text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. MISSILDINE.
    (Court of Civil Appeals of Texas. Texarkana.
    April 3, 1913.
    Rehearing Denied April 17, 1913.)
    1. Negligence (§ 136) — Proximate Cause-Question for Jury.
    Though the issue of proximate cause is a question of fact, the evidence may he such that the court may assume its existence as a matter of law.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.)
    2. Carriers (§ 303) — Carriage oe Passengers — Duty to Stop Train.
    Trainmen owe to a passenger the duty to stop the train and permit him to alight at his destination, and where they fail to stop at all, or to stop for a time sufficient to enable him to alight, but put him down in the dark at a place some distance from the station, whereby he falls into a cattle guard and is injured, they are guilty of actionable negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.)
    3. Carriers (§ 305) — Injuries to Passengers — Proximate Cause.
    Where a passenger carried beyond his destination on a dark night was compelled to alight at an unusual place and walk the track back to the depot, an injury to him caused by his falling into a cattle guard in the track was the proximate result of the trainmen’s negligence, provided the passenger was not guilty of contributory negligence in failing to avoid the danger.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1132, 1136-1139, 1245-1246; Dec. Dig. § 305.]
    4. Carriers (§ 247) — Passengers—Who Are.
    A passenger remains such after alighting from a train until he leaves the railway premises or for a reasonable time in which he may leave them, and during that time is entitled to the protection of a passenger.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.]
    5. Carriers (§ 303) — Carriage oe Passengers — Safe Depots.
    The duty of a carrier to exercise proper care to provide safe places for passengers to board and alight from trains may not be evaded by negligently carrying a passenger beyond his destination and compelling him to get on or off the train at an unusual place in the dark.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.]
    6. Carriers (§ 347) — Injuries to Passengers — Contributory Negligence — Question for Jury.
    Whether a passenger carried beyond Ms station on a dark night and compelled to alight at an unusual place and walk the track back to the depot was guilty of contributory negligence precluding a recovery for injuries sustained by falling into a cattle guard held for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 138S-1397, 1402; Dec. Dig. § 347.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Action by J. A. Missildine against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Glass, Estes, King & Burford, of Texar-kana, for appellant. C. A. Wheeler and Ma-haffey & Thomas, all of Texarkana, for ap-pellee.

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

   HODGES, J.

On October 23, 1911, the- ap-pellee resided with his family in the country near Carbondale, Ark. On the date mentioned he, in company with his wife and other parties, attended a circus in Texar-kana. The train on which they, returned arrived at Carbondale some timé after dark. There is a sharp conflict in the testimony as to whether the train stopped at Carbondale or not; some of the witnesses testifying that it stopped a short time, and others that it made no stop. It appears th?:t the train was crowded with passengers returning from the circus. In any event, the testimony shows that the appellee and his party were carried a few hundred yards beyond the Carbondale depot. The distance was variously estimated by the different witnesses at from 300 to 600 yards. The train was stopped at this point by the trainmen on being notified that some of the passengers desired to get off at Carbondale. The place where they stopped, according to the testimony of the appellee, was on an embankment about 600 yards east of the depot. There were several other passengers put off at the same time, besides those belonging to his party. Appellee testified that he had made arrangements with a friend to meet him and his family at the depot with a wagon and team for the purpose of carrying them home that night; that immediately after he was put off he started hurriedly down the track towards the depot, for the purpose of seeing. that party before he left. The night was very dark; and while going along the railway track he fell into a cattle guard and sustained the injuries for which he brought this suit and recovered a judgment for $400.

The court gave the following as a portion of his main charge: “If you believe from the evidence that defendant failed to stop its train at Carbondale at all, or failed to stop it for a reasonable time to allow plaintiff to get off by using ordinary care to do sb with reasonable safety to himself, and took him beyond Carbondale and there stopped its train and allowed him to get off, and that he undertook to make his way back to Carbondale, and that while so doing he fell in a cattle guard and was thereby hurt, and that in undertaking to get back to Carbon-dale he was not guilty of negligence, and that he was not guilty of negligence when he fell in said cattle guard? then you will find for plaintiff.” He refused the following special charge requested by the appellant: “You are instructed that if you should find that the defendant was .guilty of negligence in carrying plaintiff: by the station of his destination and thereby caused him to get off at the place where he got off, and you further believe that in going back to the station of his destination he fell in or over a cattle guard, and if you further believe from the evidence that the plaintiff was injured by the fall, still, even if you should find that the plaintiff was guilty of contributory negligence, you would not be authorized to find, and you will not find, in favor of the plaintiff for any damages on account of any such injuries which he may have sustained by the fall, unless you should further find from the evidence that the defendant’s employés in charge of its said train which carried plaintiff by his station should have or did anticipate, under all the circumstances appearing from the evidence in this case, that as a result of the plaintiff being carried by his station and having to get off of the train where he did, he would likely or might be injured in some way by the cattle or stock guard.” The giving of this portion of the main charge and the refusal of the special charge are both assigned as error.

The objection to the main charge is that it assumed as a matter of law that the negligence of the appellant’s employés in carrying the appellee beyond his station was the proximate cause of his injuries. The purpose, it is claimed, of the special • charge, was to submit to the jury a method of determining whether or not such negligence, if any, was the proximate cause. It is contended that under the facts of this case the question of whether the negligence complained of was the direct and proximate cause of the injuries sustained by the appel-lee was an issue of fact which should have been submitted to the jury.

It may be conceded as true that the issue of proximate cause is in a sense always a question of fact; but, like all such issues, the state of the evidence may at times be such that the court may assume its existence as a matter of law. Just how far in the line of sequence the effect must be removed from its natural cause in order to lose its legal relation as the proximate cause can never be determined by any definite rule; it must depend in every case upon the particular state of the facts. The terms in which the usual definitions of proximate cause are generally expressed are as uncertain and indeterminate as the thing sought to be defined. Whether one,should be held responsible for an injury resulting from his culpable conduct is, in every case, to be determined by the generally recognized principles which guide our common sense of justice in regulating the intercourse of people, rather than by some artificial niceties based upon metaphysical distinctions.

The appellee was a passenger upon the appellant’s train, and had a right to be put off at the depot at Carbondale. The employés of the appellant in charge of the train owed him that duty; and if they did not furnish him an opportunity to leave the train at Carbondale, either because of a failure to stop, or to stop for a time reasonably sufficient for that purpose, they were guilty of negligence for which the appellant may be held responsible. The jury decided that question against the appellant. Adopting the test embodied in the special charge quoted, should the appellant’s trainmen, under the circumstances, have anticipated that such an accident as this might happen?

xlppellant is charged as a matter of law with a knowledge of the condition in which it had put its track and right of way by the construction of embankments, cattle guards, culverts, etc. That knowledge will be imputed to its representatives and employes in charge of its trains when dealing with passengers. By carrying the appellee beyond the depot as was done on this occasion, those employés made it necessary or proper for him to use the roadbed and track in returning to the depot. They might reasonably have expected that he would do this. They must have known that under the circumstances he would pass over this cattle guard. It is a matter of common knowledge that cattle guards are intended for the purpose of excluding stock from inclosures, and are not constructed for the safety or convenience of pedestrians using the railway track as a imthway.

A passenger after alighting from a train remains such until he leaves the railway premises, or for a reasonable time in which he may leave them. Ormond v. Hayes, 60 Tex. 180; Railway Co. v. Batchler, 32 Tex. Civ. App. 14, 73 S. W. 981; Glenn v. Bake, etc., Ry., 165 Ind. 659, 75 N. E. 282, 2 L. R. A. (N. S.) 872, 112 Am. St. Rep. 255, 6 Ann. Cas. 1032; N. Y. C. & St. L. Ry. Co. v. Doane, 115 Ind. 435, 17 N. E. 913, 1 L. R. A. 157, 7 Am. St. Rep. 451. In the case last cited the court said: “Where a freight train is accustomed to discharge its passengers at some place other than the platform, or where it is impracticable for it to reach the platform with its caboose, or other car in which its passengers are carried, it may require passengers to leave its train at some other appropriate and convenient place, not connected with the platform. In such an event, however, passengers are entitled to receive such care and attention as are necessary to enable them to properly reach the station, and this is especially so where the place at which they are discharged is either inappropriate or inconvenient. Woolery v. Louisville, etc., Ry. Co., 107 Ind. 381 [8 N. E. 226], 57 Am. Rep. 114. Further on (2 Wood., Railway Law, at page 1186) the same author says that ‘if the train overshoots or stops short of the platform at an unusual place, it is held that the company is bound to assist the passengers to alight, and in any event, in such a case, it would be its duty to either back the train to the station or notify the passengers where and how to alight, and warn them of any dangers incident to alighting at that point; and if through no fault of the passenger he is injured by alighting at that point, or in getting from there to the station or highway, the company is liable therefor.’ ”

If it is the duty of common carriers to exercise a proper degree of care to provide safe means of ingress and egress to and from their trains at places where passengers are expected to get on and off, that duty cannot be evaded by negligently carrying a passenger beyond his destination and compelling him to get on or off the train at an unusual place in the dark rather than to furnish him the opportunity at the regular stopping place. S. A. & A. P. Ry. Co. v. Turney, 33 Tex. Civ. App. 626, 78 S. W. 256; Stewart v. Railway Co., 53 Tex. 289, 37 Am. Rep. 753; Railway Co. v. Thornberry (Sup.) 17 S. W. 523. That a passenger compelled to alight on a dark night at an unusual place and walk the track to a depot might fall into a cattle guard over which he was compelled to pass should as readily be anticipated as that one alighting at the depot would be injured by a defect in the platform or premises at that place. The accident in this instance was one which not only might have been contemplated as possible, but one which should have been anticipated as likely to happen considering the darkness of the night and the surroundings of the parties. The only other agency outside of the negligence of the appellant in carrying the appellee to a place where he would be compelled to pass over this cattle guard which could have supervened to cause the injury was his own contributory negligence in failing to evade the danger. The court made appellee’s right to recover depend upon a finding that he was not guilty of such negligence. Hence we conclude that there was no error in the charge complained of, nor in refusing that requested.

The refusal to give the following special charge is also assigned as error: “You are instructed that if you believe from the evidence that the plaintiff was running down the railroad track when he went into or on the cattle or stock guard, and that it was dark, and that he could not see any objects ahead of him, and if you believe that by reason thereof he fell into or on said cattle guard, then you will find plaintiff guilty of contributory negligence, and you will find for the defendant.” There was no evidence that the appellee was running at the time this accident occurred. He says that he was not, and no one else testified to the contrary. Moreover, even if it could be said that he was running, the court would not be authorized under the circumstances to charge the jury that such conduct was contributory negligence per se. It would still be an issue to be determined by the jury.

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    HILL v. HUNTER.
    (Court of Civil Appeals of Texas. Austin.
    April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. Landlord and Tenant (§ 114) — Tenancy at Will — Occupancy Undee Aqeeement Indefinite as to Teems.
    Where a lessee held over after a yearly tenancy under an agreement that he might have the premises as long as he paid the rent, the tenancy is one from year to year and not a perpetual tenancy.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 373-381; Dec. Dig. § 114.]
    2. Contracts (§ 10) — Landlord and Tenant (§ 86*) — Mutuality—Consideration.
    Where one was in possession of premises as lessee paying a fixed annual rental, an agreement on the part of the lessor that he should have the premises as long as he 'paid the i-ent is not enforceable, being a mere unilateral contract, as there was no consideration for the extension of the term.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10;* Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. § 86.]
    3. Frauds, Statute of (§ 58) — Contracts Relating to Land.
    Under the statute of frauds, subd. 4, a perpetual tenancy, whereby the lessee was to have possession of the land as long as he paid the yearly rental, is void unless created by an instrument in writing.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 90, 91; Dec. Dig. § 58.]
    4. Frauds, Statute of (§ 129) — Agreements Relating to Land — Exceptions.
    Where defendant, who was in possession of land as lessee, borrowed money to pay a debt due his lessor for purchase of property, and also to pay part of the rent upon which he was behind, relying on the lessor’s statement that he might have the land as long as he paid the rent, such transaction will not take the agreement out of the statute of frauds; the lessee in no way changing his position to his detriment.
    [Ed. Note. — For other eases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. § 129.]
    5. Brokers (§ 54) — Commissions—Right to Commission.
    One engaged to sell land cannot claim commission until he has produced a purchaser not only willing but ready and able to purchase, and proof of his ability to purchase is an essential to recovery.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54]

      Appeal from District Court, Travis County ; Chas. A. Wilcox, Judge.
    Action by W. D. Hunter against J. T. Hill, who filed a cross-action. Prom a judgment for plaintiff, which denied relief on his cross-action, defendant appeals.
    Affirmed.
    W. R. Allen and Albert S. Phelps, both of Austin, for appellant. Fiset & McClen-don and D. K. Woodward, all of Austin, for appellee.

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

   KEY, C. J.

Appellant’s brief contains the following statement of the1 nature and result of the suit:

“This suit was instituted by appellee, W. D. Hunter, against appellant, J. T. Hill, in the district court of Travis county, Tex., on the 4th day of January, 1912, for the possession of 1,572 acres of’land situated in Travis county, and the said W. D. Hunter on said day sequestered said property, and later, within the time prescribed by law, the said J. T. Hill replevied the same. The facts of the case, briefly stated, are substantially as follows:
“On January 1, 1907, W. D. Hunter rented his farm, consisting of 1,572 acres, situated in Travis county, to his son-in-law, J. T. Hill, for the sum of $5,000 per year, the said Hill to manage, cultivate, and run the farm, at which time the said W. D. Hunter sold to said J. T. Hill some mules, wagons, and farming implements, for the purpose of cultivating said farm, for the sum of $3,000, retaining a mortgage lien on same; at the end of 1907 the lease of said farm was extended, and said Hill occupied and farmed said place for the year 1908; and the said Hill, at the end of 1908, continued to farm said place under an agreement between said W. D. Hunter and himself up to and including the year 1911, the said Hunter renting said place to the said J. T. Hill for the sum of $5,000 a year upon a verbal understanding and lease.
“There is a dispute as to what the contract of lease between appellee and appellant was after the year 1908, the relation of landlord and tenant continuing without any written contract; appellant J. T. Hill claiming that the said W. D. Hunter rented and leased the premises to him as long as he (Hill) would pay the $5,000 rent per year, and that it was the understanding and agreement between said parties that the said Hill was to have the privilege of leasing said farm as long as he paid said rent, and that said contract -was solely dependent upon this fact and contingency (that is to say, said Hill’s lease depended upon the contingency as to whether he paid the rent for each year); and in the event he (Hill) paid said rent he was to continue on said place. The appellee Hunter denies that he had this agreement with Mr. Hill.
“In 1910 J. T. Hill got behind in the payment of the rent for the place, and the said W. D. Hunter requested that Mr. Hill see Mr. Lynn Hunter and get him to advance the money to pay off said back rent, and promised the said Hill that if he (Hill) would do this he would let him have the place as long as he kept the rent paid up, as agreed upon. Later the said W. D. Hunter requested J. T. Hill to see Lynn Hunter again and ascertain whether he would pay off the $1,500 that was still due on the mules and farming implements, and pursuant to this request said Hill saw Mr. Lynn Hunter and got Mr. Lynn Hunter to pay off said indebtedness, as the said W. D. Hunter had requested ; the said W. D. Hunter assuring the said Lynn Hunter and the said J. T. Hill that if he would pay the same off he (W. D. Hunter) would allow said Hill to stay on the place as long as he paid the rent, and, on the strength of said representations, the said J. Lynn Hunter at the request of J. T. Hill and for his benefit, and for the benefit of W. D. Hunter, paid off said debt as he had paid the other one. That, notwithstanding the said agreement and promise of W. D. Hunter that his said son-in-law, J. T. Hill, could occupy the place as long as he paid the rent, provided said Hill would get Lynn Hunter to pay off said indebtedness, both as to the rent and personal property aforesaid, later the said W. D. Hunter, on the 17th day of October, 1911, demanded that the said Hill vacate said premises, which the said Hill refused to do, having some time before that paid the rent of said place for the year 1911 to W. D. Hunter, who had by his promises obligated himself to let Mr. Hill have the place for another year, or as long as he paid the rent.
“Appellant, J. T. Hill, answered by general demurrer, special exceptions, and specially answered setting up substantially the facts above stated, pleading among other things that the said lease was a continuing one and was in full force as long as appellant paid the appellee the rent, and that the lease was one that could or could not be performed within a year, and was dependent upon the fact as to whether the said Hill paid the rent, and the same was not subject to the statute of frauds; and that the promise made by the said W. D. Hunter to J. T. Hill and Lynn Hunter that if Hill would get Lynn Hunter to pay off certain indebtedness on personal property and the rent, he (W. D. Hunter) would allow Hill to rent the place as long as he paid the rent, which the said Lynn Hunter paid to the said W. D. Hunter ■ for his benefit, and the same constituted a valid consideration for said promise, which redounded to and subserved the interest of said W. D. Hunter, and he could not be heard to say that the statute of frauds applied, for the consideration that he received took the same out of the statute of frauds.
“Appellant Hill pleaded also a cross-action against W. D. Hunter for the sum of $7,875. being for commission's due him by the said Hunter for obtaining a purchaser for said place, while the said Hunter had it in the said Hill’s hands for sale.
“The case was tried before a jury, and, after all the evidence was in, the court, upon motion of the plaintiff, W. D. Hunter, instructed the jury peremptorily to find a verdict for the plaintiff and against the said J. T. Hill on his cross-action, and the jury returned a verdict as instructed, and judgment was entered accordingly.
“Later the defendant, J. T. Hill, moved the court for a new trial, which was overruled on the 13th day of April, 1912, to which defendant Hill excepted, and in open court gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, and appellant has perfected his appeal, and the case is now before this court for submission and decision.”

Appellant contends that the question -of the plaintiff’s right to recover the land, and appellant’s right to recover upon his cross-action, should have been submitted to the jury, and also contends that error was committed in excluding certain testimony. Counsel for appellee, in a well-prepared brief, controvert appellant’s contention and urge several reasons in support of the course pursued by the trial court, some of which reasons meet the approval of this court and lead to an affirmance of the judgment. The proof shows that appellant took possession of the land under the following written contract:

“This contract made between W. D. Hunter and J. T. Hill for the year 1907, wit-nesseth:
I rent Hill my Del Valle farm in Travis county for . $4,000 Gin and fixtures for... 1,000 Total .$5,000
“Hill keeps up his own machinery for year 1907. I sell the said Hill 18 mules and 1 bay pony, 4 wagons and all the implements only belonging to me for the sum of §3,000. Said Hunter excepts the farming implements that Orange Battle and his son-in-law has. Said Hill agrees to fix fencing, Hunter furnishing material. I except one-fourth of pecans and one cow and calf. Said Hill pays interest on $3,000 from the 1st of January, 1907, for stock and farming implements at the same rate I have'to pay interest. Said Hill agrees to turn over all the proceeds of the crop of 1907, also all seed hauled from gin. Said Hill is not to trade or sell mules without Hunter’s consent. Said Hunter agrees to furnish such help as is necessary to make crop. Said Hill paying Hunter the same interest he has to pay. I will pay for putting up houses that may be necessary to help make crop. Hill’s contract is for year 1907, only, unless extended.
“Signed this 1st day of January, 1907.
“W. D. Hunter.
“J. T. Hill.”

We copy from appellee’s brief a fair summary of the testimony bearing upon the question of appellant’s right to retain possession of the premises after the year 1911:

“Plaintiff introduced in evidence the contract for the year 1907, and the extension thereof for 1908, between the plaintiff and defendant, which were in writing and signed by both parties. This contract and extension are in the same words as copied in plaintiff’s petition and as heretofore copied in this brief. Plaintiff also introduced the notice given by plaintiff to defendant on October 17, 1911, demanding possession on January 1, 1912. The defendant admitted that said notice was received by him on October 24, 1911. The plaintiff also proved by the ex parte deposition of defendant that the above lease and memorandum thereon extending the same for the year 1908 was the only writing between plaintiff and defendant in regard to the tenancy.
“The defendant, after identifying the lease contract of 1907 as the one executed by himself and plaintiff, testified that in the fall of 1909 he asked the plaintiff if they had not better have another written contract, to which plaintiff replied: ‘There is no need of a contract, Joe; there was no use of any at the start; I am as good as my word; my word is as good as my contract; whatever I say I will do, I will do, and it is not necessary to go into writing about it; just go on like you are; you: know as long as you comply with your part of the contract I’ll comply with my part of it.’ He further stated in regard to this conversation that when he asked for another contract plaintiff said: ‘No, it was not necessary; that I knew our understanding; and that as long as I paid the rent I could keep the place.’
“He further stated that in the fall of 1910 he went to J. L. Hunter to get that part of the rent that he had failed to make off of the place; he had a conversation with plaintiff at the State National Bank with regard to the renters who were coming to him. That conversation is described by defendant as follows: The plaintiff said, ‘Joe, what is the matter?’ and told me that a Mexican and negro that lived on the place had come over to see him about renting land, and he asked me, ‘Ain’t you going to keep the place?’ I said, ‘Why, yes, yes, Mr. Hunter, what is the matter?’ He said, ‘Well, they came and asked me to get this land if you didn’t keep the place, and I thought maybe you were not going to keep it.’ I said, ‘No, I could not afford to quit, owing you for all these mules.’ He said, ‘Well, I told them to go to you; that you had it as long as you paid the rent and owed for this other stuff; and that I hadn’t a thing in the world to do with it.’ He further stated that the original amount for the mules was $3,000, which had been reduced down to between $1,200 and $1,300; that plaintiff in the fall of 1910 suggested that he get the money from J. L. Hunter to pay off the mule debt; that he followed plaintiff’s suggestion and went to Lynn Hunter and got the money; that plaintiff said if he could do such a thing it would suit him, as he (plaintiff) was in bad health; and that if he (defendant) could get the money and pay him off he would owe plaintiff nothing but the rent, and in ease plaintiff should die it would be easier on his wife, and so defendant would owe plaintiff only $5,000 each fall. He quotes plaintiff as saying: ‘You go and get it, if you can, Joe, and it would relieve me very much, because I would know then Fannie [plaintiff’s wife] wouldn’t have anything to bother about.’ The defendant further stated that he used a great deal of money running the place, and ‘whatever I needed I went to Hr. W. H. Hunter, and he charged me with what interest he had to pay, and he said it would get it in better shape and make it easier on Fannie if he should lie down and die.’ Defendant testified that he followed out this suggestion, got the money from Mr. J. L. Hunter, and paid plaintiff; Mr. J. L. Hunter furnishing the money and taking up the mortgage. In this same connection defendant further said: ‘As to what Mr. W. D. Hunter told me then with regard to keeping the place as long as I 'paid the rent, he said it would be the same as if he still held the mules; that as long as I paid the $5,000 there would be no change. The only thing about the $1,200 was to get myself in position so I would not bother his wife in case he laid down and died; that is what he claimed.’
“Defendant further stated that he was short in the rent of 1910, and ‘in January, 1911, I went to Mr. J. L. Hunter to get him to pay the balance of that rental. Mr. W. D. Hunter asked me to go to Mr. J. D. Hunter again, and said he had told Lynn Hunter how our trade was and he would understand it; that I was to have the place as long as I paid the rent; he told me that he had told Lynn Hunter about it a few days before.’ After stating that plaintiff said he had told Lynn Hunter he ‘could keep the place as long as he kept up the rent',’ he quotes plaintiff on this occasion as saying: ‘Knowing that, and having a mortgage on your mules, he will help you, I believe; go to him and 1 believe he will help pay the balance.’ He further quotes the plaintiff upon the same occasion as follows, ‘Joe, you know that has been our understanding all the time;’ also, ‘That has been our understanding all the way through, that as long as you paid the rent you could have it, but if you could not pay it you were to give it up; you know that.’
‘With regard to exchange of places which defendant says was in the fall of 1910, he quotes plaintiff as saying: ‘Joe, to show you that I am trying to do what is right and because your wife has died, I will make you this proposition: You go over and take the home place; there is 2,400 acres in that; you have run the other place and made a success of it; I’ll turn you over the gin; you can have that, and it will keep peace; let Hal have the'other place.’ To which defendant replied: ‘Mr. Hunter, I will do that. You know that I would not do anything to contrary you; I have never done that.’ Plaintiff said: ‘No, Joe, you have always been a good boy, and, if you will .do that, everything will go all right.’ To which defendant replied: '“All right, sir.’ This conversation was placed at a barber shop in Austin, and defendant stated that the next morning before breakfast he had a telephone call from Mr. Armstrong to meet him at the river. They met, and Mr. Armstrong stated: ‘Mr. Hill, Mr. Hunter came home last night and got to talking about this change, about you taking the place over home and me come over here. The old man got hot, and I never saw him in such a fix in my life. After the old man talked to us, Mother and I had a conversation.’ Witness says that then Mr. Armstrong told him that Mr. Hunter wanted him to stay where he was; that the next time he saw plaintiff, which was probably three or four days or a week later, he said to plaintiff, ‘Mr. Hunter, Hal tells me you want to stay where I am and he stay here where he is and go on and help you.’ Plaintiff replied: ‘Yes, Joe, stay where you are.’ Defendant said: ‘Well, everything is all right; I am to stay where I am and go on?’ Plaintiff said: ‘Just the same, Joe; everything is settled now and all right. That is all that was ever said about that.’
“Witness further testified with regard to the conversation in the fall of 1910 at the State National 'Bank as follows: Plaintiff said: ‘Joe, that boy is coming down to my house every day, Hal, I mean; they are trying to make me take this place away from you and let Hal run it, he and Fannie. I told them I wouldn’t do it, because I had promised you as long as you kept this rent paid you could have it, and I stick to it.’
“On cross-examination the defendant stated that the conversations in which Mr. Hunter told him he could have the place as long as he paid the $5,000 rent were always in the fall; that he (defendant) spoke to the plaintiff about it every time they would make a settlement. T would say, “Well, have I got it for another year?” And he said, “Yes, Joe, as long as you pay the rent.” There was nobody present at those conversations; I never thought it was necessary to have any one present. The first conversation of that sort was in the fall of 1909. The next one was in the fall of 1910, at the time I paid the rent. The last conversation I had with him about the rents was the time I went to his house and talked to him and his wife, and he advised me to go to Lynn Hunter to get him to pay the balance; it was just a little while before Christmas in 1910, after I had gathered all my crop and liad in everything. We had not had any conversation in regard to my rent or my staying there as long as I paid the rent after the fall of 1909, until this conversation in the fall of 1910; there was nothing said about it in the early part of 1910.’
“The witness detailed also the conversation which to oh place at the time he was short on the rent and about plaintiff’s suggestion that he go to Lynn Hunter, whom the defendant already owed, to get Lynn Hunter to take up the mortgage and pay the balance on the rent; it appears from this conversation that the defendant was short on the rent because he had sold all the cotton and paid Lynn Hunter $1,000, thinking that he would have enough to pay the plaintiff. In this conversation the defendant says that the plaintiff told him that he had already told Mr. Lynn Hunter what the arrangements between plaintiff and defendant were, and that the defendant could stay there as long as he would pay the rent, and that Lynn Hunter understood and would take up defendant’s indebtedness if defendant would go to him. Defendant stated that he went to see Lynn Hunter the next morning, and the next conversation he had with plaintiff was in January, 1911, some time after Lynn Hunter had paid the plaintiff. At this last conversation, about January 15, 1911, the plaintiff told defendant that the rent was paid and everything was all right and said, ‘Just go ahead, Joe, just like you always have.’
“The defendant also offered the testimony of several witnesses who testified to conversations at various times between the plaintiff and said witnesses. We do not consider that these conversations amount to more than corroborative testimony in support of the defendant’s testimony, as above outlined. We will, however, give the court the benefit of these several conversations.
“Mit O. Taylor testified to a conversation between himself and plaintiff at Webberville in the fall of 1910, the details of which are as follows: ‘Mr. Hunter came down to have his horse shod and his surrey fixed up, and I got to talking with him, and I told him I was going to move over to Mr. Jones,’ right across the creek from Mr. Hill, and that I heard Mr. Hill and his folks had to leave, and I was thinking I would be neighbors with them, or something like that, and he said, ‘No, not as long as Joe pays me the rent.’
“J. L. Hunter testified that in January, 1910, after he had loaned Mr. Hill some money, he had a conversation with plaintiff in which the latter stated that he had seen that witness had taken a mortgage on Mr. Hill’s stuff, and plaintiff said: ‘Well, that’s all right; I consider Joe all right; and I think he is going to pay out, and as long as he is able to pay the rent on the place he is going to stay there, and I don’t think you’ll have any trouble in getting your money back; don’t think you stand any chance of losing anything.’ This same witness testified to the same conversation later on as follows: Plaintiff said: T understand that you have taken up his mortgage on those mules and implements and that Joe owes all that he is owing you on those things.’ Witness then questioned the plaintiff about the matter, and plaintiff said: ‘Xou’ll get your money, because Hill is on my place, and as long as he pays his rent he will stay there and will work it out, and you will not lose anything.’ This conversation was in January, 1910, and the witness stated that he had already loaned Hill the money at the time he had this conversation with the plaintiff. The witness further testified that he had no recollection of having any other conversations on this subject until January, 1911. The second conversation was in regard to some rent that Hill owed plaintiff, and his recollection was that this conversation took place at the same time he paid plaintiff defendant’s rent, but after he had taken the mortgage from defendant. Witness gave plaintiff a note for the rent in 1911, but could not find the note, although he had sent the money to the bank and paid it. Witness further stated that there was a paper executed between himself and plaintiff in regard to the transaction, but he did not have the paper and did not remember the contents of it.
“Littlepage Hill, son of defendant, testified that he was present in the fall of 1910, when the conversation between plaintiff and defendant took place at the State National Bank; that plaintiff • stated to defendant that the renters were coming to him to rent the land, and he had told them they would have to go to defendant, to whom plaintiff had rented, ‘and as long as he paid the rent they would have to rent from him; that he himself had nothing to do with it.’
“L. D. Hill, another son of defendant, testified that he was present in 1910 when the conversation took place between plaintiff and defendant at the Central Barber Shop in regard to the defendant taking the home place and letting Armstrong have the place in suit. He stated that defendant said he would not like to take that big a place for just one year, unless he had a written contract. ‘Grandpa said there was not any use to have a written contract; that he could have that place just like the other place, as long as he paid the rent.’
“Plaintiff denied having ever told the defendant he could have the place as long as he paid the rent, but we do not deem it necessary to set out the testimony of plaintiff in this regard, as the assignments of error in question are based upon the sufficiency of the testimony to submit the case to the jury.”

Counsel for appellee contend, and we sustain the contention, that a lease of premises for a term “as long as the tenant pays the rent” is, on account of the uncertainty of its duration, a tenancy at will; and that in the ease at bar, by reason of the holding over under a yearly tenancy, and the fact that the property consisted of a farm rented by the year, the tenancy should be construed to be from year to year. Lea v. Hernandez, 10 Tex. 137; Beauchamp v. Runnels, 35 Tex. Civ. App. 212, 79 S. W. 1105; San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763; Murray v. Cherrington, 99 Mass. 229; Corby v. McSpadden, 63 Mo. App. 648; Ashley v. Warner, 11 Gray (Mass.) 43; Western Transportation Co. v. Lansing, 49 N. Y. 499; Heck v. Borda (Pa.) 6 Atl. 392; Gardner v. Hazleton, 121 Mass. 496; Sarsfield v. Healy, 50 Barb. (N. Y.) 245; The Bishop of Bath’s Case, 6 Coke, 35.

“The continuance of a term of years constitutes an essential part of a contract and must be ascertained with certainty at its commencement; Otherwise the lease will create but a tenancy at will or from year to year, if it be not wholly void, as if it be to hold until a child, then unborn, shall be of full age, or so long as a certain individual shall continue parson of Dale; this will in either case constitute but a tenancy at will, because of the uncertainty that the child will ever arrive at that age, or that the individual in question will continue parson of Dale.” Taylor, Landlord and Tenant, § 75.

In Murray v. Cherrington, above cited, a lessee claimed the right to hold the premises for two years under a letter from the lessor providing that the tenancy should begin as soon as the premises were ready for occupancy. But, “in case after two years subsequent to your moving into said house I should wish to live in the house myself, I can do so, and that then you may still retain, if you wish so to do, the second floor and front chamber and bedroom adjoining, for such a term as may be agreeable to us both.” The defendant entered, and, in less than two years from the date of the letter, proceedings were instituted to remove him. The court said: “We are of opinion * * * that the term of this letter did not create an estate for years, namely, a lease for two years, between the parties. The duration of a lease for years must be certain; this includes both its commencement and termination. It may be conceded that a lease for years may begin ‘when a house is suitable to be occupied,’ according to the maxim, ‘Id certum est quod certum reddi potest.’ But the fatal objection remains that no period of termination is fixed by this letter. A leasehold interest for an uncertain and indefinite term is an estate at will only. Shaw, C. J., in Cheever v. Pearson, 16 Pick. [Mass.] 271; Bishop of Bath’s Case, 6 Coke, 35, Bac. Ab. Lease, L. 3. It is indisputable that an entry by the lessee under this instrument would not bind him to remain for any definite period. He could terminate his tenancy in the modes provided by statute. As to him there is no term of certain duration. Consequently there can be none as to the landlord. The proviso that after two years from the commencement of the occupancy the landlord may live in the house if he wishes to do so, and that the tenant may still retain, if he wishes, certain rooms, cannot change that construction. This clause has no tendency to show that the tenant was bound to remain during two years.”

The principle that a lease must as to its duration be certain or refer to a certainty is thus tersely stated by the learned English jurist in the Bishop of Bath’s Case, above cited: ‘When a lease for years shall be made good by reference, the reference ought to be a thing which has express certainty at the time of the lease made, and not a possible or casual certainty.”

In Corby v. McSpadden, cited above, the lease was of premises at the rate of $55 per month “until the lessor is prepared to improve the ground with new buildings.” The lessor gave notice of the termination as required under the statute, and the court say: ‘We are of the opinion that the lease; on account of uncertainty of duration, was inoperative for any other purpose than the creation of an estate at will. A lease, to be valid for any greater estate, must be certain as to commencement and duration. This one is certain as to commencement, but not as to termination. The certainty of duration need not * * * be named, eo nomine, but it may be made to appear by reference to certainty. Thus it is said in 2 Platt on Leases, 70: ‘If land be demised to A. during the minority of B., here, if B. be of the age of 10 years, the lease will be good for 11 years, if B. shall live so long, but not otherwise; the minority ceasing with his death.’ And, among other illustrations, he states that: ‘It may be marked by reference to another lease already in existence, as a lease to A. for so many years as B. has in the manor of Dale; here, if B. has ten years, A. will take a term of the same extent.’ The lease in question itself expresses no certainty, nor does it refer to a certainty, as limiting the time it should run. In the illustrations given, B.’s becoming of age or dying was inevitable. And so of the reference to the other lease; that lease was already in existence, with a fixed period of limitation. So the author says that, to support the lease by reference, it must refer to a thing which has express certainty at the time the lease is made. Applying these rules to the lease in question, it is apparent that it is void of any certainty whatever. AVill plaintiff ever be ‘prepared to improve the property with new buildings?’ Is her becoming prepared as certain as death, or the expiration of a stated period of time? Instead of this provision being certain, there is scarcely any provision limiting the time, which, in the unstability of the affairs of life and conditions of business, could be more uncertain.”

In Western Transportation Company v. Lansing, supra, a lease for a definite period, giving the lessee the privilege of keeping the premises for such further time as he should choose to elect, he paying the annual rental, was held to be at most, after the expiration of the definite term named in the lease, a tenancy from year to year determinable at the pleasure of either the lessor, the lessee, or owner of the reversion upon giving requisite notice. The same principle has been recognized and applied in this state in Lea v. Hernandez and Beauchamp v. Runnels, supra. In the first case it was held that a tenancy until the premises were sold was a tenancy at the will of either party; and in the Beauchamp Case it was held that a tenancy for such time as the lessee might desire was a tenancy terminable at the will of either party.

Under these authorities, and upon principle, we feel sure of the soundness of the proposition that a lease providing that the tenant may hold the premises so long as he pays the rent is, on account of the uncertainty of the period of its duration, a mere tenancy at will; and that in the present case, where there was a holding over under the former annual holdings, and the rent payable annually, the tenancy was from year to year, terminable at the end of any year at the will of either party.

Furthermore, according to appellant’s theory, the contract was unilateral, embracing a promise on appellee’s part, but no obligation on the part of appellant; and no consideration was shown by which appellee would be bound by such one-sided contract. The $5,000 which appellant was to pay as rental for the premises was no consideration for an agreement by which he was to have the option to keep or not to keep the farm for another year.

If the contract was not for a tenancy from year to year, and extended beyond one year, then, as it was not in writing, we are of opinion that it was within the purview of the fourth subdivision of the statute of frauds, which requires all contracts for the sale or lease of real estate for a longer term than one year to be in writing. Bateman v. Maddox, 86 Tex. 546, 26 S. W. 51; Hand v. Osgood, 107 Mich. 55, 64 N. W. 867, 30 L. R. A. 379, 61 Am. St. Rep. 312.

Counsel for appellant make the contention that, on account of what occurred between appellant and appellee, and appellant and Lynn Hunter, the case would be taken out of the statute of frauds, but we fail to perceive any merit in that contention. In so far as appellant is concerned, the most that can be said in reference to that matter is that appellee induced him to borrow money from Lynn Hunter with which to pay an honest debt due to appellee. We fail to see wherein appellant was injured by that transaction. If he had not borrowed the money from 'Lynn Hunter, he would still be owing it to appellee; 'and it does not appear that he owes Lynn Hunter any more on that account than he would have owed appellee. Lynn Hunter is not a party to this suit, and, if he has any complaint against appellee on account of the matter referred to, it cannot be considered in this case; and this last statement disposes of the assignments which complain of the action of the court below in not permitting Lynn Hunter to state why he loaned appellant the money referred to, and in excluding other testimony of a similar nature.

This disposes of all the questions except the contention that appellant’s right to recover upon his cross-action should have been submitted to the jury. Under the assignment presenting this question, appellant states in his proposition that the evidence shows that he obtained a buyer who was able, ready, anxious, and willing to take the property at the price appellee authorized appellant to sell it. Appellant’s brief does not copy or state the substance of any witness’ testimony to the effect that a purchaser was procured who was willing and able to purchase the property at the price fixed. Counsel for appellee controvert appellant’s statement, and the statement of facts bears out appellee’s statement, which is as follows: “The only testimony bearing on the defendant’s having complied with the contract of agency by furnishing a purchaser ready, willing, and able to buy is that of the defendant himself, set forth in the statement of facts on pages 25 to 28 and 30 to 31, in which the defendant says, in substance, that Mr. Boswell told him that he had a purchaser, Mr. Lundell, who would buy on the terms authorized by the plaintiff. Defendant never saw the buyer himself or talked to him. He also states that the trade was talked about between himself, IMr. Boswell, and Mr. Shofner at the time that the latter two stated that they had found a buyer. Neither Mr. Boswell nor Mr. Shofner testified in the case, nor was Mr. Lundell called, and there is no intimation in the record, either from hearsay testimony or otherwise, that either Mr. Lundell, the supposed purchaser, or Mr. Boswell or Mr. Shofner had the ability to purchase the property on the terms alleged to have been agreed to or on any other terms.” This testimony fell far short of showing that appellant had any right to recover the commission sued for; and, in disposing of this question, we quote as follows from Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627: “No sale having been in fact made, in order to entitle the appellee to recover his commissions, it was necessary for him' to. procure a purchaser who was ready, able, and willing to buy on the terms upon which he was authorized to sell, and that the failure to sell resulted from the fault of his principal. Brackenridge v. Claridge, 91 Tex. 532 [44 S. W. 819, 43 L. R. A. 593]. The mere fact that appellant himself made the contract of February 8th with Kibbe did not entitle appellee to commissions. This evidenced nothing more than that Kibbe and his associates were willing to buy. Appellant had not employed appel-lee to get a man who would agree to buy, but one who would buy, who was not only willing, but ready and able, to buy, so that nothing but appellant’s unwillingness or inability to sell would prevent a consummated sale.”

No error has been shown, and the judgment is affirmed.


author: LEVY, J.

text:
    Ex parte BOYD. BOYD v. BOYD.
    (Court of Civil Appeals of Texas. Texarkana.
    March 28, 1913.
    Rehearing Denied April 17, 1913.)
    1. Divokce (§ 332) — Foreign Divorce — Custody oe Child.
    Though an order of court, awarding to a spouse obtaining a divorce the custody of a child of the parties, must be given full faith and credit by the courts of another state, it is res judicata only so long as the material circumstances existing at the time of the order remain unchanged.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 843; Dec. Dig. § 332.]
    2. Divoboe (§ 303) — Custody oe Children —Orders—Changed Conditions.
    Where a wife, who when her husband obtained a divorce and the custody of their child refused to perform the duties of a mother and was without a permanent home, subsequently acquired a home, with permanent employment and with opportunity to care for the child, and actually cared for her, there was a changed condition sufficient to authorize the court to award to her the custody of the child.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 793-795; Dec. Dig. § 803.]
    3. Divorce (§ 298) — Custody oe Children.
    Under Rev. Civ. St. 1911, art. 4069, providing that where parents do not live together their rights to the custody of their children are equal, a husband obtaining a divorce from his wife is not entitled to the custody of a child as against the rights of the wife, but the court, in awarding the custody of the child, must consider alone the rights and welfare of the child.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 781-787; Dec. Dig. § 298.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Habeas corpus by Albert C. Boyd against Phanie L. Boyd, to obtain the possession of a child, Emma Rachel Boyd, four years old, held by defendant. From a judgment awarding the custody of the child to defendant, relator appeals.
    Affirmed.
    This is a habeas corpus proceeding by the father to obtain the possession of his child, a girl four years of age, held by its mother. The trial resulted in a judgment continuing the child in the custody of the mother. The relator and respondent were married in the state of Oklahoma, and the child was born there. On March 12, 1912, about five years after the marriage, the husband filed a suit for divorce against the wife in the district court of Coal county in Oklahoma. The petition prayed for absolute divorce and for the custody of the child, and, omitting formal parts, the allegations weré: ‘‘That on or about June 15, 1911, the defendant, Phanie L. Boyd, abandoned and deserted plaintiff without excuse, cause, or provocation, and has ever since remained wholly away from plaintiff, notwithstanding his repeated requests for her return, and receipt, acceptance, and appropriation of sufficient sums of money by him for that purpose supplied, and that said desertion and abandonment now continues. That the defendant has been and is guilty of extreme cruelty toward plaintiff, in this, to wit, that she willfully and persistently refuses and denies him of her society and duty, and deprives him of the company and society of his child and the knowledge of its comforts, safety, and whereabouts, to his great humiliation and pain. And as a further cause of action plaintiff states that said defendant is guilty of gross neglect of duty toward him in that she fails, refuses, and neglects to perform the ordinary duties of a wife and mother, so that he may give attention to and make provision for the wants and necessaries of the family, the health and education of the infant, Emma Rachel Boyd, and the acquirement of a home and shelter as on him by his legal duty to wife and child incumbent. Plaintiff further says that he is an able-bodied. man, regularly and continually employed, earning about $70 per month, and is willing and able adequately to support the family and to provide for and educate the child, Emma Rachel Boyd, aforesaid, and that the defendant, Phanie L. Boyd, is without a permanent home, and itinerant. Plaintiff further says that he has always demeaned himself properly, and acted toward defendant as a faithful husband, and is without fault in the premises; that he has given the defendant no cause or provocation whatever for her desertion and extreme cruelty toward him and her gross neglect of duty as aforesaid.” On August 8, 1912, the court entered a decree dissolving the marriage relation, and awarding the care and custody of the child to the father. The court had jurisdiction of the parties and the child. The decree shows that service was had by publication, and that no answer was filed by the defendant. On the day the decree was entered the husband wrote a letter to the wife, who was then residing in Texas, stating that a divorce was granted, and he was awarded the custody of the child, and that if she wanted the child and would come after it it would be all right. The wife went to Oklahoma and got the child, and then came back with it to Texas, where she has permanently made her home. By letting the wife have the child it was not the purpose of the father to relinquish his custody of it. At the trial of the habeas corpus testimony was introduced showing the condition and situation of the parties at the time of the hearing, with reference to the care and custody of the child. Neither party was shown to be unfit for the custody of the child. The judgment of the judge awarding the custody of the child to the mother, involves the findings of fact that since the decree of 'the Oklahoma court there has been material change in the situation and condition of the parties as to their fitness as custodian for the child; that the Oklahoma judgment is not res adjudicata of such new facts; that the mother now is the more fit and suitable one to have the custody and care of the child; and that the best interest of the child now demands its continuance with the mother. The evidence supports such findings, and they are here sustained and adopted.
    Mahaffey & Thomas, of Texarkana, for appellant. Geo. 'W. Johnson, of New Boston, for appellee.

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

   LEVY, J.

(after stating the facts as above). By the first assignment it is contended that the judgment in the instafit proceeding is contrary to the law and evidence, for that the judgment of the district court of Coal county, Okl., awarding the custody of the child to appellant is res adjudicata of such custody, and such judgment should be given full faith and credit by the courts of Texas. It is settled, and not doubted, that an order of the court awarding custody of the child to the parent is a judgment that should be given faith and credit by the courts of other states, as required by the federal Constitution. Wilson v. Elliott, 96 Tex. 472, 75 S. W. 368, 97 Am. St. Rep. 928. But an order awarding custody of a child is not considered res adjudicata except for so long as the material circumstances existing at the time of the order remains unchanged, for it is not the object of the proceeding to award custody to establish a permanent custody. And the rule is that, where a new state of facts between the parties in relation to the child has arisen subsequently'to the prior adjudication, the matter should not be adjudged res adjudicata. Wilson v. Elliott, supra.

In order to apply this rule we are thus brought directly to the leading question as to whether the points in controversy in the instant proceeding, upon which the evidential force of the Oklahoma judgment is to be directed, were the same matters in issue, or points in controversy, raised and determined in the first proceeding, or a new state of facts between the parties in relation to the child arising subsequently to the first proceeding. As the judge trying the case refused to apply the estoppel of the Oklahoma judgment to the matters arising in the instant proceeding, it must be assumed, as we must do in support of the judgment rendered, that he based his judgment, which is a modification of the Oklahoma judgment, on the finding that a new and material state of facts between the parties in relation to the child has arisen subsequently to the adjudication by the Oklahoma court. Prom a consideration of the testimony we conclude that such findings of fact are warranted by the evidence and should be sustained. Hence the court did not err in adjudging that the Oklahoma judgment was not res adjudicata. It is apparent on the face of the petition and judgment in the Oklahoma proceeding as to what questions were litigated therein. By reference to these records it appears that the character, condition, and situation of the respective parties at that time in relation to the child were the matters in issue, and shown to the court in order to decide the fitness of the parties for the custody of the child. By the allegations, which must be presumed to have been proven, the father was shown to be an able-bodied man, of good character, regularly and continually employed and earning $70 per month, and willing and adequately able to support and educate the child. The mother was shown, according to the allegations (1) to have persistently deprived the father of the company and society of the child and the knowledge of its comforts and whereabouts, to his humiliation and pain, and (2) refusing and neglecting to perform the duties of a wife and mother, and (3) to be without a permanent home and itinerant. The testimony offered in the instant proceeding was as to the character, condition, and situation of the respective parties in relation to the child at the present time of the hearing. It was proven by the father that he is 32 years old, of good moral character, and has employment at the coal mines in Cbalgate, earning $2.50 per day, and that he is willing and able to maintain and educate the child, and is desirous of having the child. The father does not own a home, but he says, “I can furnish a home for the child at my mother’s and father’s, or I can furnish a home for her elsewhere.” It was shown that his father and mother were living at Coalgate and had a good home there. It was proven by the mother as follows: “I now have a permanent position at $15 per month and board for myself and child. I am living in the family with Mr. and Mrs. E. R. McCop-pin, husband and wife. I am working for them. They run a store and hotel at Bas-sett, Tex. I have a nice comfortable home with Mr. and Mrs. McCoppin, and have an opportunity to see after and care for my said child. I am 27 years old, in good health, and I will take care of, educate, and maintain the child in a manner that will be to the best interest of the child; I want to do so because I love it. The people with whom I live are good to me and my child. There is a public school at Bassett, within sight of where I live, to which I can send my child.” Mr. McGoppin corroborates the statements of the mother, and testifies further, “I have noticed .her disposition toward the child from time to time, and she is hind to it and cares for the child in a very tender manner, and seems to love it very much.” Comparing the facts adjudicated in the former proceeding with the facts now relied on, it is seen that at the time of the prior proceeding the mother “neglected and refused to perform the duties of a mother,” and “was without a permanent home and itinerant,” while at the present time she is faithfully and lovingly performing her duty towards the child, and has a home, with permanent employment and wages, and with full opportunity to attend and care for the child. This constitutes a new and changed condition and situation of the mother in relation to the child, and sufficient, we think, to sustain the findings involved in the judgment of the judge and in not adjudging the Oklahoma judgment res adjudicata of such matters here relied on to give her the custody of the child. If the mother was entitled, as she was, to have a modification of the prior judgment, the propriety and fitness of her selection for the custody of the child four years old, considering the welfare and best interest of the child, cannot be disturbed on appeal.

The second assignment presents the point that the father is entitled to the custody of his minor child, even against the mother, unless it is made to appear that his conduct, habits, and character, as directly affecting the child, are such as to render it to the best interest, of the child to take it from his custody. The general doctrine on which the point is predicated that the father has the absolute right to the custody of his child, if personally unobjectionable, cannot now obtain and be applied in this state, for the statute applicable to guardianship, where the parents do not live together, would fix the rule likewise in this character of cases that the rights of the mother and father to the custody are equal, leaving the rights and welfare of the child alone to be considered. See article 4069. There is nothing in the record to suggest the unfitness of the mother to have and continue the custody.

The judgment is affirmed.


author: WILLSON, C. J.

text:
    CRAMER et al. v. BARFIELD.
    (Court of Civil Appeals of Texas. Texarkana.
    April 3, 1913.)
    1.Tbespass to Try Title (§ 47) — Judgment —Final Judgment.
    The judgment, in trespass to try title, that plaintiffs take nothing, and that defendant recover of and from them the land in controversy, and that a certain road is the boundary between the parties, is a final one, though the parties agreed that the only question involved was as to the dividing line between their properties, thus eliminating, and depriving the court of power to determine, all but one issue.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    2. Judgment (§ 251) — Pleadings to Sup-pokt.
    Where the most that appears from the pleadings and to agreement of the parties filed in trespass to try title is that there was a dispute between the parties as to the location of a line separating lands owned by them, what the dispute is not appearing, they do not present an issue to try, and do not support a judgment determining the boundary line.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    3. Boundaries (§ 37) — Evidence.
    Testimony, that in 1859 and subsequently the road to H.’s mill turned northwest before reaching the west line of the B. survey, is without probative force in establishing the south boundary line of plaintiffs’ land, described in their deed of 1894 as “the old road that formerly ran from H.’s old mill by the old plantation of R., as explained in a deed from L. to R., dated February 18, 1850.”
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.]
    Appeal from District Court, Morris County ; P. A. Turner, Judge.
    Action by Mrs. S. A. Cramer and another against J. T. Barfield. Judgment for defendant. Plaintiffs appeal.
    Reversed and remanded for new trial.
    Henderson & Bolin, of Daingerfield, for appellants. Moore & Hart, of Daingerfield, and P. A. Turner, of Texarkana, for appellee.

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

   WILLSON, C. J.

Appellants (wife and husband) were the plaintiffs in the court below. Their suit was against appellee, and as commenced by them, was to try the title to 200 acres of a tract of 422 acres of land in Morris county known as the “Lilley Survey” and also known as the “Beard Survey.” The pe-' titiofi contained only the allegations usually made by the plaintiff in a suit of trespass to try title. In the petition the land sued for was described as follows: “Beginning at the N. E. corner of the Lilley survey by virtue of the Beard headright certificate; thence south to the old road that formerly ran from Houston’s old mill by the old plantation of E. G. Rogers as explained in a deed from J. D. Lilley and H. B. Lilley to J. T. Rogers, dated February 18, 1850; thence west with said road to the west boundary line of said Beard survey; thence north with said Beard’s west line to the corner; thence east to the place of beginning, containing 200 acres of land.” Appellee’s answer was a plea of “not guilty.”

On the trial appellants offered and the court admitted as evidence: (1) A deed from W. D. Hull to appellant Mrs. S. A. Cramer, dated May 1, 1894, conveying the land described (and as described) in tbeir petition. (2) A bond for title, dated June 20, 1853, made by J. D. Lilley to Livingstone Skinner. The land covered by this bond is not described in the record further than as “the land as contended for by defendant Bar-field.” From a recital in the statement of facts it appears that the bond was offered in evidence by appellants “to show that J. D. Lilley was the common source of title as between plaintiffs and defendant, and that said J. D. Lilley parted with the title to the tract of land described in plaintiffs’ chain of title prior to the time he parted with the title to defendant’s tract of land.” No other evidence of title was offered by either party —an omission which is explained by a statement in the statement of facts immediately following the one quoted above, as follows: “It was here agreed by counsel for both appellant and appellee that plaintiffs owned the land north of the disputed line, and that defendant, appellee, owned the land south of same, and that the only question involved was as to the dividing line.” The trial was by the court without a jury, and resulted in a judgment that appellants take nothing by their suit, and that, quoting, “the defendant recover of and from the plaintiffs the land in controversy, and that the plaintiffs pay all costs of this suit; and it is further ordered and decreed by the court that the old road known as the old Jefferson and Mt. Pleasant road is the north boundary line between the parties to this suit.”

It is suggested that the judgment is not a final one; but we think it is. It determined the issues made by the pleadings. That those issues, except as to the identity of the land appellants claimed title to, may have been eliminated from the controversy by the agreement between the parties, and that the court in that way may have been deprived of a right to determine them, we think did not make his judgment any less á final one than it otherwise would have been.

Ignoring other questions which may be presented by the record, and treating the controversy as the parties by their agreement engaged to treat it, as involving only the location of the boundary line between tracts of land they respectively owned, we think the judgment is erroneous in several respects, and that it should be reversed and the cause remanded for a new trial because it is without either pleadings or testimony to support it, in so far as it purports to determine said boundary line.

It appeared from appellants’ petition that they claimed the south boundary of the land they asserted title to to be a line running west from the east boundary line of the Beard survey, with “the old road that formerly ran from Houston’s old mill by the old plantation of B. G. Rogers as explained in a deed from J. D. Lilley and H. B. Lilley to T. J. Rogers, dated February 18, 1850,” to the west boundary line of said Beard survey. It did not appear either from his pleadings or from his agreement with appellants that appellee claimed that appellants’ said boundary line was not as they claimed it to be; and in neither his pleadings nor in said agreement was the land he claimed, nor its north boundary line, in any way described. Therefore it must be said that the most that appeared from the pleadings and the agreement was that there was a dispute between the parties as to the location of a line separating lands they respectively owned. What that dispute was did not appear. For anything to the contrary appearing in the pleadings or agreement, it may have been as to whether the old road referred to was the south boundary line of appellants’ land or not; or it may have been as to the location of that road on the ground. The court was not informed by either the pleadings or the agreement what the question to be determined was. An issue to try was not presented to him. “An issue,” said the Supreme Court in Freeman v. McAninch, 87 Tex. 135, 27 S. W. 98, 47 Am. St. Rep. 79, “is the question in dispute between parties to an action, and, in the courts of this state, that is required to be presented by proper pleadings.”

It appears from the testimony that the dispute was as to the location on the ground of the old road referred to. Appellants’ effort was to show that the old road ran west from the east boundary line of the Beard survey to its west boundary line; while appellee’s effort was to show that, after running west from the east line of the Beard survey the greater part of the distance to the west line thereof, it turned and ran northwest to the west line of the Beard survey. Between the points where the parties respectively .undertook to show the old road to have been was about 35 acres of land. If the old road was located on the ground as appellants claimed it to have been, the 35 acres belonged to them; otherwise it did not. The testimony showed that in 1859 the road from the east boundary line of the Beard survey to Houston’s old mill ran west and then northwest to the west line of the Beard as claimed by appellee; but whether in 1850 it ran that way or not, or whether it ever ran on west to the Beard west line and Houston’s old mill or not, was disputed. There was testimony that there were indications on the ground that at some time in the past a road did run on west to the Beard west line from the point where in 1859 and subsequently the old road turned and ran northwest, and there was testimony to the contrary. The language of the deed to Mrs. Cramer, describing the south boundary of the land' conveyed as the old road that formerly ran to Houston's mill, as explained in a deed dated February 18, 1850, indicated that the road in question was not the road that then (in 1850) ran to Houston’s old mill, but another and abandoned road. It would seem. therefore, that testimony showing that in 1850 and subsequently thereto the road to Houston’s old mill turned northwest before it reached the west line of the Beard survey was without probative force in establishing the south boundary line of the land appellants claimed. The road forming that boundary line was a road that in 1850 formerly ran to said mill, and not a road that in 1859 ran to it. The conveyance to Mrs. Cramer was of 200 acres. It appeared that, if appellants’ south boundary line was located as they contended it should be, the tract they owned under the deed would contain 197 acres, or 3 acres less than the quantity called for in the deed; and that if said line was located as appellee claimed it should be appellants’ tract would contain only about 162 acres, or about 38 acres less than the quantity called for in the deed. Under the circumstances shown by the record, we think the call for quantity and the call for the south line of appellants’ land, to run west to Beard’s west line should have been given controlling effect in determining the location of the line; and, had the pleadings been sufficient as a basis therefor, that the court should have render-' ed a judgment establishing the boundary line between the parties as extending west to the west boundary line of the Beard survey from the point where the road to Houston’s old mill ran northwest to Beard’s said west line.

The judgment is reversed, and the cause is remanded for a new trial.


author: MGUB.SUND, J.

text:
    GROESBECK et al. v. WIEST.
    (Court of Civil Appeals of Texas. San Antonio.
    May 14, 1913.)
    1. Evidence (§ 373) — Deeds—Preliminary Evidence of Execution.
    In trespass to try title, an unrecorded deed which had been filed for record, although not admissible as a recorded instrument, even after it was admitted that the person whose name was signed to the certificate of acknowledgment was a notary public, was admissible, after a witness testified that he prepared the deed, delivered it to the grantee, and saw the consideration passed from her to the grantor, and that he requested the notary public to take the acknowledgment, which was taken in his presence, as the execution of an instrument may be proved by circumstantial evidence or by admissions.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1581-1586, 1590, 1592, 1593, 1610, 1611; Dec. Dig. § 373.]
    2. Lis Pendens (§ 24) — Operation and Effect of Notice.
    A purchaser of land from an administrator, after suit was brought against the administrator to try title and notice of the pendency thereof filed, was chargeable with notice of the title of the plaintiff in such suit, although the suit was not filed until after the county court ordered the sale by the administrator, and although the purchaser was not made a party thereto until after his purchase.
    [Ed. Note. — For other cases, see Lis Pendens, Cent. Dig. §§ 38-40, 42 — 46; Dec. Dig. § 24.]
    3. Judgment (§ 252) — Conformity to Pleadings.
    In trespass to try title against an administrator, where, pending the suit, the administrator sold the land and the purchaser was made a party thereto, the court, under the prayer for general relief, could cancel the administrator’s deed upon finding that the administrator had no title.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 441, 442; Dec. Dig. § 252.]
    4. Appeal and Error (§ 742) — Briefs — Statements under Assignments.
    An assignment not accompanied by a statement, but merely by a reference to the statement of facts, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Appeal and Error (§ 742) — Briefs— Statements under Assignments.
    It is not permissible to refer to the transcript for matters which should appear in the statement under the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Tender , (§ 25) — Judgment—Conformity to Pleadings.
    In trespass to try title, where plaintiff offered to pay into court the amount due on a note if the deed of trust by which it was secured should be found to be a lien, the court did not err in permitting such payment into court without any tender by plaintiff previous to the suit.
    [Ed. Note. — For other cases, see Tender, Cent. Dig. §§ 78, 82-87; Dec. Dig. § 25.]
    7. Appeal and Error (§ 1043) — Harmless Error.
    A judgment in trespass to try title permitting plaintiff to pay into court for the owner of a note secured by a deed of trust the amount due on the note, although there had been no previous tender, was not shown to have injured a party who did not show that he was the owner of the note.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4115-4121; Dec. Dig. § 1043.]
    8. Trespass to Try Title (§ 50) — Costs.
    In trespass to try title against an administrator, where a purchaser from the administrator pending the suit was brought in as a defendant, the court did not err in refusing to adjudge all of the costs against the successful plaintiff.
    [Ed- Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 80, 81; Dec. Dig. § 50.]
    9. Appeal and Error (§ 733) — Assignments of Error — Sufficiency.
    An assignment of error that the judgment was contrary to the law and the evidence, and that judgment should have been rendered for appellant, was too general to require consideration.
    [Ed. Note. — For other eases, see Appeal and Error. Cent. Dig. §§ 3025-3027; Dec. Dig. § 733.]
    Appeal from District Court, Bexar County; Claude V. Birkhead, Judge.
    Action by Catherine Wiest against H. S. Groesbeek, administrator of William Swain Hadley, deceased, W. H. F. Moss, and others. From a judgment for plaintiff, the defendants named appeal.
    Affirmed.
    O. M. Chambers, of San Antonio, for appellants.

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

   MGUB.SUND, J.

This is an action in trespass to try title, filed August 3, 1911, by appellee against H. S. Groesbeek, administrator of the estate of William Swain Had-ley, deceased, to recover lot 1, block 41, city of San Antonio; the petition, in addition to the usual allegations, containing the averment that said administrator had procured an order from the county court authorizing him. to sell said lot as a portion of Hadley’s estate, and was offering the same for sale, wherefore she prayed for an injunction restraining said administrator from selling the lot pending the suit. Groesbeek, on September 11, 1911, filed his answer consisting of a general exception, plea of not guilty, and special plea that a deed from Wm. S. Hadley ..to plaintiff, dated July 6, 1908, purporting to convey the property sued for, was obtained by fraud, deceit, and duress, and without paying any consideration therefor. On November 22, 1911, plaintiff filed her amended petition, joining F. E. Johnson, John H. Benson, and W. H. P. Moss, as additional parties defendant, alleging the purchase by Moss, from Groesbeek, administrator, of the property sued for during pendency of the suit, although lis pendens notice had been filed and duly recorded, and that Johnson, as trustee, and Benson, as beneficiary, were claiming some interest in the property sued for by virtue of a deed of trust executed by Wm. 'Swain Hadley, dated January 8, 1906, but that the William Swain Hadley, under whom said parties claimed, did not own any interest in the property at the time of the execution of the deed of trust. Said parties were notified to produce the note and deed of trust at the trial, and, in the event the court should find the deed of trust to be a lien upon the property, plaintiff tendered into court the amount due on the note and prayed that the court require the parties to execute a release of the deed of trust- and deliver the note to plaintiff, payment of which was secured by said deed of trust

Defendant Moss filed a plea of not guilty, alleged his purchase of the lot from Groes-beck, administrator, and prayed for judgment for said lot, and in the alternative in the following language: “In the event that the court should hold that he is not the owner in fee simple of property described in plaintiff’s petition, then in that event that he have judgment against all the defendants herein and plaintiff foreclosing his lien on property described in deed of trust herein filed, and that any other liens may be given be done subject to the lien of the defendant herein, and for costs of suit, etc. Said lien in deed of trust having been purchased by him from H. S. Groesbeek, administrator of estate W. S. Hadley, deceased, who held lien on property described in plaintiff’s petition, or rather if deed from Groes-beek be held void, that he is entitled to lien on said land, as held by John H. Benson.” He further pleaded that plaintiff had notice of the advertisement by Groesbeek, administrator, of the sale of the property, and failed to appear and set forth her claim, wherefore she is estopped from claiming any interest in the property, and further that the deed under which she claims was obtained by fraud, duress, threats, and without consideration.

Johnson and Benson filed a plea of .not guilty, alleged that Benson held a note against William Swain Hadley for $200 secured by deed of trust upon the premises sued for; that said claim was duly and legally proven up in the county court of Bexar county, Tex., and the property sold by the administrator; that, if such sale be held void, then that they have judgment for the amount of the note, interest, and attorney’s fees, and for foreclosure of their lien upon said premises; and that plaintiff be decreed to hold said property subject to the rights and interests of these defendants or W. H. P. Moss, who succeeded to their rights.

The court rendered judgment that plaintiff recover of defendant Moss the premises sued for, and that the deed from. Groesbeek, administrator, to Moss be held for naught; that all of the defendants take nothing; that plaintiff pay into court $296.49 for the benefit of the owner and holder of the $200 note payable to Benson, and secured by deed of trust, and, plaintiff having made such payment into court, it was decreed that the note be canceled and the deed of trust released and held for naught; that all rents collected by defendants, or either of them, be paid to plaintiff; and finally that plaintiff recover all costs, except those incurred by Johnson, Benson, and Groesbeek after the filing of their disclaimers^ the same being taxed against plaintiff. Groesbeek and Moss appealed from said judgment. No disclaimers appear'in the record.

The first assignment of error is based upon the ruling of the court in admitting in evidence the deed from William Swain Hadley to plaintiff, dated July 6, 1908, filed for record November 30, 1910, conveying the lot in controversy. This deed was not admissible as a recorded instrument, even after it was admitted that the person whose name is signed to the certificate of acknowledgment was a notary public at the date of the certificate, but such deed was made admissible by evidence subsequently introduced, whereby its execution was proved. The execution of an instrument may be proved by circumstantial evidence or by admissions. Jones on Evidence, § 526; Clapp v. Engledow, 82 Tex. 297, 18 S. W. 146; Bounds v. Little, 75 Tex. 317, 12 S. W. 1109; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033; Jante v. Culbreth, 101 S. W. 279. There were no subscribing witnesses to the deed. E. D. Henry testified that he wrote the deed; that he delivered same to Catherine Wiest, and saw the consideration passed from her to William Swain Hadley; that he requested the notary public to take the acknowledgment of William Swain Hadley, and said acknowledgment was taken in his presence. We consider this testimony sufficient to prove the execution of the deed. The assignment of error is overruled.

The second assignment reads as follows: .“Because court erred in not rendering judgment for appellant W. H. F. .Moss, as deed of trust, under which said property was sold, was filed for record the 29th day of January, 1907, and deed to Catherine Wiest was not filed for record or given in till the 6th day of July, 1908, and, if deed to Catherine Wiest was valid, she held said property subject to deed of trust, and W. H. P. Moss, having purchased said property, received good and valid title thereto.” No proposition is submitted, but it is contended that the assignment constitutes a proposition. It is difficult to tell whether the contention is that Moss purchased at a sale made under the deed of trust, or whether it is only contended that plaintiff purchased subject to the deed of trust. The sale under which Moss claims was made by the administrator of Hadley under order of court to satisfy claims, one of which was secured by the deed of trust. Us pendes notice of this suit was on file when Moss bought. He was chargeable with notice of plaintiff’s title.

There is no merit in the third assignment. The deed to Moss being only for the lot in controversy, the court, under the prayer for general relief, could cancel such deed upon holding that it conveyed no title.

The fourth assignment will not be considered, as no statement accompanies the same, but merely a reference to the statement of facts.

The fifth assignment reads as follows: “Because court erred in rendering a judgment for appellee as no suit was filed in this cause until after courb had ordered sale of said property, and appellant W. H. P. Moss was not made a party until after he had purchased said property.” It is apparent that this assignment is without merit.

The sixth assignment reads as follows: “Because the court erred in rendering judgment for appellee, as no plea of tender was made in pleadings of appellee, and appellee should have been compelled to pay all costs.” No proposition is submitted under this assignment, and the assignment appears to embrace two propositions: One that the court erred in rendering judgment for appellee, because no plea of tender was made in the pleadings; the other that appellee should have been adjudged to pay all costs. The statement shows that complaint is sought to be made because the court permitted plaintiff to pay into court the amount due on the note secured by deed of trust, although he had not pleaded such tender, while under “remarks” it is asserted that a person cannot be held liable for costs under a plea of tender never made until after judgment was rendered. A reference to the transcript for matters which should appear in the statement is not permissible. This assignment is not briefed so as to require consideration, but an examination of the record discloses no error. Plaintiff in her pleadings tendered the money due on the note, provided the deed of trust was found to be a lien on the lot. The court found it was a lien, but did not find who was the owner of the note; nor is there any evidence in the statement of facts from which the ownership can be determined. In the absence of evidence of ownership by Moss of the note, he shows no injury by any judgment the court may have entered with respect to the note. The proposition that plaintiff should pay all costs cannot be sustained.

The seventh assignment reads as follows: “Because the judgment of the court was contrary to the law and the evidence, and judgment should have been rendered for appellants herein.” This assignment will not be considered because too general. City of San Antonio v. Alamo Nat. Bank, 52 Tex. Civ. App. 561, 114 S. W. 909.

Judgment affirmed.