author: HALL, J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. et al. v. MEEKS.
    (No. 935.)

    (Court of Civil Appeals of Texas. Amarillo.
    March 8, 1916.
    On Motion for Rehearing, April 26, 1916.
    Second Motion for Rehearing Denied June 28, 1916.)
    1. CORPORATIONS @==>80(10) — STOCK SUBSCRIPTION — SUIT TO Gancei^Laches.
    In a suit to cancel notes given upon a stock subscription, to recover vendor’s lien notes given to the defendant as collateral to such notes, and to recover money paid to defendant company, evidence held to sustain a finding that plaintiff was not guilty of laches in not instituting his suit earlier.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 262; Dec. Dig. @=>80(10).]
    2. Estoppel @==>96 — Grounds—Negligence— Injury.
    Where negligence is relied upon as a ground of estoppel, it must not only influence the action of some other person to his injury, but it must appear that it might reasonably have been expected that it would have such effect, though the other person exercised ordinary care.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 288; Dec. Dig. @=>96.]
    3. Corporations @=>80(2) — Stock Subscription-Fraud op Agent — Notice.
    Where the agreement between plaintiff subscribing to the stock of defendant company and the agent of the company, that when organized plaintiff would be appointed its representative in loaning money in certain territory, was attached to the subscription contract and passed into the hands of the company after its organization, it was not thereby charged with notice of alleged misrepresentation of its promoter with reference to the amount of capital stock paid in and its readiness to lend money, and the plaintiff could not rescind his subscription without showing that, before it was accepted, the company had notice of the fraudulent misrepresentations.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 246, 247; Dec. Dig. @=>80(2).]
    4. Partnership @=>216(3) — Action Against Partnership — Liability op Individuals— Variance.
    In a suit to rescind a stock subscription and to recover of the company’s promoter, the petition alleging that two named individuals acting under two different firm names undertook to organize a corporation, that another party was their duly authorized agent in soliciting plaintiff to purchase stock, that such individuals knew and approved his representations, that they falsely and fraudulently made such representations to induce plaintiff to subscribe for stock and deceive plaintiff, that a certain amount of cash was paid to one of such individuals and to one of his firms, and that they fraudulently and wrongfully retained it, over the objection that while such promoters were sued as individuals the proof showed a cause of action against their firm, gave jurisdiction as to the individual retaining the cash payment.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 418; Dec. Dig. @=>216©).]
    5. Appeal and Error @=>253 — Objection to Pleading — Time.
    Where the trial court’s attention was not called to the conflicting allegations of the petition by exception thereto, the question could not be raised on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1485, 1488, 1491-1493; Dec. Dig. @=>253.]
    6. Partnership @=>197 — Suit Against — Parties.
    Partnerships are not recognized either by the common or statutory law as constituting separate and distinct legal entities, and there is no right to sue or be sued in the partnership name; but litigation by or against partnerships must be conducted in the name of the individual mem-, bers and not in the partnership name.
    [Ed. Note. — For other eases, see Partnership, Cent. Dig. § 360; Dec. Dig. @=>197.]
    7. Courts @=>122 — Jurisdiction—Amount-Allegation — Peooe.
    The fact that the evidence showed that plaintiff was entitled to recover less than the jurisdictional amount would not defeat the jurisdiction once acquired, in the absence of a pleading and proof that the jurisdictional allegation was fraudulently made.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. @=>122.]
    8. Principal and Agent @=>106 — Agent’s Misrepresentation — Liability oe Principal.
    Plaintiff, the subscriber to the stock of a corporation, suing to recover from an individual promoter a share which he and his partnership received, was not required to show that such individual promoter actually received the money, as payment to his agent acting within the apparent scope of his authority, when making the misrepresentations relied on, was payment to him.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 311, 312; Dec. Dig. @=> 106.]
    9. Bills and Notes @=>342 — Bona Fide Purchaser — Stock Subscription Notes — In General.
    Where a subscription contract for the stock of a corporation to be organized and the notes in payment thereof were executed at the same time as parts of the same transaction, naming the corporation as payee, and on payment of which it was intended that certificates of stock should issue, the contract and the notes were to be construed together; and, when the corporation accepted the contract and notes, it took them with notice only of the conditions contained in them, but was not a bona fide holder of the notes, as they were not taken for value because the stock was not issued or if issued was void, or a holder in due course of business, because no value was paid for them.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 830-841; Dec. Dig. <@=> 342.]
    10. Corporations <@=>80(2) — Subscription N otes — Fraud—N otioe.
    In such case, the company accepting the subscription contract and notes was not affected by fraud inducing the subscription of which it had no actual notice.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 246, 247; Dec. Dig. <@=>80(2).]
    On Motion for Rehearing.
    11. Corporations <@=>76 — Stock Subscription — Cancellation — Instruments Given in Payment.
    Where a corporation was organized under the laws of Arizona instead of under the laws of Texas, as represented by the company’s agent and its subscription contract, so that the subscriber believed he was subscribing for stock in a domestic corporation in which the rights of the stockholder would be more carefully protected, and in which the broad and general provision as to its rights to borrow and loan money would not be embodied, because prohibited by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1121, there was no meeting of minds on a material part of the contract, and hence no contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 197-209, 213-218; Dee. Dig. <@=> 76.]
    12. Corporations >@=080(10) — Subscription Contract — Place op Organization — Rati-bication.
    In such case, the subscriber by executing a proxy authorizing certain officers of the company to vote his stock at a meeting to be held either in Texas or Arizona, reciting that he owned shares of the capital stock of the corporation “of Phcenix, Ariz.,” did not estop him from cancellation of his contract by reason of the organization of the corporation in Arizona. .
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 262; Dec. Dig. <@=380(10).]
    13. Corporations <@=>77 — Subscription to Stock — Legislative Provisions.
    Conditions proscribed by the Legislature, under which charters of corporations may be granted, must be noticed by the subscribers, and they are conclusively presumed to contract with reference thereto.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 210-212, 219-243, 455; Dec. Dig. <@=>77. ]
    14. Corporations <@=>82 — Subscription to Stock — Consideration—Rescission.
    The promise on the part of a corporation, that when organized it would establish a loan agency and appoint plaintiff as its representative in charge, alleged as part of the consideration upon which plaintiffs subscribed for stock, which promise was attached to the subscription contract and made a part thereof, where such contract and agreement were dated prior to the incorporation of the company and the issue of its stock, would be presumed to be accepted after the corporation became a going concern, so that the company would not be permitted to accept the benefits of the contract without assuming its burden, and could not hold the plaintiff on his subscription contract without appointing him its agent to make loans.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 285-295; Dec. Dig. <@=>82.]
    Appeal from District Court, Hemphill County; Frank Willis, Judge.
    Action by M. M. Meeks against the Commonwealth Bonding & Casualty Insurance Company, R. T. Stuart and Coke W. Hark-rider, as individuals, acting under the firm names of Stuart, Harkrider & Co., and the Commonwealth Organization Company, and others, with cross-action by the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff against the Commonwealth Bonding & Casualty Insurance Company and R. T. Stuart, and the company appeals, and Stuart brings writ of error.
    Affirmed.
    Speer & Brown and H. A. Turner, all of Ft. Worth, and Hoover & Dial, of Canadian, for appellants. J. W. Sanders and Newton P. Willis, both of Canadian, for appellee.

      Application for writ ot error pending in Supreme Court.

   HALL, J.

Appellee, as plaintiff in the court below, sued appellant company, Coke W. Harkrider, R. T. Stuart, John Scharbauer, H. P. Brenham, J. H. Carmichael, F. E. Couch, Perry McFadden, M. H. Miles, W. B. Harrison, J. D. Hagler, L. T. Lester, W. B. Slaughter, and C. H. Boedecker. Stuart and Harkrider were sued as individuals, acting under the firm name of Stuart, Harkrider & Co., and also under the firm name of the Commonwealth Organization Company. The object of the suit was to cancel four promissory notes, dated March 14, 1911, for the sum of $437.50, $500, $500, and $562.50, respectively; the first due January 1, 1912, and one annually thereafter. - Plaintiff further sought to recover certain vendor’s lien notes held by the defendant company as collateral to his notes described above, and to recover a certain sum of money alleged to have been paid defendant company.

The substance of the amended petition is correctly stated in appellee’s brief, as follows:

“That the promoters, Stuart and Harkrider, by their agent, while soliciting the appellee to subscribe for stock, exhibited to appellee certain blank contracts which they represented, were being executed by the promoters and would be executed by the corporation when organized, said blank contracts providing for the loaning of money to stockholders by the corporation when organized; that the agent of appellants represented to appellee that the company, when organized, would establish an agency in Hemphill county, to make loans as provided in the blank contract, and that appellee should be appointed the agent of the Commonwealth Bonding & Casualty Insurance Company, to make loans of money in Hemphill county; that the agent of appellant signed a written agreement, providing for the appointment of appellee as agent to represent the company in making loans for the company in Hemphill county. That the written agreement appointing appellee loan agent for Hemphill county was attached to and made a part of appellee’s subscription contract. That appellants, by a certain prospectus which was used and delivered to appellee, by the terms of the written contract, and by other representations, represented to appellee that said Commonwealth Bonding & Casualty Insurance Company should be incorporated under the laws of the state of Texas; should be a Texas corporation, with $300,000 capital stock, $200,000 of which should be paid up and free from organization expenses, before the corporation was incorporated. That said company should have a capital stock of $300,000 and surplus of $900,000, and that $200,000 had already been paid in, and the company was ready to begin business as soon as the charter could be taken out under the laws of the state of Texas; that the president of the company to be organized was in the East at that time and had perfected arrangements to secure all the eastern money that would be needed to carry on a loan business at rates of interest not to exceed 6 per cent. That the agent of appellant represented to appellee that he could secure the appointment to make loans for such company if he would subscribe for as much as $2,500 worth of stock; that appellee never did subscribe for stock in an Arizona corporation but subscribed for stock in a Texas corporation ; that he never did subscribe for stock in a corporation having only $20,000 capital paid up, but subscribed for stock in a corporation to have $200,000 capital paid up, and that appellant company was not the corporation for whose stock he subscribed, and that he never accepted stock in said corporation.”

Appropriate allegations were also made in the pleading, charging the falsity of said representations, notice to appellant company of their falsity, failure of the minds of the parties to meet on the contract of subscription, and the injury resulting.

The Commonwealth Bonding & 'Casualty Insurance Company answered by special exceptions and denied generally the allegations of fraud and misrepresentation, and that the representations, if made, were not representations of the corporation or any other person representing it or authorized by it to make such representations or to bind it; and further that the plaintiff’s cause of action, if any he ever had, was stale in that he had delayed for an unreasonable time to institute his suit after knowing of his cause of action, or after he could or should, in the exercise of ordinary care, have discovered the alleged fraud. It answered, also, by appropriate pleas of waiver, acquiescence, and estoppel, denying plaintiff’s right to rescission and cancellation. It further sets up that it is an innocent purchaser of the notes and collateral in controversy; the notes having been executed and delivered by plaintiff to the Commonwealth Organization Company and by said company, for value in due course of trade, without notice of any infirmity when so transferred and delivered to defendant. By way of cross-action, the company declared upon the notes sought to be canceled and prayed for judgment thereon and for a foreclosure of its lien upon the collateral securities.

Upon a trial before the court without the intervention of a jury, judgment was rendered, overruling all of the Commonwealth Bonding & Casualty Insurance Company’s. exceptions; and final judgment was entered in favor of the plaintiff for the cancellation-of the notes executed by him, for the surrender of the collateral pledged to secure the payment of the notes, and for the recovery of $237, with interest from September 1, 1915, and against B. T. Stuart for $395.

The first assignment-is that the court erred in holding that plaintiff had instituted this suit within a reasonable time after discovering the fraud, or after the time when, in the exercise of reasonable care, he could have discovered the fraud upon which he relies, and in holding that plaintiff was not now barred by an unreasonable delay, by laches, and by acquiescence to have and maintain the suit, and in holding that plaintiff had instituted this suit within a reasonable time after the actual discovery of his cause of action herein, or after such time as he ought reasonably to have acquired a knowledge thereof. The testimony in the record relating to this assignment is voluminous, and we will not undertake to do more than summarize it here. The appellee testified that he did not remember the date when he first acquired knowledge of the falsity of the representations and that the company was not incorporated in Texas; that it was after he turned the matter over to his attorney for investigation and not very long before filing the suit; that about the same time he learned that the company had not made arrangements to get money in the East, and did not have a capital of $200,-000 paid in and $600,000 surplus; that, while he was dissatisfied with the company, excuses had been made to him for not making loans as late as September, 1912. They told him that strife amongst the officers and stockholders had prevented them from doing business as represented. He further testified that one of the directors and acting secretary of the company explained to him the condition of the company and told him that all he had to do to realize the truth of the representations was to give the company time, and it would come around all right, - — that it was getting in better shape all the time and that the reason the company was not in better shape was on account of trouble between Stuart and the other officers. Appellee further testified that he had conversations with Scharbauer, the president, and Harkrider, the vice president of the company, along the same line as with the acting secretary; that they were pleading for time and if time was granted they would make good, and that on account of strife amongst the officers the company had been retarded but would come out all right in a little while. The charter was filed March 23, 1911. This suit was instituted January 9, 1914. The testimony of appellee is contradicted to a considerable extent, but it is sufficient to sustain the finding of the court that lie was not guilty of laches in not instituting his suit earlier.

If negligence and indifference is relied upon as ground of estoppel, such conduct must not only influence the action of some other person to his injury, but it must further appear that it might reasonably have been expected that it would have such effect while such other person was exercising ordinary prudence. It does not appear from the pleadings or evidence of either party that the rights of any one connected with the corporation have been injured to any extent. The rule announced in Park et ux. v. Kribs, Receiver, 24 Tex. Civ. App. 650, 60 S. W. 905, is:

If others were not led to become members of the corporation on the faith of plaintiff’s subscription, mere delay will not defeat rescission. Delay which does not injure the opposite party nor innocent third parties, even though no diligence is shown in discovering the fraud, will not defeat an action for rescission, unless the statute of limitations interferes. G., H. & S. A. Ry. Co. v. Cade, 93 S. W. 124; 1 Cook on Corporations (6th Ed.) §§ 161, 162.

The fraud alleged by plaintiff consists (1) in a promise to lend money to plaintiff when the corporation became a going concern; (2) to establish a loan agency in Hemphill county, and to appoint plaintiff as its representative in charge thereof; (3) that the company would be incorporated under the laws of Texas; (4) that $200,000 of the capital stock had already been paid in; and (5) that the president of the company had perfected arrangements in the eastern money market for all the money the company would need. There is no allegation of a failure of consideration, and the last three statements are the only ones alleged upon which a judgment for rescission could be based. The agreement made between plaintiff and the agent of appellant company that he would be its representative in Hemphill county, when the business of lending money in that territory was entered into, was a conditional promise of something to be done in the future and was not a misrepresentation of an existing fact and is not shown to have been fraudulently made.

Because this agreement was attached to the subscription contract and passed into the hands of the company after its organization, the company was not thereby served with notice of the alleged misrepresentations with reference to the amount of capital stock paid in, and the readiness of the company to lend money secured in the East. It is undisputed that these statements were made by the agent' McCowan, and that he was representing the Organization Company at that time. If it be true that McCowan did represent that the company had $200,000 capital stock paid up, and that the president had arranged to secure the money in the East, sufficient to conduct the affairs of the company, and that such representations were fraudulently made while he was representing the Organization Company, and not the Bonding Company, the appellee cannot sustain a judgment for rescission without showing that before his subscription was accepted the latter had notice of the fraud. It is not shown that the company had any such notice. Whether the statement in the prospectus and subscription contract, to the effect that the company would be incorporated in Texas, is a material statement depends upon circumstances. There is no evidence in the record to show that stock in a company organized under the laws of Texas is more desirable or valuable than if it were organized under the laws of Arizona. Without some proof to show the materiality of this statement, ap-pellee should not be permitted to rescind, even though the recital in the proxy be held to be notice. It appears that prior to March 11, 1913, appellee executed and sent certain officials of the company a proxy authorizing them to vote his stock at a stockholders’ meeting to be held in Et. Worth on the last-named date, and at any other meeting to be held in Texas or Arizona; and the proxy recites the fact that he owned 62% shares “of the capital stock in the Commonwealth Bonding & Casualty Insurance Company of Phoenix, Ariz.” We held, in the case of Commonwealth Bonding & Casualty Ins. Co. v. Cator, 175 S. W. 1077, that the act of organizing the company under the laws of Arizona, in violation of the subscription contract and of the representation made in the prospectus that it would be a Texas corporation, was sufficient cause for canceling the subscription; but in that case it appeared from the record that the stock in a Texas corporation was more desirable and valuable than it would have been if the corporation had been organized under the laws of Arizona. No such state of facts appears here. For the reasons stated, we think the appellants’ fourth assignment of error should be sustained.

R. T. Stuart, against whom judgment was rendered, is here by writ of error, and in his brief insists, first, that there is a material variance between the facts alleged and the facts established by the proof as against him, in this: That he and Harkrider are sued as individuals, whereas the proof shows the cause of action against the Commonwealth Organization Company, a part-nership composed of R. T. Stuart and C. W. Harkrider. The allegations bearing upon this assignment are as follows:

“That R. T. Stuart and Coke W. Harkrider, as individuals, acting under the firm name of Stuart, Harkrider & Co., and also under the firm name of the Commonwealth Organization Company, in the fall of 1910 and spring of 1911, undertook as individuals and as promoters to organize a corporation with said Stuart and Harkrider and their agents so acting as promoters,” etc.
“Plaintiff says that one H. S. McCowan, a duly authorized agent of R. T. Stuart and Coke W. Harkrider, and of the Commonwealth Bonding & Casualty Insurance Company, was in Canadian in March, 1911, and solicited plaintiff to purchase stock,” etc.
“And plaintiff charges that said R. T. Stuart and Coke W. Harkrider, composing the firm of the Commonwealth Organization Company, knew about and approved of all such representations as are hereinabove set out,” etc.
“Plaintiff further charges that said Stuart & Harkrider, acting as promoters, falsely and fraudulently made said representations, for the purpose of inducing plaintiff to subscribe for stock, and did deceive plaintiff,” etc.
“That the truth is that the Commonwealth Organization Company, or Stuart, Harkrider & Co., were to receive 12% per cent, of the purchase price of said stock as compensation for organizing a Texas corporation, which in plaintiff’s case would be the sum of $312.50, which plaintiff paid to said H. S. McCowan for the said Organization Company, and the remainder of the $500 cash,” etc.

The prayer is for judgment against all of the defendants. The suit was dismissed as to Harkrider and judgment taken against Stuart individually. Stuart did not allege that the allegations were fraudulently made, for the purpose of conferring jurisdiction on the district court, as was done in the case of Stewart v. Gordon, 65 Tex. 347. No exception was urged upon the ground that there was a variance between the several allegations quoted above, as was done in the case of Smith v. Briggs-Weaver Machinery Co., 132 S. W. 954. The rule is that partnerships are not recognized by law, either common or Texas statutory, as constituting separate and distinct legal entities; and therefore the right to sue or be sued in the partnership name is not conceded to them in our courts, and litigation by or against partnerships must be conducted in the names of the individual members of the firm, and not in the firm name. Townes Texas Pleading, p. 251; Western Gro. Co. v. K. Jata Co., 173 S. W. 518; Style v. Lantrip, 171 S. W. 786; Law Reporting Co. v. Texas Grain & Elevator Co., 168 S. W. 1001. It appears from the above quotations from the petition that plaintiff was in doubt as to the agency of McCowan, and that the statements are for this reason in a sense conflicting. Not having called the attention of the trial court to this condition by exceptions to the pleadings, the -question cannot be raised here. The petition variously charges that the sum of $50 cash was paid to Stuart, to the Organization Company, and to the Bonding Company; that they each fraudulently and wrongfully retained the same. This gives the court jurisdiction of the amount as to Stuart.

The fact that the evidence disclosed that appellee is entitled to recover less than the jurisdictional amount would not defeat the jurisdiction once acquired, in the absence of a plea and proof that this allegation was fraudulently made. Nashville, C. & St. L. Ry. Co. v. Grayson Co. Nat. Bank, 100 Tex. 17, 93 S. W. 431; Levy v. Lupton, 156 S. W. 362.

In order for appellee to recover from Stuart the share of $500 which, it is charged, Stuart and his partnership received, it is not necessary for him to prove that Stuart actually received the money which it appears was paid to his agent, McCowan. Payment to McCowan was payment to Stuart. Mc-Cowan was acting within the apparent scope of his authority when he made the misrepresentations. The fraud of McCowan is the fraud of Stuart.

In addition to the assignments considered, plaintiff in error presents questions which have already been disposed of in the discussion of appellant’s brief.

Appellant company insists that it is entitled to the protection afforded a bona fide holder of negotiable paper, and should therefore recover the amount of the notes delivered to it by the promoters. The subscription contract and notes were executed at the same time, are parts of the same transaction, and must be construed together. The notes are executed in compliance with the terms of the contract, and the Bonding Company is named as payee. It was intended that when the notes were paid the certificates of stock should issue. When the Bonding Company accepted the contract and notes, it took them with notice only of the conditions contained in them; but one having notice of the conditions named in the subscription contract cannot be a bona fide holder of the notes. The notes were not taken for value because the stock was not issued, or, if issued, is void under the Constitution. They were not acquired in due course of business as that term is used in relation to negotiable paper, because no value was paid for them. It is our opinion that the rights of the Bonding Company do not rest upon the principles governing the rights of a bona fide holder, but if it is entitled to recover it must be upon the principle of estoppel. Vander Ploeg v. Van Zuuk, 13 L. R. A. (N. S.) 493, note; Andrews v. Robertson, 111 Wis. 334, 87 N. W. 190, 54 L. R. A. 673, 87 Am. St. Rep. 870.

While the Bonding Company is not a bona fide holder for value, according to the law merchant, yet when it accepted the notes and contract it was not affected by fraud inducing the subscription of which it had no actual notice. Commonwealth Bonding & Casualty Insurance Co. v. Cator, 175 S. W. 1074.

In so far as the judgment decrees a recovery against R. T. Stuart, it is affirmed; in all other respects it is reversed and remanded. Affirmed in part, reversed and remanded in part.

On Motion for Rehearing.

In the original opinion we held that there was no evidence in the record tending to show that stock in a corporation, organized under the laws of Texas, would be more desirable or valuable than stock in a corporation organized under the laws of Arizona. In motion for rehearing, appellee has called to our attention Ms own testimony from the statement of facts, as follows:

“He (McOowan, the stock salesman) said this was to be a Texas corporation, and we went into details about the Texas corporation laws, about the advantage Texas laws had over other states. I would not have subscribed for stock if I had known that this corporation was to be organized under the laws of Arizona, for the reason I did not know anything about Arizona or Arizona laws, and X believe in incorporating under Texas laws. I do not know anything about Arizona laws. I was informed in reference to Texas laws protecting stockholders. I believed that I was subscribing for stock in a Texas corporation, where the subscribers would be better protected; that it would be incorporated in the state of Texas, because it was to be a home company for Texas and the rights of stockholder could be more carefully protected under the Texas laws.”

We think this evidence brings the case within the rule announced by us in Commonwealth Bonding & Casualty Insurance Co. v. Cator, 175 S. W. 1074 (5, 6). The trial judge was justified in holding that appellee was not estopped and had not ratified the act of the company in procuring its charter under the laws of Arizona.

“Any amendment which entails new responsibilities or hazards will release dissenting subscribers, as by adding to the power of a railroad company the power to purchase steam boats.” 10 Cyc. 406, and note 64.

The articles of incorporation, taken out under the laws of Arizona, provide that the company could not only transact a general casualty and bonding business, as was provided in the subscription contract and the prospectus to which this contract referred, but it further provides that the company may “borrow and loan money and in general do and perform such acts' and things and transact such business not inconsistent with the law of any part of the world as the board of directors may deem to the advantage of the corporation.” A provision as general and broad as the one quoted would not be embodied in the charter of a Texas corporation. Vernon’s Sayles’ Civil Statutes, art. 1121.

The rule is announced in 10 Cyc. 411b, that conditions' prescribed by the Legislature, under which charters of corporations may be granted, must be noticed by the subscribers and that subscribers are conclusively presumed to contract with reference to such conditions. The stipulation that the company would be incorporated under the laws of Texas was, in the light of appel-lee’s testimony, a material part of the subscription contract, and he. cannot be held bound under a contract where the incorporation was perfected under the laws of another state; for to do so would be to hold him to something to which he did not agree, and there would be no meeting of the minds and no contract. 10 Cyc. 412d; Baker v. Ft. Worth Board of Trade, 8 Tex. Civ. App. 560, 28 S. W. 403; Collinson v. Jefferies, 21 Tex. Civ. App. 653, 54 S. W. 28.

In the original opinion we stated that the promise on the part of the company to establish a loan agency in Hemphill county, and to appoint plaintiff as its representative in charge thereof, could not form, in the event of its breach, a basis for rescission. Apxoellee has called to our attention the fact that this agreement was alleged to be part of the consideration upon which he subscribed for stock, and that Ms pleadings allege a failure of tMs consideration; that the agreement was attached to the subscription contract and made a part thereof; that the contract and agreement were dated prior to the incorporation of the company but were not mailed until after the company was incorporated on March 25, 1911'; that Ms stock was issued June 20, 1911. We must therefore presume that the contract of subscription was accepted after the corporation-became a going concern, and the company will not be permitted to accept the benefits of the contract without at the same time assuming its burdens. It cannot hold appellee upon the subscription contract without complying with the condition requiring it to appoint him its agent in Hemphill county. The record shows that tMs was a condition precedent, by which the company was bound when they accepted the subscription.

Appellee’s motion for rehearing is granted; the motion of R. T. Stuart for rehearing is overruled. The judgment of the lower court is in all tMngs affirmed.
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    GREAT EASTERN CASUALTY CO. v. BOLI.
    (No. 994.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1916.
    Rehearing Denied June 14, 1916.)
    Insurance <&wkey;425 — Laecent Insurance — Proof of Thefo^“Mere Disappearance.”
    Within a policy against loss by theft, though providing that mere disappearance of property shall not be deemed sufficient evidence of theft, insured’s testimony that on a certain night, according to his custom, he took Ms diamond stud out of his tie, placed it on the dresser in his room, and the next morning discovered its loss, on search, and that for stated reasons he remembered distinctly such disposition thereof by him, is sufficient evidence to go to the jury; the facts testified to constituting more than “mere disappearance.”
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1129, 1135, 1143; Dec. Dig. &wkey;-425.]
    Appeal from Dallas County Court at Law;. T. A. Work, Judge.
    Action by L. O. Boli, Jr., against the Great Eastern Casualty Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Saner, Saner, Kimbrough & Turner and Chas. D. Turner, all of Dallas, for appellant. Martin A. Seward and O. P. Wencker, both of Dallas, for appellee.
   HENDRICKS, J.

The appellee, Boli, sued the appellant, Casualty Company, in the county court of Dallas county, at law, to recover the sum of $425, for the value of a diamond stud, alleged to have been stolen, and the loss covered by a policy of insurance, issued by the appellant, protecting the appel-lee against loss from burglary, theft, or larceny. The jury returned a verdict, finding that the stud in question was stolen and was of the value alleged, upon which judgment was rendered for said sum.

We think appellee’s petition sufficiently ex* Mbits an insurable interest in the property at the time of the issuance of the policy and at the time of the loss, and without discussion overrule the assignments based upon exceptions raising that question.

The real question is whether the appellee sufficiently proved, as a jury question, the loss of the diamond within the purview of the clause of the policy. The policy of insurance sued upon provided that the Casualty Company should insure the appellee “against loss from burglary, theft, or larceny,” and clause D of a rider attached thereto provided that:

“Mere disappearance of property shall not be deemed sufficient evidence of burglary, theft, or larceny.”

The appellee testified that on Saturday night, May 9, 1914, according to his custom, he took the diamond stud out of his necktie, placed the same on the chiffonier in his room, and the next morning he discovered the loss of the same, upon search. He said he remembered distinctly taking the stud from the tie and examining it under the electric light in his room to see if the prongs were intact, and if the diamond needed cleaning, as he intended to clean the same the next morning, Sunday. The next morning, as he went to place his collar and cuff buttons in his shirt, he noticed that the stud was gone.

Appellant insists that its peremptory instruction, considering the clauses of the policy, should have been given, alleging the insufficiency of the testimony. Appellant cites and copiously quotes from the following New York case, Duschenes v. National Surety Co., 79 Misc. Rep. 232, 139 N. Y. Supp. 881, as one, among others from the same court, as persuasive of this case in its favor. The case of Duschenes v. National Surety Co., supra, was decided by one of the Supreme Courts of New York, and discloses that the plaintiff occupied rooms in a hotel; that she wore the particular piece of jewelry alleged to have been stolen the day before the alleged theft, and after placing the jewelry in a plush case deposited the case in a jewelry box on her bureau. The next morning, after returning from breakfast, she found the jewelry missing from the jewelry box. The defendant had insured the . plaintiff against “direct” loss “by burglary, theft, or larceny,” and the court said, among otbier things:

“At most, the plaintiff has submitted evidence which shows that the piece of jewelry has disappeared under circumstances that might perhaps permit an inference that it was stolen.”

The particular policy in that case further provided:

“The assured shall also produce direct and affirmative evidence that the loss of the article or articles for which claim is made was due to the commission of a burglary, theft, or larceny; the disappearance of such article or articles not to be deemed such evidence.”

This last provision was particularly stressed as an actuating reason for the denial of plaintiff’s cause of action; the court further saying:

“That the insured must produce, not circumstantial, but direct and affirmative, evidence of the wrong.”

The further comment was:

“Parties may be mistaken in their recollection of where they placed a piece of jewelry, but they are not apt to be mistaken in recollection as to matters directly and affirmatively showing a felony, and the defendant could reasonably provide that there could be no recovery unless, in addition to the testimony of the disappearance of the jewelry, the insured should produce testimony of a direct and affirmative kind that there has been a felony.”

The present policy and the one quoted from in the case cited, as will be readily seen, present a marked difference as to the quantum of proof necessary to establish theft, and, unless the clause, -“Mere disappearance of property shall not be deemed sufficient evidence,” negatives the sufficiency of the proof, we think, upon the evidence, the cause was subject to submission to the jury.

By process of elimination, the New York case, supra, could be considered an authority against the contention of appellant. It is noted that the court said:

“At most, the plaintiff has submitted evidence which shows that the piece of jewelry has disappeared under circumstances _ that might perhaps permit an inference that it was stolen.”

If that be true, the controlling point in that case must have been influenced by the clause requiring that the assured should produce direct and affirmative evidence that the loss of the article was due to the commission of a crime.

We think the clause in this particular policy, that mere disappearance should not be deemed sufficient evidence, is merely the statement of a general legal truth; However, disappearance of the diamond under the conditions stated by appellee, after having been placed upon the chiffonier by him in the evening, and missing therefrom the morning thereafter, would not constitute a “mere disappearance,” exempting the insurer from liability. If appellee’s testimony is to be believed, and the jury resolved it, the inference is reasonably deducible, as we think the New York court really admitted, that the property disappeared under circumstances exhibiting loss by a criminal act, sufficiently proven as at common law, thougk in the New York case not sufficiently established, measured by the quantum of proof contracted for in that policy.

The judgment of the trial court is affirmed.
      (SrxoFor other" cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BALL v. MILLER.
    (No. 1003.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 24, 1916.)
    1. CONTINUANCE <&wkey;51(4) — DISCRETION OF Tbial Court — Refusal of Continuance.
    In an action on a note where the defense was that plaintiff was only a surety for defendant and had not paid the note and that it was without consideration and was not intended to be paid, and where one continuance had been granted on account of the defendant’s illness, the denial of a second continuance on a ground of the illness of his wife and a physician’s advice that it was best for him to remain at home, and where, if defendant had been present and his testimony had sustained his defenses, there would have been a conflict of evidence upon the issues, and where there was evidence in the record entitling plaintiff to recover, the denial of the continuance was not an abuse of the trial court’s discretion.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 147; Dec. Dig. &wkey;51(4).]
    2. Principal and Surety &wkey;>184r — Action by Surety Against Principal — Payment.
    The general rule that a surety cannot recover against his principal until the former has aid the debt does not apply where the surety as satisfied the debt of the principal by the execution of his negotiable note.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 545-548; Dec. Dig. 184.]
    3. Principal and Surety <&wkey;184^-AcTioN by Surety — Note.
    _Where defendant’s note to plaintiff was given in consideration of plaintiff’s execution of his note to a bank, to reduce defendant’s indebtedness thereto and the bank accepted the note, plaintiff could sue defendant on his note.
    [Ed. Note.- — For other cases, see Principal and Surety, Cent. Dig. §§ 545-548; Dec. Dig. <&wkey; 184.]
    Appeal from District Court, Collin County; W. I-I. Garnett, Judge.
    Suit by L. L. Miller against T. E. Ball. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Geo. P. Brown and L. C. Clifton, both of McKinney, for appellant. R. O. Merritt and H. C. Miller, both of McKinney, for appellee.
   HALL, J.

Appellee, Miller, sued appellant, Ball, on the 4th day of August, 1914, upon a promissory note, executed by appellant to appellee, in the sum of $2,500, stipulating for 10 per cent, interest and 10 per cent, attorney’s fees, and bearing a credit of $500 of date April 14, 1914. At the February term, 1915, appellant answered and, in addition to general demurrer and general denial, alleged that at the time of the execution of the note sued on it was agreed and understood that the same was not to be paid; that appellant, at the date of its execution, was indebted to the Farmers’ & Merchants’ National Bank of Farmersville, Tex., in a sum in excess of the amount allowed by the national banking laws, and that said hank was insisting that appellant should reduce his indebtedness; that, for the purpose of making the books of the bank show that appellant was not indebted in excess of the lawful amount, appellant executed to appellee the note sued on and appellee executed his note to said bank in the sum of $2,500; that appellee was only a surety to said bank for appellant and has not paid the note executed by him to the hank, and that the note in suit is without consideration; that it was understood at the time and by all parties that appellee was not to pay the note executed by him to the bank, and that appellant was not to pay the note in suit. The case was called for trial at the May term, 1915, and appellant announced not ready and filed his second motion for a continuance, which was overruled. The case was then tried by the court, without a jury, resulting in a judgment in appellee’s favor against appellant, in the sum of $2,533.80 and costs of suit.

The first assignment is predicated upon the court’s action in overruling appellant’s motion for continuance. The substance of the motion is that appellant could not attend the. trial on account of the serious illness of his wife. The condition of his wife is shown by the affidavit of a physician attached to and made a part thereof, in which it is stated that the wife of appellant is suffering from severe hemorrhages from the womb and that he believes it is best for Mr. Ball to remain at home with his wife during this condition. The court qualified the bill of exception, stating in substance that the case was continued at the former term on account of the sickness of appellant himself; that, if the defendant had been present and testified to every fact stated in the application, it could' not have been material as a defense to the plaintiff’s suit in any way; that the court did not believe if defendant had been present he would have testified as stated that Miller was only his surety, and, if he had done so, this was shown by the entire testimony in the case not to be true; further, that the affidavit of the physician does not state that the defendant’s presence was necessary, but merely that he thinks it best for the defendant to be there; that the distance between Farmersville and McKinney is 16 miles, the two places being connected by rail, and defendant could have loft Farmersville for McKinney and returned to Farmersville in the space of four hours, as trains were running regularly each way every day; or he could have left Farmersville by auto and reached McKinney for the trial, if he had so desired, and attended the trial and returned to his home within the space of three hours. The court then states as a conclusion that appellant did not want to attend the court, but simply made it a pretest to continue the case.

In the condition we find the record, the facts stated in the qualification to the bill must be accepted by us as true. If appellant had attended the trial and his testimony had sustained the defenses alleged, the result would have been a sharp conflict of evidence upon the issues presented.

This being appellant’s second motion for a continuance, the disposition to be made of it was a matter within the discretion of the trial court, and, unless an abuse of such discretion is shown, we are not authorized to reverse the judgment. Only one witness testified with reference to the transaction and agreement, concerning which appellant, insists he should have been permitted to testify. The evidence of this witness, Aston, who was the cashier of the bank, is to the effect that appellant was indebted some $2,-400 over and above an amount permissible under the banking laws; that witness informed appellant he must, by some method, reduce the amount of the debt; that appellant sent his son Walter Ball to see witness, saying he had made an arrangement with appellee Miller to take up the excess, to which arrangement witness, representing the bank, assented; that the bank accepted appellee Miller’s note, for the amount of $2.500, as a payment of that much of Ball’s indebtedness and credited Ball’s account with the amount of the Miller note; that the bank claimed no interest whatever in the note sued upon, as it was given by Ball to Miller to indemnify him against loss.

On cross-examination, appellant’s attorneys propounded certain questions by which it appears they expected to prove that Ball, Miller, and H. M. Rollins, the president of the bank, had an agreement or understanding by which the note sued upon was not to be paid at all; but no effort was made to establish this fact, either by Miller or Rollins, nor was appellant’s son Walter called as a witness to contradict the statement made by the cashier as to the substance of the message delivered by him. The purport of this witness’ testimony is not assailed in the motion for new trial. In this state of the record we must conclude that no abuse of discretion has been shown.

Appellant contends that Miller was simply his surety to the bank to the extent of $2,-500, and that, since the evidence fails to disclose that Miller had paid off the debt, he was not entitled to recover against appellant, and that there was no consideration for the note sued upon. The general rule that a surety cannot recover against his principal, until the former has paid the debt, does not apply where the surety has satisfied the debt of the principal by the execution of his negotiable promissory note.

In Boulware v. Robinson, 8 Tex. 329, 58 Am. Dec. 117, it is said:

“This distinction between the giving by the plaintiff of a bill of exchange or negotiable note, which has been accepted by the creditor in satisfaction of the defendant’s debt, and the giving of a bond or other security, not negotiable, which has been in like manner accepted, seems to have been maintained by the English and American courts, and must be received as the settled law.”

The rule is further discussed and clearly announced by Cobbs, Justice, in Yndo v. Rivas et al., 142 S. W. 920, and the holding approved by the Supreme Court.

We take it that the appellant, if present, could not have controverted the fact as stated by the bank cashier that Miller’s note had been accepted as a payment to that extent on appellant’s debt. Under the decisions cited, this clearly entitles appellee to maintain his action. Since we are not authorized to revise the ruling of the court upon the application for continuance, and because the evidence in the record which the presence of appellant at the trial could not have changed,' or even modified, entitled appellee to a recovery, the judgment must be affirmed.
      <3.^For other oases see same topic and KJSY-NUjMBER in al! Key-Numbered Digests and Indexes '


author: RASBURT, J.

text:
    MARTIN v. GOODMAN.
    (No. 7568.)

    (Court of Civil Appeals of Texas. Dallas.
    May 27, 1916.
    Rehearing Denied July 1, 1916.)
    1. Fraud <S»59(3) — ActioN — Damages — FRAUDULENT REPRESENTATIONS IN SALE OP Lanb.
    Where a vendee is induced by false representations as to the value, condition, or quality of lands to enter into a contract to purchase to his loss, the measure of his damages in an action for fraud is the difference between the sum paid and the value of the land received.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 62; Dec. Dig. &wkey;59(3).]
    2. Courts &wkey;>122 — Dimiteb Jurisdiction — Amount in Controversy.
    When it appears from specific allegations of pleading that the amount recoverable is below the jurisdiction invoked, general allegations of a greater sum not supported by the very nature of the case made are unavailing to confer jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. &wkey;?122.]
    Appeal from District Court, Dallas County ; E. B. Muse, Judge.
    Action by Anna Goodman against J. B. Martin and others. From judgment for plaintiff, the named defendant appeals.
    Reversed and dismissed.
    D. R, Callaway, of 'Dallas, for appellant. J. M. Terrell and I-Iarry P. Bawther, both of Dallas, for appellee.

      Writ of error pending in Supreme Court.

   RASBURT, J.

Appellee sued appellant and Crotty & Miller in the court below for damages grounded upon the fraud of appellant in the sale of a lot of land in the city of Dallas to appellee. The pleadings upon which appellee went to trial alleged, in substance, that, appellant, who was the owner of a certain city lot in Dallas, in collusion with Orotty & Miller, real estate agents, and acting through one Holland, pointed out and offered to appellee for sale another and more valuable lot, falsely representing same to be appellant’s lot, which appellee, who was ignorant of the deception, and who relied upon the representations so made, purchased, paying therefor $850. It was also alleged that appellant, in consummating said sale, conveyed appellee, not the lot pointed out, but the one he really owned, which was only of the value of $450, while the lot pointed out to her and represented to be the one conveyed was of the value of $1,750. It was further alleged that by the false representations in the sale and purchase of said lot appellee had been damaged “in a large sum of money, to wit, in the sum of $1,500, for which sum appellee prayed judgment.” The original and" amended answer of appellant, so far as it is necessary to state, consisted of a general demurrer and a special exception challenging the jurisdiction of the court on the ground that the amount in controversy, exclusive of interest, as shown by ap-pellee’s pleading, was a sum less than $500. There was trial by jury to whom the court, after overruling the general demurrer and special exception noted, referred certain special issues of fact. Upon the findings of the jury judgment was entered by the court for appellee against appellant and Orotty & Miller for $482.48, from which entry appellant alone prosecutes this appeal.

The first assignment of error complains of the action of the court in overruling the general demurrer and the special exception challenging the jurisdiction of the court referred to in our statement of the case. The proposition urged in support of the claimed error is that the measure of appellee’s damages as pleaded was the difference in value of the lot she received and the amount she paid therefor; and, it appearing from the pleading that such amount was $450. the district court was without jurisdiction to determine the controversy. The first inquiry then is: What sum was appellee entitled to recover as damages under the facts urged in her petition? There was at one time some confusion and perhaps some difference in the adjudicated cases in the Supreme Court on the issue presented; but there has, as we understand the cases now, been no controversy about the rule since the holding in George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456. In that case the holding is that where a vendee is induced by false representations as to the value, condition or quality of lands, as distinguished from quantity, title, or incumbrances, to enter into a contract of purchase to his loss, the measure of his damages, in a suit for that purpose, “is the difference between the value of that which he has parted with and the value of that which he has received.” The rule stated is also that of the Supreme. Court of the United States. Sigafus v. Porter, 179 U. S. 116, 21 Sup. Ct. 34, 45 L. Ed. 113. The rule, however, is not general in all the states. See notes to George v. Hesse, 8 L. R. A. (N. S.) 804.

The measure of appellee’s damages as disclosed by her pleading being that stated, and it appearing therefrom that such amount was not cognizable in the district court, should the trial court have sustained the general demurrer or the special exception by authority of both of which the issue was presented? Appellee declares that the demurrer and exception were properly overruled for the reason that the jurisdiction of the district court was to be determined by the amount declared in the petition to be the damages suffered, unless it was alleged and proven by appellant that such amount was claimed for the fraudulent purpose of conferring jurisdiction upon the trial court. The pleadings did, as we have shown, declare that appellee had been damaged $1,500 by the false representations concerning appellant’s ownership of the lot pointed out, and sought recovery for that amount. The pleadings also disclosed that appellee paid $850 for the lot, and that its actual value was $450. The Supreme Court was at one time also in disagreement on the issue thus presented; but, as in the case of the issue just discussed, the decisions have been uniform since the case of W. U. Tel. Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8. In that case it was held, in substance, that courts generally^ when jurisdiction of the case is obtained^ will retain it for the purpose of rendering complete justice upon the whole case, but that it does not follow from that rule, when it is disclosed by the pleadings that the plaintiff has no cause of action, except one which he should have asserted in another tribunal, that such cause of action will be entertained because another claim is asserted for which the plaintiff may in no event recover. By the rule controlling appellee’s measure of damages she was entitled to recover the difference between the actual value of the lot and the amount he paid for it, which was $450. By the rule of pleading announced in W. U. Tel. Co. v. Arnold, supra, the only effect of the allegation that she was damaged $1,500 was to assert a claim upon which she was not-entitled to recover, and which may not be considered for that reason in determining the jurisdiction of the court. To put the rule in another way, whenever it appears from specific allegations of pleading that the amount recoverable is below the jurisdiction invoked, general allegations of a greater sum not supported by the very nature of the case made is unavailing to confer jurisdiction, “as where to a declaration upon a promissory note the plaintiff adds the general ad damnum clause.” Foster v. Roseberry, 98 Tex. 138, 81 S. W. 521; Carswell & Co. v. Habberzettle, etc., 99 Tex. 1, 86 S. W. 738, 122 Am. St. Rep. 597.

Accordingly, it becomes our duty to reverse the judgment and dismiss the case; for as said in Pecos & North Tex. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294:

“The defendant had a right to have the issue involved * * * tried in a court of competent jurisdiction, and he cannot be deprived of that right by an act of his opponent to which he does not consent.”

Reversed and dismissed.
      <©^>For other cases see same topic and ICEY-NUMBER in all Kej-Numbered Digests and Indexes


text:
    FIREMAN’S INS. CO. v. JESSE FRENCH PIANO & ORGAN CO. et al.
    (No. 998.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 31, 1916.
    Rehearing Denied June 28, 1916.)
    1. Appeal and Error -<@^499(4) — Recobd — PRESENTATION OP GROUNDS OP REVIEW — INSTRUCTIONS.
    Under the express provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, assignments of error in the court’s charge could not be considered, where the record did not show either objection or exception in the court below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <@¿>499(4).]
    2. Appeal and Erbob <&wkey;692(3) — Record-Exclusion op Evidence.
    In a suit upon a fire insurance policy covering a piano in the possession of a buyer from the plaintiff, an assignment of error in sustaining an objection to the testimony of plaintiff’s manager and in refusing to permit defendant to show by him that the piano did not cost the plaintiff over $300, and that plaintiff’s profit on it as a wholesale dealer was 40 per cent., could not be considered, where the bill of exceptions showed that the manager did not know what the plaintiff gave for the piano, and did not show that he could or would have stated the percentage of profit.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2908, 2909; Dec. Dig. &wkey;> 692(3).]
    3. Insurance <&wkey;668(3) — Question por Court —Construction op Contract.
    The construction of a written provision of a policy as to the extent of the insurer’s liability was a question for the court, and not for the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1734, 1755; Dec. Dig. <&wkey;>66S(3).]
    4. Judgment &wkey;> 199(1) — Special Verdict — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1990, providing that where a special verdict is rendered the court, unless it be set aside and a new trial granted, shall render judgment thereon, the court could not enter judgment for defendant notwithstanding the jury’s verdict for the plaintiff.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367, 374, 375; Dec. Dig. &wkey; 199(1).]
    5. Insurance <&wkey;495(l) — Amount op Risk— “Coinsurer’ ’ — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4893, providing that no company may issue any policy covering property in the state containing any provision that the insured shall be liable as a coinsurer for any part of the loss or damage to the property by fire, a provision in a fire insurance policy, covering a piano valued therein at $500, on which amount the company collected a premium, that in the event of loss or damage the company should not be liable for more than three-fourths of its cash value immediately preceding any loss or damage, and that in the event of other insurance it should be liable only for its proportion of three-fourths of such cash value at the time of the fire, in the absence of showing of concurrent insurance, was void, though there can be no “coinsurer” where the insured does not bear a proportion of the risk.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1270-1272; Dee. Dig. <&wkey;495(l),
    For other definitions, see Words and Phrases, Coinsurer.]
    Error from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Suit by the Jesse French Piano & Organ Company and another against the Fireman’s Insurance Company. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Senter & Synnott, of Dallas, for plaintiff in error. Short & Feild, of Dallas, for defendants in error.
   HALL, J.

This suit is based upon a fire insurance policy covering a piano. Defendant in error Jesse French Piano & Organ Company instituted the suit, alleging, in substance, that it sold a player piano to W. S. Levan, who executed 40 notes in part payment therefor, aggregating $475, said notes being secured by a chattel mortgage on the piano; that Levan agreed to take out an insurance policy for $500, payable to defendant in error, as its interests should appear; that said policy was duly issued, and while the same was in force, and while Levan owed it more than $500, the piano was destroyed by fire. Notice was given to produce the policy. Levan was also made a party, but, being a nonresident, and not having been served in the state, defaulted. Plaintiff in error answered, setting up specially a provision of the policy, to the effect that in case of loss by fire the measure of the recovery should be three-fourths the actual value of the property destroyed, and that the property was worth only $300 at that time. It pleaded a further provision of the policy, to the effect that in case there should be additional insurance upon the property, the liability of the company should be limited to such an actual value of the property as the amount of its policy was of the total insurance; that there was other insurance to the amount of $800, aggregating $1,300 insurance, and therefore its liability, if anything, was only 5/13 of $300; that after the destruction of the piano it issued its draft, payable to the plaintiff and Levan, for $300; that plaintiff accepted and retained possession thereof, and was therefore estopped to claim more than said amount. By supplemental petition the defendant in error denied that it retained the $300 check; that it was estopped; that the piano was only $300, but alleged tbat it was worth $500; and tbat tbe defendant insurance company, by issuing its check for $300, was estopped to claim tbat it was liable for less.

Tbe first three assignments complain of tbe court’s charge, but since tbe record shows neither objection nor exceptions in tbe court below, we c-annot, under article 1971, Vernon’s Sayles’ Civil Statutes, consider them.

Tbe fourth assignment is tbat tbe court erred in sustaining plaintiff’s objection to the testimony of plaintiff’s manager, Phelps, and in refusing to permit tbe defendant to show by Phelps, as it would have done, tbat tbe piano did not cost tbe plaintiff exceeding $300, and in refusing to permit tbe defendant to prove by Phelps tbat tbe profit of tbe plaintiff upon tbe piano, as a wholesale dealer, was 40 per cent. A bill of exception is reserved in tbe statement of facts, which shows tbat Phelps did not know what tbe plaintiff gave for tbe piano, nor is it shown tbat he could or would have stated tbat there was a profit to plaintiff in tbe sale of 40 per cent. So if this evidence could be held admissible, tbe condition of tbe record is not such tbat we can consider tbe assignment.

Tbe finding of tbe jury tbat tbe check was not accepted in payment of tbe claim is sufficiently sustained by the evidence.

It is insisted tbat tbe court erred in refusing to submit to tbe jury tbe question as to whether tbe policy sued on contained a provision making tbe defendant liable, if at all, only for a pro rata part of three-fourths of tbe cash value of the property destroyed, other insurance included. This being a question for tbe court, there was no error in refusing to submit to tbe jury. Tbe contract of insurance was in writing, and tbe duty of construing it was not a proper matter for tbe jury.

By tbe seventh assignment it is insisted tbat tbe court should have entered judgment for the defendant, notwithstanding tbe verdict of tbe jury. Such a proceeding is not permissible under tbe statute of this state. Vernon’s Sayles’ Civil Statutes, art. 1990.

Appellant insurance company insists tbat in no event should judgment have been rendered for more than three-fourths of tbe established value of tbe piano at tbe time of its loss. This contention is based upon tbe following clause attached to tbe policy:

“Three-fourths value and other insurance clause. In consideration of the rate of premium at which this policy is written, it is a condition of this insurance that in event of loss or damage by fire to the property described herein, this company shall not be liable for an amount greater than three-fourths of the cash value of each item of the same — not exceeding the amount of said policy — at the time immediately preceding such loss or damage; and in the event of other insurance on the property described herein, then this company shall be liable only for its proportion of three-fourths of such cash value at the time of the fire. Other concurrent insurance permitted but total insurance shall, at no time exceed three-fourths of the cash value of each item of the property described therein.”

In tbe policy tbe piano is valued at $500. Tbe evidence shows $500 to have been its value at tbe time of tbe fire, since it bad been in use only about 30 days. Tbe appellant company collected a premium upon it, based upon such value. Five hundred dollars is also shown by tbe record to have been tbe price at which the instrument was sold to Levan. It therefore appears tbat appellant has collected a premium based upon tbe valuation of $500, tbe price paid by the purchaser for tbe instrument, and under tbe clause above quoted is seeking to avoid liability to tbe extent of one-fourth of tbe amount upon which it has collected its premium. Tbe record does not show any concurrent insurance. To sustain this contention would be to make tbe owner of tbe instrument a coinsurer to tbe extent of one-fourth of its value after having paid a premium upon its full value to tbe appellant. If, for any reason, appellant did not think it advisable to insure tbe instrument for its full value, and did not intend to become liable for more than three-fourths of its value in tbe event of loss, tbe premium should have been collected upon only such three-fourths’ value. Article 4893, Vernon’s Sayles’ Civil Statutes, was enacted to meet this condition. This article provides tbat no company subject to tbe provision of this act may issue any policy or contract of insurance covering property in this state which shall contain any clause or provision in any way providing tbat tbe assured shall be liable as coinsurer with tbe company issuing tbe policy for any part-of the loss or damage which may be caused by fire to tbe property described in such policy, and any such clause or provision shall be void and of no effect. It is provided, however, by tbe article that coinsurance clauses may be inserted in policies covering cotton, grain, or other products in process of marketing, shipping, and storing or manufacturing. There can be no coinsurance where tbe insured does not bear a proportion of tbe risk. Oppenhein v. Firemen’s Fund Insurance Co., 119 Minn. 417, 138 N. W. 777.

Finding no reversible error, tbe judgment is affirmed.
      <5&wkey;For other cases set same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    O’HANLON et al. v. MORRISON.
    (No. 1002.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 24, 1916.)
    1. Advekse Possession &wkey;>71(2) — Color oe Title — Void Deed.
    A void deed does not constitute color of title required by the three-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 417-421, 424-426, 428; Dec. Dig. &wkey;»71(2).]

      2. Taxation <&wkey;7S9(3) — Tax Deeds — Validity.
    A tax deed is not evidence of title unless the authority of the maker of the deed is shown bV proof of compliance with the requirements of law conferring authority to make the sale.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1558; Dee. Dig. &wkey;789(3).]
    3. Advebse Possession i&wkey;60(4) — Requisites —Hostile Character oe Possession.
    Under Rev. St. art. 5681, defining adverse possession as an actual and visible appropria•tion of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another, where the defendant used a vacant lot for tying stock in common with others, and storing lumber and wire in a manner consistent with subordination to the title of the owner, and first used it under a claim of right in 1904 under a tax deed made to another, and gave no notice of his change of intention to a hostile possession until a year or so before he fenced the land three years before the beginning of the action, his holding until three years before the action was not inconsistent with or hostile to the owner or an actual visible appropriation as to indicate unmistakably an assertion of claim of exclusive ownership sufficient to give him title under the ten-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 288-293; Dec. Dig. <&wkey; 60(4).
    For other definitions, see Words and Phrases, First and Second Series, Adverse Possession.]
    4. Adverse Possession &wkey;>79(4) — Hostile Character of Possession — Tax Deed.
    Possession in a tax deed is not adverse to the title of the owner, and cannot be used as a basis for possession under the statute of limitation until after the period of two years allowed for redemption.
    [Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. § 462; Dec. Dig. &wkey;?79(4).]
    5. Adverse Possession <&wkey;36 — Requisites— Continuous Ownership.
    The facts were not sufficient to show a continuous or exclusive use of the property.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 139-143; Dec. Dig. <&wkey;> 36.]
    6. Adverse Possession &wkey;»29 — Requisites— Appropriation.
    To constitute adverse possession, the person occupying the land must appropriate it to some purpose for which it is adapted, since mere occupancy of the land, without evidence showing an intention to appropriate it, will not support the statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 124, 125; Dec. Dig. &wkey;? 29.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by F. L. O’Hanlon against W. A. Morrison and others. From a judgment for the named defendant, the plaintiff and other defendants appeal.
    Reversed and remanded.
    J. W. Finley, of Sherman, for appellants. Cox & Cox, of Sherman, for appellee.
   HUFF, C. J.

O’Hanlon instituted an action . of trespass to try title against W. A. Morrison, J. H. Hollingsworth, Van Dyke Todd, and B. W. Gulick, to recover lot No. 3, in block No. 41 of College Park addition to Sherman. The petition sought a recovery against Gulick, the vendor of appellant, under a warranty for the purchase money paid should he fail to recover the land. W. A. Morrison answered among other things the three, five, and ten year statute of limitation, also alleging a purchase from Hollingsworth, who purchased at tax sale, and the failure of appellant to redeem in two years. Hol-lingsworth, Todd, and Gulick did not answer. The case was submitted to a jury, who found for Morrison upon his plea of three and ten year limitation, and in favor of O’Hanlon against Gulick, for $125, and judgment was accordingly so rendered.

The appellant- showed title in himself and the trial court so instructed the jury, unless defeated by the statutes of limitation pleaded by Morrison. Morrison claims under a tax deed sold for taxes, due the city, by the collector of that city. The deed itself is not in the record, but apparently the witnesses who testified to it had it before them, and referred to it as being dated March 1, 1904. It appears J. H. Hollings-worth purchased at the tax sale and did so for Morrison. The tax deed was made to Hollingsworth, and he and Morrison testified that he conveyed the lot by deed to Morrison. This deed appears to have been lost, and thereafter a substitution deed was executed, which was placed of record some time in 1914. There was nothing showing assessment or levy of taxes. No judgment was offered foreclosing the tax lien; in fact, nothing was shown except the tax deed, if indeed that can be said to have been in evidence. The suit for the lot was filed August 27, 1914, and the trial was had February 2, 1915. The evidence shows the lot in question was vacant, without any improvements on it of any kind until a little less, as stated by the witness, than three years before the trial; or something Hike two years before the suit was filed, when Morrison fenced the lot. Morrison testified:

“In March, 1904, I was tax collector of Gray-son county. At that time I had Mr. Hollings-worth to do something in reference to lot 3, block 41, College Park addition to the city of Sherman. I had him to buy it at a tax sale. My recollection is I had to leave town on the day it was to be sold; is why I had him to buy it. I bought it because I needed it as a kind of store place for things that I would have around that I couldn’t keep on my other lot. I had been using the lot before that. It must have been four or five years that I had been using it. In fact, I was using it all the time since I moved over there. I moved over there in the winter of 1897, I think it was, 1896 or 1S97, I don’t remember how long it was after I moved there before I began to use this lot. It wasn’t but a short time. Probably the next spring. I used it for various purposes. I have used it for pasturing; that is, lariating on it and pasturing. I mean I tied my cow and horse on it. I used it also for standing my wagons on, and have had some mowers on it, or one mower I remember; piled lumber on it sometimes, right often I have used it nearly all the time since I moved there, quite all the time for various purposes; not for any one thing all the time. I will say that I have used it about all the time, for the purposes which I have stated to the jury, stored lumber, mowing machines, farming implements and wagons, buggies; sometimes put some wire on it a time or two, wire that I wasn’t using. I started using that lot in that manner, I think, within a year after I moved there. I think a year would cover it. Don’t think it was that long. That would be since about 1897 or 1898. I have continued to use the lot up to the present time in the manner in which I started to use it. No one has interfered with my peaceable use of the lot. No one has done anything to prevent me from using the lot, not until this suit was brought. I don’t remember the date when the suit was brought. I fenced the lot, and put up some feed troughs on it. I think that was three years ago this coming spring. When I first started using this lot there was a house on lot 4. This lot 3 was a vacant lot; nothing on it at all. There was some little brush on it; this black locust, I believe. I frequently made inquiry along about that time about who owned the lot. I never could find out who owned it. I was using it before I started to find out who owned it. I wanted the lot; needed it; and couldn’t find out who owned it, and that caused me to take the course I did toward using this lot. I went to tiio records down stairs in the county clerk’s office to try to find out who owned it. I didn’t find out much of anything there. No one ever approached me at any time that I remember of with reference to signing a lease on the lot. Mr. O’Hanlon has spoken to me a time or two about the ownership of the lot in the last 12 months. No one spoke to me about it before the last 12 months that I remember of. Mr. Finley has spoken to me once about it, X believe, but not before 12 months ago. It might have been Mr. O'Hanlon spoke to me about it longer ago than that, but I don’t think it has been longer than 12 months. Mr. Hol-lingsworth executed me a warranty deed to the lot. The first deed was executed some time during the summer of 1904. I haven’t got that first deed that was executed. I do not know where it is. It got misplaced. I am positive that that deed was executed and delivered to me somewhere along about 1904, during that summer. It was after March 6th. That first deed was never placed of record. I don’t know as I ever made a diligent search for the first deed until about a year ago or a little longer. I had a locker down in the county clerk’s office that I kept some of my papers in, and I kept some of them out at the house. During the time I was collector I kept them down here in the office. I know from memory that there was a former deed executed by Mr. Hollings-worth to me to this lot 3, block 41. I had Mr. Hollingsworth to buy this in for me. Some time after that time Mrs. Carr put up some kind of a claim to the lot, and wont to Mr. Hollings-worth about it, and he told me about it, and then I had him give me a deed. The agreement between Mr. Hollingsworth and me at the time he bought this in was that he was to execute a deed to me at any time that I would ask him for it. I paid taxes on this lot. I paid state and county and city taxes. (Witness is handed some papers.) These are tax receipts.
“Mr. Oox: We offer these receipts in evidence.
“The Witness: Some of the receipts show that I paid taxes on lot 4, block 41. That was caused by an error in rendition. I found out two or three years ago that there was an error in the rendition. As soon as I found out about it, I changed it from ‘4’ to ‘3.’ I didn’t change the receipts. I changed the rendition. I first laid claim to the lot in 1904. I had been using it prior to that time. I used it for the purpose of rather a store place for things that I wasn’t using. That is what I did with reference to claiming it. I asserted my claim of ownership by storing things on the lot. I took actual possession of it. I stored lumber on it and wire, and lariated my horse and cow on it; put some machinery on it; put my wagon and buggies on it. I stated that I used it in that way. I used it that way to the exclusion of others. I had possession of it. I first asserted that possession about 1897 or 1898. I first started to using and occupying the place about that time, about 1897 or 1898; somewhere along there. No one else _ used or occupied that lot from then on. During that time no other person ever occupied the lot.”

Cross-examination by Mr. Finley:

“I. made inquiries of several about the ownership of that lot. I don’t know but what I asked you (Mr. Finley) about it one time down in the county courtroom or in the county clerk’s office. And I asked Mr. Tuck. I don’t remember that you turned to the books and showed me whose name it stood in. I have asked Mr. Tuck. I have talked about it frequently. I don’t know who that first deed was acknowledged before, only just from the party that did my notary work usually. I did not go to the notaries and have them examine the books and see if there had been any acknowledgment made. I didn’t make any such effort to find out whether there had been a deed acknowledged or not. I don’t know as a matter of fact that there never was one executed until this last one. I know that there was. . I got up this other instrument in 1914 because I couldn’t find my other deed. I don’t think I knew the date of the other one. I fixed the date of this instrument from recollection and memory. I didn’t go to the notaries that did work to find out whether or not there was a record. I don’t know that the law requires notaries to keep a record of those acknowledgments, public documents. It is not a fact that the reason I didn’t go to them was because there never was one executed back there. I think it was three years ago this coming spring that I fenced this lot. I think it is a little bit short of three years now. Prior to that time I lariated my stock on the lot. I lariated calves on it and milch cows and a horse and colt. I did that during the spring, summer, and fall. I didn’t do it through the winter. 1 may have put something out there in the late fall for exercise. I don’t know. I don’t mean to say that I didn’t or did. I put lumber on it. I didn’t run as large a lumber yard as they run here in town. Oftentimes I would buy lumber to repair things around the place, or probably secondhand lumber, generally. I didn’t buy any new lumber and store it out there. I would sometimes leave my buggy standing on the property and sometimes my wagon or machinery. The machinery didn’t stay there from year to year. I didn’t keep it there all the time. I don’t remember when I first put lumber there; I couldn’t give you the date. To come right down to it, I expect there has been some lumber there all the time; some lumber or wire thah has been rolled up, or something of the kind. * * *
“In tying my animals there I tied them at different places. The lot is inclosed now. Prior to the time I put the fence there a little less than three years ago there was no inclosure, and never had been so far as I know from the time I moved out there. There are no buildings on it. It was an open lot, except that it was fenced on two sides, north and south sides. That left the oast and west ends open. It wasn’t fenced at all until the men north and south fenced their lots. It is not a fact that I put the first fence on the south there. My recollection is there was a fence on the north and south and this house burned. There was a house on the north side of the lot. That wasn’t before I moved out there. It .burned by back fence down and barn. There was no fence across either end of the lot, and other people had the same access to it if they wanted it, and hitched their cattle there if they wanted to. I don’t know whether Mr. O’Hanlon put up a sign there on that lot or not some years ago. I know there is a sign there, hut I don’t know who put it there. _ I didn’t see him. It has his name on it. I think it has been two or three or four years ago that that was put there. I don’t know how long. I didn’t pay much attention to it. I don’t think it was five or six years ago.”

The testimony in this case shows that vacant lots in the city of Sherman are frequently used by the residents for lariating out their cows or stock upon them to graze, and the very lot in question was used by ap-pellee and others when he did not claim to own or have a right thereto. The appellee did not pay the taxes on this lot until about 1910, or 1911. This was caused by an error on his part in supposing that lot 3 was lot 4, and he paid on lot 4.

Assignments of error are based on the admission of the testimony to the effect it did not show possession exclusive and continuous and to the refusal of the court to instruct a verdict for appellant and to grant a new trial, all asserting the insufficiency of the testimony to support the three and ten year statute of limitation.

We think the trial court should have instructed the jury, as requested by the third specially requested charge, to the effect that there was no testimony to support the three-year statute of limitation. A void deed does not constitute “title or color of title” required by the statute to support the three years. A tax deed does not constitute title unless the authority of the maker of the deed is shown by proof of performance of all the preceding requisites. Latimer v. Logwood, 27 S. W. 960; Telfener v. Dillard, 70 Tex. 139, 7 S. W. 847; Gillaspie v. Murray, 27 Tex. Civ. App. 580, 66 S. W. 252; Allen v. Courtney, 24 Tex. Civ. App. 86, 58 S. W. 200. The deed of a tax collector, without proof of compliance with the requirements of the law conferring authority to make the sale, is no evidence of title in the party claiming under it. This is not an open question in this state. Clayton v. Rehm, 67 Tex. 52, 2 S. W. 45, and authorities cited; Dawson v. Ward, 71 Tex. 72, 9 S. W. 106. The deed was properly introduced in evidence on the question of limitation, but in order to prescribe, under the three-year statute, it must show title or color of title, and this is not shown, under the authorities of this state, until the necessary precedent requirements of the law are shown, authorizing its execution. There was no title shown under the three-year statute.

“Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” Art. 5681, R. C. S. Under the testimony of Morrison, no “claim of right” was set up until 1904. Previous thereto he ,was looking for the owner and making inquiries for him. His use of the lot up to that time was not “inconsistent with and hostile to” the owner. Just at what time Morrison’s acts were sufficient to notify the owner that he was using the lot no longer as the property of the owner, but under a “claim of right,” is difficult to determine from the evidence. The tax deed was not to himself. There was nothing of record to show a claim set up by him. In so far as external circumstances show, he was then, as he had been previously, a mere casual trespasser, or on the lot by permission of the owner. He paid no taxes, on this lot, but he says he intended to, but by mistake paid on lot 4, a lot immediately back of him. So far as this record shows, appellee never notified any one he claimed this lot until a year or so before he fenced it, about the time a Mr. Brown built on lot 4, when he thought lot 4 was the one he bought at the city tax sale. He thought 4 occupied the position in the block that 3 occupied. This lot was not only used by appellee to tie his stock on to graze, but was used by others for the same purpose. This was a permissive user by the owner, and was not under a claim adverse to the owner at the inception of the entry. This permission may be presumed we think.

“So long as the possessor declares that he holds in subordination to the better title, the possession will be regarded as held by consent; nor will a continued possession after such declaration avail to mature title under the statute of limitation until the ijarty has changed the character of his possession, either by express declaration or by the acts of ownership inconsistent with a subordinate character.” Satterwhite v. Rosser, 61 Tex. 166; Chance v. Branch, 58 Tex. 490; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275; Meurin v. Kopplin, 100 S. W. 984; Surghenor v. Taliaferro, 98 S. W. 648.
“It follows, therefore, that where the possession of the claimant 'was in its inception taken with permission of the owner and in subordination to his title, it cannot become adverse without a distinct and open disavowal of the title of the owner brought home to the owner.” Corpus Juris, vol. 2, page 124, § 219, and authorities above cited.

When the appellee changed his acknowledged recognition of the rights of the owner, there was no act on his part or thing done on the land different to that previously done. The deed was not in his name, and notice was not given of his claim under it. The whole matter was kept secret from the owner.

“His claim, so far as the evidence discloses, was a mere mental process, known only to himself. There was no ‘external, circumstances discovering that inward intention.’ It would seem that when one proposes to hold the land of another, which he has neither occupied nor inclosed, by virtue of the statute of limitations it should appear that he has exercised some act of ownership over some definite part thereof calculated to apprise the owner that he is asserting ‘a claim of right.’ ” Titel v. Garland, 99 Tex. 201, 87 S. W. 1152.

Appellee’s claim of right was under a tax deed from the city, dated March 1, 1904, and until this deed appellee asserted no right to the lot. He asserted no other claim. This suit was filed August 27, 1914. The appellee, in his brief, cites section 116 of the charter of the city of Sherman, passed by the Twenty-Fourth Legislature, 1895, page 61, to the effect that the owner shall have the right to redeem his real estate sold for taxes at any time within two years. Deducting the time allowed for redemption after such claim under the deed, the period of time before filing of the suit would be less than ten years. Assuming that the purchase was sufficient notice to the owner of an adverse claim under the tax deed, he had only such notice of the claim as the deed would authorize or the law would permit. It gave notice under what claim possession was held by appellee. It has been established in this state that possession under a tax deed is not adverse to the title of the owner until after the period of redemption expired. The tax deed cannot be used as a basis for possession under the statute of limitation until after the period for redemption. Davis v. Hurst, 14 S. W. 610; Beatty v. O’Harrow, 49 Tex. Civ. App. 404, 109 S. W. 414; Bledsoe v. Haney, 57 Tex. Civ. App. 285, 122 S. W. 455; Porter v. Brooks, 170 S. W. 103; Davis v. Howe, 176 S. W. 759 (writ of error was granted in the last case but evidently not on this question); Turner v. Smith, 56 Tex. Civ. App. 1, 119 S. W. 922; Bente v. Sullivan, 52 Tex. Civ. App. 454, 115 S. W. 350; Masterson v. State, 17 Tex. Civ. App. 91, 42 S. W. 1003.

The authorities above cited were cases under the five-year statute, where the purchaser at tax sale relied upon a duly registered tax deed for five years, but we see no reason why one in possession under a claim of title through a tax deed should not be governed by the same principle under the ten-year statute. Adverse possession under a claim of title is the same in both instances. Where one claims title through the owner, by virtue of a tax deed, adverse possession is the same, and until after the period of redemption the deed under the law confers no right of possession in the xmrehaser, but the right of possession ¡under the deed is in the owner. One so holding land under the deed must therefore recognize the right of the owner, and hence there is no adverse possession “inconsistent with and hostile to” the owner. We, therefore, think during the two years which appellant had the right to redeem appellee’s possession could not be said to be adverse or hostile or inconsistent with the rights of appellant. The “actual, visible appropriation” was not such under the facts of this case, in our judgment, and of “such a character as to indicate unmistakably an assertion of claim of exclusive ownership in the occupant.” Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24; Richards v. Smith, 67 Tex. 610, 4 S. W. 571; Gillespie v. Jones, 26 Tex. 346; Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559; Raley v. Sullivan, 159 S. W. 99.

Neither do we think the facts sufficient to show a “continuous” or exclusive use of the property. Pendleton v. Snyder, 5 Tex. Civ. App. 427, 24 S. W. 363. It has been repeatedly held in this state that going upon land and cutting timber and the like is not alone evidence sufficient to show adverse holding under a claim of right (Sellman v. Hardin, 58 Tex. 86; Murphy v. Welder, 58 Tex. 235; Soape v. Doss, 18 Tex. Civ. App. 649, 45 S. W. 387; Perry v. Stevens, 44 Tex. Civ. App. 108, 97 S. W. 1075), or the grazing of stock on the land (De Las Fuentes v. McDonald, 85 Tex. 132, 20 S. W. 43; Haynes v. Ry. Co., 51 Tex. Civ. App. 49, 111 S. W. 427).

To constitute adverse possession the party occupying the land must appropriate it to some purpose, for which it is adapted. Mere occupancy of land, without evidence showing an intention to appropriate it, will not support the statute. Nona Mills Co. v. Wright, 101 Tex. 14, 102 S. W. 1118.

It is urged by appellee in this case, because the cattle were tied on the land to graze, that this will evidence an appropriation; that it is distinguishable from that class of cases where cattle are herded on land or held on land for grazing purposes. The evidence shows in this case they were only kept on the land during the grass season. In the winter and the months when there was no grass, the cattle were not held or tied on the lot. Others used the land for the same purpose as did appellee, and no attempt is shown on the part of appellee to exclude others so using the land. This, from the evidence, appears to have been the custom over that city; that is, to tie cattle upon vacant lots to graze, whether the lot was owned by the one so grazing. It was what the appellee did on this lot for more than seven years before he made any pretense of claim to it. He placed his buggy, wagon, and mower on the lot; piled some lumber on it. He does not pretend to say how much or what part of the lot was used. It is shown by other evidence in the ease that there was a black locust tree across the alley from the lot on which appellee resided, near the line of the lot in question, and that he used this as a shade for his buggy and horse. Mr. Brown, who purchased lot 4, testified there was some lumber on the line of his lot and 3 when he purchased it. It occurs to us these acts of the appellee are too casual, not of sufficient continuity, and are shown to be such as are usual by the people of that city and by the appellee, when he asserted no claim to the lot. They are not of a character sufficient to notify the true owner of an intent to hold the property adverse to him. Guinn v. Sumpter Valley Ry. Co., 63 Cr. 368, 127 Pac. 987.

We do not believe the evidence sufficient to support the verdict of three and ten years, and most assuredly not of five years.

The case will be reversed and remanded.
      @^}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£ooEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes