author: RASB'DRY, J.

text:
    JEWETT STATE BANK v. CORSICANA NAT. BANK et al.
    (No. 7106.)
    (Court of Civil Appeals of Texas. Dallas.
    May 23, 1914.
    Rehearing Denied June 13, 1914.)
    1. Trial (§ 143) — Questions ox Law oe Fact—Direction ox Verdict—Conxlicting Evidence.
    It. was proper for the trial court to direct a verdict, though the evidence was conflicting, where the conflicts were immaterial or could not affect the result.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.]
    2. Payment (§ 85)—Recovery—Double Payment ox Debt.
    Where defendant bank, acting for and by authority of a shipper of cotton seed, and on information received from him, collected twice from plaintiff oil company a debt it owed such shipper for seed delivered to it, the bank was in possession of money of the oil company which in equity and good conscience it ought not to keep; and hence the oil company or its as-signee was entitled to recover the same in a suit for money had and received, which remedy was not affected by the various agencies, ramifications, or means by which the result was accomplished.
    [Ed. Note.—For other cases, see Pajunent, Cent. Dig. §§ 272-281; Dec. Dig. § 85.]
    3. Payment (§ 89)—Recovery—Double Payment ox Debt.
    Where plaintiff oil company paid to defendant bank its debt to a shipper of cotton seed to the oil company, and the bank used the bill of lading,' which it should have surrendered to the oil company, as a means of collecting a second time for the same debt, the oil company, after haying received the Seed, being required to take up the bill of lading then in the hands of another, its act in so doing only amounted to the performance of a legal duty, and hence operated as an equitable assignment of or a subrogation to any claim the owner of the bill had against the bank to recover the second payment.
    [Ed. Note.—F'or other cases, see Payment, Cent. Dig. §§ 291-296; Dec. Dig. § 89.]
    4. Action (§ 38)—Causes ox Action—Mis-joinder.
    Where, plaintiff oil company having paid to defendant bank its debt to a shipper of certain cotton seed, the bank used the bill of lading, which it should have surrendered to the oil company, as a means of collecting a second time for the same debt, whereupon the oil company took up the bill of lading from the holder and brought suit against the bank, as for money had and received, to recover the second payment, the fact that plaintiff set np all the facts showing its ownership of the draft attached to the bill of lading and the second payment of the money under mistake did not indicate a misjoinder of causes, of action.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 549, 565; Dec. Dig. § 38.]
    5. Banks and Banking (§ 140) — Drafts— Acceptance.
    Where a draft on which plaintiffs’ cause of action was based was not drawn against a fund on deposit with defendant bank belonging to plaintiff company, but was a transfer of a debt and a demand for its payment, the rule that a bank is not liable on a check drawn against a deposit which the bai^k has never accepted had no application.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 380-392, 394-397; Dec. Dig. § 140.]
    Error from Navarro County Court; J. M. Blanding, Judge.
    Action by the Corsicana National Bank and the Corsicana Cotton Oil Company against the Jewett State Bank. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    B. D. Dashiell, of Jacksonville, and J. S. Callicutt, of Corsicana, for plaintiff in error. ■McClellan & Prince, of Corsicana, for defendants in error.

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

   RASB'DRY, J.

In the court below the county judge, at the conclusion of the testimony in this controversy, directed the jury to return verdict in favor of Corsicana National Bank against the Corsicana Cotton Oil Company and the Jewett State Bank, jointly, for the principal of the debt sued for, together with interest and certain protest fees, and in favor of Corsicana Cotton Oil Company against Jewett State Bank for like amount, which the jury did, and upon which verdict judgment was entered accordingly, except it provided that, if the Jewett State Bank paid the judgment in favor of Corsicana National Bank, such payment should operate as satisfaction of the judgment against it in favor of Corsicana Cotton Oil Company; and from which judgment this appeal is prosecuted.

We deduce from the evidence, upon which said judgment is based, in substance, the following essential and undisputed facts: L. A. Dunagan, a merchant at Donie, delivered to the railway company at that point a car of cotton seed consigned to the order of L. A. Dunagan, Corsicana, notify Corsicana Cotton Oil Company, to whom the seed had been sold. Such- a bill of lading was issued by the railway company and delivered to Duna-gan. The car of seed was transported to Corsicana and there delivered by the railway company to Corsicana Cotton Oil Company, whose agents weighed and unloaded same before receiving bill of lading, and ascertained that at the agreed price the amount to be paid Dunagan was $392.50. A draft for that amount in favor of Corsicana National Bank and against the Corsicana Cotton Oil Company was prepared by the latter company and sent to Dunagan, with instructions for him to sign and collect same in due course of business. When Dunagan forwarded the seed to Corsicana Cotton Oil Company,, he received from the railway company a bill of lading evidencing the shipment, which he sent to Jewett State Bank, to whom he was indebted in a large sum, and who re-, ceived the bill of lading the day after the car was shipped. Jewett State Bank attached the bill of lading so received to draft for $401 against Houston County Oil Mill & Manufacturing Company in favor of L. A. Dunagan, signing Dunagan’s name thereto, and collected the money, crediting Dunagan therewith. After Dunagan sent the bill of lading to Jewett State Bank, he received the draft sent him by Corsicana Cotton Oil Company in payment of the same car of seed, which he also sent to Jewett State Bank. Upon receipt of the draft prepared by the Corsicaná Cotton Oil Company, the Jewett State Bank attempted to collect the amount thereof through another draft drawn upon Corsicana Cotton Oil Company in its favor, instead of the one in favor of Corsicana National Bank, and to which it signed Dunagan’s name; but, because it bore exchange, it was not paid. The Jewett State Bank then signed Duna-gan’s name to the draft prepared by the Corsicana Cotton Oil Company, erased the name of Corsicana National Bank, to whom the draft was payable, inserted its own name as payee, and sent same to Lumbermen’s National Bank of Houston for collection. The draft was paid, and the money placed to the credit of Dunagan by the Jewett State Bank. The bill of lading and the draft sent Duna-gan by Corsicana Cotton Oil Company showed that each was in payment of the same car of seed. The Jewett State Bank signed Dunagan’s name to both, and acted for him in collecting same, and used the money to discharge that much of Dunagan’s indebtedness to the bank. The Houston County Oil Mill & Manufacturing Company, assuming that Dunagan, from whom it had bought cotton seed, had shipped them the seed covered by the bill of lading attached to the draft, paid' it, and, when it ascertained that the seed had been delivered to Corsicana Cotton Oil Company, demanded of that concern the amount paid out for the bill of lading, which was refunded by the Corsicana Cotton Oil Company, and the draft and bill of lading was by it indorsed and assigned to Corsi-cana Cotton Oil Company, with all claims against Jewett State Bank arising by reason of the transaction. The Corsicana Cotton Oil Company drew a draft for the amount of its claim arising upon the facts stated against Jewett State Bank, and transferred same to Corsicana National Bank, and guaranteed the payment ofl same by indorsement. Payment of the draft was refused when presented to Jewett State Bank, following which protest was made and suit filed by Corsicana National Bank against Jewett State Bank and Corsicana Cotton Oil Company, and resulting, as we have said, in a verdict directed by the court.

We are of opinion that under the undisputed facts in this case the trial court did not err in directing the verdict he did, since, if it can be said that there are conflicts in the testimony, such conflicts are immaterial or cannot affect the result. Stripped of all details, the record discloses that the Jewett State Bank, acting for and by authority of Dunagan, and upon information received from him, collected twice from the Corsicana Cotton Oil Company a debt it owed Dunagan, and that the bank yet has the money. Such being true, the Jewett State Bank was in the possession of money of another, which in honesty and good conscience it ought not to retain, and to recover which the Corsicana Cotton Oil Company or its assignee could resort to a suit for money had and received; and such remedy is not affected by the agencies or by the ramifications of the means by which the result is accomplished. Merryfield v. Wilson, 14 Tex. 224, 65 Am. Dec. 117; Ingram v. Posey, 188 S. W. 421; Scott v. Jackson, 147 S. W. 336.

The Corsicana Cotton Oil Company having paid to the Jewett State Bank its debt to Dunagan, and the Jewett State Bank having used the bill of lading which it should have surrendered to Corsicana Cotton Oil Company as a means of collecting a second time for the same debt, the Corsicana Cotton Oil Company, by taking up the bill of lading which evidenced the ownership of the cotton seed it had received and used, but performed that which it was legally bound to do; and, while we think it is of no legal, consequence, still we are of opinion that the effect of such payment was an equitable assignment of or a subrogation to any claim the owner of the bill of lading had against the Jewett State Bank, if it had any at all, but that beyond and independent thereof the Corsicana Cotton Oil Company had, under the facts related, a cause of action against the Jewett State Bank at all events.

We also: conclude that the facts do not show a misjoinder of causes of action: While the transfer or assignment of the claim of the Corsicana Cotton Oil Company took the form of a draft drawn by the oil company against the Jewett State Bank, it was, as we have said in the last analysis, but a suit for money had and received, and it was in entire accord with the equitable principle upon which such suits may be maintained for the Corsicana Cotton Oil Company when sued upon its transfer to set out the facts upon which the debt was based, and to ask and receive the relief granted in the court below.

While we have not discussed the assignments of error seriatim, what we have said in effect disposes of all of them, save two, which complain of the refusal of the court to sustain the Jewett State Bank’s general exception. The point urged under the general demurrer ijs that the petition showed no cause of action against Jewett State Bank, because it was not alleged that the Jewett State Bank, verbally or in writing, accepted the draft drawn by Corsicana Cotton Oil Company against it in favor of Corsicana National Bank. In answer to the point, it may be said that the draft so drawn was not against a fund on deposit with the Jewett State Bank belonging to the Corsicana Cotton Oil Company, but as we have said, but a transfer of the debt and a demand for its payment; and, for that reason, it is obvious that the rule of law governing the rights of the holder of a check drawn against a bank deposit never accepted by the bank has no application.

The judgment is affirmed.


source: Caselaw Access Project

author: RASBURT, J.

license: Public Domain

text:
    ROBINSON SEED & PLANT CO. v. HEXTER & KRAMER.
    (No. 7150.)
    (Court of Civil Appeals of Texas. Dallas.
    May 23, 1914.
    Rehearing Denied June 13, 1914.)
    1. Landlord and Tenant (§ 109) — Acceptance oe Surrender — Acts Constituting.
    Where a lessee, abandoning the premises, and securing the consent of the lessor to sublet for the unexpired term, was only able to secure third persons who would take the premises for the unéxpired term at the same rental on condition that the lessor would extend the period at the same rental, refusal of the lessor to lease the premises beyond the unexpired term was not an acceptance of a surrender of the premises so as to relieve the lessee from liability for rent.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 350-360, 363-365, 368-371; Dec. Dig. § 109.]
    2. Landlord and Tenant (§ 110) — Abandonment op Premises — Obligation oe Lessor.
    Where a lease authorized the lessor in. ease of abandonment to resume possession and relet for the unexpired term, the act of the lessor in performing his duty to relet for the unexpired term on the lessee abandoning the premises was not an acceptance of a surrender, but was for the benefit of the lessee by reducing his liability by the difference between the rent received under a reletting and the rent reserved in the lease.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 366-369, 371; Dec. Dig. § 110.]
    3. Landlord and Tenant (§ 195) — Abandonment oe Premises — Obligation oe Lessor.
    Where a lessee abandoned the premises, the refusal of the lessor to accept a new tenant on condition of a lease for a period beyond the unexpired term for the same rental was not a failure to exercise ordinary diligence to relet the premises, and he could recover from the lessee the loss sustained.
    [Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 790-793; Dec. Dig. § 195.]

      4. Triad (§ 141) — Evidence—Instructions.
    Where the liability of defendant and the ■amount thereof were established by undisputed ■testimony, it was proper to direct a verdict for plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.]
    Eiror from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Hexter & Kramer against the Robinson Seed & Plant-Company. There was a judgment for plaintiffs, and defendants bang error.
    Affirmed.
    Short & Feild, of Dallas, for plaintiff in error. Thompson, Knight, Baker & Harris, of Dallas, for defendant in error.

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

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

   RASBURT, J.

Defendants in error sued plaintiffs in error for a sum of money alleged to be the amount due upon a lease of certain premises in the city of Dallas, entered into between plaintiffs in error and Sockwell and Beall, who, before the rents accrued, sold the premises and assigned the lease to defendants in error, and an item of expense for repairs incurred on behalf of plaintiffs in error, and which premises plaintiffs in error vacated before the expiration of the term.

The effect*of plaintiffs in error’s answer was to admit the lease of the premises and the failure to pay the rent for the unexpired term, but a denial of liability therefor on the ground that, after they ceased occupying the premises, defendants in error agreed that plaintiffs in error might sublet the premises to another" satisfactory to defendants in error, and that such a tenant was secured; and, further,, that plaintiffs in error surrendered the premises for the unexpired term, and defendants in error accepted the surrender and took possession of the premises, and for that reason also were not entitled to recover.

There was a trial before jury; but at the conclusion of the testimony the court instructed a verdict for defendants in error, which was returned by the jury, and, from the judgment entered upon said verdict, this appeal is taken.

We deduce from the evidence the following essential and undisputed facts: Plaintiffs in error rented the premises for a period of five years, beginning November 1, 1906, ■ for the gross sum of $13,200. The rental was payable in installments of $200 per month for three years, or until November 1, 1909. For the remaining two years it was to be paid in installments of $250 per month. Plaintiffs in error occupied the premises under the lease until the latter part of June, 1910, when they ceased business and vacated the premises. By the terms of the lease plaintiffs in error did not have the right to sublet the premises; but when, they ceased business they asked and received permission from defendants in error, who, subsequent to the execution of the lease, purchased the property and held the lease by assignment, to sublet the premises for the unexpired term of the lease to tenants satisfactory to defendants in error, with the reservation by defendants in error at all times that plaintiffs in error were to be primarily liable for the rental of the premises under the exact terms of the lease. The plaintiffs in error did not secure tenants who.would accept the premises for the unexpired portion of the lease, hut did secure two tenants, either one of whom would have occupied the premises for a period of three years, including the unexpired portion of the lease, at a rental of $250 per month for the full period of time. Defendants in error were willing for such tenants to occupy the building at $250 per month for the unexpired portion of the lease, but demanded a greater rental after that time, which the prospective tenants declined to pay. Blat-ters standing thus, and the rental for August, 1910, having been paid, plaintiffs in error declined in writing to pay any further rent, and abandoned the premises and repudiated the lease, assigning as a reason defendants in error’s refusal to accept either of the prospective tenants. Subsequently defendants in error, in the exercise of the utmost diligence, 1,eased the premises for a part of the unexpired portion thereof, crediting plaintiffs in error with the full amount collected, after deducting the expense of making certain changes in the premises required by the tenant and necessary to secure him, but which was insufficient to pay the agreed rental for the unexpired term. The balance plaintiffs in error refused to pay, and this suit was filed for said amount and resulted as stated.

Among other provisions in the lease is the following:

“That, in case of default in any of the aforesaid covenants, the. lessors may enforce the performance thereof in any modes provided by law, and may declare the lease forfeited at their discretion, and their agent or attorney shall have the right, without further notice or demand, to re-enter and remove all persons therefrom, without .being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of rent or breach of covenant, or their agent or attorney may resume possession of the premises and relet the same for the remainder of the term at the best rent they may obtain, for account of lessees, who shall make good any deficiency.”

It is first urged that the facts related show a surrender of the leased premises and art acceptance of the surrender by defendants in error, and that hence the peremptory instruction for defendants in error was erroneous. We think not. The most the evidence shows is that plaintiffs in error, when they ceased business, sought and secured the consent of defendants in error to sublet the premises for the unexpired term of the lease. This they were unable to do. It is true they secured two parties satisfactory as tenants who would take the premises for the unexpired term and pay the same rental that plaintiffs in error were paying, but only- on condition that defendants in error would extend tie lease for a period of nearly two years beyond the unexpired term, and for the same rental. It was upon the refusal of defendants in error to so extend the lease beyond the agreed term at the same rental that plaintiffs in error based their right to repudiate the lease and abandon the premises, without the consent of defendants in error, and here urge the right in law so to do. The precise point has been decided adversely to the contention in Massie v. State National Bank, 11 Tex. Civ. App. 280, 32 S. W. 797. In that case the contention in substance was that when the lessee abandons the premises, although without the consent of the lessor, and with notice that the lessor will hold him responsible for the rent for the full term, and thereafter lessor assumes charge of the premises and rents them for a less amount than the agreed rental, such facts will in law constitute a surrender of the lease and the premises and an acceptance thereof by lessor. The appellate court held such was not the rule, and, in passing upon the issue, said:

“True, the landlord may, if he choose, decline to meddle with the property, ,. and at the end of the term sue for the rent; but he is not to be driven to this course, and run the risk of damages to his property and the insolvency of his tenant. He does not forfeit his right to compensation for the violation of the contract by taking possession of the abandoned house, nor can the lessee be permitted to shield -himself from all recovery under an act which indeed lessened the loss that he had caused.”

If, then, taking possession of the premises by the lessor after repudiation of the lease and an abandonment of the premises by the lessee does not in law constitute a mutual surrender, which is necessary to effect such result, it cannot be intelligently urged that a refusal to lease the premises beyond the unexpired term at a rental not acceptable to the lessor will accomplish as much. After all, it occurs to us it is but a matter of simple contract relation by which the rights of the parties are to be determined.

By the contract of lease in the instant case, plaintiffs in error were bound for the rent for the unexpired term, and, after they abandoned the premises, it was the duty of the defendants in error to relet the premises for the unexpired term to the best advantage they could in the exercise of ordinary diligence in that behalf. This they did. The lease itself provides the very rule quoted, and confers upon the defendants in error the right in case of'abandonment to resume possession of the premises and relet them for the unexpired term for the best rent obtainable for the benefit of plaintiffs in error, who, by the same contract, agree to make up any difference between the rental so received and that agreed to be paid. Such was the judgment rendered.

It is next urged under the second assignment of error, in effect, that it was the duty of defendants in error to exercise ordinary diligence to relet the premises after resuming control of the premises, which is the correct rule; but the precise point made is that the refusal of defendants in error to accept the two proposed tenants we have mentioned was a failure to exercise _ ordinary care, and released plaintiffs in error from all liability. We think the contention unsound, since said tenants would accept the premises only on condition that the unexpired lease was extended for a long period of time for the same rental. Such an extension would undoubtedly have prevented loss to plaintiff in error, but on the other hand, would have resulted in a loss to defendants in error of what they considered the increase in rental value of the leased premises. This, defendants in error were, of course, not bound to do, either by the lease or any rule of law.

It is further urged that the court erred in directing a verdict for defendants in error for the reason that the evidence did not conclusively establish the amount sued for. The testimony concerning how much rent was received after plaintiffs in error abandoned the premises, and how much was expended in repairs, which were necessary in order to relet the premises, and the diligence exercised to relet the premises, was undisputed, and without attempted contradiction; and consequently there was no conflict in the testimony to be referred to the jury for its solution, and the course pursued by the trial court obviously proper.

The judgment is affirmed.


author: KEY,' C. J.

text:
    INTERNATIONAL & G. N. RY. CO. et al. v. RATHBLATH et al.
    (No. 5330.)
    (Court of Civil Appeals of Texas. Austin.
    April 8, 1914.
    Rehearing Denied June 3, 1914.)
    1. Appeal and Eeeoe (§ 877)—Peesons Entitled to Allege Eeeoe.
    Where trial of an action against a railroad company for damages to a shipment of goods was not delayed, and none of the company’s rights were prejudiced, it cannot complain that the seller was allowed to intervene and try out his right to part of the recovery, though the plea of intervention failed to show that the interveners were necessary or proper parties; for, if the railroad company is liable, it is immaterial to whom satisfaction be made.
    [Ed. Note.—For other cases, see Appeal and Error, Gent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    2. CARRIERS (§ 154)—Carriage of Goods— Liability.
    While, in consideration of a lower rate, a carrier may limit its liability, a carrier is liable in case of negligent injury to an interstate shipment for the difference between the value of the goods at destination in the condition in which they would have been .delivered and their condition as delivered, though the bill of lading issued under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars, li, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) restricted its liability to the invoice price, where it did not appear that the shipper received any consideration on account of limitation of
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 611-645, 667; Dec. Dig. §' 154.]
    3. CakRiers „(§ 163) — Carriage of Goods— Liability — Defenses.
    Where a carrier claims a limitation of liability, it has the burden of proving that the shipper received some consideration for his consent to the limitation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 722-725; Dec. Dig. § 163.]
    Appeal from Robertson County Court; J. L. Goodman, Judge.-
    Action by Abe Rathblath against the International & Great Northern Railway Company and another, in which Yaearro Bros. & Co. intervened. From a judgment for plaintiff and for the intervener, defendants appeal.
    Affirmed.
    Perry & Woods, of Franklin, Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellants. J. Felton Lane, of Hearne, and W. W. Wilson, of Calvert, for appellee.

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

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

   KEY,' C. J.

Abe Rathblath, as plaintiff, brought this suit against the International & Great Northern Railway Company and the Texas & Pacific Railway Company seeking to recover damages in the sum of $652.50 for injuries to a car load of bananas shipped from New Orleans, La., to Calvert, Tex.

In the answers interposed by the defendants they averred, among other things, that the shipment, being interstate, was controlled by the act of Congress regulating interstate commerce, and especially by what is know as the Carmack Amendment thereto, and alleged that, by the terms of the bill of lading issued by one of the defendants and accepted by the plaintiff, it was stipulated that, if there was any loss or damage, the amount thereof was to be computed on the basis of the value of the property, the same being the bona fide invoice price thereof at the time and place of shipment, which value and invoice price was $202.95.

Thereafter Vaearro Bros. & Co. filed a plea of intervention, in which they sought to recover from the plaintiff, Abe Rathblath, the sum of $202.95, the value of the car of bananas, and prayed that; if the plaintiff recover against the defendants, the latter be required to pay $202.95 of said recovery to interveners in satisfaction of their claim against the plaintiff. The defendants interposed an exception and plea in abatement to the plea of intervention, which were overruled.

There was a jury trial, resulting in a verdict and judgment for the plaintiff against both of the defendants for $420.45, and for interveners against the plaintiff in the sum of $202.95, to be paid out of his recovery against the defendants, and both of the defendants have appealed.

The first assignment of error complains of the action of the trial court in overruling appellants’ exception and plea in abatement to the plea of intervention filed by Yaearro Bros. & Co. It may be conceded that inter-veners had no interest in the cause of action asserted by the plaintiff against the defendants, and that, if the plaintiff had objected to the plea of intervention, it would have been reversible error not to sustain such objection. But, inasmuch as the record fails to indicate that the prosecution of the plea of intervention in any wise delayed the trial of the case, and as it clearly appears that no harm resulted therefrom to the defendants, we decline to reverse the case, even though the plea of intervention failed to show that the interveners were necessary or proper parties. If appellants are liable, it is wholly immaterial to them whether they make satisfaction to the plaintiff for the interveners, and therefore we see no reason why they should be heard to complain. In fact, it seems to us that the acquiescence of the plaintiff in the course pursued by the interveners is almost equivalent to an assignment by him of so much of the cause' of action as would be necessary to discharge his indebtedness to the interveners. He filed no answer to the plea of intervention, and he testified as a witness that he bought the shipment of bananas in question from the interveners and owed them therefor the amount for which they sued, and he did not object to their plea of intervention. Such being the conditions as the case is presented in this court, and as the judgment protects appellants from more than one recovery, we see no sufficient reason why the case should be reversed on account of the rulings complained of in the first assignment of error, and therefore that assignment is overruled.

The trial court instructed the jury, in substance, that the measure of damage was the difference at Calvert, Tex., between the reasonable market value of the bananas in the condition in which they were delivered and what would have been their condition if there had been no negligent breach of the contract of shipment; and that charge is assigned as error. It is not denied that the charge complained of is in accordance with the general rule of the common law, but it is contended that a different rule should have been applied, because of the following stipulation in the bill of lading:

“The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid! at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper, or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence.”

Tlie undisputed proof shows that the invoice price was $202.95, and, if the loss had been computed upon that basis, the defendants would not have been liable for the amount adjudged against them. In Railway Co. v. Maddox, 75 Tex. 300, 12 S. W. 815, it was held that a common carrier was liable upon the basis of the value of the property at the place of destination, even though the shipment was interstate, and the contract, in consideration of a reduced rate of transportation, limited the carrier’s liability to a fixed sum. In that case Chief Justice Stayton wrote an elaborate opinion, in which he conceded that the ruling there made was in conflict with decisions in other jurisdictions; and until the Carmack amendment to the act of Congress regulating interstate commerce, and the decisions of the Supreme Court of the United States construing that amendment, the Maddox Case has been uniformly followed in this state. In Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, the Supreme Court of the United States construed the Carmack amendment, and declared that its effect was to supersede all the regulations, policies, and decisions of any state upon the subject of the liability of interstate common carriers. However, it was declared in that ease, as it had often been declared before by that and other courts, that a common carrier cannot exempt himself from liability for his own negligence or that of his servants, though the rigor of his common-law liability might be modified through any fair, reasonable, and just agreement with the shipper which did not include exemption from liability for negligence; and in the latter regard the law was summarized as follows:

“It has therefore become an established rule of the common law, as declared by this court in many cases, that such a carrier may, by a fair, open, just, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk.” (Italics ours.)

In support of the proposition thus announced, the court cited a long list of decisions; and we accept that proposition as a correct enunciation of the law upon the subject, but hold that appellants have not brought themselves within the class of cases there referred to, because, as the ease is presented in appellants’ brief, it does not appear that the agreement changing the common-law rule as to the measure of damages was made for the purpose of obtaining the lower of two or more rates, or was based upon any other valuable consideration. The charge of the court made the plaintiff’s right to recover depend upon a finding by the jury that the defendants had been guilty of negligence; and, according to the rule announced in the above quotation, in order to make such an agreement valid, it must be made to appear that the shipper or consignee obtained some character of benefit as a consideration for the agreement. It is not contended in appellants’ brief, nor shown by the statements therein contained, that any benefit whatever accrued to the plaintiff as a consideration for the agreement. In so far as it is made to appear from appellants’ brief, he may have paid the same amount of freight that he would have been required to pay if the agreement referred to had not been made. Therefore, it not appearing that there was any consideration for that agreement, and as the burden rested upon appellants to show that fact in order to sustain the agreement, we hold that the failure to do so renders the agreement void. And in reaching that conclusion we follow the decision of the Court of Civil Appeals for the Seventh District in Railway Co. v. Scott, 156 S. W. 294.

There are some other questions presented in appellants’ brief, all of which have been considered and decided against them.

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

Affirmed.


author: KEY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. et al. v. RATHBLATH.
    (No. 5353.)
    (Court of Civil Appeals of Texas. Austin.
    April 8, 1914.
    Rehearing Denied June 3, 1914.)
    Appeal from Robertson County Court; J. L. Goodman, Judge.
    Action by Abe Rathblath against the International & Great Northern Railway Company and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Perry & Woods, of Franklin, Doremus, Butler & Henderson, of Bryan, and Wilson, Dab-ney & King, of Houston, for appellants. W. W. Wilson, of Calvert, and J. Felton Lane, of Hearne, for appellee.
   KEY, C. J.

This is a companion case to No. 5330, International & Great Northern Railway Co. et al. v. Abe Rathblath et al., 167 S. W. 751, this day-decided, except that the question of intervention is not involved in this case. Upon the other question discussed in the opinion filed in the former case the two cases are* analogous, and we make the same ruling here as was made in that case.

Judgment affirmed.


author: RICE, J. RICE, J.

text:
    CATTLEMEN’S TRUST CO. et al. v. BECK.
    (No. 5287.)
    (Court of Civil Appeals of Texas. Austin.
    April 1, 1914.
    On Appellee’s Motion for Rehearing, April 29, 1914. Rehearing Denied June 3, 1914.)
    1. Evidence (§ 441) — Parol Evidence — Varying Written Instruments.
    One signing a stock subscription contract which recites that no representation made by the person talcing the subscription shall annul the contract, unless reduced to writing, and that the contract constitutes the sole agreement, may not, in the absence of fraud, accident, or mistase, show by parol an agreement not embodied in the contract.
    [Ed. Note. — For other eases, see Evidence, Oent. Dig. §§ 1719, 1728-1763,1765-1845,2080-2047; Dec. Dig. § 441.]
    2. CORPORATIONS (§ 583) — MERGER OJP CORPORATIONS — CONSENT oe Stockholders — Necessity. i
    A stockholder who is present by proxy, but who declines to vote for a merger of corporations, does not assent thereto, and is not bound by the action of the majority stockholders favoring a merger.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2338-2340; Dec. Dig. § 583.]
    3. Appeal and Error (§ 1001) — Verdict— Conclusiveness.
    A verdict amply supported by evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    4. Corporations (§ 579) — New Corporation — Liability por Debts op Old Corporation.
    In the absence of an agreement to that effect, a new corporation, organized to succeed an old one, is not liable for the debts of the old one, unless the new corporation is merely a continuation of the old one, or unless the new corporation expressly or impliedly assumes the debts of the old corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2307, 2309, 2313-2318; Dec. Dig. § 579.]
    On Motion for Rehearing.
    5. Corporations (§ 579) — New Corporation —Liability por Debts op Old Corporation.
    A new corporation organized to succeed an old one, which assumes the debts and receives and takes possession of the assets of the old one, is liable for a debt of the old one not in excess of the assets.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2307, 2309, 2313-2318; Dec. Dig. § 579.]
    Appeal from District Court, Coleman County : John W. Goodwin, Judge.
    Action by F. Beck against the Cattlemen’s Trust Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed on motion for rehearing.
    A. H. Kirby, of Ft. Worth, Woodward & Baker, of Coleman, and Theodore Mack, of °Ft. Worth, for appellants. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee.

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

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

   RICE, J.

On the 30th of July, 1912, ap-pellee, Beck, through the Texas Underwriters Company, subscribed for 125 shares of stock at $20 per share in the Cattlemen’s Trust Company of Arizona, executing in writing a subscription contract therefor, as well as his three notes in payment thereof, one for the sum of $250, one for $375, and another for $1,875, the first payable to the Texas Underwriters Company, the second to J. D: Berry, agent of said company, and the third to the order of said Cattlemen’s Trust Company. Thereafter, during the fall of 1912, said Cattlemen’s Trust Company, by appropriate resolutions, merged all of its assets into the Cattlemen’s Trust Company of Ft. Worth, which succeeded to all the rights and privileges of the first company, and this suit was brought by appellee against both of said trust companies, as well as the Texas Underwriters Company, for the purpose of canceling said subscription contract and said $1,-875 note, and praying for judgment against all of said defendants for the amount of said other two notes, alleging that said first company, acting through its authorized agents, made certain false and fraudulent representations to plaintiff to the effect, among other things, that said first-named company was a Texas corporation, with an authorized capital stock of $'5,000,000; that it had arranged to obtain 4 per cent, money in the East, and, if plaintiff would subscribe for said shares of stock therein, that it would loan its stockholders ' and shareholders, including this plaintiff, money at 6 per cent, and it would commence loaning said money on October 1, 1912; that relying upon said representations, which were false and fraudulent, plaintiff executed said subscription contract and notes; that said first note was paid in ignorance of the falsity of said representations, and that the second note had passed into the hands of an innocent purchaser for value, and that the third note of $1,875 was held by the Cattlemen’s Trust Company of Ft.» Worth; that thereafter said Cattlemen’s Trust Company of Arizona was, without the consent of plaintiff, merged into the Cattlemen’s Trust Company of Ft. Worth; and that said defendants were acting as partners.

The Cattlemen’s Trust Company of Ft. .Worth, after special exceptions and general denial, defended on the ground, among other things not necessary to set out, that plaintiff had consented to said merger, and likewise had ratified the same by the payment of one of the notes, with knowledge of the fact that such representations were false; that by reason of the execution and delivery to the first company of said subscription contract and notes that 'it had paid out for promotion expenses to the Texas Underwriters Company 25 per cent, of the sale price of such stock, and relying upon the truth of said written statements set forth in said subscription contract, and without any notice of the falsity thereof, if they be false, defendant acquired said subscription of plaintiff and his note for $1,875. It denied partnership under oath, and the other two defendants adopted its answer as their own.

There was a jury trial, the court submitting the ease on special issues, and upon which a verdict was rendered in behalf of appellee, from which this appeal is prosecuted.

On the trial plaintiff was permitted to show by his own testimony and that of other witnesses that J. D. Berry, the agent of the Texas Underwriters Company who procured his subscription contract and notes, represented to Mm that the Cattlemen’s Trust Company was a Texas corporation; that it had made arrangements to get money at 4 per cent, in the East, and would loan money to its stockholders, including plaintiff, at 6 per cent. Appellants objected to the introduction of this testimony on the ground, as shown by their bill, that it was an attempt to vary by parol a written contract, without alleging that such written contract was procured by fraud, accident, or mistake; and, second, because plaintiff was precluded by the terms of said written contract from claiming that there were any other or different representations than those contained therein. The subscription contract referred to reads as follows:

“No. 79.
“All drafts, check, and money orders must be made payable to the Oattlemen’s Trust Company, and all payments on stock forwarded with this application to said company.
“Subscription for Stock.
“No. Shares, 125. Amount, $2,500.
“This is to certify that I hereby subscribe for one hundred and twenty-five shares of the capital stock of the Cattlemen’s Trust Company, Fort Worth, Texas, for which I agree to pay twenty five hundred dollars to said company.
“I hereby agree that no statement, representation, agreement, or warranty made to me by the person taking this subscription shall in any way operate to cancel or annul this contract or be a defense thereto, unless reduced to writing and filled in on the following line:
“I further agree that this application and contract constitutes the sole and entire agreement, representation, and warranty between us, and that the said company reserves the right to reject this subscription within twenty days from receipt thereof and return to the subscriber the full amount paid said company, and, further, that 25 per cent, of the sale price of the stock herein purchased is to be and will be expended for organization and promotion expenses, to which I expressly agree and hereby authorize.
“I further certify that I have read the foregoing contract prior to signing the same and understand the contents thereof.
“I hereby make, constitute, and appoint A. L. Camp, of Ft. Worth, Texas, as my true and lawful attorney to represent me and vote my proxy, and I hereby ratify and confirm the acts of my said attorney until hereinafter annulled by me in writing. This proxy is revocable at my pleasure.
“Dated this 30th day of July, A. D. 1912. “Address, Coleman, Texas.
“[Signed] F. Beck, Subscriber.
“Witnessed by J. D. Berry, Salesman.”

There was no allegation of fraud, accident, or mistake in the execution of said contract; the only allegations were that in executing the contract of subscription the Cattlemen’s Trust Company, acting by and through its duly authorized agents J. D. Berry and O. B. McClung, falsely and fraudulently represented to plaintiff that said company was a Texas corporation, with an authorized capital stock of $5,000,000, that, if plaintiff would subscribe for shares of stock therein, the said corporation had arranged to get 4 per cent, money in the East, and would loan its subscribers and shareholders money at the rate of 6 per cent, per annum, and that it would commence loaning its shareholders money about October 1,1912.

We are inclined to think that plaintiff was entitled to prove under these allegations that Berry had represented that the company was a Texas corporation, with an authorized capital stock of $5,000,000, and that he had stated that it had arranged to get 4 per cent, money in the East, still we do not believe that he should have been permitted to show that it had promised to loan its subscribers, including himself, money at 6 per cent., for the reason that the last statement would have become a part of the contract itself, as well as an inducement to its execution, and in the absence of any allegation showing that this was left out of the written contract on account of fraud, accident, or mistake, it was not permissible to prove it; especially is this true, we think, when considered in connection with the recitations contained in the subscription contract above set out, which were made by plaintiff, and which would estop him from asserting the contrary. See 10 Cyc. 391; 1 Wigmore on Evid. §§ 24-39; Towner v. Lucas, 13 Grat. (Va.) 705-716; 2 Clark & Marshall on Corp. pp. 1456, 1457; Id. p. 1470; Wallace v. Pruitt, 1 Tex. Civ. App. 231, 20 S. W. 728, 729; Parker v. Campbell, 21 Tex. 763; Minchew v. Case, 143 S. W. 368; Williams v. Hardie (Sup.) 22 S. W. 400, 401; Schwarz v. Bank, 67 Tex. 217, 2 S. W. 865; Sanger v. Slayden, 7 Tex. Civ. App. 605, 26 S. W. 847; Threshing Machine Co. v. Davis, 40 Minn. 110, 41 N. W. 1026, 3 L. R. A. 797, 12 Am. St. Rep. 701; 11 Am. & Eng. Ency. Law, p. 401; 16 Cyc. 701, note 78. And since the charge required, and the jury-found, that plaintiff must have relied on all of these representations before being permitted to set aside such contract, it must be held that the court erred in admitting this testimony over appellant’s objection; however, in view of our holding on the succeeding assignment, this will not constitute reversible error, because, notwithstanding such error, plaintiff would have the right to show, as he did, that he did not consent to said merger.

It is contended by appellants that plaintiff consented to this merger, and was bound thereby. The evidence, in our opinion, not only fails to show this, but on the contrary discloses that plaintiff was present by his proxy and declined to vote for such merger. This was equivalent, under all the circumstances in evidence, to objecting to the same; at least it falls far short of showing an assent thereto. The rule seems to be that a dissenting stockholder is not bound by the action of the majority in such matters. See 10 Cyc. 286B; Gresham v. Island City Savings Bank, 2 Tex. Civ. App. 52, 21 S. W. 556. In 10 Cyc. supra, it is said:

“A reorganization may take place by the formation of a new corporation and the transfer to it of the assets of the old corporation, in consideration of the issue of stock of the new company to the shareholders of the old, but the rights of creditors cannot be prejudiced thereby; nor, in the absence of statutory provision, can a majority of tlie shareholders force a minority into such a scheme against their will, or compel them to accept an arbitrary value for their shares.”

See, also, I. & G. N. R. R. Co. v. Bremond, 53 Tex. 96; Lauman v. Lebanon R. R. Co., 30 Pa. 42, 72 Am. Dec. 685; Taylor v. Earle, 8 Hun (N. Y.) 1; Ervin v. Or. Ry. Co. (C. C.) 27 Fed. 625; Tanner v. Lindell Ry. Co., 18 Mo. 1, 79 S. W. 158, 103 Am. St. Rep. 534; Parish v. Cleneguita Copper Co., 12 Ariz. 235, 100 Pac. 781; Ferguson v. Meredith, 1 Wall. 25, 17 L. Ed. 604; 5 Thompson on Corp. (2d Ed.) § 6059. We therefore overrule appellant’s contention in this respect, and hold that such reorganization did not and could not bind appellee, under the circumstances shown by the record.

We overrule appellants’ contention to the effect that appellee, with a knowledge of the falsity of said representations, paid off the first note, thereby ratifying such contract, and therefore was estopped to claim that he was defrauded by reason of the representations set out, because this issue was resolved by the finding of the jury against appellants’ contention, which finding is amply supported by the evidence.

We have concluded, however, that appellants’ twenty-first assignment is well taken, which urges that the court erred in rendering judgment for plaintiff against the Cattlemen’s Trust Company of Ft. Worth for $742, the amount of the two smaller notes. In the first place there is no evidence in the record showing or tending to show that the new company assumed the liabilities of the old. The law seems to be that, in the absence of an agreement to this effect on the part of the new company, it is not bound for the obligations of the old. See 10 Cyc. 287, 288; Island City Savings Bank v. Sachtleben, 67 Tex. 420, 3 S. W. 733; Eddy v. Hinnant, 82 Tex. 354, 18 S. W. 862; Dallas, etc., Ry. Co. v. Maddox, 31 S. W. 702; Williams v. Texas, etc., Ry. Co., 22 Tex. Civ. App. 278, 55 S. W. 130; Abilene Cotton Oil Co. v. Anderson, 41 Tex. Civ. App. 342, 91 S. W. 607. It is said in 10 Cyc., supra:

“With regard to liability for debts of the old corporation, the general rule is that a new corporation organized to succeed an old one is not liable for the debts of the latter. The new corporation will, however, be liable for the debts of the old one (1) where the circumstances are such as to warrant the conclusion that the former is not a separate and distinct corporation, but merely a continuation of the latter, and hence the same person in law, and (2) where it has, in express terms, or by reasonable implication, assumed the debts of the.old corporation, where this liability is imposed by the statute under which the reorganization takes place, or where such liability is imposed upon it by the decree of the court on foreclosure.”

Besides this, the Ft. Worth company derived no benefit whatever from these notes; they were paid out by the Arizona company to the Texas Underwriters Company for promoting the organization of the former, and never at any time went into the hands of the Ft. Worth company.

After a full consideration of the remaining assignments, we think they should be overruled, and it is so ordered.

Finding no error in the judgment of the trial court, except in so far as it gave judgment against the Cattlemen’s Trust Company of Ft. Worth for $742 and interest, the judgment will be so reformed as that plaintiff take nothing against said defendant in this regard; but in all other respects the judgment of the court below is affirmed.

Reformed and affirmed.

,KEY, C. J., not sitting.

On Appellee’s Motion for Rehearing.

RICE, J.

It appears from the motion for rehearing filed herein by appellee that we were in error in holding that there was no evidence showing that the Cattlemen’s Trust Company of Ft. Worth assumed the liabilities of the Cattlemen’s Trust Company of Arizona, and likewise in holding that it had not received any benefit or come into possession of any assets from said company.

Upon a reinvestigation of this matter, we find that the evidence in both these respects shows that said Ft. Worth company not only agreed and bound itself to assume the liabilities of the Arizona company, but did in fact receive and take possession of all the assets of said company, which were in excess of the judgment rendered against it herein, for which reason we have concluded that we were in error in reversing and reforming the judgment as set forth in the original opinion herein.

We therefore now grant appellee’s motion for rehearing, set aside our former holding in this respect, and in all things affirm the judgment of the court below.

Motion granted.


author: CARL, J.

text:
    COTTON v. BARNES.
    (No. 5289.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 27, 1914.
    Rehearing Denied June 17, 1914.)
    1. Limitation of Actions (§ 127) — Commencement of Action — Amendment of Pleadings.
    The original petition in an action to recover double the usurious interest paid to defendant, alleged that he owned the loan company from which the money was borrowed, the first amended petition alleged that defendant, on January 1, 1909, and thereafter, owned and conducted a number of loan offices, including the one from which the money was borrowed, and the second amended petition alleged that it was borrowed from defendant, doing business under the loan company names. Mold, in the absence of any exception requiring plaintiff to show whether defendant or his agents were guilty of taking unlawful interest, that the suit throughout was against defendant as sole owner of the company, so that his plea of limitations was bad.
    [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    2. Usury (§ 138) — Loan—Recovery.
    Loans of $10 at the rate of $3 a month were usurious, entitling the borrower to recover double the amount of interest paid.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. § 424; Dec. Dig. § 138.]
    Error from Harris County Court at Law; Clark C. Wren, Judge.
    Action by Jesse Barnes against Almon Cotton. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    J. V. Meek, of Houston, for plaintiff in error; Barkley & Green, of Houston, for defendant in error.

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

   CARL, J.

Jesse Barnes sued Almon Cotton to recover $240, alleged to be double the amount of usurious interest paid by the defendant in error to plaintiff in error. The trial was before the court without a jury, and judgment was rendered for the sum of $190 and for the delivering up and cancellation of the power of attorney given by Barnes to Cotton.

In the original petition it is alleged that Almon Cotton is owner of the Texas Loan Company and the Empire Loan Company, while in the first amended original petition it is alleged that plaintiff in error—

“on the 1st day of January, 1909, and from that date until now,” “was and has been doing-business in the city of Houston, Harris county, Tex., as a money lender, conducting a number of loan offices, or companies, in said city of which he was and is the sole owner, among others, the Texas Loan Company and the Empire Loan Company; that they are merely other names for the defendant, Aimon Cotton, and are the designation of the business and such of the places where he conducts his avocation of money lending; he, in fact, being the company in each instance.”

It is charged that in 1909 Barnes borrowed from Cotton, doing business under the name of Empire Loan Company, $10, and that thereafter he paid to defendant, doing business under such name, $3 per month interest on the original loan until the date of the filing of this suit; that in 1909 he borrowed from defendant below, doing business under the name of Texas Loan Company, the sum of $10, and that thereafter and up to the time-of the filing of this suit, he had paid the sum of $3 per month interest thereon. The second amended petition alleges, in substance, that Barnes borrowed said sums from Almon Cotton, doing business under the loan compa-. ny names, “and his employés in charge thereof,” and that the payments were made to Cotton, doing business under such names and to his employés in charge thereof. It is admitted that the books of plaintiff in error show the receipt of the money paid by defendant in error, and the paying out of all sums borrowed by him.

The plea of limitation is not good because in the original, and in both amended petitions, the plaintiff in error was sued for the debt, it being therein alleged that he was doing business under the company names, and was the owner of the Texas Loan Company and the Empire Loan Company. The only change made in the second amended petition is that the additional allegation is made that he did it through his employés, or rather that he and his employés carried on the usurious transactions. There was no exception directed at the petition for the purpose of requiring the plaintiff to show whether Cotton or his agents were guilty of the alleged unlawful transactions. As to Cotton, such a plea was clearly not good, because from the very inception of the suit, it was sought to hold him as being the sole owner of these companies, and that cause of action was never abandoned. So the court did not err in overruling the plea of limitation.

The undisputed evidence shows that plaintiff in error furnished the two $10 amounts which were loaned to defendant in error, and upon which the unconscionable rate of $3 per month each was collected for the sole benefit of him. His books showed that the amounts were loaned by and the payments were made to him. That this was done for him by his agents operating these parasites on the unfortunate is immaterial. If it should ever become necessary for courts to resort to mere technicalities of practice to sustain a position, it occurs to us that it should be done in the interest of humanity, and not for the assistance of these vampires that fatten on the misfortunes of the poor. The assignments are overruled; but, since there is probably some basis for the legal contentions made in this appeal, we will not add the penalty provided by law in cases appealed for delay.

The judgment is affirmed.


author: MOURSUND, J.

text:
    GOSCH et al. v. VRANA.
    (No. 5268.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 13, 1914.
    Rehearing Denied June 10, 1914.)
    1. Execution (§ 271) — Sale — Title and Rights oe Purchaser.
    A purchaser at an execution sale has a superior title to the heirs of a grantee who claim under a prior unrecorded deed.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 769-780, 782; Dec. Dig. § 271.]
    2. Vendor and Purchaser (§ 228) — Bona Fide Purchaser — Notice.
    A vendee who purchases land with notice that a lease exists and that his vendor is holding as a tenant under a third party is in no better attitude in respect to such lessor than his vendor.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dec. Dig. § 228.]

      3. Vendos and Purchaser (§ 230) — Bona EIdb Purchases — Notice.
    Where a deed of trust was expressly made a part of a deed and the deed of trust expressly recited that plaintiffs claimed a portion of the land conveyed, the grantee in the deed was put upon notice of the claims of plaintiffs as to the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-612; Dec. Dig. § 230.]
    4. Appeal and Eeros (§ 882) — Review—Es-toppel to Allege Error.
    Where appellants requested the submission of an issue, they cannot be heard to assert that there is no evidence to sustain the finding.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    5. Appeal and Error (§ 1062) — Review-Harmless Error.
    Error in submitting an issue, as to which it was claimed there was no evidence, whether defendant purchased the land in controversy without notice that a deed executed by plaintiff was a partition deed was harmless to plaintiff ;• there being nothing in the deed from plaintiff to put defendant on notice that it was such a deed, and the burden being upon plaintiff to prove notice, and the court having also charged that if it was a partition deed the finding should be for plaintiffs. -
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.]
    6. Trespass to Try Title (§ 45) — Instructions— Misleading' Instructions.
    Where, in trespass to try title, plaintiffs claimed no title by limitation to land which passed from their ancestor to defendant, but did as to another tract in controversy, a charge that plaintiffs could not claim by limitation land which passed by regular chain of title from their ancestor to defendant was not misleading; there being no contention that defendant claimed title to the tract in controversy from plaintiff’s ancestor.
    [Ed. Note. — Por other cases, see Trespass to Try Title, Cent. Dig. § 67; Dec. Dig. § 45.]
    Appeal from District Court, Payette County; Prank S. Roberts, Judge. '
    Trespass to try title by Clarence Gosch and, another against I. Vrana. Judgment for defendant, and plaintiffs appeal.
    Reversed and, rendered.
    John T. Duncan, of La Grange, for appellants. O. E. Lane, of Austin, and C. D. Krause and L. D. Brown, both of La Grange, for appellee.

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

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

   MOURSUND, J.

This is the second appeal of this case. See 145 S. W. 253. Clarence and Winston Gosch, sole heirs of H. M. Gosch and Lucinda Gosch, sued I. Vrana in trespass to try title, seeking to recover all of a certain tract of land out of the James Robinson league in Payette county, conveyed by John T. Harcourt to Wm. Braun as containing 347 acres, except 135 acres conveyed to Zach Henry, 50 acres to Jesse Gray, and 50 acres to J. H. Gray, such conveyances having been made by H. M. Gosch on December 10, 1890, and about 34 acres undivided interest belonging to Mrs. Miller. Plaintiffs also claimed title by virtue of the three, five, and ' ten years’ statutes of limitation. Defendant answered by a general demurrer, a plea of not guilty, a general denial, a special plea that he purchased in good faith, for value and without notice of plaintiffs’ title or claim, pleas of title by limitation under the three, five, and ten years’ statutes, and improvements in good faith. Plaintiffs filed two supplemental petitions, alleging notice on the part of defendant of their claim ; that the legal representatives of the estate of plaintiffs’ parents, through W. P. Gosch, defendant’s vendor, had held possession of the land sued for, for more than ten years; that plaintiffs were minors at the time their parents died; that Clarence Gosch became of age on September 23, 1908, and Winston was still a minor; that the improvements claimed to have been created in good faith were erected with knowledge of plaintiffs’ title; that the entire tract was in one inclosure; that, instead of there being 347 acres in the tract, in fact it contained 359 acres; and that plaintiffs were entitled to recover 125 acres of land. The court ordered a survey made of the entire tract of land, and that the three tracts disclaimed by plaintiffs be surveyed and marked off. The surveyor made a report with a map attached showing that he had run out said three tracts, giving the acreage of each, as well as the length of the lines, except that the meanders of a creek constituting the west boundary of the 347-acre tract were not run out. The trial resulted in a verdict and judgment for the defendant.

By several assignments of error the sufficiency of the evidence to support the judgment is questioned. The tract of land was owned by William Braun and his wife as community property. They died intestate leaving three children surviving them, viz., Mrs. Augusta Smith, Mrs. W. B. Prederich, and L. N. Braun. Mrs. Braun had two children by a former marriage, viz., Mrs. Mag-nus and Mrs. Miller. Each of the last-named two parties inherited one-tenth of the land, and each of„ the other three, four-fifteenths thereof. The share of Mrs. Smith was conveyed to Lucinda Gosch, wife of H. M. Gosch, as community property. The Prederich and M'agnus shares passed to H. M. Gosch; L. N. Braun’s share passed to H. M. Gosch and J. H. Gray jointly. These conveyances vested in H. M. Gosch and Lucinda Gosch as community property approximately 266 acres of the land. H. M. Gosch conveyed to Zach Henry 135 acres out of the northwest; corner of the tract; to Jesse Gray 50 acres out of the northeast corner, and to J. H. Gray 50 acres just' south of the Jesse Gray tract, and he and his wife conveyed to Zach Henry 36% acres in the southeast corner of the tract, which had been conveyed to H. M. Gosch by Mrs. Magnus and her husband; the same being described by metes and bounds. These conveyances passed a total of 269% acres of land, a few acres more than H. M. and Lucinda Goseh had acquired under the deeds hereinbefore mentioned.

It appears, however, that Zach Henry deeded the Magnus tract to H. M. Goseh on the same day that Goseh deeded him the 135 acres. The Henry children, five in number, did not join in the deed. Said deed was not acknowledged or recorded. Four of Zach Henry’s children conveyed their interests in the Magnus tract to their brother, W. D. Henry. A judgment was obtained on May 25, 1898, by H. W. Robinson against said W. D. Henry and Zach Henry, and for foreclosure of a deed of trust given by W. D. Henry upon said land. An execution and order of sale was levied upon the land as the property of Zach Henry and W. D. Henry, and it was sold as the property of said parties and deed made July 5, 1898, to said H. W. Robinson. It was not shown that said Robinson had any notice of the unrecorded deed from Zach Henry to H. M. Goseh. The evidence fails to show who was in possession of said land at the time. It appears that W. F. Goseh and H. O. Goseh had procured a deed from the Easons conveying 50 acres deeded to them by J. H. Gray, which 50 acres included all of the Magnus tract. That deed was dated March 30, 1898. Mrs. Barber, ad-ministratrix of the estate of H. M. and Lucinda Goseh, had leased to Cockrill, for one year, expiring July 1, 1898,-a tract of land deeded to Lucinda Goseh. Goseh leased the .same land for 5% years beginning July 1, 1898. At the expiration of that lease he leased from Mrs. Barber for three years, expiring December 31, 1908, a place upon another survey, and certain pasture land, namely, 93% acres in the Robinson survey ■deeded to Lucinda Goseh and 34% acres in the same survey; said lands being further described as “the undivided interest of a •tract of land belonging to minor heirs.” On September 28, 1906, the other half of the 50 acres conveyed by Easons to H. C. Goseh passed to W. F. Goseh. He had built a house on the Magnus tract in 1900* and lived there from that time on. He conveyed the entire 347-acre tract to appellee by deed dated September 26, 1907. It appears very clearly that the Magnus tract was not covered by any lease in existence at the time of the levy and sale under the Robinson judgment, for the only land leased at that time was the tract conveyed to Lucinda Goseh, which Mrs. Barber thought was separate property. The land conveyed to Lucinda Goseh was Mrs. , Smith’s undivided 93 acres. The Magnus tract had been conyeyed by metes and bounds. It does not appear whether the Henry children were in possession at the time or whether W. F. Goseh was in possession under his deed to one-half, but at least there is no evidence that any one was in possession of the Magnus tract holding it for H. M. Gosch’s estate or his heirs. We therefore conclude that the execution sale passed to H. W. Robinson a good title to the Mag-nus tract as against the heirs of H. M. Goseh who claim under an unrecorded deed. Whitaker v. Farris, 45 Tex. Civ. App. 378, 101 S. W. 456, and cases therein cited. Whether W. F. Gosch by holding said land under the Eason title from 1898 until he sold to Vrana acquired by limitation the H. W. Robinson title need not be determined in this case.

It appears clear that plaintiffs have no record title to any of the land sued for. But they contend that as against appellee they are nevertheless entitled'to recover some land. Two theories are advanced. One of these is that, as W. F. Goseh was their tenant when he sold to Yrana, the latter cannot dispute their title to the land leased unless he shows a superior title thereto. W. F. Goseh had title to the Miller undivided interest of 34% acres, the Zach Henry tract of 135 acres, the two Gray tracts of 50 acres each, making 269% acres concerning which there is no dispute. He held the 50 acres from Easons which covered the Magnus tract and the land between same and the south one of the Gray tracts above mentioned. The H. W. Robinson title to the Magnus tract was never conveyed to him. If we should credit him with the Magnus tract and the Eason tract as separate tracts, he would have had title to 354% acres, a few acres more than the survey contains if there be no overplus. But surely, as he took possession of the Magnus tract under the Eason deed and relies upon such possession to show that he did not lease said land from Mrs. Barber, he cannot be permitted to use the Eason conveyance for that purpose and then locate 50 additional acres elsewhere by virtue thereof. Under the Eason deed he claimed title to a certain 50-acre tract as the interest J. H. Gray had acquired by conveyance from L. N. Braun, and it therefore appears that he had record title to only 319% acres, which corresponds to the admission made in his letter to Braun & Lane; and as he leased some land, which he thought was about 80 acres, from Mrs. Barber, he did not acquire any additional land by limitation. Nor did plaintiffs acquire any limitation title to the Magnus tract or any right to recover same from W. F. Goseh on the theory that he rented same from Mrs. Barber. Up to January 1, 1905, the only land mentioned in the lease contract was 93 acres undivided which had been conveyed to Mrs. Lucinda Goseh, and it cannot be contended that such description included the Magnus tract which had been set apart by metes and bounds. The three-year lease beginning January 1, 1905, mentions a 34%-acre tract, but all the land is designated as pasture land, and as undivided, and, besides, W. F. Goseh had made his home upon the Magnus tract about five years prior thereto, and Strahle, the agent for Mrs. Barber, who leased the land to W. F. Goseh, testified that he never intended to lease the Magnus land to said Gosch. When the first lease was made, the only land out of the tract owned by W. E. Goseh was a half interest in the Eason tract which covered the Magnus tract. During the time of the first lease he acquired an interest in the Miller portion and in the two Gray tracts. He acquired his first interest in the 135-acre tract after executing his last lease contract. The evidence shows that the 347-acre tract was inclosed, but does not show that there were any partition fences between the different tracts. While W. P. Gosch did attorn to Mrs. Barber as to 93 acres at one time and 127 acres at another 'time; plaintiffs admit they did not acquire'any of the Zach Henry 135-acre tract, or the two Gray tracts or the Miller interest, by virtue of such attornment; in other words admit that W. F. Gosch acquired and held at the time of the trial the superior title thereto.

As the evidence shows that there was no attornment as to the Eason tract, which covers the Magnus tract, it is clear that plaintiffs cannot recover that tract. We come then to the balance after deducting all of the above-mentioned tracts and interests, a balance to which W. F. Gosch had no title, and which, together with the Miller undivided interest, lies in the southwest corner of the 347-acre tract, which is the portion of the tract that W. F. Goseh -says he leased from Mrs'. Barber. This balance, if there is no excess, is about 34% aeres, and it is clear that as to it W. F. Gosch'attorned to Mrs. Barber. It seems clear that in a suit against W. F. Gosch plaintiffs would have been entitled to recover such portion of the land, and, as Vrana bought during the existence of the lease and while W. F. Gosch was holding as tenant under Mrs. Barber, he could be in no better attitude provided he had notice of the fact that the land was so held. Reichstetter v. Reese, 39 S. W. 597; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275. Appellee’s deed recites that Vrana assumes the payment of a note to Marburger secured by a deed of trust by W. F. Gosch upon the land conveyed in the deed, and expressly makes the deed of trust and its record a part of such deed. The deed of trust conveys the 347 acres with the exception of the land claimed by the heirs of H. M. Gosch, about 80 acres. Appellee admits he read the deed of trust before accepting his deed, but testified he1 did not know that W. F. Gosch was a tenant of said heirs or rather of the administratrix of their father’s estate. We think he was put upon such notice both by the deed of trust, and the information given by Mrs. Barber to Mr. Brown, who, appellee testified, was examining the title for appellee, as.a proper investigation would have informed him that W. F. Goseh had rented from Mrs. Barber. Skov v. Coffin, 137 S. W. 450. We therefore conclude that he cannot hold said 34%. acres as against appellants.

It is also contended by appellants that the deed from H. M. Gosch to X H. Gray for 50 acres was a partition deed, by which Gosch conveyed to Gray the one-half interest acquired by Gray in the 93 acres conveyed by B. N. Braun to H. M. Gosch and said Gray. The issue was submitted to the jury and found against appellants. As appellants requested its submission, they cannot be heard to assert that there is no evidence to sustain the finding. While there was evidence' to the effect that it was a partition deed, it came alone from a kinsman of appellants, and the deed itself, together with the declarations of X H. Gray to his wife, admitted without objection, strongly indicated that it represented a bargain and sale, and we think the jury’s finding is sustained by evidence.

The court also submitted the issue whether W. F. Goseh bought the Eason title in good faith for a valuable consideration and without notice that the deed by H. M. Gosch to J. H. Gray was a partition deed. It is contended that there is no evidence justifying the submission of such issue, and that the charge therefore was erroneous. We do not think such error could have harmed appellants. Upon its face the deed from H. M. Gosch to X H. Gray was a deed for 50 acres of land for a consideration of $150 cash; there being nothing therein which would put any one upon notice that it was intended as a de'ed vesting title in J. H. Gray to land he had acquired under a deed conveying an undivided 92% acres to him and H. M. Goseh jointly. It therefore seems clear that any one purchasing both tracts from X H. Gray would be protected and would hold same against H. M. Gosch and his heirs, unless it were proven that such purchaser had notice that the deeds covered the same land. The burden would be upon appellants to show such notice by W. F. Gosch, and they failed to show this. The court required an affirmative showing by appellee that W. F. Gosch did not have such notice, when he should have instructed that, even though the deed by H. M. Gosch to X H. Gray was a partition deed, appellee could hold under both deeds by J. H. Gray unless he had notice of the fact that the said deed by H. M. Gosch to X H. Gray was a partition deed. The court twice instructed the jury that if it was a partition deed to find for plaintiffs for the 46% acres, which charge was more favorable than plaintiffs were entitled to, and plaintiffs could not have been injured by the charge in question.

The charge, in so far as it submitted the two issues just discussed, is criticised as being so misleading as to require a reversal. While the charge is not as clear as it should be, in view of the special charge given at plaintiffs’ request, we conclude that the jury must have understood what issues were submitted, and that assignments 5 and 6 should be overruled.

The seventh assignment complains of a paragraph of the charge, to the effect that plaintiffs could not claim title by limitation to any of the land sued for, which passed by regular chain of title from H. M. Goseh and wife to defendant Yrana. Appellants admit they claimed no title by limitation to any such lands as are described in the charge, but contend that for that very reason the charge was misleading, and calculated to injure them with reference to their claim of the Magnus tract by limitation. There being no contention that appellee connected himself with any chain of title to the Magnus tract emanating from H. M. Gosch and wife, the jury could not have been misled in the respect contended for. It may be said further that as the Magnus tract was not held by W. F. Gosch under lease from Mrs. Barber, as has hereinbefore been pointed out, plaintiffs could claim no title thereto by limitation, never having been in possession thereof from the time W. F. Gosch toot possession thereof under the Eason deed. The assignment is overruled.

We come now to the question of excess, and must say that the evidence is insufficient to support a finding of excess in the tract. The surveyor did not run out the meanders of the creek, hence his survey was only an estimate. Appellee is entitled to judgment for the 50-acre tract conveyed by J. H. Gray to the Easons, and to have the undivided interest acquired from Mrs. Miller set apart to him out of that portion of the tract remaining after deducting said 50-acre Eason tract and the tracts conveyed by H. M. Goseh to Zaeh Henry, Jesse Gray, and J. H. Gray, which are disclaimed in plaintiffs’ petition. Said Miller interest is one-tenth of the entire survey. As we find the evidence insufficient to show the acreage of the entire survey, we cannot state the Miller interest in acres, and such amount must be decided by a complete survey when partition is had of the remainder of the land. The remainder, after deducting the 50-acre Eason tract, which W. F. Gosch did not lease, and setting apart the Miller interest, to which defendant is admitted to have title, should go to plaintiffs.

The judgment of the trial court is reversed, and judgment here rendered in accordance with the above conclusions.


author: RICE, J.

text:
    STEWART v. WILLIAMS et al.
    (No. 5370.)
    (Court of Civil Appeals of Texas. Austin.
    May 6, 1914.
    Rehearing Denied June 10, 1914.)
    1. ADVERSE POSSESSION (§ 18) — ELEMENTS OE Possession — Occupancy.
    Where plaintiffs had been in possession of 160 acres of land adversely for more than ten years before the erection of a house, and continued to claim, use, enjoy, and occupy such land, and had a resurvey made embracing the house, in which they continued to live, the fact that the house was 200 or 300 yards from such 160 acres did not prevent the acquisition of title by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 96-98; Dec. Dig. § 18.]
    2. Adverse Possession (§ 52)— Hostile Character oe Possession — Purchase oe Tax Title.
    Though an adverse claimant of land recognized that he could not hold it as against the state without the payment of taxes, and purchased an outstanding tax title, where he never recognized ownership in any one, and asserted claim to the land during his entire occupancy, his possession was adverse to the true owner.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 259, 262-205; Dec. Dig. § 52.]
    3. Appeal and Error (§ 742) — Assignments oe Error — Statement and Propositions.
    An assignment of error may be ignored, where the proposition thereunder is not germane to the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 1002) — Review-Questions oe Fact.
    A verdict finding that a tract of land claimed by plaintiffs by adverse possession embraced 160 acres would not be disturbed, where it was based upon conflicting testimony, a mistake in the field notes was apparent upon the face thereof, and it did not appear that the calls upon which defendant relied as showing that the tract contained more than 160 acres were not short of the distances called for.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    5.Vendor and Purchaser (§ 190) — Estop- ' pel to Dispute Vendor’s Title.
    Where plaintiffs had title to land by limitation before receiving a deed from defendant reserving a vendor’s lien, they were not estop-ped by the deed from asserting their adverse title, as the deed was without consideration.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 384-392; Dec. Dig. § 190.]
    6.Vendor and Purchaser (§ 189) — Estop-pel to Dispute Vendor’s Title.
    Plaintiffs acquired title to 160 acres of land by adverse possession, and purchased the tax title to 200 acres, including the 160 acres. They thereafter received a deed from defendant, who had acquired the record title to such 200 acres, reserving a vendor’s lien, and conveyed 100 acres to W. Held, that the failure to tender to defendant 40 of the 200 acres conveyed by him did not defeat plaintiffs’ right to assert their title to the adverse possession of the 160 acres, especially where defendant had recovered judgment against W. for his share of the price for which the 100 acres was sold.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 381-383; Dec. Dig. § 189.]
    7.Judgment (§ 252) — Coneormitt to Pleadings — Cancellation oe Deed.
    Though plaintiffs, in an action to cancel such deed from defendant, did not ask such relief, where W. admitted an indebtedness for the purchase price of the land sold him, and prayed that the court should determine to whom he should pay it, and the evidence clearly showed the pro rata portion belonging to plaintiffs and defendant respectively, the court did not err in so adjudging it.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 441, 442; Dec. Dig. § 252.]

      8. Appeal and Error (§ 877) — Review—Errors not Affecting Appellant.
    Defendant, having recovered judgment for his share of the purchase money due from W., had no ground of complaint against the judgment for plaintiffs for their share.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-8572; Dec. Dig. § 877.]
    9. Appeal and Error (§ 877) — Review—Errors not Affecting Appellant.
    In a suit to cancel a deed reserving a vendor’s lien on the ground that the purchaser had title by adverse possession, the vendor could not complain of the judgment in the purchaser’s favor for the land in question on the ground that the purchaser had sold a part to a third person, especially as the recovery inured to the benefit of the purchaser’s grantee.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    Appeal from District Court, Anderson County; Jno. S. Prince, Judge.
    Action by Curley Williams and others against J. A. Stewart. From a judgment in favor of plaintiffs, defendant appeals.
    Affirmed.
    P. N. Springer, of Palestine, for appellant. Gregg & Brown and Geo. A. Wright, ali of Palestine, for appellees.

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

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

   Statement of the Case.

RICE, J.

On or about the 1st of January, 1890, Curley Williams, appellee herein, purchased from G. W. Hatfield 160 acres of land, together with the improvements thereon, situated in Anderson county, being a part of the Manuel Riondo 11-league grant, which grant was known as the Zacharie land, upon which he and his wife made their home and continuously resided up to the time when this suit was brought. The evidence shows that Foster, the father-in-law of Hatfield, took possession of this tract of land in 1861, and made his home and continued to reside thereon until his death, after which Hatfield acquired it from his estate, and lived upon it until he sold, same in January, 1890, to ap-pellee, as above stated. It appears that the land had been surveyed prior to the time it was acquired by appellee Williams, and that the lines and corners there.of had been pointed out to him by Hatfield. At the time ap-pellee purchased it there was a house upon the land in which Foster and Hatfield had lived, and some 15 acres thereof had been fenced and put in cultivation. Williams, after moving upon the land, from year to year put portions thereof in cultivation, amounting in all at the time of the trial to some 60 acres, and built a new house thereon.

In 1898 suit was brought and judgment recovered by the state against the unknown heirs of Zacharie for delinquent taxes on these lands, and thereafter tract No. 9, containing 200 acres, which embraced the land in controversy^ was sold at tax sale, and purchased by W. B. Robinson on the 28th of October, 1898, who subsequently, on the 16th of November, 1901, sold same to appellee Williams pursuant to an agreement made with him prior to Robinson’s purchase. Thereafter, on the 25th day of February, 1903, appellant, who had previously purchased said grant from the Zacharie heirs, conveyed by two separate deeds to Gurley Williams said block No. 9, containing 200 acres of land, for the sum of $350, evidenced by eight promissory vendor’s lien notes, six for the sum of $50 each, retaining a vendor’s lien on the east half thereof, and two for $25 each, retaining a like lien on the west half of said 200 acres. On the 9th day of April, 1903, appellee, joined by his wife, Roxie Williams, sold to Geo. A. Wright the west half of said 200 acres for the sum of $300 cash, and the assumption by said Wright of said two $25 notes, and this suit was brought by appellees Williams and wife on the 12th of June, 1911, against appellant, to cancel said deeds made by him to Williams and wife, as well as 'their said notes given for said land, on the ground that said deed was void, because wholly without consideration for this: That appellees, long prior to the execution and delivery thereof, had acquired title to 160 acres of said land by virtue of the three, five, and ten year statute of limitations.

Stewart replied, after general and special exceptions and general denial, that appellee Williams took possession of said land as the tenant of Zacharie, and so continuously held the same; also by cross-action, setting up the sale of the west half thereof by Williams and wife to Wright, who is now claiming the same by virtue thereof, and that, upon his purchase, Wright assumed the payment of said two $25 notes; that said Williams and wife had refused to pay any of said series of notes, and have instituted this suit to cancel same. Wherefore he prayed judgment against said Williams and Wright for said 200 acres of land, for writs of possession, etc. But, if this was denied, then, in the alternative, that he have judgment against Williams fon> the amount of said six notes, and foreclosure on all of said land, and for joint judgment against Williams and Wright for the amount of said two $25 notes, and for foreclosure against both of them on the west half of said 200 'acres, and for order of sale, etc.

Wright answered, admitting that he had purchased the land as charged in the cross-bill of Stewart, and had assumed the payment of said two $25 notes, as therein claimed, and offered to pay the amount due on said notes to whomsoever the court should decree entitled to -receive it, praying that the court confirm said sale, and adjudge to whom said money should be paid. ,

The case was submitted to a jury on special issues, who found in answer thereto: First, that appellees Williams and wife had continued, peaceable, and adverse possession of the land and premises described in their petition, living on and claiming to own the same, cultivating, using, and enjoying the same, for ten consecutive years or more prior to February 25, 1903: and, second, that said tract of land described in plaintiffs’ petition contained 160 acres, and that Williams and wife did not go upon or hold the land under Jackson, the agent of the Zacharies, nor remain on and hold same with the intention of buying it, but paid Hatfield therefor, and only expected to keep the taxes paid — upon which the court rendered judgment for ap-pellees Williams and wife for said 160 acres of land, that the notes executed by Williams to Stewart, so far as they created obligations against Williams, be canceled, and judgment went for Stewart and appellees against George A. Wright in favor of the former for ■four-tenths of the amount due on the two vendor’s lien notes of date February 25,1903, for the sum of $25 each, amounting to $44.52, with interest and attorneys fees, and in favor of appellees against Wright for six-tenths of the said two last-named notes, together with interest and attorney’s fees, amounting tó $66.98, with foreclosure of vendor’s lien on the west half of said 200 acres of land, which included 60 acres of the 160 so adjudged to appellees, from which judgment appellant alone has appealed.

Opinion.

The first error assigned complains of the finding of the jury sustaining appellees’ plea of ten years’ limitation, on the ground that the same is not supported by the evidence, in that it failed to show that the same is the identical land resided upon and claimed by appellee, and failed to show that it was adversely held by appellee; but, on the contrary, that he held the same with the intention of buying it and did buy it. We think that the verdict of the jury finds support in the evidence, and settles this contention against appellant. While it is true that the new house built by appellees lacked some 200 or 300 yards of being upon the original 160 acres purchased from Hatfield, still before its erection the land had been held adversely by appellee, and those under whom he claims for more than ten years; and it also appears that appellees continued to claim, use, enjoy, and occupy the identical land, and had a resurvey made about the time of the tax sale, which did embrace the house in question, where they continued to live. And, while it is further shown that plaintiff recognized the fact that he could not hold the land as against the state without the payment of taxes, and he acquired the tax title by his purchase from Robinson, still at no time is it shown that he ever recognized ownership in any one, but, on the contrary, asserted claim thereto during his entire occupancy. This made his possession, under the doctrine of Converse v. Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705, adverse to that of the true owner, no matter who it might be. That ease also holds that a purchase at tax sale does not preclude or impair the right to rely on the statute of limitations.

By the second assignment it is insisted that the verdict is not supported by the evidence, wherein it finds that the land described in plaintiff’s petition embraces 160 acres, because appellant asserts that it embraced more than 181 acres. We might ignore this assignment, for the reason that it is not briefed in accordance with the rules, in that the proposition thereunder is not germane thereto; but, waiving this, we think the assignment should be overruled, because it is apparent upon the face of the field notes that there is a mistake therein, and the verdict is based upon conflicting testimony. Be this as it may, however, the calls upon which appellant relies to show that the tract sued for contains more than 160 acres are for definite natural objects, which, if found short of the distances called for, might not embrace more than 160 acres; and, in view of the findings of the jury, the burden to disprove this rested upon appellant, who has failed to discharge it; for which reason we must sustain the verdict and overrule this assignment.

Appellees were not estopped from recovering said land by acceptance of the deed from appellant therefor, as urged by the third assignment, because said deed was made without consideration, it appearing that they, prior to its execution, had acquired title to said 160 acres under the statute of limitation; nor did the fact that they had conveyed to Wright 40 acres out of said 200 acres so conveyed to them by appellant prevent such recovery, notwithstanding they did not tender said 40 acres back to appellant, because the same in no way affected their title to said 160 acres; and, further, because appellant had recovered judgment. for his pro rata share. of the price for which said 40 acres were sold.

Wright having admitted his indebtedness on said two notes, and prayed that the court should determine to whom he should pay it, and the evidence clearly showing the pro rata portion thereof belonging to appellant and appellees, respectively, the court did not err in so adjudging it, irrespective of whether appellees had asked judgment therefor or not.

Appellant having recovered judgment for his pro rata share of the purchase money of the 100 acres sold by appellees to Wright, with a foreclosure on the land to secure same, he has no just ground of complaint against the judgment in favor of appellees for their pro rata share of the 60 acres embraced in their 160-acre tract; nor has he any right to complain of the judgment in favor of appellees for said 160 acres on the ground that Wright owned 60 acres thereof by reason of their conveyance to him, as Wright was the only party entitled to make suck complaint. Besides this, it is apparent that appellees’ recovery in this respect inured to the benefit of Wright; for which reason we overrule the fourth and fifth assignments complaining thereof.

Finding no error in the judgment of the trial court, the same is in all respects affirmed.

Affirmed.