author: PRENDERGAST, J. MORROW, J.

text:
    BEASLEY v. STATE.
    (No. 4329.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1917.
    On Motion for Rehearing, Jan. 29, 1919.)
    On Motion for Rehearing.
    Criminal Law <§=3168 — Validity o® Former Conviction.
    In a prosecution for aggravated assault in which defendant was convicted only of the included offense of simple assault, it was error to fail to sustain a plea of former conviction thereof before a justice of the peace upon defendant’s voluntary appearance before the state began a prosecution and plea of guilty, in the absence of proof of fraud therein, although the justice erroneously assessed a lower fine than allowed by statute.
    2. Criminal Law <§=>200(2) — Former Conviction-Aggravated and Simple Assault.
    A plea of former conviction of simple assault will not bar a conviction of aggravated assault.
    Appeal from Collingsworth County Court; A. C. Nicholson, Judge.
    Jack Beasley was convicted of .simple assault, and he appeals.'
    Reversed and remanded, on rehearing.
    Templeton & Templeton, of Wellington, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

On April 20, 1916, the grand jury of Collingsworth county duly indicted appellant for an aggravated assault and battery alleged to have been committed upon H. S. Cook-on April 18th. This, of course, included simple assault and battery.

The case was tried at the September term following before the county court without a jury. Appellant waived a jury. He pleaded not guilty and former jeopardy, in that he was convicted of a simple assault for the same offense before a justice of the peace on April 18, 1916, and fined $1 and costs, which he had paid. The trial judge heard all of the testimony as to the commission of the offense, and also as to appellant’s plea of former jeopardy, and found him guilty of a simple assault and assessed a fine of $20.

As to the offense, the testimony of Mr. Cook, the party who was beaten up by appellant, was to the effect that he was horseback in his own pasture, about one-half mile from his residence, when appellant and a boy by the name of Stanley Whitson approached him. The Whitson boy asked him about a bull that belonged to his father, which he claimed to be hunting, and that he told him that his father had found the'bull that evening and he saw him driving it towards his home. lie further testified:

“Then .Tack Beasley stepped up to my horse and asked me to get down; that he had something to show me. He had a little book in his hand at that time, so I got down oft of my horse. He then asked me why I had been circulating reports on him, and why I had come over there to the schoolhouse where he was teaching to organize that Sunday school. I told him I had not circulated any reports on him, and that I was going to organize the Sunday school because the people wanted it. He said I couldn’t start a Sunday school over there as long as he was teaching there. I told him he should not talk that way and that he was no part of a man and was not fit to teach school. I then turned to say something to the 'Wlhitson boy, and he reached hold of me and jerked me around and hit me in the face. He then began to pound me in the face, and hit me a number of licks before he knocked me down. When he knocked me down, I got up as quickly as possible, and he hit me again and knocked me down the second time, and when he did this he stumbled and fell on top of me, but fell on over me in an old cow trail. I got on top of him, but he kicked me off and then got up and hit me a number of times before he stopped beating me. He beat me just as long as he wanted to, and then quit. The licks in my face blacked my eyes and caused my entire face to become bloodshotten. My nose was broken and has never gotten back into shape, and I could not breathe-good for several days. Two of my front teeth were broken off and my face was in an awful shape for a number of days. I am 64 years of age. and he is a young boy.”

Appellant swore he was 18 years old.

There was no material difference between said complaining witness’ testimony and that of the Whitson boy and appellant as to the main facts of the beating of said Cook by appellant, except they in effect say Cook struck the first lick. We see no necessity of reciting the testimony of appellant and said Whitson boy even as to any other differences in their testimony from that of said Cook. Appellant’s own testimony would show he at the time committed an assault and battery on Cook. '

As to the claimed former conviction, appellant testified he went over to Claud Caper-ton’s, the nearest justice of the peace to his home, that night to pay his fine; that Walter Bradley, his brother, and Mr. Day went with him; that Mr. Caperton was not at home, and they went on to where he was sitting up with a sick man and called him out. Appellant swore:

“He came out, and I told him of the case and just what had happened, stating that we had a fist fight and that I wanted to pay my fine. He called Mr. Bradley off and talked with him and came back and told me my fine would be $8.70, which I paid at once. I didn’t know what the fine was and simply submitted my case to the justice and paid all he demanded. He said I was pleading guilty to simple assault, and I thought that was what he would charge me with.”

Said Caperton testified that he was justice of the peace of precinct No. 4 of said county, and had been for a number of years, and swore:

“On the night of April 18, 1916, Jack Beasley came over to whore I was sitting up with a side man about two miles from my home and office and at about 11 o’clock p. m., and stated that he and Mr. Cook had had a fight. He detailed it to me and said it was a fist fight and said he wanted to submit the case and pay the fine. I called Walter Bradley off to one side, and he told me about it, and he informed me that it was a fist fight. I went back to the boy and told him I would charge him with a fist fight, a simple assault, and that his fine would be $8.70. He paid me the money; and the next morning when I went home I docketed the case and entered up the judgment.”

Appellant then introduced the judgment the justice of the- peace had entered up, which, after the style, name, etc., was as follows:

“On this the 18th day of April, 1916, came Jack Beasley and pleaded guilty to a simple assault (a fist fight) with the aforesaid H. S_. Cook. The court assesses his fine at $1.00 and cost, amounting to $8.70, which was paid and the defendant discharged. Cost $8.70 paid.
“J. P. Caperton, J. P.”

The justice of the peace further testified that he thought the fine for simple assault was $1, and that, if he had known it was $5, he would have assessed that amount; that he wanted to give the least fine, and he thought a dollar was correct; that he had always fined parties $1 for simple assault and had never heard it called in question until this time. On cross-examination he swore that he did not know the difference between a simple assault and an affray; that he simply wanted tó fine the appellant the least fine. “If an affray is or was the least fine I could assess, that is what I wanted to fine him for. I intended that it should be the least fine. If an affray was the least fine, I intended it as an affray. I never thought much about the affair at the time. Jack Beasley told me that he and Stanley Whitson went over in the pasture and met Mr. Cook over there and that the difficulty took place over there. I do not know yet whether the difficulty took place in my precinct or not.” It was admitted that the fight occurred in justice precinct No. 2, and not in No. 4. This was all the testimony as to the claimed former jeopardy and conviction.

It is clear and certain from this testimony that this claimed former conviction was a mere farce and a fraud. The state was in reality no party thereto, and in no way thereby prosecuted him. Appellant alleged there was a complaint filed against him. He did not testify there was a complaint made and filed, nor did the justice of the peace so testify, nor did any one else. None was introduced in evidence. The whole evidence excludes the idea that any was made or filed. No warrant for his arrest was shown. There was no constable or other officer present who could have arrested him. The evidence excludes the idea that any warrant was issued for his arrest, or that he was arrested. The evidence shows no witness was sworn, and no evidence heard. The justice said appellant “stated” to him he and Cook had had a fist fight (even appellant was not sworn to testify and did not testify); that he called Bradley off to one side — away from appellant — and Bradley “informed” him it was a fist fight. Bradley was not sworn, and is shown not to have seen the fight, and could not have testified to anything about the facts. The court was not opened. The pretended case was not had at the justice’s of the peace office, but at a sick man’s place two miles from his office and in the dead hours of the night — at a time and place to exclude the possibility of any officer being present to represent the state. The whole matter was secret so far as the state was concerned. No officer to represent the state was present. The justice of the peace had no power or authority to represent the state. His power and authority was merely to act as a judge and impartially to decide cases between the state and the accused, when, and only when, the state should institute a case against appellant by proper complaint charging him with an offense. By his testimony the justice of the peace showed he was in reality representing the appellant and was very partial to him. He imposed a pretended fine of only ⅞1, when the law prescribed $5 as the lowest fine he could have legally imposed, even if it had been a legal prosecution. The fact of appellant’s haste, and that of the justice of the peace, too, cleárly showed he anticipated a real prosecution by the state and complaining witness the next day, and hunted up the justice, away from his office where the law required him to hold court, at almost the midnight hour to attempt to prevent a real prosecution by the state.

It is clear and certain from all the authorities that appellant’s actions and that of said justice of the peace did not put him in jeopardy; that the said proceedings were void and in no way binding on the state and could not be taken advantage of by appellant to shield him from the prosecution and conviction for even a simple assault under the indictment and proceedings had before the grand jury and county court in this cause.'

The case of Warriner v. State, 3 Tex. App. 104, 30 Am. Rep. 124, was an instance where the appellant in that ease sought, by just such proceedings as were sought by appellant in this, to circumvent the law and shield himself from proper prosecution by the state and conviction. This court in that case said:

“In support of the plea of former conviction, the defendant read in evidence a certified copy of the judgment of the justice of the peace, which shows that at a special term of the justice’s court the following entry was made: ‘Now on this day comes J. G. Warriner, defendant in the above case, and pleads guilty to a simple assault and battery on the body of B. A. Atwood, on the 31st day of January, A. D. 1876, and waives a jury and demands a trial; whereupon, after hearing a statement, it is the order and decree of the court that the state of Texas do-have and recover as a fine the sum of two and fifty one-hundredths dollars, and all costs of suit; for -which execution may issue.’ Dated and signed by the justice of the peace.
“It was shown on the trial in the district court that no affidavit had been filed or warrant of arrest issued, or any evidence heard before the justice of the peace, except as shown by the judgment above set out.
“The justice of the peace, in the absence of an affidavit arid warrant, and of an examination of the case, could not oust the district court of its jurisdiction to try the accused for an offense of higher grade than that -to which the defendant had pleaded guilty; nor could the defendant, by waiving an examination into the circumstances under which the assault and battery was committed, screen himself by submitting to-' a nominal fine, and avoid the legitimate consequences of his acts according to the degree of aggravation or mitigation shown by the evidence. Norton v. State, 14 Tex. 387; Wilson v. State, 16 Tex. 247.
“The following quotation from Bishop’s Criminal Law is applicable to the case under consideration: ‘But sometimes a man, conscious of guilt, procures a proceeding against himself, and suffers a slight punishment, thinking thereby to bar a prosecution carried on in good faith. In such a case, if the first prosecution is really managed by himself, either directly or through-the agency of another, he is, while thus holding his fate in his own hand, in no jeopardy; the plaintiff state is no party in fact, but only such in name; the judge is imposed on, indeed, yet in point of law he adjudicates nothing. “All is a mere puppet-show, and every wire moved by the defendant himself.” The judgment, therefore, is a nullity, and is no bar to a real prosecution.’ This authority is supported by a number of decisions.”

In the case of Watson v. State, 5 Tex. App. 271, precisely the same attempt was made by the appellant in that case as was made by the appellant in this, to shield himself by claimed former conviction and jeopardy. This court therein cited and quoted from said Warriner Case, and held said justice’s pretended conviction was void and not binding on the state, because it did not thereby put that appellant in jeopardy.

The cases of Norton v. State, and especially of Wilson v. State, cited in said Warriner opinion, are also directly in point against appellant in this case. Those cases were decided by our Supreme Court when it had criminal jurisdiction. It is unnecessary to quote either of said decisions.

In 12 Cye. 262, subd. 5, it is said:

“The general rule is that a former conviction or acquittal procured by the fraud of the defendant is no bar to a subsequent prosecution. Thus where the accused hearing of a pending or threatened prosecution by indictment voluntarily or by a collusive arrest goes before a justice of the peace and is by him convicted of a misdemeanor he cannot subsequently plead former jeopardy to an indictment for the same crime. If the prosecution was controlled and managed by the accused he has never been in jeopardy; and, the proceedings being void, the state may attack it collaterally.”

Authorities from the following states are cited and are in support of this text, to wit, Alabama, Arkansas, Connecticut, Illinois, Indiana, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Hampshire, North Carolina, Tennessee, and the cases of Watson v. State and Warriner v. State, supra, from this state, Vermont, Virginia, and Wisconsin. To the same effect is 8 R. C. L. § 127, p. 142, citing cases in point.

The case of Corbett v. State, 63 Tex. Cr. R. 478, 140 S. W. 342, especially relied upon by appellant as authority in this case, is clearly not applicable, because in that case, and in the others cited by him, it was clearly and unquestionably shown that the state by its proper prosecuting officers investigated the whole case, and they instituted the criminal proceeding against the accused in those cases; in other words, that the state instituted that prosecution and prosecuted it to conviction, and of course, under such circumstances, it was former jeopardy — a former conviction which bound the state. In this case, and the authorities cited herein, the state in. reality was not a party and had nothing at all to do with the fictitious prosecution of the appellant by himself of himself.

The trial judge in this case necessarily found against appellant on his plea of former jeopardy herein in not sustaining it and in finding him guilty and assessing his punishment.

The judgment is affirmed.

MORROW, J., absent.

On Motion for Rehearing.

MORROW, J.

The appellant was indicted for an aggravated assault charged to have been committed upon H. S. Cook. It was alleged that appellant used his fist, being a robust person, and Cook a decrepit one; also, that serious bodily injury was inflicted. He was convicted of a simple assault.

Cook testified that he was 64 years of age, and appellant was a young boy, and that he ■was no match for appellant in a fight; also, that the licks inflicted produced black eyes and a broken nose. He denied making any effort to strike the appellant with a rock or with wire pliers. An eyewitness testified that his attention was first attracted by hearing a noise, and turning he saw Cook hitting appellant; several blows were passed,, and Cook was knocked down; that appellant said he would not hit him while he was down; that Cook then got up and picked up a large rock; that appellant then ran into him, and they fell together, rolling over, Cook getting on top with the rock in his hand; that in some way the rock was dropped; they got on their feet, and the fight ended. He said that nothing was used by appellant except his fist. He was wearing gloves and did not pull them off. There was evidence introduced that appellant was weakened from a spell of measles, and that he was-not as strong built person as the prosecuting witness Cook; this evidence being from a doctor who attended appellant.

Appellant testified that he was 18 years of age, weighed about 140 pounds; that he was weakly, and had suffered for years from lumbago. He said that Cook had been talking about him, and he approached him for an understanding or discussion of the matter; that he (appellant) took hold of Cook’s shoulder and turned him around facing him (appellant), when Cook hit him; that a number of licks followed; Cook was knocked down; that he picked up a large rock and appellant ran and fell; that after he fell Cook got on top of him with the rock in his hand, cursing and saying, “I have you,” and that he caught Cook’s hand and the rock fell by the side of his head; that he managed to get on his feet, and they both got up, and were separated by Whitson, who was present; that the same evening he went to see the justice of the peace Caperton; not finding him at home, he went to where he was sitting up-with a sick man. Appellant says he related what had happened, stating he had had a fist fight, and he wanted to pay a fine; that Caperton called another party who was present to one side and talked to him, and returning told appellant his fine would be $8.70, which he paid at once; thát he simply submitted the case to the justice of the peace and paid all that was demanded, the justice stating that he was taking a plea of guilty to a simple assault

Caperton verified the fact that appellant came to him at about 11 o’clock at night, where he was sitting up with a man who was sick, and stated that he and Cook had had a fist fight, and that he wanted to submit his case and pay a fine. Caperton said:

“I called Walter Bradley off to one side and he told me about it, and he informed me that it was a fist fight. I went back to the boy and told him I would charge him with a fist fight, a simple assault, and that his fine would be $8.70. He paid me the money, and when I went home I docketed'the case and entered up the judgment.”

The judgment entered was introduced and was a judgment finding the appellant guilty of a simple assault upon H. S. Cook, and assessing Ms fine at $1 and costs, amounting to $S.70, which the judgment recited had been paid. The justice said that he did not know that $5 was the lowest fine for simple assault; that he had been in the habit of entering $1 for that offense, but that he would be glad to reform and change the judgment with the permission of the court. He said he wanted to give the lowest fine, and, had he known that he might have fined Mm $1 for an affray, he would have charged him with an affray and taken the plea for tlhat offense.

On this state of facts, the appellant interposed in due time a plea of former conviction of the offense of simple assault, and Ms complaint here is the failure of the court to sustain his plea. In our opinion the court should have sustained it. His plea of guilty of a simple assault would not bar his conviction of an aggravated assault. If on the trial the court had believed the statement of the prosecuting witness and entered a judgment finding him guilty of an aggravated assault on account of the serious bodily injury, the appellant would have had no just ground of complaint. The court, however, appears to have rejected that part of the prosecuting witness’ testimony which would have sustained a eonVicfcion for aggravated assault, and to have accepted the statement of appellant and the eyewitness who testified, and upon that and the other testimony in the cáse to have found that the offense committed was not an aggravated assault, but a simple assault only.

We find no suggestion of fraud on the part of appellant, nor for that matter on the part of the justice of the peace. As we understand the record, appellant’s statement to the justice of the peace as to the facts was substantially like his testimony given upon the trial, which, according to the judgment of the court, exculpated him so far as the charge of aggravated assault was involved. He having made a true statement to the justice of the peace, and the justice of the peace having stated that the charge would be a simple assault, and the amount necessary to discharge the judgment would be $8.70, without having told appellant the amount of the fine and costs separately, or that he was going to enter a fine of $1, the appellant would not be responsible for the fact that the justice of the peace had made a mistake as to the amount of the fine when he subsequently entered the judgment. The judgment entered adjudges the appellant guilty of a simple assault upon H. S. Cook. After he has discharged that judgment, the one appealed from finds him guilty of a simple assault for the same offense. He is thus twice convicted of the same offense, and will suffer the penalties for each of the convictions unless this judgment is reversed.

The case of Funderburk v. State, 64 S. W. 1059, which was not referred to in the original opinion, we think, states principles and refers to decisions of this court which make it imperative that the motion for rehearing be granted, the affirmance set aside, and the cause reversed and remanded.
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source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    LION BONDING & SURETY CO. v. AUSTIN, Commissioner of Insurance and Banking.
    (No. 2050.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 2, 1919.)
    1. Depositaries <®=>8 — Insolvency oit County Depository — Preference to County-Statutes.
    Under Rev. Civ. St. art. 2440 et seq., and the Bank Deposit Guaranty Law, a county which deposited its funds in bank held not entitled to assert any superior claim over other creditors in distribution of assets of bank after its insolvency.
    2. Principai. and Surety <⅜=>177 — Status op Surety as Creditor — Payment op Debt under Compulsion.
    The mere fact that a bonding company was a bank’s surety did not in law make it a creditor of the bank with which the county had deposited funds.
    8. Banks and Banking @=363½ — Claim against Insolvent Bank — Acquisition apter Administration in Insolvency.
    Bonding- and surety company sued by commissioner of insurance and banking, administering insolvent hank, on bond of whose cashier surety company had gone, held not entitled to offset against commissioner claim against bank arising from judgment against it, the surety company, on its guaranty of bank as county depository, which claim against bank was acquired after commissioner’s administration had begun.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Suit by Chas. O. Austin, Commissioner of Insurance and Banking, against the Lion Bonding & Surety Company. From judgment for the commissioner, defendant appeals.
    Affirmed.
    Thomas, Milam & Touchstone, of Dallas, for appellant.
    Edwin Lacy, of Longview, for appellee.
   HODGES, J.

This'suit was filed by Charles O. Austin, commissioner of insurance and banking, against G. N. Campbell and the appellant, Lion Bonding & Surety Company. The appeal is from the judgment in favor of the commissioner for the sum of $5,000.

The record shows the following facts: On and prior to February IS, 1916, the People’s .State Bank. & Trust Company, incorporated under the laws of Texas, was doing- a general banking business at Longview, Gregg county, Tex. G. N. Campbell was its cashier; and on the date above mentioned he executed a fidelity bond in the sum of $5,000, with the (appellant as surety. A few months thereafter the bank became insolvent by reason of the misappropriation of a large amount of its funds by the cashier and another prarty. In this suit Campbell made default, and has not appealed from the judgment rendered against him.

Among the defenses pleaded by the appellant is a counterclaim a little in excess of the amount sued for, which is urged as an offset agajhst the plaintiff’s demand. It appears that during the year 1916, and while the People’s State Bank & Trust Company was apparently solvent, it was selected by Gregg county as the legal depository of its funds, for which the bank was to pay the county 4 per cent, per annum on daily balances. The appellant became the surety of the bank on the bond executed to secure those deposits. In August, 1916, the hank became insolvent, and its affairs were taken over by the commissioner of insurance and banking under the provisions of the state banking laws. Among the depositors who then held claims against the insolvent bank was Gregg county. Its claim, amounting to something more than $60,000, was classified in March, 1917, as an ordinary debt entitled to no preference. In November, 1916, Gregg county filed a suit against the People’s State Bank & Trust Company and the appellant, upon the bond that had been given to secure the county deposits. Some time later the county dismissed as to the bank, and prosecuted the suit to a judgment against the appellant. That judgment recited that upon a payment by the appellant it should be sub-rogated to all the .rights held by Gregg county against the funds of the People’s State Bank & Trust Company then being administered by the commissioner of insurance and banking. Some time thereafter the appellant satisfied the judgment by paying something over $5,000. It now pleads that payment as the basis of a legal and equitable counterclaim which should offset the demand here sued on. The refusal of the court to allow that counterclaim is the error assigned in this appeal.

It is contended that, having paid the debt of its principal due to Gregg county, the appellant became subrogated to all the legal rights which Gregg county, as a creditor, could assert in the distribution of the assets of the insolvent bank. It is argued that Gregg county, being a subdivision of the state, does not occupy the attitude of a common creditor, but may claim a priority which belongs inherently to the state as the sovereign when participating in the distribution of an insolvent estate. This argument is based, not upon any statutory provision, but upon a rule of the common law as interpreted by ⅛⅜ courts. Reference is made to numerous decisions rendered by the courts of other states which apparently sustain the view that the state, by virtue of its sovereignty, is entitled to claim a preference right in the distribution of the assets of an insolvent estate. But in none of those cases has it been held that this sovereign remedy belongs to the counties. While the common law was long ago adopted in this state, it has been so frequently modified, either expressly or by implication, that it becomes our duty to consult appropriate legislative provisions and ascertain to what extent the common law has been superseded. In 1905 the Legislature enacted a law which authorized the counties to select county depositories. See article 2440 et seq., Rev. Oiv. St. The purpose of that act was to enable counties to derive a revenue from their accumulated funds by loaning them to banks and individuals doing a banking business. It prescribes with much precision the character of security which a county should take in order to -insure protection against the insolvency of the depository selected. Article 2451 empowered the commissioners’ court of a county, when it deemed the county funds unsafe, to require additional security of its depository; and when this was not furnished the county funds might be withdrawn and committed to another depository. These precautions appear to be the extent to which the counties were authorized to go in protecting themselves against loss. Nowhere is it provided in that act that in tire event a depositor became insolvent a county should have a superior right in the distribution of its assets. There was also enacted in 1905 a state banking law which, with its subsequent amendments, appears to have been intended as a complete system for the creation, operation, and dissolution of state banks. That law is contained in title 14 of our present Revised Civil Statutes. In 1909 what is known as the “Bams Deposit Guaranty Law” was enacted, and is now incorporated in chapter 5 of title 14. In this chapter are to be found numerous provisions relating to the collection, preservation, and distribution of the assets of insolvent state banks and trust companies. Article 453 authorizes the commissioner of insurance and banking to take charge of and wind up the affairs of an insolvent state bank or trust comp?any. Article 454 prohibits the creation by the bank of any form of preference among its creditors after the commissioner has taken charge of its affairs. Article 456 empowers the commissioner, upon taking charge of the hank’s affairs, to collect outstanding debts due the bank and to perform such other acts necessary to conserve the bank’s assets, and directs him to proceed to liquidate the affairs of the bank or trust company in accordance with the provisions or law. Article 486, after providing for an immediate payment to the state’s guaranty, fund from the available assets of the insolvent bank, contains the following:

“Provided, that deposits upon which interest is being paid, or contracted to be paid, directly or indirectly by said bank, its officers <jr stockholders, to the depositors and deposits otherwise secured, shall not be insured under tfhis chapter, but shall only receive the pro rata amount which may be realized from the assets, resources and collections of and from such banks and „trust companies, its stockholders or directors.” ‘

Article 487 gives the state a first lien on the assets of the insolvent bank or trust company for the benefit of the depositors’ guaranty fund, and concludes with this provision:

“Provided, however, that any deposits on which said bank was paying interest and any other deposits or debts not insured under this chapter, and which are entitled to share in the assets, shall share in the dividends and proceeds of such assets and collections pro rata or as may be provided by law.”

Article 551 makes it unlawful for a state bank or trust company to make a voluntary assignment of its affairs. Such institutions, upon finding themselves in a failing condition, must place their affairs in the hands of the commissioner of insurance and banking. The remainder of this article seems designed to prohibit any form of creating a preference among the creditors of an insolvent bank or trust company.

Considering these different provisions of the banking law, the conclusion seems irresistible that the Legislature intended that jail claims held against an insolvent hank, except that in favor of the state’s guaranty fund, should share according to the same percentage in the distribution of the remaining assets. When adopting these various restrictions and provisions for preserving equality among the creditors of insolvent banks and trust companies, the Legislature could not have been unmindful of the fact that under the County Depository Law counties would likely be among the creditors of such institutions, yet no special exception seems to have been made in favor of the claims of counties. The absence of some such exception, in view of the comprehensive provisions which exclude claims founded upon interest-bearing deposits and those provisions which are evidently designed to preserve equality among unprotected creditors, is too significant to he without a purpose. Having made provision by which counties were enabled, if not required, to secure full protection against the insolvency of de-positorihs, there seems to have been no reason for exempting counties from the sweeping provision of article 487, which expressly places the holders of interest-bearing claims upon a plane with common creditors. Regardless of what the common-law rule may be in other states, we are of the opinion that under our statute counties are not entitled to assert any superior claims over other creditors in the distribution of the assets of tany insolvent bank or trust company which had been selected by it as a county depository. If Gregg county had no superior claim, then the appellant succeeded to none by subrogation.

The appellant never in fact acquired any claim against the insolvent bank until it satisfied the debt recovered against it by Gregg county. It appears that this was done after the affairs of the bank had passed into the hands of the commissioner of insurance and banking and were being administered. The mere fact that it was the bank’s surety did not in law make it the bank’s creditor. It could not become such till it had paid something for which it might claim reimbursement in the' distribution of the blank’s assets. By merely paying the debt under compulsion for which it was a surety, the appellant’s attitude is not materially different from what it would have been had it voluntarily purchased the claim at that stage in the administration of the bank’s affairs. It seems to be a well-settled rule that one who is sued by a trustee charged with the (administration of an insolvent estate will not be permitted to offset the demand sued on with a claim against the insolvent acquired after the administration had begun. Guthrie v. Guthrie, 17 Tex. 543; Northeraft v. Oliver, 74 Tex. 162, 11 S. W. 1121. While that rule has its exceptions, the facts of this case do not bring it within the spirit of any that have been announced. Smalley v. Trammel’s Adm’r, 11 Tex. 10; Dickenson v. McDermott’s Ex’rs, 13 Tex. 248. To permit the appellant in this instance to offset against the demand here sued on with the claim acquired from Gregg county would enable it to secure an illegal advantage over other creditors in the distribution of the assets of the insolvent bank. What one cannot do directly the tew will not permit to be done indirectly. Equity is no respecter of persons; one creditor cannot in its name invoke a rule that would operate as an injustice toward another creditor entitled to the same consideration.

The judgment of the district court will be affirmed.
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text:
    SMITH et al. v. REAVES, County Judge, et al.
    (No. 2060.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1919.
    Rehearing Denied Jan. 23, 1919.)
    1. Injunction <§=>112 — Premature Suit — Issuance oe Bonds.
    Suit, to restrain issuing of bonds for improvement of a public highway, was properly dismissed, where at time petition was filed bonds were in the hands of the Attorney General for examination under Rev. St. 1911, art. 632, it being the duty of the Attorney General, under article 619, to pass upon questions raised by petition.
    2. Evidence <§=>83(1) — Pebeobhance oe Official Duty — Pkesumption.
    Until he has acted otherwise, it cannot be assumed by the court on appeal that Attorney General, in determining whether bonds for improvement of public highway have been issued in accordance with law, will ignore any legal or constitutional defect which will invalidate bonds.
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Petition for injunction by L. H. Smith and others against O. L. Reaves, County Judge, and others. From judgment refusiDg injunction, plaintiffs appeal.
    Affirmed.
    Wilkinson & Davidson, of Bit. Vernon, for appellants.
    Shurtleff & Caudle, of Mt. Vernon, for ap-pellees.
   HODGES, J.

The appellants appeal from a judgment refusing an application for an injunction to restrain the appellees, who are the county judge and members of the commissioners court, from issuing certain described bonds for the improvement of a public highway. The petition alleged, in substance, First, that the order authorizing the election was void for uncertainty because it authorized the holding of an election to determine whether or not bonds should be issued for the purpose of constructing, maintaining, and operating gravel roads, or in aid thereof; second, that the order of the court was void because it did not properly describe the territory, certain calls being omitted from the description; third, the order of the court authorized the issuance of $45,000 in bonds, which exceeded the constitutional limit for that territory; fourth, the order of the court specified that the bonds were to be issued for the purpose of constructing, maintaining, and operating gravel roads, or in aid thereof, while it was the intention of the court to use all the bonds for improving only one road.

At a preliminary hearing the district judge refused the injunction, upon the ground that the petition was upon its face legally insufficient. It appears from the averments of the petition that at the time it ivas filed the bonds referred to were in the hands of the Attorney General for examination, as required by article 632 of the Revised Civil Statutes. Article 619 makes it the duty of the Attorney General to inquire into all the proceedings relating to the issue of such bonds for the purpose of ascertaining whether or not they have been issued in accordance with the existing law. The very questions raised by the appellants in their petition will be' passed upon by him. Without his approval the bonds cannot be put on the market. Until he has acted otherwise we cannot assume that he will ignore any legal or constitutional defects that will invalidate the bonds. We therefore conclude that this suit is premature, and for that reason alone the court properly refused to grant the writ.

The judgment is affirmed.


author: RAINEY, C. J.

text:
    McCREIGHT et al. v. SUMNER.
    (No. 8107.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 25, 1919.)
    Limitation oe Actions <§=>Í27(4) — Amendment oe Petition — Tolling Statute.
    Where the original parties plaintiff suing as heirs of the original payee of notes amend and sue as the heirs of the heir of the original payee, such amendment does not' change the claim or cause of action, but relates back to the commencement of the suit and stops the running of the statute of limitations at that point.
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by J. S. McCreight and others against Charles Sumner to recover on promissory notes. From a judgment in favor of the plaintiff Mary McCreight for one-half interest, in the notes with foreclosure of lien and that the other plaintiffs take nothing, the plaintiffs appeal.
    Reversed and rendered.
    Saner, Saner & Turner, of Dallas, for appellants.
   RAINEY, C. J.

This suit was brought April 22, 1914, by J. S. BlcCreight, Mary Mc-Creight, J. E. McCreight, W. S. McCreight, and M. Emily McCreight, as heirs of D. H. McCreight, deceased, against Charles Sumner to recover on 20 promissory notes of $100 each, all dated June 7, 1909, the first payable .May 7, 1910, and one maturing each month thereafter. Said notes were executed by Charles Sumner and made payable to D. H. McCreight, who died in November, 1909, and plaintiffs sued as his heirs. J. S. and Mary McOreight were the father and mother of D. H. McCreight. The other three plaintiffs were his brothers and sister. J. S. Mc-Oreight died October 22, 1912, consequently was not living when the suit was filed. His death was suggested to the court about August 10, 1917,'and the other plaintiffs filed their first amended original petition August 17, 1917, alleging that they were the sole heirs of D. H. McOreight, and prayed for judgment as such heirs.

The ease was tried without a jury, and the court rendered judgment in favor of Mary McCreight for one-half interest in the notes, with foreclosure of lien, and that the other plaintiffs take nothing. Prom this judgment the appellants appealed, and the case is here for review.

The court found:

“The death of J. S. McOreight was first suggested to the court by the defendant on or about August 10, 1917, and was admitted by the plaintiffs in their first amended original petition filed August 17, 1917. In said first amended original petition filed August 17, 1917, the plaintiffs Mary A. McCreight, J. E. McOreight, W. S. McOreight, and M. Emily McOreight for the first time sued and asked judgment as the heirs of J. S. McOreight, deceased, and, at the date of the filing of said first amended original petition, said J. S. McOreight had been dead four years 9 months and 26 days. I find that there was no administration on the estate of D. H. McCreight, and that at the time of his death at Dallas, Tex., on or about the 9th day of November, 1909, the said D. H. McOreight owned the notes in controversy in this suit and that he owed debts as follows: He owed his mother, Mary A. McOreight, $3,500; and he owed his sister, M. Emily McCreight, $400. I find that James S. McCreight died at Lewsiber, Pa., October 22, 1912, and left no real or personal property of any kind, and no debts, and there was no administration on his estate.”

The conclusions of law are:

“That there was no necessity for an administration on the estate of D. H. McOreight, and his mother, Mary A. McOreight, could properly sue as an heir at law. At the time of the death of D. H. McOreight, his only heirs were his father, J. ,S. McCreight, and his mother, Mary A. McOreight, and therefore his brothers, J. E. McOreight and W. S. McOreight, and his sister, M. Emily McCreight, were not properly named as parties plaintiff in the original cause of action commenced April 22, 1914. The heirs of J. S. McOreight, to wit, J. E. McOreight, W. S. McOreight, and M. Emily McCreight, are not entitled to recover any interest in these notes, and Mary A. McOreight is not entitled to recover any interest in these notes as the heir of J. S. McOreight, deceased, because: (1) These persons were first named as parties plaintiff 4 years, 9 months, and 26 days after the death of J. S. McOreight and therefore are barred by limitation; and (2) the uncontroverted testimony in this case shows that at the time of the death of J. S. McCreight he left no property, real or personal.”

Appellants’ first and only assignment of error and proposition thereunder are as follows:

“The court erred in sustaining defendant’s plea of limitation to the cause of action as alleged in plaintiffs’ petition.”
Proposition: “Where the original parties plaintiff, suing as heirs of the original payee, amend and sue as the heirs of the heir of the original payee of promissory notes, such amendment does not change the daim or cause of action, but relates back to the commencement of the suit and stops the running of the statute of limitations at that point.”

We concur in the proposition of appellants and conclude that the lower court was in error. We therefore reverse the judgment and here render it for the appellants for the full amount of the notes and interest sued for and for the foreclosure of the lien. Field v. Gantier, 8 Tex. 74; Foote v. O’Roork, 59 Tex. 215; Baker v. Railway Co., 184 S. W. 257; Railway Co. v. Smith, 171 S. W. 512; Railway Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134.

Reversed and rendered.
      ©rmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALKER, J.

text:
    MILLER LINK LUMBER CO. v. THOMPSON et al.
    (No. 413.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 15, 1919.)
    1. Appeal and Eeeoe @=>1008(1) — Finding of Fact — Location op Land.
    In trespass to try title, in which defendants disclaimed as to all of section sued for, except a specific 160 acres claimed under 10-year statute of limitation, held that court’s finding with reference to true location thereof will not be disturbed.
    2. Appeal and Eeeoe @=>1099(8) — Decision oe Foemee Appeal — Law oe the Case.
    The Oourt of Oivil Appeals having previously determined that the true location of the section involved was a question of fact, it will not review a finding of the trial court with reference thereto on this appeal.
    3. Appeal and Eeeoe @=>1010(1) — Findings —Review.
    Where the great preponderance of testimony sustains the findings of the trial court under assignment that “court erred in rendering judgment for defendants for the 160 acres of land, claimed by them under their limitation plea, because the evidence shows their occupancy thereof to have been under full recognition of the title of another,” assignment will be overruled.
    Appeal from District Court, Jasper County; W. R. Blackshear, Judge.
    Action by the Miller Link Lumber Company against James H. Thompson and others. From the judgment rendered, plaintiff appeals.
    Affirmed.
    Holland & Holland, of Orange, for appellant
    Smith & Lanier, of Jasper, for appellees.
   WALKER, J.

This is the second appeal in this case; the former appeal being reported in 191 S. W. 223. We make reference to the former appeal for a full statement of this case. As the facts are practically the same on this appeal, we will make no further statement.

Appellant’s first assignment of error is as follows:

“The court erred in rendering judgment for defendants for the 160 acres of land claimed by them, because the evidence fails to show any occupancy by defendants of the land sued for as located by the patent and corrected field notes.”

On the former appeal, Judge Brooke reviewed this testimony carefully, under a similar assignment, and says:

“A careful consideration of the testimony, while not conclusive, seems to favor this contention. However, the verdict of the jury will not be disturbed on this finding, and therefore the above assignments are overruled.”

Guy Blake, a former county surveyor of Jasper county, testified:

“J. H. Thompson’s improvements were on section 60, as I located the south line of 60.”

Mr. A. A. Miller, who is admitted by both parties to be a competent surveyor, testified:

“After having made this survey, in my opinion the 160-acre tract, as claimed by Mrs. Thompson, is located on section 60, like it is now located. It is on 60, like its present location is. From my survey I have determined that it was on section 60. Like its present location is, it is on section 60.”

Appellant, in its brief, concedes that the true location of section 60 may be uncertain. He says:

“Prom the record in this case it will be shown that appellant is unjustly deprived of something like 100 acres of land owned by it upon proof that will not authorize or support a judgment, and while the true location of section 60 may be uncertain, still, before appellees could fix a limitation claim to any portion of it, the burden of locating it with certainty and establishing their possession on the portion with certainty, rests on them.”

A careful examination of this record convinces us that the true location of section 60 was a matter to be determined by the court or jury, and, as this case was tried before the court without a jury, we will not disturb his findings. We will further say that, this court having previously determined that the true location of section 60 is a question of fact to go before the jury, we would not be disposed to review that finding on this appeal. Freeman v. Huffman, 156 S. W. 367; Chicago, R. & G. Ry. Co. v. Sears, 155 S. W. 1003; Pease v. State, 155 S. W. 657; Moore v. Chamberlain, 152 S. W. 195; Campbell v. Elliott, 151 S. W. 1180; Baldwin v. Davidson, 143 S. W. 716. Hence appellant’s assignment No. 1 is overruled.

Appellant’s second assignment is as follows:

“The court erred in rendering judgment for defendants for the 160 acres of land claimed by them under their limitation plea, because the evidence shows their occupancy thereof to have been under full recognition of the title of another, not adverse, and not under a claim of ownership or right.”

In the beginning of this trial in the lower court, the following agreement was made by the parties:

“It is admitted that the defendants, Mr. and Mrs. Thompson, moved on the place -now occupied by her during the Christmas holidays of 1902, and that their purpose in going there was to make it their home; that she has lived there continuously and claimed the place since that time; that the land was cultivated and occupied from the year 1902 until her husband died in 1915, when this suit was filed.”

This suit was not filed until more than 10 years after 1902; but, apart from this agreement, we have carefully examined all the testimony as to occupancy and claim, and find that the great preponderance of the testimony sustains the findings of the trial court under this assignment. For this reason the second assignment of error is overruled.

Finding no errors in this record, this case is affirmed.
      ©=jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GUEST et al. v. GUEST et al.
    (No. 2062.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1919.)
    1. Husband and Wife <⅜=»275 — Community Property— Death of Wife — Completion of Payments by New Community.
    Where a husband, while second wife was living, purchased land for cash and notes, under presumption cash payments were made from community funds, and that deferred payments should be made from same source, wife was vested with community interest in property which was not divested, nor a trust ingrafted, by her death and her husband’s remarriage and completion of payments by husband and new wife.
    2. Trusts <©=>63¾ — Resulting Trust — Payment of Consideration at Acquisition of Title.
    To create a resulting trust, the consideration must be paid,- and the trust arise at the very time title is acquired.

      3. Trusts <@=1 — Express Trust — Agreement.
    To create express trust in favor of one not a party to the deed, there must be an agreement existing at the time the title is acquired that it shall be held for his benefit.
    4. Husband and Wipe <@=>275 — Community Property — Advancement by One Community on Purchase oe Another — Remedies.
    Where community of which third wife was member made deferred payments on land purchased by community of husband and second wife, it was entitled to be subrogated to rights of vendor lienholder against land, whose claim it satisfied, or husband’s heirs in partition could seek reimbursement equal to their inherited interest in funds expended in discharging debts against common property.
    5. Homestead <@=151 — Community Estates— Successive Communities — Claim oe Homestead Rights.
    A third wife and her children can claim no homestead rights in the oommunity'interest that once belonged to the second wife.
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Suit by Anderson Guest and others against Mrs. Lela Guest and others. From judgment for plaintiffs in part, they appeal.
    Reversed, and cause remanded.
    T. T. Thompson, of Clarksville, and Mahaf-fey, Keeney & Dalby, of Texarkana, for appellants.
    E. S. Chambers, Prentice Wilson, and Geo. Morrison, all of Clarksville, and C. S. Todd, of Texarkana, for appellees.
   HODGES, J.

The appellants are the children of J. K. Guest and his second wife, Luvandria Guest, both deceased. In November, 1917, appellants instituted this suit in the district court of Red (River county for the purpose of recovering the community interest of their mother, and for partition of several tracts of land situated in Red River county. They allege that both their father and mother are dead; that the land sued for was acquired by them during the time they were living together as husband and wife, and was a part of their community estate; that the petitioners are entitled to have set apart to them the interest which they inherited from their mother, and which, they say, is one-half of the land described in their petition. The appellees, who are the third wife and children- of J. K. Guest, with whom is joined the administrator of the estate of J. K. Guest, answered, claiming that, while the deeds under which the land in controversy was conveyed were executed and delivered during the existence of the marriage relation between the father and mother of the appellants, the principal part of the purchase price was paid during the time J. K. Guest was living with his third wife, and from the funds of that community; that by reason of that fact the appellants are entitled to recover, if any, as their mother’s community interest only that proportion which is represented by the part of the purchase price paid during her lifetime. They also claim that one of the tracts of land was the separate property of J. K. Guest, was occupied by himself and family as such at the time of his death, and is now occupied by the ap-pellees. Other facts are pleaded which are not necessary here to notice.

The evidence shows that J. K. Guest and Luvandria Guest, his second wife, were married on December 26, 1883, and lived together as husband and wife till the death of Mrs. Guest on November 19, 1900. During that time the six tracts of land sued for were on different dates conveyed to J. K. Guest. Each one of the deeds was in the usual form and recited a consideration partly paid in cash, and the balance in notes secured by the vendor’s lien. A few months after the death of his second wife J. K. Guest was married to his third wife, Lela Guest, one of the ap-pellees, with whom he continued to live till his death, a short time before the institution of this suit.

In a trial before the court a judgment was rendered in favor of the appellants for all they claimed in some of the land involved, but denied the full relief sought as to others. In this appeal complaint is made of the judgment as it related to the division of three of the tracts described in the appellants’ petition — one of 40 acres, another of 81 acres, and a third of 80 acres. In the division of the 40-acre tract the court limited the interest of the appellants to one-half of three-eighths, and in the 81-acre tract to one-half of three-twentieths, and allowed none in the third tract. He held that the 160-acre tract was therefore not subject to partition. The evidence shows that the deed to the 40-acre tract was dated October 15, 1900, a short time before the death of appellants’ mother. It recited a cash consideration of $300 and two notes of $250 each, one due October 15, 1901, and the other October 15, 1902. The deed to the 81-aere tract was dated January 9, 1892. It recited a cash consideration of $300 and two notes, one for $700 due November 1, 1892, and another for $1,000, due one year later. The deed to the 160-acre tract was dated October 5, 1886; it recited a cash consideration of $338.50 and one note for $261.50 due December 7, 1887. There was abundant testimony to support a finding by the court that the major portion, if not all, of the deferred payments were made after the marriage of J. K. Guest with his third wife and from the community funds of that marriage. While the court filed no separate findings of fact and conclusions of law,- his judgment limiting the appellants’ interest to less than one-half of the land described above can be accounted for on no other theory than that he was of the opinion that the community interest of their mother was measured by the proportion of the original purchase price paid during her lifetime and from funds in which she had a community interest. It is not clear upon what facts he based his conclusion that the 160-acre tract was the separate property of J. K. Guest.

The appellees urge in support of the judgment the following proposition, namely, that even if the legal title vested in the second community by the deeds through which the land was acquired, yet if a part of the purchase money was thereafter paid from funds belonging to the 'third community, the equitable title to the land thus paid for would be in each community in proportion to the amount of purchase money paid by each. To that proposition we are not prepared to assent. ,

It conclusively appears that the tracts of land involved in this appeal were conveyed to J. K. Guest during the time he and the mother of the appellants were living together as husband and wife. In the absence of evidence to the contrary, it must be presumed that the cash payments recited in the deeds were made from the funds belonging to the community then existing, and that it was contemplated that the deferred payments should be made from the same source. Those conditions were sufficient to invest the mother of the appellants with a community interest in the property. While the deeds recited the reservation of the vendor’s lien, those recitals merely evidenced the retention of the naked legal title to secure the payment of the balance of the purchase money when due. The real beneficial ownership of the property —that interest which might be seized under execution — passed to the grantees upon the delivery of the deeds, and all that was required to thereafter invest them with this technical legal title was the payment of the remainder of the purchase money. The title having once vested in the community of which the second wife was a member, it could not thereafter be divested except by a transmission according to some of the forms recognized by law. The subsequent payment by a third party of a part, or all, of the purchase money thereafter becoming due was not alone sufficient to shift the title or to ingraft a trust in the land. Allen v. Allen, 101 Tex. 362, 107 S. W. 528; Hayworth v. Williams, 102 Tex. 308, 116 S. W. 43, 132 Am. St. Rep. 879; Richmond v. Sims, 144 S. W. 1142; Miller v. Odom, 152 S. W. 1185; Medlenka v. Downing, 59 Tex. 32; Hirsch v. Howell, 60 S. W. 887; Moore v. Moore, 28 Tex. Civ. App. 600, 68 S. W. 59. The rule which creates a trust in favor of one who pays the consideration for which property is purchased is based upon conditions entirely different. To create a resulting trust the consideration must be paid and the trust arise at the very time the title is acquired. Parker v. Coop, 60 Tex. 114; Gardner v. Randell, 70 Tex. 453, 7 S. W. 781; O’Connor v. Vineyard, 91 Tex. 496, 44 S. W. 485. To create an express trust in favor of one not a party to the deed there must be an agreement existing at the time the title is acquired that it shall be held for his benefit. Gardner v. Randell, supra. To hold that the mere furnishing of the purchase money with which deferred payments are made years after the conveyance had been executed and delivered is sufficient to ingraft a trust is to ignore the statutory requirements concerning the conveyance of real estate. The attitude of the community of which the third wife was a member is in many respects similar to that of a creditor who has furnished money with which to discharge a lien and who is entitled to be subrogated to the rights of the lienholder whose claim has been satisfied. Oury v. Sanders, 77 Tex. 278, 13 S. W. 1030. Or the heirs of J. K. Guest, having an interest by inheritance in the common property, may in a partition seek and secure reimbursement equal to their inherited interest in the funds which had been expended in discharging the debts against the common property. Richmond v. Sims, supra.

The appellants in this suit are seeking to have set apart to them only the interest of Duvandria Guest, the second wife of J. K. Guest, in the property in controversy, and they are entitled to that relief, regardless of any homestead rights which the third wife and the children of J. K. Guest may have in any of the land in controversy. The third wife and her children can claim no homestead rights in the community interest that once belonged to the second wife, Pressley’s Heirs v. Robinson, 57 Tex. 453; Gilliam v. Null, 58 Tex. 298, 304. We therefore conclude that the trial court erred in holding that by the payment of the purchase money out of the community of J. K. Guest and his third wife the interest of the appellants in the property was proportionately diminished. He should have awarded to them the community interest of Luvandria Guest and charged it with whatever liability the evidence might show was proper in reimbursing the community of the third marriage for the funds which had been expended in discharging the purchase-money debts.

For the errors indicated, the judgment of the district court will be reversed, and the cause remanded for another trial.
      <SssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.'

text:
    SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. COOPER et al.
    (No. 6127.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1919.
    Rehearing Denied Feb. 5, 1919.)
    1. Insurance <@=>819(2) — Mutual Benefit Insurance — Truth of Representation— Sufficiency of Evidence.
    In action on insurance certificate involving the question of whether insured’s statement in application that he had never suffered from syphilis was misrepresentation, verdict for plaintiff held so manifestly contrary to the evidence as to justify reversal.
    2. Appeal and Error <@=>193(9) — Presentation in Dower Court — Insufficiency of Petition.
    Insufficiency of petition to state cause of action can be urged on appeal, though defendant did not present a general demurrer in lower court.
    3. Pleading <@=>403(2) — Demurrer—Allegations of Answer.
    Allegations of answer may be taken in aid of the petition in testing it as against a general demurrer.
    4. Insurance <@=>815(1) — Mutual Benefit Insurance — Sufficiency of Petition.
    Petition in action on insurance certificate, not alleging that the conditions precedent to entitle beneficiary to the sum named in the policy have been complied with, was insufficient, where such failure was not cured by allegations in answer.
    5. Insurance <@=>815(1) — Mutual Benefit Insurance — Sufficiency of Petition — Consideration.
    Petition, in action on insurance certificate, was not defective for failure to allege consideration.
    6. Pleading <@=>406(1) — Sufficiency of Petition-Waiver.
    An insufficient petition will not be held sufficient on the ground that plaintiff’s counsel understood from conversation with defendant’s counsel that it would not he necessary to amend the pleadings, as no question concerning the same would he raised.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action on benefit certificate by Elizabeth Cooper and husband against the Sovereign Camp of the Woodmen of the World, in which the former Lela Cooper, wife of deceased, and her second husband intervene. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    E. D. Henry, Perry S. Robertson, and Atlas Jones, all of San Antonio, for appellant.
    Norton & Brown, of San Antonio, for ap-pellees.
   MOURSUND, J.'

This is a suit by Elizabeth Cooper and her husband against appellant on an insurance certificate issued by appellant on June 28, 1916, to Ben F. Cooper, and originally payable to Lela Cooper, wife of Ben F. Cooper. Plaintiffs alleged that Ben F. Cooper changed the beneficiary from his wife to his mother, Elizabeth Cooper. The wife, who married again, joined by her husband, intervened, and alleged that if any change of beneficiary was made, it was caused by undue influence. Defendant answered by general denial, and then pleaded that it was a fraternal benefit society, and t(iat the certificate issued by it to Ben F. Cooper was void because certain statements in his application, warranted to be true, were false and fraudulently made “in that the applicant stated that he had never had syphilis, or any other disease of the genitourinary apparatus; that he had had hernia, and had had an operation for hernia.”

It is contended by appellant that the undisputed evidence shows that Ben F. Cooper’s statement that he had had hernia, and had been operated on for the same successfully, was false, and therefore the policy was void. There can be no doubt that the statement was false, but as the provision hereinbefore quoted from appellant’s constitution only makes the certificate void if any statements in the application, upon the faith of which the certificate was issued, are untrue, it is evident that the false statement that he had had hernia would not render the certificate void. The certificate was not issued on the faith of that statement.'

If he had stated the truth and answered “no” to that question the certificate would more certainly have been issued to him than upon an answer to the effect that he had been afflicted with hernia, but cured by an operation. It pleaded the following provision of its constitution and by-laws:

“If any of the statements or declarations in the application for membership and upon the faith of which this certificate was issued shall be found in any respect untrue, this certificate shall be null and void and of no effect.”

In answer to special issues the jury found in favor of plaintiff upon the issues relating to change of beneficiary, and found that Ben F. Cooper had never had syphilis prior to the time he made his application for insurance. Upon this • verdict judgment was rendered in -favor of plaintiffs for the sum of $750, the amount called for by the policy in view of the death of the insured during the first policy year, less $9.66, with which the insured was chargeable on his annual assessment. The intervener did not appeal.

The only remaining issue raised by the assignments of error is with regard to the sufficiency of the evidence to support the finding that insured did not have syphilis.

Dr. Amos Graves, who was the brother-in-law of the insured, and his physician for some years prior to his. death, and who attended him during his last illness, made out a sworn certificate, required as part of the proofs of death, which contained the following statements: That he had attended the deceased 3 or 4 years before the date of the certificate, treating him for two or three weeks for inguinal abscess; that “about 3 years ago he had a positive Wasserman, when he had the inguinal abscess.” Dr. Graves, as a witness, testified that he had been practicing medicine for 26 years; that he believed the insured had syphilis about 3 years before his death; that he treated 'him for syphilis, and the treatment was effective ; that the abscess in the groin, for-which he treated insured by opening it and packing it with gauze, was one of the symptoms of syphilis; that he had Dr. Wooten to make a Wasserman test from the blood of the Insured, and that Dr. Wooten made a report to him; that Dr. Wooten had been gone from San Antonio for about a year, and he did not know where he was living at the time of the trial. He testified further:

“In my opinion as a physician for many, many years, and my treatment of that man for some 2 years for that disease, it is my opinion that he did have syphilis, and I testified to that; and it is my testimony now that he had syphilis.”

When asked upon cross-examination: “Will you swear as a fact that Ben Cooper had syphilis?” he answered: “I couldn’t swear it.” Dr. C. A. Goeth explained what a Wasserman test is, and testified that when the test is positive it means that the patient is syphilitic. He also testified that there are many symptoms by which you can tell whether a patient is syphilitic or not, and that sometimes you can tell absolutely without a Wasserman test; that he examined Ben F. Cooper at the time he made the application for the insurance, and he was fairly sound and robust in appearance, but could have had syphilis 2 or 3 years prior to his examination and witness would not have been able to discover it from the examination he gave him. Defendant’s Sovereign Physician testified that Cooper’s application would have been rejected by him if he had known that Cooper had been treated for syphilis.

The opinion of an expert of many years’ experience, who is closely related to and on friendly and cordial terms with the plaintiff, on the question whether the deceased had syphilis, it appears to us, furnishes the very best evidence of which the case is susceptible. Dr. Graves had formed such opinion several years prior to the trial; had acted thereon successfully in treating the deceased; had had ample opportunity to observe and study the symptoms; and in addition had fortified his opinion by having a Wasserman test made which corroborated his view, and which, if positive, is shown to be regarded as conclusive evidence of the presence of syphilis. There is no evidence tending to show that his opinion was probably mistaken, or that there was any likelihood of a mistake. Surely appellant could safely go to trial relying upon such testimony as sufficient, and could not anticipate that a jury would feel warranted in discarding such testimony merely because the expert declined to go further and testify as a fact that the deceased had syphilis. The verdict is so manifestly contrary to the evidence that evident injustice wpuld result from letting the judgment stand. We will therefore reverse the judgment and remand the cause.

If the petition fails to state a cause of action, the fact that defendant did not present its general demurrer will not prevent it from availing itself of such defect on appeal. City of San Antonio v. Bodeman, 163 S. W. 1043, and cases therein- cited. The allegations of the answer may be taken in aid of the petition in testing it as against a general demurrer. Peoples v. Brockman, 153 S. W. 910. But the answer in this case describes a certificate different from the one described in the petition, and besides in neither pleading is it alleged that the conditions precedent to entitle the beneficiary to the sum named in the policy had been complied with. Under the authority of the case of Assurance Co. v. Dunbar, 7 Tex. Civ. App. 418, 26 S. W. 628, and Wooten v. Bitulithic Co., 196 S. W. 601, we hold the petition did not state a cause of action. We believe the opinion in the case of Royal Neighbors v. Heard, 185 S. W. 882, is correct, and overrule the contention that the petition is defective for failure to allege consideration, but in view of the conflict between such decision and the Supreme Court case cited therein it is obvious that before another trial it would be advisable to plead in accordance with the Supreme Court decision.

The petition cannot be held sufficient because counsel for plaintiff understood (as testified on hearing on the motion for a new trial) from a conversation with one of defendant’s counsel that it would not be necessary to amend the pleadings, as no question concerning the same would be raised.

The assignments 6 to 9, inclusive, complain of no ruling, and will not be considered.

As the cause will be remanded for other reasons, it is unnecessary to discuss at length the tenth assignment which complains of the refusal of the court to grant a new trial on account of newly discovered evidence, and we will merely say that we do not find that the trial court abused its discretion in overruling the motion in so far as that ground was relied on.

The judgment is reversed, and the cause remanded.
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author: FLY, O. J.

text:
    LEWIS v. SAN ANTONIO BELT & TERMINAL RY. CO.
    (No. 6148.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 15, 1919.)
    1. Deeds <§==>82 — Title—Recordation.
    When a deed is executed and delivered, the title to the land vests in the grantee, whether the deed is recorded or not.
    2. Judgment <⅞=»788(1) — Lien — Priority — Unrecorded Deed.
    Under Rev. St. 1911, art. 5616, despite article 1104, purchaser of land sold on alias execution under judgment recovered by vendors against vendee and assigned, abstract of judgment being legally issued and filed for record, held to take subject to title previously conveyed away by vendee by deed not filed for record, until more than three weeks after abstract of judgment was filed, recorded, and indexed, as record of abstract of judgment creates lien only on property actually owned by judgment debtor.
    Appeal from District Court, Bexar County; J. ⅛. Sluder, Judge.
    Action of trespass to try title by P. J. Lewis against the San Antonio Belt & Terminal Railway Company. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Frank H. Booth and James D. Crenshaw, both of San Antonio, for appellant.
    C. C. Huff, of Dallas, F. C. Davis, of San Antonio, and A. H. McKnight, of Dallas, for appellee.

      For opinion on motion for rehearing, see 208 S. W. 991.

   FLY, O. J.

This is an action of trespass to try title to certain lots of land in the city of San Antonio, Tex., bounded on the north by the right of way of the Galveston, Harrisburg & San Antonio Railway Company, on the south by Simpson street, on the east by Roosevelt avenue, and on the west by the San Antonio river. The cause was tried by the court without a jury, and judgment was rendered in favor of appellee.

■The agreed statement of facts is as follows:

' “On the 9th day of June, 1915, Joseph Keller and Matilda Keller recovered a valid and final judgment against H. E. Hildebrand in the case of Joseph Keller et al. v. L. A. Dolan et al,, No. B-9477, Forty-Fifth district court, Bexar county, Tex., for the sum of $9,738.52 and costs of court, which said suit was upon a promissory note for the sum of $7,500, with interest, the note being secured by a vendor’s lien on certain parcels of land in New City block No. 2584 and 2860, San Antonio, Tex., for which land it was given in part payment, and the judgment foreclosed the lien on said land.
“An execution and order of sale was duly and legally issued on said judgment on the 16th day of July, 1915, and returned on the 5th day of October, 1915, by the sheriff of Bexar county, Tex., at the request of plaintiffs’ attorneys.
“An abstract of said judgment, in cause B-9477, Joseph Keller et al. v. L. A. Dolan et al., was duly and legally issued by the clerk of the district court of Bexar county, Tex., on July 20, 1915, showing an amount of $9,738.52 due thereon, and the sum of $17 costs.of suit against H. B. Hildebrand. That said abstract of judgment was duly and legally issued in compliance with the requirements of law. That said abstract of judgment was duly and legally filed for record with the county clerk of Bexar county, Tex., on July 21, 1915, at 11 o’clock a. m., and was duly and legally recorded on the 21st day of July, 1915, at 11:45 a. m., in volume 12, p. 215, of the Judgment Records of Bexar county, Tex. That said abstract of judgment was duly and legally indexed, showing the name of each plaintiff and of each defendant in said judgment, and also the number of the book and page upon which the same was recorded. That said abstract of judgment was duly and legally indexed and recorded in all things in compliance with the requirements of law.
“An execution and order of sale was issued on said judgment March 3, 1916, and the sheriffs return thereon, dated April 4, 1916, shows a sale of the property on which the lien was foreclosed by the judgment, to Mary Fest, and recites a credit on the judgment of $3,696.25.
“On the 2d day of October, 1916, Joseph Keller and Matilda Keller, made, executed, and delivered their certain written instrument, whereby, for a valuable consideration to them paid by Mary Fest, they transferred and assigned to Mary Fest said judgment and judgment lien in cause No. B-9477, Joseph Keller et al. v. L. A. Dolan et al., Forty-Fifth district court, Bexar county, Tex., said judgment against H. B. Hildebrand, which said transfer and assignment was duly filed for record with the county dork of Bexar county, Tex., May 31, 1917, and duly recorded on June 15, 1917, in volume 14, p. 224, of the Record of Judgments of Bexar County, Tex.
“On the 14th day of October, 1916, Mary Fest made, executed, and delivered her certain written instrument whereby she transferred and assigned to Perry J. Lewis said judgment and judgment lien in cause B-9477, Joseph and Matilda Keller v. L. A. Dolan et al., in the Forty-Fifth district court of Bexar county, Tex., for a consideration of the sum of $2,500, cash paid, which said transfer and assignment was duly filed for record with the county clerk of Bexar county, Tex., on May 31, 1917, and duly recorded on June 5, 1917, in volume 14, p. 225, of the Record of Judgments of Bexar County, Tex.
“An alias execution was duly and legally issued on said judgment on the 9th day of July, 1917, by the clerk of the district court of Bex-ar county, Tex.; that the same was placed in the hands of the sheriff of Bexar county, Tex., on the 9th day of July, 1917, and tras duly and legally executed on the 12th day of July, 1917, by levying the same on all the right, title, interest, and estate that H. E. Hildebrand had in and to the property in controversy in this suit, on the 21st day of July, 1915; that thereafter, after due and legal advertisement and notice, said property was by said sheriff duly and legally sold on the 7th day of August, 1917, to P. J. Lewis, he being the highest and the best bidder therefor, for the sum of $500, and said sheriff returned said execution to the clerk of the district court of Bexar county, Tex., showing how he had executed the same, and that said levy and sale were duly and legally made, in compliance with law.
“In pursuance of said sale said sheriff of Bex-ar county, Tex., made, executed, and delivered to the said P. J. Lewis his certain deed, dated August 7, 1917, whereby he conveyed to said Lewis all the right, title, interest, and estate that H. E. Hildebrand had in and to the property in controversy in this suit on July 21,1915. That said deed was duly filed for record with the county clerk of Bexar county, Tex., on the 19th day of September, 1917, and was duly recorded on the 27th day of September, 1917, in volume 520, p. 98, of the Deed Records of Bex-ar County, Tex.
“On November 13, 1913, L. A. Dolan, for a consideration of $10 in cash, and other valuable considerations, and the assumption by H. E. Hildebrand of the note for $6,000, given by said L. A. Dolan in part payment for the purchase price of the land, made, executed, and delivered to H. E. Hildebrand her certain warranty deed, whereby she conveyed to said H. E. Hildebrand the land in controversy in this suit, which deed was filed for record with the county clerk of Bexar county, Tex„ on August 16, 1915, and was duly recorded on August 23, 1915, in volume 467, p. 92, of the Deed Records of Bexar County, Tex.
“On July 7, 1914, H. E. Hildebrand, for a cash consideration of $9,442, made, executed, and delivered to Thomas A. Reynolds his certain warranty deed, whereby he conveyed said land to the said Thomas A. Reynolds, which deed was filed for record with the county clerk of Bexar county, Tex., on August 16, 1915, and was duly recorded on August 23, 1915, in volume 465, p. 494, of the Deed Records of Bexar County, Tex.
“On July 22, 1914, Thomas A. Reynolds, for a cash consideration of $9,442, made, executed, and delivered to the San Antonio Belt & Terminal Railway Company, defendant in this suit, his certain warranty deed, whereby he conveyed said land to defendant, which said deed was filed for record with the county clerk of Bexar county, Tex., on March 2, 1915, and was duly recorded on March 6, 1915, in volume 454, p. 303, of the Deed Records of Bexar County, Tex.”

It was agreed that H. E. Hildebrand was the common source. /

It will be noted that the deed from Hildebrand to Reynolds, though dated long before the abstract of judgment was registered, was not filed for record until more than three weeks after the abstract of judgment was filed, recorded, and indexed. The deed from Reynolds to appellee was filed for rec-' ord, however, over three months before the judgment was obtained, and over four months before the abstract was filed. At the time the abstract of judgment was filed and recorded there was no deed conveying the land to H. E. Hildebrand on record, but the deed to him was filed on the same day that his deed to Reynolds was filed. There is but one question in the case, and that is, Does the abstract of title take precedence over the unrecorded deed by Hildebrand to Reynolds?

Title 86, c. 1, Rev. St., provides for the making and recording of abstracts of judgment and the proper indexing of the same, and then article 5616 provides:

“When any judgment has been recorded and indexed, as provided in the preceding articles, it shall, from the date of such record and index, operate as a lien upon all of the real estate of the defendant situated in the county where such record and index are made, and upon all real estate which the defendant may thereafter acquire situated in said county.”

It was held by this court in the case of Michael v. Knapp, 4 Tex. Civ. App. 464, 23 S. W. 280, that registration statutes do not apply to those acquiring liens by recording abstracts of judgment to protect them against unrecorded titles, and the rule is quoted from Blankenship v. Douglas, 26 Tex. 225, 82 Am. Dec. 608, that:

“A judgment lien on the land of the debtor is subject to every equity against the lands in the hands of the judgment debtor at the time of the rendition of the judgment, and that courts of equity will protect the equitable rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment debtor has in the estate, and that this kind of equity is beyond the contemplation of the statute of registration respecting creditors.”

That decision has never been criticized or questioned in Texas, but has been often cited and approved. Grace v. Wade, 45 Tex. 524; Catlin v. Bennatt, 47 Tex. 165; Jemison v. Halbert, 47 Tex. 180; McKamey v. Thorp, 61 Tex. 648; Parker v. Coop, 60 Tex. 111; Ilse v. Seinsheimer, 76 Tex. 459, 13 S. W. 329; Dixon v. McNeese, 152 S. W. 675; First State Bank v. Jones, 107 Tex. 623, 183 S. W. 875; Reyes v. Kingman Imp. Co., 188 S. W. 450.

When the abstract of the judgment was recorded, as well as when the judgment was obtained, there was on record in- Bexar county a deed from Thomas A. Reynolds to ap-pellee, conveying to it the land in controversy. At that time the records showed no connection between Hildebrand and the property. That deed evidenced the fact that the land belonged to appellee, and not to any defendant in the case of Keller v. Dolan. The property at the time did not belong to Hildebrand, as the record clearly showed, and the failure to record the deeds from Dolan to Hildebrand and from the latter to appellant could not change the true ownership of the land, and the recorded deed was sufficient to put even a purchaser for value upon notice. As said by the Supreme Court in First State Bank v. Jones, hereinbefore cited:

“The judgment lien of Jones would only fasten upon the interest in the land which was actually owned by Roberts. It would not attach to a greater interest therein than Roberts owned in the land, even though the deed records erroneously disclosed in his favor a greater interest in the land than belonged to him. A judgment lien holder is not in the same attitude as an innocent purchaser for value without notice. The latter has expended his money in good faith to the amount of the purchase price of the land, and is justly entitled to be held harmless. It is right that the loss under such circumstances should be visited upon the landowner whose negligence, in failing to give notice through the deed records of his ownership, occasioned the loss, rather than that it should fall upon the innocent purchaser who was without fault. The judgment lien holder is in a different attitude. He is not in any sense an innocent purchaser. If his lion fails to attach he loses nothing. His judgment still remains unimpaired in its full amount. In such a case, even though the owner of the land has been negligent in failing to provide a correct record notice of his title, still Ms negligence has not resulted in injury to the judgment creditor. Under such circumstances, there can be no good reason for any other rule than that his lien attaches to no more than the interest actually owned in the land by the judgment debtor. This was the common-law rule, and it has been consistently followed by this court.”

This court agrees with proposition first under the first assignment of error that “when a deed is executed and delivered the title to the land vests in the grantee” and while the proposition is advanced to sustain the position that the unrecorded deed of Dolan to Hildebrand vested title in the latter, it goes farther and sustains the proposition that the unrecorded deed of Hildebrand to Reynolds conveyed the title to the latter. It may be conceded that the second proposition advanced by appellant, that, having agreed to a common source, the validity of the title in that source is determined and the land belongs to the party showing the superior title under that common source, is correct; but that rule fails to be of "any assistance to appellant in this case, because of a failure to establish a superior right.

Under.the decisions in this state, nota-, bly the ease of Bank v. Jones, so fully quoted from herein, plaintiffs in the case of Keller et al. v. Dolan et al., could not have occupied the position of innocent purchasers. Mrs. Mary Fest, who purchased the judgment from Joseph Keller and Matilda Keller, on October 2, 1916, of course occupied no stronger position than that held by' the Kel-lers, and she by her transfer did not place appellant in a position to claim the' protection of an innocent purchaser. All the deeds were on record when Mrs. Fest and appellant bought the judgment, and they had full notice and could not be innocent purchasers unless the Kellers occupied that position. They could not claim any rights or immunities attaching to innocent purchasers.

Article 1104, Rev. St, cited by appellant, provides that a conveyance «hall not be “good and effectual against a purchased in good faith, without notice thereof and for a valuable consideration, nor against any creditor, unless such conveyance be acknowledged by the party who shall have signed or delivered it, or proved, in the manner required by law, and before some officer authorized by law to take such acknowledgment or proof, and be filed for record with the clerk of the county in which the land, or a part thereof, is situated.” The Kellers not only were not innocent purchasers as defined in the statute, but were not creditors as contemplated therein. That statute does not apply to nor control the provisions of article 5616, stating the effect of recording an abstract of judgment, nor to articles 6824 and 6828.

In the case of Grace v. Wade, 45 Tex. 524, so confidently relied on by appellant, the rights acquired by the filing, recording, and indexing of an abstract of judgment was not under discussion, but, as concisely stated by Associate Justice George F. Moore:

“The only question in this case is whether a vendee of land, who claims title by an unrecorded deed, or bond for title, or the purchaser, with notice of such deed or bond, at execution sale on a judgment against the vendor, wheré the creditor has no notice of the title or claim of the vendee at the date of the levy of the execution, has the better title.”

The Kellers, under the facts of this ease, at no time after they obtained their judgment were without notice that others were claiming title to the land in controversy, but were fully cognizant of the fact that no deed was on record to Hildebrand, and that a deed was on record conveying the property to ap-pellee, and when the first levy was made on the property all the deeds were on record, showing a perfect title to appellee. The facts of the Grace v. Wade Case do not fit the facts of this case. If appellant has any rights in this case, they must be based on the record of the abstract of title, and not on the levy under execution. We are considering the rights acquired under the record of the abstract of judgment, which our courts have time and again held creates a lien only on property actually owned by the judgment debtor. The case of Blankenship v. Douglas, herein cited,,lays down that doctrine clearly and forcibly, and the propriety of it has never been questioned, for even in the case of Grace v. Wade it is approved and indorsed. The only point decided in the last-named case is that the want of notice of a judgment creditor who makes a levy will accrue to the benefit of a purchaser at the sale under the levy even though he has notice of an adverse claim. There is nothing in that decision which militates against the decisions of this and other courts on the liens secured by the record of abstracts of judgments. In the case of Hooker v. Eakin, 176 S. W. 80, the Court of Civil Appeals of the Sixth District, in reference to Grace v. Wade, and other cases following it, held:

“An examination of the line of cases referred to will show, we think, that in none of them was it held that the effect of recording and indexing a judgment was to create a lien on land not then, in fact, nor apparently, that is, according to the face of the record, owned by the judgment debtor, nor ever afterward, in fact, owned by him. To hold otherwise, it seems to us, would be to ignore the statute which, as stated above, declares that such recording and indexing shall operate as a lien only upon real estate owned at the time or afterwards by the judgment debtor.”

As in that case, so in this, no lien was acquired by the Kellers by the record and indexing of their abstract of judgment, and at no time were they in the attitude of innocent purchasers or creditors under the statute. It follows that appellant could not be an innocent purchaser. There was no record evidence that Hildebrand owned any interest in the land; there was record notice that appellee owned it, and that notice was undoubtedly sufficient to put any reasonable person upon inquiry. The same inquiry, made to ascertain if Hildebrand had ever obtained a deed to the property, would have revealed the fact that he had conveyed the land to Reynolds which he conveyed to appellee.

The judgment is affirmed.
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author: RASBURY, J.

text:
    CARVER v. CALDWELL.
    (No. 8096.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 25, 1919.)
    1. Evidence <@=423(6) — Paeol — Nature ojt Obligation.
    Parol evidence is always admissible, between signers and indorsers of negotiable instruments, to show the real character of the obligation intended to be assumed by them.
    2. Appeal and Ebboe ⅞=>183 — Objections Below — Poem op Action.
    Though complaint, not objected to, alleges facts showing that plaintiff should have sued on an implied promise, and not on the note as he did, there is no fundamental error; the evidence in the record not sustaining the allegations.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Suit by W. C. Caldwell against W. M. Carver and another. Judgment for plaintiff, and defendant Carver appeals.
    Reversed and remanded.
    Collins, Morrow & Morrow, of Hillsboro, for appellant.
   RASBURY, J.

This is an appeal from a judgment in favor of appellee upon an ordinary negotiable promissory note for principal, interest, and attorney’s fees. According to the allegations of appellee’s petition, stated in substance, W. R. Watts, for value, executed and delivered the note sued on to appellant, Carver. Before maturity, Carver, for value, transferred same to the Hill County State Bank, by indorsing his name thereon and delivering same to said bank. Appellee also indorsed the note on delivery to the bank. The purpose of such transfer and delivery was to pay another note held by said bank, executed by Carver in favor of appellant, and by him transferred to said bank by indorsement and delivery. Watts failed to pay the note sued on at maturity, and appellee paid it off, and brought this suit thereon against appellant and Watts. Other matters not material were alleged.

Appellant denied generally the allegations of appellee’s petition, and specially alleged that he delivered appellee the note sued on in payment of certain personal property and live stock, which appellee accepted without recourse on him, but subsequently, at the request of appellee, appellant accompanied him to the bank, where he was offering the note as collateral security, in order to establish the nature of the note and identify the maker, at which time the bank declined to accept same if appellant indorsed same without recourse, and thereupon at request of appellee and for his accommodation, and without consideration whatever, appellant indorsed same, with the understanding that appel-lee would not look to him for payment thereof, and by reason of which he was not bound thereon.

The court, on the ground that it would by parol testimony contradict and vary the terms of a written contract, sustained special exception to the pleading setting up the defense just detailed, and such action on the part of the court constitutes appellant’s first assignment of error. The court, in our opinion, erred. Parol evidence is always admissible between signers and indorsers of negotiable instruments to show the real character of the obligation intended to be assumed by them. Erwin v. E. I. Du Pont De Nemours Powder Co., 156 S. W. 1097, and cases-cited. As between the signers and indorsers and one who acquired the note before maturity, for value, and without notice, a different rule, of course, obtains, which it is unnecessary to elaborate, since there is no such issue here. According to the allegations of appellee’s petition, both he and appellant indorsed the note when it was negotiated with the Hill County Bank. While appellant, according to the allegations of his answer, admits indorsing the note, he alleges he did so merely as an accommodation for appellee and without consideration. Thus a well-recognized defense was pleaded, and appellant should have been permitted to present any proof he had on that issue.

Appellant also assigns as fundamental, or error apparent on the record, that it appears from appellee’s pleading that he paid the note sued on to the Hill County National Bank as indorser, and that his right of action against appellant is based thereon, and that as a consequence the note was discharged, and the suit should have been upon appellant’s implied promise to pay, and not upon the note. Appellant cites Eaires v. Cockerell, 88 Tex. 437, 31 S. W. 190, 639, 28 L. R. A. 528, and McCavick v. McBride, 189 S. W. 795, which support the rule stated. Appellee does allege that both he and appellant were indors-ers on the note sued on and that he was compelled to pay the amount to the bank by virtue of his indorsement. If the testimony in the record supported the allegation, it may be that the issue could be presented as fundamental error; but, while the pleading alleges that appellee indorsed the note when it was negotiated with the bank, the statement of facts, which consists alone of a copy of the note, does not disclose that appellee was in-dorser thereon, but, on the contrary, shows that appellant alone was an indorser. Appellant did not challenge the sufficiency of the pleading, or the right of appellee to sue on the note, and permitted the note to go in evidence without objection. Such being the condition of the record, the assignment presenting the issue of fundamental error is overruled.

Because of the action of the court in sustaining the exception to appellant’s pleading, discussed under the first assignment of error, the judgment is reversed, and the cause remanded for another trial in consonance with the views herein expressed.

Reversed and remanded.
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