. Judgment <&wkey;801 — Judgment Lien — Foreclosure.
    Where part of a judgment constituted a lien against an entire tract of land, a sale under foreclosure of such lien would pass title to the land, at least in the absence of some showing that the land sold for more than sufficient to pay off that part of the judgment which constituted a valid lien thereon.
    10. Contracts <&wkey;130 — Fraudulent Sale-Agreement Not to Bid.
    Where the purpose of the release of one of the judgment debtors was to induce him not to bid at the execution sale, the transaction was fraudulent at law.
    11. Trespass to Try Title i&wkey;35(2) — Plea of Not Guilty — Collateral Attack on Judgment.
    Plaintiff in behalf of his client secured a judgment against R. and H., an abstract of which was recorded prior to a deed given by R. to defendant to the land in controversy. The land subject to the vendor’s lien and not involved in this suit was sold, but, after applying the proceeds, there was a balance due on the judgment. In consideration that H. would not bid at the sale, plaintiff released him from the judgment, plaintiff bidding in the land for his client. Plaintiff’s client assigned to plaintiff the balance due on the judgment, and plaintiff caused an execution to be levied on the land deeded to defendant, and purchased the same at the sheriff’s sale securing a deed. Held, that defendant sued in trespass to try title could not, under his plea of not guilty, collaterally attack the sale under which plaintiff obtained title, on account of the alleged misconduct of plaintiff in respect to the bidding at the first sale; the sales being voidable.
    Huff, O. J., dissenting.
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    Trespass to try title by D. H. Culton against Edgar A. Ives. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellant. Culton & Taylor, of Tulia, for appellee.
   BOYCE, J.

Appellee, Culton, brought this action of trespass to try title against appellant, Ives, who answered by plea of not guilty. The case was tried before the court, resulting in judgment for appellee for the land in controversy, being one-half section of land in Swisher county, and the case is before this court on exceptions to the judgment of the court; no findings of fact or conclusions of law having been requested.

Both parties claim title through J. D. Raitt —appellant through a warranty deed executed by Raitt, dated September 16, 1915, arid filed for record June 13, 1916; appellee through a sheriff’s deed made under execution, issued on a judgment against Raitt, an abstract of which was filed and recorded in the judgment lien records of Swisher county, on April 13, 1916, the execution being levied on said property on June 7, 1916, and sale made thereafter. The judgment against Raitt referred to was rendered in a suit brought by one Thomas IP. Hagan .against said Raitt and Albert O. Hinn on certain promissory notes. It was rendered on the 11th day of April, 1916, and was for the sum of $S,219.17, and decreed a foreclosure of a vendor’s lien securing the payment of said notes on another tract of land not involved in this suit. Hagan was represented in this suit by Oulton & Taylor, the said Culton being the appellee herein, under an agreement for ejnployment by which they “were to have all of the attorneys’ fees specified in said notes (ten per cent, of principal and interest due), provided they could collect the full amount of the notes, principal, interest and attorneys’ fees.” The land subject to said vendor’s lien was sold ■on June 6, 1916, under order of sale issued on said judgment, and the proceeds applied in payment of the costs arid amount due on the same, leaving a, balance due thereon, after said application, amounting to $974.11. After this sale, and prior to the issuance of the execution for the balance, Hagan assigned to appellee Oulton the balance due on said judgment in satisfaction of the attorney’s fees of Oulton and Taylor in said suit, and for services in transacting some other business. Culton caused an execution, to be issued and levied on the land in controversy on June 7, 1916, as before stated, which was sold to Culton at the sheriff’s sale following, and proceeds of the sale credited on the judgment and sheriff’s deed, duly executed, conveying the property to Culton. No testimony was introduced as to whether Hagan, at the time of the filing of the abstract of his judgment, had any notice of the existence of the unrecorded conveyance to Ives. Hagan lived in Illinois, and Culton personally handled the suit and directed the proceedings therein. It was shown that he had, prior to his employment by Hagan, and in the course of the transaction of other legal business having no connection with Hagan’s suit, been informed by Raitt by letter that he, Raitt, had sold and deeded the land to Ives, with the understanding that the deed was not 'to be filed until a certain loan on the land had ■been arranged so that the amount of the in-cumbrance could be filled in in the deed. Cul-ton testified that he did not remember having- read this statement, in this letter, and did not have it in mind at any time when he was handling the Hagan suit.

It seems well established by the authorities that the burden of proof was upon Ives to show that the owner of the Hagan judgment had notice, at the time of the recording of the abstract of judgment, of the conveyance to him, the deed being at that time unrecorded, arid in the absence of a showing of such notice, a lien would be created by the recording of the abstract of judgment superior to Ives’ rights under the unrecorded conveyance. Barnett v. Squyres, 93 Tex. 193, 54 S. W. 241, 77 Am. St. Rep. 854; Turner v. Cochran, 94 Tex. 480, 61 S. W. 923; Bowles v. Belt, 159 S. W. 885; Rule v. Richards, 159 S. W, 386; Whitaker v. Farris, 45 Tex. Civ. App. 378, 101 S. W. 456; Central City Trust Co. v. Waco Bldg. Ass’n, 95 Tex. 48, 64 S. W. 998.

So that the first question for determination is the effect of Oulton’s knowledge acquired in the manner we have stated. If he is to be regarded purely as an agent for Hagan, reserving for future consideration the question as to the effect his interest, if any, in the judgment would have on the matter, we are of the opinion that Hagan would not be bound by Culton’s said knowledge. Texas Loan Agency v. Taylor, 88 Tex. 47, 29 S. W. 1057; Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028; Teagarden v. Godley Lumber Co., 105 Tex. 616, 154 S. W. 973; Mechem on Agency (2d Ed.) §§ 1808, 1813. The opinion of the Supreme Court, in the case of Texas Loan Agency v. Taylor, and reaffirmed by quotation therefrom in the case of Teagarden v. Godley, settles definitely in Texas the rule as to the inputation of an agent’s knowledge to his principal, and its qualification as therein stated, to- wit:

“This principle [referring to the general rule of notice as adopted by the court] only applies when the agent acquires his knowledge in the transaction of Jjis principal’s business ; and we thereforo think that the doctrine of implied notice should be limited to cases of that character.”

It is not necessary in this case to determine whether the doctrine that the principal is affected by the knowledge of the agent acquired in other transactions, and which he had present in mind in the transaction of the principal’s business (Mechem, § 1809; Wright v. Hooker, 55 Tex. Civ. App. 47, 118 S. W. 765), has any application in this state, since Oulton testified that he did not have such knowledge in mind at the time he was transacting Hagan’s business, and we would have to assume in any event, in support of the judgment that the court trying the ea$e accepted this statement as true.

But appellant further contends that the agreement that Oulton and Taylor should have the attorney’s fees, as above stated, constituted an assignment of an interest in the judgment, and that notice to one joint owner is notice to all, so that in this way Hagan would be bound by Culton’s notice. The evidence of the indebtedness, to wit, the promissory notes sued on, were placed iu Oulton & Taylor’s' possession, with authority to collect, and with the agreement that they were to have the 10 per cent, collection iees therein provided. This, ' of course, gave them power to make the collection, retain their part, and remit the remainder to their principal. We think this is sufficient to constitute an equitable assignment of an interest in the fund, and, if not, certainly an equitable lien thereon. Caldwell v. Staleup, 166 S. W. 110; Milmo National Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 828; G., H. & S. A. Ry. Co. v. Ginther, 96 Tex. 295, 72 S. W. 166; Davis & Goggan v. State National Bank, 156 S. W. 321 (writ of error denied). A rather full discussion of equitable assignments and liens and citations to authorities will be found in the case last cited. The-fact that they were to get nothing until the principal and interest due on the note were first paid would make no difference, as that affects only the order of the payment of the interest of the respective parties. The agreement for the attorney’s fees in this case is very similar to the one in the first ease cited above, decided by this court, and the agreements in these two cases differ somewhat from that in the case of Magill v. Rugeley, 171 S. W. 528, on which appellee relies to support his contention that he had no interest in the fund itself. Whether there is any distinction to be made in these cases or not, we will follow the holding already made by this court in the case above cite'd.

However, we do not think it necessarily follows from the holding that Culton. & Taylor had an equitable interest in the fund that Culton’s notice would be imputed to Hagan. They were not partners, merely co-owners of the fund, and we have already held that Culton’s knowledge was not, by reason of his agency, to be imputed to Hagan. We quote the following from the opinion of the court in the case of Rippetoe v. Dwyer, 65 Tex. 703, 708, as announcing the rule which it appears to us is applicable to the case under consideration:

“We do not, however, understand the rule to be that, in case of the purchase of property by two or more persons each will be charged with notice of facts known to the other. There doubtless may be cases in which such a result will follow, as when one of the purchasers is made the agent of the others to consummate the purchase, and in the transaction of the business pertaining to his agency acquires notice or knowledge of facts which vitiate the purchase; but, ‘unless one has been made the agent of the other, by virtue of partnership relations, or of some other means, neither can ordinarily be charged and held accountable for the knowledge of the other. If an incum-brance, or conveyance, be in existence affecting the title to land, and a purchase be made by several jointly, or as tenants in common, those who have notice of the incumbrance, or conveyance, will hold their title in subordination to it, while those who did not have such notice will obtain their title free from the claim to which their cotenants are subjected.’ ”

This announcement of the law is supported by the following additional authorities : Wait v. Smith, 92 Ill. 385; Snyder v. Sponable, 1 Hill (N. Y.) 567; Parker v. Kane, 4 Wis. 1, 65 Am. Dec. 283; Babcock v. Wells, 25 R. I. 23, 54 Atl. 599, 105 Am. St. Rep. 848; Cyc. vol. 39, p. 1762. In the ease of Babcock v. Wells, supra,, it was held that notice of an outstanding equity to one joint mortgagee will not bind the other.

Our conclusion is that upon the filing of the abstract of judgment a lien on the land in controversy was thereby created to secure the payment of Hagan’s interest in the indebtedness, but Culton’s knowledge of the conveyance to Ives prevented him from acquiring a lien to secure the payment of his interest. Culton & Taylor’s interest in the judgment amounted to about one-eleventh thereof, so that after the foreclosure sale there was .a balance due on Hagan’s interest of about $230, and the remainder, being something less than $750, belonged to Culton & Taylor. Upon assignment of the judgment to Culton, that part of the judgment represented by Hagan’s interest, as above stated, in our opinion constituted a lien on the land superior to the deed to Ives. The record does not show how much was bid on the execution sale of the land in controversy, as the case was tried on an agreed statement of facts in part, by which the parties agreed that said land, together with other land also levied upon, was bid in by Culton and conveyed by (he sheriff to him, and the amount of the bid, after satisfying the sheriff’s costs and other costs, was applied as a credit on the judgment.

If any part of the judgment constituted a valid lien on the land in controversy, such lien could be foreclosed either by execution sale or by decree of' foreclosure in a suit brought for that purpose. Before the assignment of the judgment to Culton upon collection of the balance due, the said sum of $230 would be first payable to I-Iagan, and any balance realized to Culton and Taylor.

The majority of the court are of the opinion that, as a part Of the judgment constituted a lien against the entire tract of land under the circumstances above stated, a sale under foreclosure of such lien would pass title to the land, at least in the absence of some showing that the land sold for more than sufficient to pay off that part of the judgment which constituted a valid lien thereon. We think the decision in the case of Hemphill v. Watson, 60 Tex. 679, is applicable to this situation. In that case a sale was made under deed of trust given to secure the payment of a note bearing usurious interest, and it was held that as the mortgage could be properly foreclosed to the extent of' the principal, the remedy of the debtor would have been to tender such amount and prevent foreclosure, and; having failed to do this, the sale was .valid, and- the purchaser at the trustee’s sale obtained a good title. See, also, Jones on Mortgages,' § 620; Vaughn v. Mutual Building Association, 36 S. W. 1013. Chief Justice Huff dissents from this conclusion, and is of the opinion that Oulton could be held to be an innocent purchaser of the land only in the proportion that Hagan’s interest in the judgment at the time of its assignment, unaffected by notice of the Ives deed, bears to the total amount of the balance due on the judgment, and that if the next assignment considered should not otherwise dispose of the case, it should be reversed and remanded for adjustment of the equities of the parties on this theory.

These conclusions, as held by the majority of the court, result in overruling all Of appellant’s assignments except the seventh. By this assignment appellant contends that both sales under the judgment were void because, “the testimony shows that Oulton was guilty of inequitable conduct in inducing the defendant Hinn in the Hagan suit to refrain from bidding against Hagan by a promise to release said Hinn from his liability on the Hagan judgment against Hinn and Raitt.” The Hagan judgment was a joint and several judgment against 1-Iinn and Raitt. The vendor’s lien notes sued on had been originally executed by Hinn, and upon sale of the land by Hinn to Raitt the said Raitt assumed their payment. The evidence on this issue was the testimony of Oulton on cross-examination, who testified that he was present at the foreclosure sale and bid the land in for Hagan at $7,500, which was the only bid made; that there was a large crowd present, and it was stated at the time that the purchaser would not have to pay his bid until he should have time to examine the title, as the land was sold with the understanding that the purchaser was to get a good, merchantable title; that other parties prior to the sale had agreed to buy the land from Hagan at $7,500, and Hagan afterwards sold to such parties — “he was willing to sell partially on terms, and they were willing to pay. that price for it if he gave time in which to pay for it.” Continuing, said witness further testified:

“The only person I remember to have talked to with reference to wanting to buy it was Mr. Zimmerman, who represented Mi-. Hinn. I told him that if we made the deal that was then pending — if we succeeded in buying in the land —that I would look to Mr. Raitt for the balance of the money, and he told me that his client did not want to buy the land at all unless it became absolutely necessary to protect him from paying out further moneys. Mr. Hinn lived at Plainview, and I understand is a man of means. I never represented him, but he was represented by Mr. Zimmerman. I virtually made an agreement with Mr. Zimmerman that I would release Mr. Hinn from the balance of the judgment. I did that for the reason that he had conveyed the land to Mr. Raitt, who had assumed the payment of the entire indebtedness, and he, in his judgment, I believe obtained a judgment against Mr. Raitt for all the moneys he might have to pay out. I am not sure whether it is in there or not; it may not be in the judgment. I haven’t read the judgment for some time. Since you mention it, it is likely that it is not because I do not believe he even entered an appearance in the case.”

Any agreement that has for its purpose the restriction of free bidding at a .sale of this character is regarded by law as fraudulent and against public policy. James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743; Crozier v. Carr, 11 Tex. 380; Daily v. Hollis, 27 Tex. Civ. App. 570, 66 S. W. 586; note to Herndon v. Gibson, 20 L. R. A. 545; Freeman on Executions (3d Ed.) § 297; 6 Corpus Juris, 830; White v. McMath, 127 Tenn. 713, 156 S. W. 470, 44 L. R. A. (N. S.) 1115, and authorities there cited. Whatever may have been ap-pellee’s motives, we think that it necessarily appears from his testimony that the purpose of the release of Hinn from the judgment was his elimination from the bidding at the sale, and the transaction is to be deemed fraudulent in law.

As to the effect of such conduct on the rights of the parties and the methods of redress open to those injuriously affected thereby, the authorities are in some confusion. It is often broadly stated that the sale is void, and the parties to the illegal agreement will be allowed to reap no benefit therefrom. Before proceeding further, it will be perhaps well enough to understand clearly how this fraud in the first foreclosure sale might affect the sale of the land in controver■sy. The judgment having decreed a foreclosure against a specific tract of land, a sale thereof was necessary before any other property might be taken under execution on a deficiency judgment; and if other property had been taken and sold under execution without a sale of the property against which the lien was foreclosed, a sale thereof would have been absolutely void, and could be attacked in a collateral proceeding. Bailey v. Block, 104 Tex. 101, 134 S. W. 323. Now if, as some of the cases hold, the sale on account of the suppression of bidding is to be treated as no sale at all, in so far as the parties participating in the wrongful act is concerned, or if, as a New York case holds, the judgment is to be treated as satisfied by the first sale, then of course, there would be no valid basis for the issuance of the execution to collect the deficiency, and the sale thereunder would be void, and could be attacked in this proceeding under the authority of the case of Bailey v. Block, supra.

In many of the states it is held that a purchaser guilty of fraud in suppressing the bidding at such a sale gets no title, that the sale is, as to the fraudulent participants in the transaction, to be treated as no sale, and that the party guilty of such misconduct has no equities, and that the title of a purchaser so participating may be questioned in an ejectment suit at law. Martin v. Ranlett, 5 Rich. (S. C.) 541, 57 Am. Dec. 770; Phelps v. Benson, 161 Pa. 418, 29 Atl. 86; Foulk v. McFarlane, 1 Watts & S. (Pa.) 297, 37 Am. Dec. 467; Underwood v. McVeigh, 23 Grat. (Va.) 409; Gilbert v. Hoffman, 2 Watts (Pa.) 66, 26 Am. Dec. 103; Goble v. O’Connor, 43 Neb. 49, 61 N. W. 131. In this last case it is held that a fraudulent purchaser has no equities, and the sale is void a_s to him. Freeman, in his work on Executions (3d Ed.) vol. 2, § 297, p. 1722, says:

“Whether a purchase obtained by the prevention of competition can by the guilty party be asserted at law is a question upon which the courts are by no means agreed. In several of the states such a purchase, and the deed made in pursuance thereof, are regarded as a valid transfer of the legal title. The defendant in execution, wishing to prevent the assertion of this title, must claim the assistance of a court of equity. But the majority of the decisions sustain an adverse theory. One under which the title of the fraudulent purchaser is while in his hands regarded as void, and therefore as capable of ¡being resisted not less Successfully at law than in equity.”

In the case of Troup v. Wood, 4 Johns. Ch. (N. Y.) 252, it was held, as summarized by Judge Wheeler in the case of James v. Eulcrod, supra, that:

“An agreement by the owner of an execution, with certain persons, to prevent the usual competition at a sheriff’s sale and in order to leave a small balance on the execution, for the purpose of seizing other property of the debtor, was * * * fraudulent; and the execution was deemed, in law, to be satisfied.”

A reference to that case, however, will disclose that the suit was brought in equity; the defendants who had bought the property .at the sale were the assignees of the judgment under which it was sold, so that the suit might be really treated as a direct attack on the sale. In the case of Spencer v. ■Champion, 13 Conn. 19, a judgment creditor had levied on both personal property and real estate. The personal property was admittedly not sufficient in value to- satisfy the indebtedness.' The personal property was .sold first, and the plaintiff was guilty of misconduct in stifling bidding. The real estate was subsequently sold to satisfy the balance ■due on the judgment after sale of the personal property, and the court held that the fraudulent acts in connection with the sale ■of the personál property should he punished in some other way than by a declaration of satisfaction of the judgment. There is a ■distinction between the Connecticut case and tlie one at bar, in that it was held in that case that it was not necessary to a levy upon the real estate that the personal' property be exhausted, and the court bases a part of its argument in arriving at this conclusion on this fact, while here it was necessary that there be a sale and an exhaustion of the property decreed to be sold by the judgment before there could be a deficiency that would support subsequent executions. In the case of In re Hays Estate, 159 Pa. 381, 28 Atl. 158, while the facts are not in point here, the reasoning of the court tends somewhat to support the conclusion that, where a defi-iiency made the basis of the assertion of subsequent rights is the result of frauds on the part of the owner of the judgment, the judgment ought to be held satisfied. But other courts of other states have held that such sales are not void, but voidable, and can be attacked only in a direct proceeding (Crews v. Bank, 77 N. C. 110; Dove v. Powell, 5 Ala. 58), and it is stated by the writer of the note to be found in 42 D. R. A. (N. S.) 1198, that the weight of the authority is to the effect that such sales are not subject to collateral attack. In the case of Pope v. Davenport, 52 Tex. 206, in a suit in trespass to try title, where the title of the defendant was shown to have been acquired at an execution sale at which a fraud with reference to the bidding was perpetrated, the court said:

“That such an agreement was made is not denied, and that as between the proper parties it would be such fraud in law as, without regard to the fraudulent intent in fact, would avoid the sale we have no doubt. * * * The sale was voidable only, and not absolutely void, and, unless set aside by the proper party, would be binding.”

In the case of Rippetoe v. Dwyer, 49 Tex. 498, the court below instructed the jury that:

“If the sheriff’s sale was fraudulently made, by the connivance or with the knowledge of the defendant Rippetoe, it was absolutely void.”

And the court on appeal made the following holding:

“Our opinion- is that, in case of a judicial sale, made by virtue of a valid subsisting judgment or decree, authorizing the execution or order of sale under which the officer proceeds, where the proceedings are regular, resulting in a deed to the purchaser, he takes a title which is valid until the sale is set aside.”

A discussion of the principles from which it may be determined whether such a sale is void or voidable will be found in the cases of Ayres v. Duprey, 27 Tex. 602, 86 Am. Dec. 657, and Boggess v. Howard, 40 Tex. 153. In the latter case the Alabama case referred to above, where it was held that such a sale could not be attacked in a collateral proceeding, is cited with approval. So that whatever may be the holding in other states, we think that the result of these authorities is that in Texas such sales are to he regarded at voidable only, and cannot be attacked in a collateral proceeding, from which it would follow that the second sale, which depended for its validity upon the first sale, was also merely voidable, and could not be attacked collaterally. We have no doubt that appellant, Ives, had such an interest in the first sale and its effect on the lien on his land that he could, in a proper procedure, attack this sale. Cravens v. Wilson, 48 Tex. 324; Flanagan v. Pearson, 50 Tex. 383; Ayres v. Duprey, 27 Tex. 604, 86 Am. Dec. 657. But the sales, being regular on their face, vested the legal title in the land last sold in Guitón, and before defendant, Ives, could defeat the title, he must set aside the sheriff’s sale for the alleged fraud. A proceeding to set aside the sale for fraud would be equitable in its nature, and if the cases were in those courts where law and equity are separately administered, appellant would, in order to avail himself of this remedy, be compelled to have proceedings in the law case stayed until he carried through an equitable action to set aside the sheriff’s sale and thus get rid of the legal obstacle to an adjudication of the title in his favor. Under our blended system he could, by proper pleading, if the proper parties were before the court, make this attack in. the trespass to try title suit, but it is well settled that this right does not affect the nature of the relief; that it would be really an invocation of affirmative equitable action of the court, and this may not be granted under a plea of not guilty. Ayres v. Duprey, 27 Tex. 604, 86 Am. Dec. 657; Catlin v. Bennatt, 47 Tex. 172; Rippetoe v. Dwyer, 49 Tex. 498; Matthews v. Moses, 21 Tex. Civ. App. 494, 52 S. W. 113; Moore v. Miller, 155 S. W. 573; Puller v. O’Neil, 69 Tex. 349, 6 S. W. 181, 5 Am. St. Rep. 59; Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596. In the case of Moore v. Snowball, supra, it was held that this equitable right was so distinct from the issues involved in the trespass to try title suit that a judgment in such suit was not res judicata of the right to proceed against the sheriff’s sale by a direct attack in a subsequent suit for that purpose.

The majority of' the court, therefore, are of the opinion that appellant, under his plea of not guilty, cannot, in this suit in trespass to try title, collaterally attack the sale under which appellee obtains his title on account of the alleged misconduct of appellee in respect to the bidding at the first sale, and overrule appellant’s seventh assignment. Chief Justice HUPP is of the opinion that the agreement with Zimmerman amounts to an agreement with Hinn not to bid, and thereby prevent the land from bringing the amount of the judgment. He for his client having theretofore contracted the land at the price bid at the sale will amount to a declaration of a deficiency judgment for the remainder. Under article 2000, R. C. S., the property against which foreclosure is had is to be seized and sold in satisfaction of the judgment. The manifest tendency of such an agreement was to prevent a sale of the land to satisfy the judgment. Its tendency is condemned, and not the result even though competition may not have been stifled; but the facts in this case indicate that competition was stifled. The appellee should be es-topped from denying that the judgment of foreclosure was thereby satisfied. If satisfied, no sale for the deficiency could legally be had. This purpose to defeat a plain statute renders the sale void for the deficiency. That which he or the sheriff selling the property could not do directly they could not do indirectly. He was not at liberty to disregard one of the most fundamental principles concerning the powers of the officer under the order of sale. These powers cannot be enlarged to meet the wishes or necessities of any one. Bailey v. Block, 104 Tex. 101, 134 S. W. 323. The agreement with the defendant under the order of sale if he would not bid he should be released, and the further fact that appellee, acting for his client, had entered into an agreement to sell the land for the price at which he bid it in under the order of sale, is in effect disregarding the power of the officer to sell the land to satisfy the judgment. Affirmed.

HUPP, C. J., dissenting.
      cfessFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    RAYBURN v. STATE.
    (No. 4513.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    Animáis <&wkey;36 — Sanitary Regulations — Criminal Prosecutions — Enjoyment.
    Under Vernon’s Ann. Pen. Code 1916, art. 1284c, authorizing the live stock sanitary commission to prescribe methods for adopting and otherwise treating and disinfecting premises or live stock; article 1284f, providing a penalty for violating any of the provisions of the statute or any of the rules and regulations of the commission; and article 1284g, prescribing a penalty for failing or refusing to dip or otherwise treat live stock as directed by the commission — a complaint and information for failing to vaccinate hogs for hog cholera _ was insufficient, where it contained no allegation that any such rule had been made or promulgated by the commission.
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    J. M. Rayburn was convicted of an offense, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Scarborough & Davidson, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This prosecution is for violation of the live stock sanitary laws of the state. See Acts 33d Leg. Reg. Sess. c. 169; Vernon’s P. C. vol. 1, arts. 1284a to 1284h.

There are several counts in the indictment, all charging failure on the part of appellant to vaccinate his hogs for hog cholera. The act does not in terms command him to do so, but attempts to authorize the live stock sanitary commission “to prescribe methods for dipping or otherwise treating or disinfecting such premises and * * * live stock.” Article 1284c. A penalty is provided in article 1284f “for violating any of the provisions of the act or any of the rules and regulations prescribed by the live stock sanitary commission”; and in article 1284g is prescribed the penalty for one “who shall fail or refuse to dip or otherwise treat such live stock at such time and in such manner as directed by the live stock sanitary commission.”

Various questions as to the validity of this statute were raised, but, being unnecessary to the disposition of the case, will not be discussed, especially in view of the fact that the Thirty-Eifth Legislature (chapter 60) enacted a new law on the subject. As the law did not in terms require appellant to vaccinate his hogs, his prosecution could be predicated only upon violation of some rule of the live stock sanitary commission; and, the complaint and information containing no allegation that any such rule had been made or promulgated, the prosecution must fail for want of sufficient pleadings. This court in Wallace v. State, 44 Tex. Or. R. 300, 70 S. W. 756, 100 Am. St. Rep. 855, Id., 69 S. W. 506, held a similar complaint bad, and in so doing, we think, followed a well-established rule of law.

The judgment of the lower court is reversed, and the prosecution ordered dismissed, because of the insufficiency of the pleadings.


text:
    Ex parte HENDERSON.
    (No. 4726.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    Bail <&wkey;44 — Penbing Motion eor New Trial.
    Acts 35th Leg. c. 110, amending Code Cr. Proc. 1911, art. 900, providing that, upon return of verdict or rendition of judgment of guilty, defendant shall be placed in custody, and his bail discharged, but that, where the defendant is convicted of a misdemeanor, and is on bail when the trial commences, it shall not be discharged until the defendants motion for a new trial shall have been overruled, permits defendant by virtue of his appearance bond in a misdemeanor case to remain free from custody pending his motion for a new trial.
    Application for writ of habeas corpus by J. G. Henderson.
    Relator ordered discharged.
    Jackson, Isaacks & Lessing, of El Paso, for applicant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an original application for a writ of habeas corpus. The applicant was charged with a misdemeanor, made an appearance bond, which was regular and duly approved, and in compliance therewith appeared in the county court of law of El Paso county, was tried and convicted, and motion for new trial was filed in due time. Pending the hearing upon the motion for new trial, he is held in custody by the sheriff.

This application is based upon the proposition that he is entitled to his liberty by virtue of his appearance bond, pending action by the trial court upon his motion for a new trial, and an agreement is in the record to the effect that the only question involved is whether or not, under the facts, he is entitled to such release pending action upon the motion for new trial, or whether during such time he shall remain in jail.

Prior to the act of the Thirty-Eifth Legislature embodied in chapter 110, art 900, G. G. P., it was provided that under such circumstances he should remain in custody, the language used being as follows:

“But immediately upon the return into court of such verdict, or the rendition of a judgment of guilty, he shall be placed in the custody of the sheriff, and his bail considered discharged.”
Chapter 110, supra, added the following: “Provided that where the defendant is convicted in a misdemeanor case and is on bail when the trial commences, the same shall not thereby be considered discharged until the defendant’s motion for a new trial shall have been overruled by the court.”

An emergency clause was added upon thq ground as follows:

“There is now no law authorizing defendants ' in misdemeanor cases to remain on bail while the trial is going on.”

In our judgment, the purpose and effect of this amendment to the statute is to permit the defendant in a misdemeanor ease, under the facts above stated, to remain free from custody on account of such case until judgment of conviction becomes final, on the overruling of the motion for a new trial. The legal meaning of the term “the end of the trial,” which is substantially the term used in the statutes mentioned, is discussed in the case of Bennett v. State, 194 S. W. 148; also in Palmo v. Slayden, 100 Tex. 18, 92 S. W. 796, and State v. Barrington, 198 Mo. 23, 95 S. W. 235.

The relator is ordered discharged.
      ®=3Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    MELTON v. STATE.
    (No. 4514.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    1. Criminal Law <&wkey;742(2) — Evidence—-Accomplices — Questions oe Pact.
    In a perjury prosecution, where there was evidence that there was somewhat of an understanding between defendant and certain witnesses that they should lie before the grand jury, it was error not to submit the question as to whether the witnesses were accomplices to the jury.
    2. Ceiminal Law <&wkey;510 — Accomplices—Corroboration.
    Conviction of perjury cannot be sustained upon testimony of accomplices alone.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    8. E. Melton, was convicted of perjury, and he appeals.
    Reversed.
    X. W. Holmes and W. W. Kirk, both of Plainview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant prosecuted this appeal from a conviction for perjury. He has a great number of bills of exceptions. It is unnecessary to state or discuss them, as it is believed none of them present any reversible error except his fourteenth, the one we will discuss.

The indictment based the charge of perjury against' appellant wherein he swore before the grand jury that he had not played a game of cards in Hale county between January 1 and February 16, 1916, and that he had seen no one during that time play a game of cards. The state alleged that his testimony was false in both of these particulars. The state introduced three witnesses, Rushing, Cox, and Patrick, each of whom, testified in substance that they, with others and appellant, played a game of cards on or about February 14, 1916, giving the place which was in Hale county, but not at any residence. Their testimony, and the testimony of neither of them was corroborated by any other testimony. It seems that each of these witnesses were witnesses before the ■grand jury on February 16th and each at the time denied that he had played a game of cards at the time and place indicated, and denied that he had seen any other there play. Later, however, each swore what he said was the truth, to the effect that he and others, including appellant, played cards at said time and place. Rushing swore on cross-examination that when he at first testified before the grand jury he had not played or seen a game played that his testimony was not true, bqt that he had sworn the truth on this trial that appellant had played and had seen the said game played, they all participating therein. He swore:

“The reason I told, the grand jury that I had! not was, well, by agreement among the boys that played in the game, they wouldn’t testify.”

On redirect examination he swore:

“You asked me if all of us boys were present, agreed that we would go before the grand jury and testify that we did not play a game of cards: well, will say, it was understood we would stand pat. I can’t say that we were all present. I can’t state who had this agreement. We were most all of us together. I can’t state positively we all agreed, but it was understood. In a way, we did have an agreement, but still I can’t swear to it. It was understood amongst us we would all stand pat. I don’t know that we all met. You asked me if we passed the word around. Yes, sir; something similar to that. No, sir; we didn’t get together at any time and have any agreement that we would not testify.”

He further testified on another redirect examination :

“Mr. Hatehell, you asked me if we hoys entered into an agreement that we would go before the grand jury and testify that we did not play a game of cards, will say we never did get together and make any agreement, I don’t think.”

Appellant contends that this evidence was sufficient to raise the question that these •three witnesses were accomplices of appellant in his said alleged false testimony. We think his contention is correct. The fact that these witnesses agreed with appellant and the others, or any of them, not to testify, or the fact that they played in the said game, would not make them accomplices of appellant wherein he swore before the grand jury that he did not play, and that he saw no one play a game of cards. Warren v. State, 60 Tex. Cr. R. 468, 132 S. W. 136. But this evidence by Rushing did not stop at that, it went further sufficient to raise the question that they agreed, not only not to testify but to testify falsely that they had not played or seen said game played. If these are the facts, then these three witnesses, or such of them as were parties, either directly or indirectly, to any such agreement, would be accomplices, and the conviction could not be sustained upon their testimony alone. Conant v. State, 51 Tex. Cr. R. 613, 103 S. W. 897. The appellant in proper time asked a charge submitting this question to the jury as shown by his said bill, and the court erred in refusing to submit that question to tbe jury. If these witnesses were accomplices of appellant as stated, a conviction for perjury against appellant could not be sustained upon their testimony alone. If, however, they were not accomplices of appellant as shown above, then they might be such witnesses upon whose testimony a conviction could be sustained.

For the error in the court’s refusal to submit this question to the jury under the testimony as -it appears in the record, the case is reversed, and the cause remanded.
      <Ss»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOIRROW, J.

text:
    CHEVES v. STATE.
    (No. 4419.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    Intoxicating Liquors <&wkey;236(ll) — Saie or Nonintoxicating Malt Liquors — Evidence.
    In a prosecution under Pen. Code 1911, arts. 157-160, for engaging in the business of selling nonintoxicating malt liquors without payment of taxes, evidence held insufficient to sustain a conviction, it failing to show that the liquid labeled “Teddy Beer” was a nonintoxicating liquor, and that defendant was engaged in the business of selling the same at any time fixed by the evidence.
    Appeal from Young County Court; W. P. Stinson, Judge.
    Ed. Cheves was convicted of engaging in the business of selling nonintoxicating malt liquors without payment of taxes, and appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MOIRROW, J.

Appellant was convicted of engaging in the business of selling nonintoxicating malt liquors without payment of taxes.

The prosecution was under chapter 7, P. C. It appears that appellant conducted a cold-drink business in Young county, and that the sale of intoxicating liquors was prohibited by law, and that appellant had not paid any taxes for the selling of nonintoxicating malt liquors. The state’s witnesses were the sheriff of the county, the constable of the precinct, and the city marshal of the town in which appellant conducted his business.

The sheriff testified that he had obtained from appellant two bottles labeled “Teddy Beer,” which were introduced in evidence; that these bottles were not purchased, but were taken from a barrel probably two-thirds full of like bottles; that there were other barrels in appellant’s place of business, but witness did not know what they contained; that he did not drink any of the liquid, and had no knowledge as to whether it was intoxicating or nonintox'icating; that it was not taken from the ice box from which appellant was selling drinks to his trade; that he had on several occasions seen the appellant sell .drinks which he thought bore the j same label “Teddy Beer,” but was uncertain as to that, and that he was unable to state when any of the sales were made. „

The constable stated that appellant sold stuff that looked like beer, Coca-Cola, cider, soda water and mackeral; that he drank in the course of three months three bottles of stuff that looked like beer and tasted like beer; that he did not buy it; that appellant gave it to him; that he had drunk beer in similar quantities; and that neither the stuff bought from appellant nor the beer which he had bought from other sources produced intoxication ; that he had seen him sell similar stuff to that which he gave the witness, but had no recollection as to when the sales were made. He also stated that he would not say whether the liquid which appellant gave him and which he drank was intoxicating or nonintoxicating.

The city marshal testified that he had never drunk any of the “Teddy Beer,” and had never seen appellant sell it; that appellant had several barrels in his place of business, but he did not know what they contained.

This evidence, we think, is insufficient to sustain conviction. It fails to show that the liquid labeled “Teddy Beer” was a nonintoxicating malt liquor, and fails to show that he was engaged in the business of selling said liquor at any time definitely fixed by the evidence.

The judgment of the lower court is reversed, and the cause remanded.


text:
    TIGER v. STATE.
    (No. 4486.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    1. Homicide c&wkey;250 — Evidence — Sufficiency.
    Evidence held sufficient to sustain a conviction of murder.
    2. Homicide <&wkey;2821(4 — Questions fob Juky —Penalty.
    In a prosecution for murder, fixing the penalty was a matter for the jury, the Supreme Court having no power or authority to fix the penalty.
    Appeal from pistrict Court, Matagorda County; Sami. J. Styles, Judge. v
    John Tiger was convicted of murder, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This appeal is from a conviction of murder with the death penalty assessed.

Besides appellant there were but two eyewitnesses to the killing, Will Carter and Mamie Ghappel. Appellant did not testify. Mamie Chappel, by her own testimony, had been the “kept” woman, of appellant for a long time, and until shortly before the killing. The killing occurred in her house. The deceased, Claude Hughes, was- a white man; the appellant, a negro. The deceased was lulled by being shot. Four bullets struck him. One entered the front of his neck, a little to the right of the center, and went entirely through, striking and imbedding itself in the door facing. This shot powder burned his chin,, and in entering made a little crease, just under his chin. This ball angled up and came out a little to the left of where it went in. Another bullet went in his side under his right armpit, above the elbow, Sy2 or 4 inches from the shoulder. That ball stopped in his body — did not pass through him. Another shot struck him on the nose, a little to the right side, passed down through his nose, but did not elsewhere touch his face or clothing. The other shot struck him just above the eye, and passed back of his eye down and struck and broke his jaw, knocking out one of his teeth. This was a steel bullet, one of the witnesses who particularly examined, testified, and was picked up right in front of deceased’s mouth, and had a piece of bone or tooth and blood on it.

An accurate plat and measurement was made of the room, the doors and various pieces of furniture in the room where the killing occurred, and where the parties were, and where the deceased was standing when first shot or shot at, and where he was when he fell and died. All the witnesses who testified to any of these facts did so with reference to this plat and measurement, pointing out particularly the different places and things from it. It was introduced in evidence, but it is not in the record. Without this there is some difficulty in locating these several things by the testimony alone, as is always the case when a statement of facts shows witnesses testified from a plat.

The house had two rooms in it. It fronted east with a gallery extending almost the whole length. A partition separated the room, in which the killing occurred, from the other room, with a door therein near the center swinging into the south room towards the east wall. The right-hand side of the door into the south room from the gallery hung 1 foot and 4 inches from the partition wall, the two doors swinging back toward one another. Behind the door in the partition, wall was a trunk, which was against the partition wall and so situated that the door in the partition wall would open only at about right angles, the trunk preventing it being further opened. A bed was in one corner, the foot extending towards the center of the room.

Will Carter testified that he, deceased, and two young white men, Clyde and Ewell Koontz, were in Mamie Chappel’s house with her an hour or two before the killing, staying about a half hour, then all left. Clyde Koontz also so testified. The killing occurred between 12 and 1 o’clock at night, or later. Will Carter also testified that he and deceased just before the killing, but not together, approached said house from different directions, neither knowing of the other’s approach until right at the house. He swore that just as he approached the house he heard some loud talking in there. Carter further testified:

“When I got there Mr. Claude Hughes stepped up there just in front of me, on the gallery at Mamie Chappel’s house, and he went right inside the door. When Mr. Hughes got there the door was closed, and he opened it, and I saw him go in, and when he went in I was about as far from him as from here to that stove (indicating about 10 feet); he did not know that I was behind him until he looked back and saw me just as he went in the house. He didn’t do anything when he went in the door; he looked back and saw me just as he stepped inside, and he said, ‘Hello, hello; what is the trouble?’ When Mr. Hughes stepped in the door he stopped right at the side of the door, right close to. the facing, and when I went in I went right by him, in front; that door opened to the inside, and I opened the door and passed right by Mr. Hughes and by Mamie, and just to the left side of him. * * * When I went in John Tiger, the defendant, was sitting right behind the door that you go in, which door pushed back practically against him_, and he was sitting on a trunk right there. Besides the door that I went in there was another door in that room in the partition wall leading into the other room, and the trunk that the defendant was sitting on at that time was right between those two doors; and the shutters to both of those doors opened back against the trunk. At the time of this shooting the door that led into this room was open as far as it could get — it couldn’t get way open, but it stood just about like that, half open; it couldn’t get way open on account of the trunk, the door going back against the trunk; and when the other door was opened the defendant was sitting on the trunk right between the doors. Yes, sir; I went in the room and passed by Mr. Hughes and stepped over to the other side of the room. When I stepped in there Mr. Hughes didn’t do anything at all. When he stepped up there, when they .said ‘Come in,’ he shoved the door open and went in, and he said: ‘Hello, hello; what is the trouble?’ and Mamie went to tell him, and said something out of the way that this fellow here said to her; when Mamie went to tell Mr. Hughes what the trouble was, after he had said, ‘Hello, hello; what was the trouble’ — she said, ‘This nigger told me’ something, you know, out of the way,’ and then he said (indicating the defendant), ‘Why, is you the law?’ Johnnie Tiger said: ‘Why, is you the law?’ John Tiger was still sitting on the trunk at that time. When John Tiger said, ‘Why, is you the law?’ Mr. Hughes said, ‘No; I ain’t the law;’ and John Tiger then said, ‘You must be the law;’ and Mr. Hughes said, ‘No; I ain’t the law;’ and then John Tiger said, ‘What you looking for, trouble?’ and Mr. Hughes said: ‘No; I ain’t looking for trouble,’ and said, ‘No; I just know Mamie;’ and then Johnnie got up off that trunk and goes into the other room. When Mr. Hughes had this conversation with John Tiger Mr. Hughes was standing up right by the door, at which time he didn’t have a thing in his hands. Johnnie said, ‘Huh,’ and got up and went into the other room, and Mr. Hughes had the tobacco in his hands like this (indicating as though rolling a cigarette): He was standing up like this, and went to roll a cigarette, and that time Johnnie came back in, just as he pulled his tobacco out, and Johnnie came right to the foot of the bed— the bed sat right even with the door facing— and he got right to the foot of the bed, and had on an overcoat and had both hands in his pocket, like this, and he was right in front of Mr. Claude, just like this, and he said, ‘You must be looking for trouble,’ and Mr. Claude had his head down rolling a cigarette, and Johnnie said, ‘You must be looking for trouble,’ and Mr. Claude said, ‘No; I ain’t looking for trouble;’ and he said, ‘You must be,’ and that time Johnnie said: ‘You God damn -.’ That is all I could understand, and Johnnie went to shooting, bow-bow, and backed up into the room, but not toward me — X was standing on the other side — and he backed right up into that room, and when he backed into that room, and when the first shot was made, Mr. Claude just fell like that, and he kept falling, and John Tiger just kept backing up shooting, and when Mr. Claude fell he stepped out of the other room, and stepped right over him, and I heard it go ‘clatter, clatter, clatter,’ and the baby hollered in the other room, and Mamie hollered: ‘Oh, don’t shoot iny child !’ and when she said that the baby came running out over Mr. Claude and ran right to Mamie, and Mamie grabbed her and ran right out the door, she and Johnnie and the baby, and I came out from under the bed, right on my knees.”

The officers were called just after the shooting. They, with others, went where the deceased was killed, and then, and also later, made an examination of deceased and the wounds on him, and found in the walls of the house where the balls fired by appellant entered it. All of the physical facts testified to by various disinterested witnesses corroborated Carter’s testimony of the shooting and killing. Appellant left that night, and was not apprehended until the following Monday morning early. The pistol with which he did the shooting was then found on his person, and was shown, to have been discharged recently so as to correspond with the shooting Saturday night or Sunday morning. It was a large bore pistol. It shot leaden bullets, not steel. All of the wounds on deceased unless it was one in the face, were shown to have been inflicted on deceased by .leaden bullets. After the killing, when the officers and others examined deceased, the house, etc., a pistol was found lying in the room in which appellant backed just before he began shooting deceased, and also after he began shooting. How this pistol got there is not explained by the testimony. It was shown to have been the pistol of deceased.

Appellant received no wound, and his clothing even was not shown to have been struck by any bullet. Mamie Ghappel, a negro woman, appellant’s formerly “kept” woman, testified in his behalf, and if her testimony had been believed, she might have made a case of self-defense for appellant. She testified, in substance, that immediately when the deceased stepped in the door he, without any provocation whatever, had a pistol in his hand, and began shooting at appellant. All the physical facts, including where the bullets struck, dispute her directly. The court submitted self-defense based on her testimony, and told the jury in substance to acquit him if they believed the state of facts testified to by her. The jury could not have believed her under the testimony, and should not have done so. It is unnecessary to detail her testimony. The state’s case, without doubt, made a clear case of murder against appellant. The testimony of said negro woman, as stated, might have made a ease of self-defense in his behalf if the jury had believed it. After a careful and repeated study of the testimony, we think it clear and ample to sustain the verdict. The penalty was a matter for the jury to assess. This court has no power or authority to fix a penalty.

The testimony of Bert Carr, which was objected to by appellant, shown by his only bill, was admissible on two grounds: First, it was in effect an impeachment of appellant’s witness said Mamie Chappel; second, it was a res gestse statement made by her. His bill objecting to the admission of this testimony presents no error. Gillespie v. State, 190 S. W. 146. These are the only questions presented.

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