text:
    BRITTAIN et al. v. MONSUR et al.
    (No. 196.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 17, 1917.
    Rehearing Denied June 6, 1917.)
    1. Acknowledgment <&wkey;48 — Taking Acknowledgment — Identity—Statute.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 6801, providing that no acknowledgment of any instrument of writing shall be taken unless the officer knows or has satisfactory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making the acknowledgment is the individual who executed and is described in the instrument, where a notary public has not personal knowledge of the identity of the party who makes an acknowledgment before him, he takes such acknowledgment at his own risk, unless he compilies with the statute as to proof of identity by the oath or affirmation of a credible witness, a notary being a guarantor or insurer for the -benefit of vendees by his certificate to an acknowledged deed.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 241-243.]
    .2. Acknowledgment (&wkey;48 — False Certificate of Acknowledgment — Action fob Damages — Title—Burden of Proof.
    In an action by the buyer of land against a notary on the ground that he relied on a false certificate of acknowledgment of the notary to a deed to his grantor, and thereby failed to get title which he would have gotten if the certificate had been true, title to the land involved was a mere incident, and, not being disputed by defendant notary, plaintiff did not need to show that if the certificate had been true he would have acquired a good title to the land because the party purporting to have acknowledged was the owner.
    [Ed. Note. — For other eases, see Acknowledgment, Cent. Dig. §§ 241-243.]
    3. Acknowledgment <&wkey;4S — Liability for Mistake in Certifying.
    A notary’s liability to a buyer of land for mistake in certifying to the identity of a person acknowledging a deed is greater than that of an indemnitor, and recovery can be had against the notary without showing reason for not suing the party who impersonated another in making acknowledgment.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 241-243.]
    4. Notaries &wkey;>ll — Liability for Mistake in Certifying — Identity—Plaintiff.
    In an action by the buyer of land against a notary public and the sureties on her bond for damages resulting from a false certificate of acknowledgment to a deed made by the notary and relied upon by the buyer, the court properly rendered judgment against defendants, though plaintiff buyer was not a party to the deed ac-knowlodged before tile riotary and alleged to have been forged.-
    [Ed. Note. — For other cases, see Notaries, Cent. Dig. §§ 28-36.]
    6. Evidence &wkey;>159 — Liability for False Acknowledgment — Deed.
    In suit against a notary and her sureties by the buyer of land for damages accruing to the buyer from the notary’s having taken a certificate of acknowledgment to a deed without knowledg-e of the identity of the party who acknowledged, where there was no dispute that the purported owner of the land executed and delivered a deed from himself to plaintiff, for which he received $500, it was unnecessary to offer in -evidence the deed itself to prove its existence, it being permissible to show its execution by parol testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 471, 474.]
    6. Appeal and Error <&wkey;1011 (1) — Review-Finding on Conflicting Evidence.'
    A finding of the trial court on conflicting-evidence is binding on the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988.]
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by Jacob Monsur and others against Rita D. Brittain and others. -From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Lipscomb, Gordon & Lipscomb and J. F. Lanier, all of Beaumont, for appellants. J. W. Mackey and C. IV. I-Iowth, both of Beaumont, for appellees.
   BROOKE, J.

This was a suit brought in the name of the state of Texas by Jacob Monsur against appellants Rita L. Brittain, as a notary public, and I. Block and Thomas Brown, as sureties on her bond as a notary, to recover the sum of $1,000, alleged damages claimed by the plaintiff to have resulted from a certificate made by the said Rita L. Brittain, as a notary public, and relied upon by the plaintiff's as being true, whereas, they allege that it was not in fact true. The plaintiff Monsur was given a judgment for the sum of $500 against the defendants, appellants here, with interest thereon at the rate of 6 per cent, per annum from September 30, 1915. The defendants in said judgment, appellants herein, in due time filed and urged their motion for a rehearing, and to reverse the said judgment in the trial court, and said motion being overruled, they gave notice of appeal, and the appeal, having been perfected according to law, is now before this court in due course.

It is urged upon this court that this case is one of great importance, beyond the amount involved, for the reason that it presents, perhaps, new matters for adjudication.

At the outset, we are confronted with a proposition that appellants’ first assignment of error should not he considered, for the reason that the same is too general, and for the further reason that the brief is not prepared in accordance with rules 30 and 31 (142 S. W. xiii), in that the propositions do not follow the assignments; that the four propositions under appellants’ first assignment of error should not be considered, because the assignment itself is too general, and the propositions do not follow the assignment, with an appropriate statement under each proposition; that the statement under the first assignment should not be considered, because it follows the assignment, instead of the proposition, and is mixed with argument, deductions, and conclusions, in violation of the rules. We must confess that appellants’ brief is, perhaps, subject to the objections urged, but inasmuch as great stress seems to be laid upon the matters and things calling for adjudication therein, we are rather inclined to be lenient, and to consider the matters set out in said brief. The case was tried before the court, and the defendants in the court below requested the court, in writing, to file his findings of fact and conclusions of law, upon which his judgment was based. The following are said findings and conclusions:

“Findings of Fact.
“The court finds from the evidence that:
“First. On the 20th day of March, 1915, the defendant Rita L. Brittain was a duly appointed, qualified, and acting notary public for Jefferson county, Tex., and that the defendants Thos. Brown and I. Block were sureties on her official bond as such notary.
“Second. That on said 20th day of March, 1915, a person representing himself to be Tom Lucid, of Cherokee county, Tex., appeared before said Rita E. Brittain, notary public, and produced and requested her to take his acknowledgment to an instrument in writing purporting to bo a warranty deed in regular form from Tom Lucid to Henry V. Weber, bearing date the 20th day of March, 1915, and to which the name of Tom Lucid appeared to have been signed, whereby, in consideration- of ‘one dollar, love and affection,’ said Lucid conveyed to said Weber lot No. 6 in block No. 45 of the Van Wormer addition to the city of Beaumont, Jefferson county, Tex.
“Third. That the said Rita L. Brittain, notary public, took the acknowledgment of the said person so representing himself to be Tom Lucid, the grantor named in said deed, and indorsed thereon her certificate of acknowledgment in due form and authenticated the same by her signature as notary and the impression of a notarial seal thereon. That the said certificate so appended to said deed was in the following language:
“ ‘The State of Texas, County of Jefferson. Before me, Rita L. Brittain; notary public in and for Jefferson county, Texas, on this day personally appeared Tom Lucid, known to me t'o be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal -of office this 20th day of March, A. D. 1915. [Signed] Rita L. Brittain, Notary Public, Jefferson County, Texas. [Seal of Notary Public.]’
“Fourth. That the said Rita L. Brittain did not know the said person so appearing before her to be Tom Lucid, the person named and described in said deed as the grantor, and did not have satisfactory evidence upon the oath or affirmation of a credible witness, and noted in said certificate, that he was the person he represented himself to be, and the individual who executed and was described in said instrument as required by article 6801 of the Revised Statutes of Texas.
“Fifth. That the means taken by the said defendant notary to satisfy herself as to the identity of said acknowledgor were: That about two weeks prior to the date in question, the same person had appeared before her and acknowledged the execution of a similar deed under the name of Tom Lucid, of Cherokee county, Tex., conveying different property, but to the same grantee; and on that occasion the said notary, who had formerly herself resided in Cherokee county, and was acquainted there, in order to test the said person and to satisfy herself that he was the said person he represented himself to be, to wit, Tom Lucid, asked him various questions concerning people and conditions in that county, and his answers being satisfactory, and the further fact that he himself told her that ho was Tom Lucid, and had on the same day dictated certain letters to be transcribed by her as public stenographer, and that to the best of her belief he had signed the letters in the name of Tom Lucid, also from the further fact that during the interval of two weeks between the two acknowledgments she ■frequently saw him about the hotel in which her office was situated, that from all these circumstances she concluded and was satisfied that he was in fact Tom Lucid of Cherokee county, Tex., and the person he represented himself to 'bo, and, being so satisfied, she made no other efforts to fix his identity.
“Sixth. That Henry Y. Weber, the grantee named in the said purported deed, thereafter, on the 3d day of April, 1915, through his agent, one Sheffield, offered to sell and convey said lot No. 6 in block No. 45 of the Van Wormer addition to the city of Beaumont to the plaintiff Monsur for the sum of $600. That the said Monsur, after said lot had been shown to him by said Sheffield, offered t-o buy the same and to pay therefor the sum of $500, upon condition that his (plaintiff’s) attorney would advise him after an examination of the abstract that said Weber had good record title thereto, which offer was accepted. That said Weber delivered abstract of title to' plaintiff’s attorney, Jno. W. Mackey, who, after having examined the same, advised plaintiff Monsur that the title to said property was in Tom Lucid, no deed appearing of record or in the abstract from said Lucid to Henry V. Weber. That plaintiff so advised the said Weber, who then exhibited to said Monsur and his attorney the said purported deed of conveyance from said Tom Lucid to Henry V. Weber, dated March 20, 1915, acknowledged in due form before Rita L. Brittain, notary public of Jefferson county, Tex., and duly certified to by such notary under her signature and the impress of notarial seal. That said deed of conveyance had not at said time been placed of record, and did not appear in the abstract of title. That plaintiff Monsur, relying upon the genuineness of said deed, and particularly upon the truth of the statements contained in the certificate of said notary appended thereto, believed that said Weber had acquired good title to said property, thereupon purchased the same, paying to the said Henry V. Weber thei’efor the sum of $509 in cash, receiving deed of conveyance from said Weber for same, which deed was promptly placed of record, together with said purported deed of conveyance from Lucid to Weber.
“Seventh. That within a short time thereafter, the said Tom Lucid, claiming to be the owner of said lot, and that the purported deed from himself to Henry V. Weber was a forgery, filed suit in the Fifty-Eighth district court of Jefferson county, Tex., against the plaintiff Mon-sur for title and possession thereof. That on the 30th day of September, 1915, upon a trial of said cause, said Tom Lucid recovered a judgment against the said Monsur for title and possession of said property, and ousting said Mon-sur from the title and possession thereof, whereby he lost the same, together with the $500, which he had paid as the consideration therefor.
“Eighth. I find that no part of the said sum of $500 paid by said Monsur as a _ consideration for said land has ever been repaid to or recovered by him.
“Ninth. I find that the lot of land referred to, with the improvements thereon, was of the reasonable value of from $500 to $700.
“Tenth. I find that the question of the ownership of and title to said lot 6 in block 45 of the Yan Wormer addition to the city of Beaumont was not made an issue in the trial of this cause, the only evidence submitted upon that question being the testimony of the witness Tom Lucid to the effect that he was the owner thereof, and the further evidence of the judgment rendered in the Fifty-Eighth district court of Jefferson county, awarding the title thereto to the said Tom Lucid, which title was not denied upon this trial; the said question of title being a mere incident, and not an issue herein.
“Eleventh. The evidence as to amount and value of improvements made on said property by plaintiff Monsur, being uncertain and conflicting, is deemed to be insufficient to justify a finding by the court as to said improvements.
“Twelfth. I find that the reliance of Monsur upon the recitals of said purported deed of conveyance from Tom Lucid to Henry V. Weber, and upon the truth of the statements contained in the certificate of acknowledgment and authentication by said notary Rita L. Brittain, appended thereto, was the solo inducement moving said Monsur to the purchase of said land, and •parting with said sum of $500 as the consideration therefor.
“Thirteenth. I find that the said purported deed of conveyance from Tom Lucid to Henry V. Weber, and the certificate of acknowledgment by the notary appended thereto, when exhibited to plaintiff Monsur, appeared to be in regular fonn, and that there was nothing connected therewith which would be calculated to put an ordinarily prudent person upon notice of any irregularity therein, or to excite his suspicions as to the genuineness thereof, and that it was not negligence on the part of said Monsur in relying thereon and in purchasing the said property.
“Fourteenth. I find that the recitals contained in the certificate of defendant Rita L. Brittain, notary public, appended to said deed, to the effect that Tom Lucid, the grantor named therein, had appeared before her, that he was personally known to her, and that he had acknowledged to her the execution of said instrument, were not true.
“Fifteenth. I find that the said Tom Lucid did not sign his name to said purported deed, and that he did not personally appear before Rita L. Brittain, a notary public, and acknowledge to her that he executed the same.
“Sixteenth. I find that a person other than Tom Lucid, to wit, Henry Y. Weber, affixed the name of Tom Lucid to said purported deed of conveyance, and appeared before defendant Rita L. Brittain, notary public, impersonated and represented himself to be the said Tom Lucid, the grantor named and described in said instrument, and acknowledged the execution thereof. I further find in this connection that the notary believed the party appearing before her to be Tom Lucid.
“Seventeenth. I find that the person appearing before her was not known by the said Rita L. Brittain, notary public, and that said defendant notary took the acknowledgment of said person and made certificate thereof without having satisfactory evidence on the oath or affirmation of a credible witness, noted in such certificate; that the person making such acknowledgment was the individual who executed and was described in said instrument.
“Eighteenth. I find that the taking of the acknowledgment of said person to said instrument by the defendant notary, without first having satisfactory evidence on the oath or affirmation of a credible witness, and noting same in her certificate, that the person making such acknowledgment was the individual who executed and was described in said instrument constituted negligence, and a failure to faithfully perform the duties of her office.
“Conclusions of Law.
“From the foregoing facts, the court concludes as a matter of law:
“First. That the means employed by the defendant Rita L. Brittain, as a notary public, before taking the acknowledgment to said deed, in satisfying herself as to the identity of the ac-ltnowledgor, even though she may have acted in good faith, believing the person appearing before her to be the identical person he represented himself to fie, were not a sufficient compliance with the requirements of article 6801 of the Revised Statutes of Texas.
“Second. That said defendant notary was guilty of negligence, and a failure to faithfully and properly perform the duties of a notary public, in that she took the acknowledgment of said person without knowing or having satisfactory evidence on the oath or affirmation of a credible witness, and noting same in her certificate, that the person making such acknowledgment was the individual who executed and who was described in said instrument.
“Third. That by reason of such negligence, and as the direct and proximate result thereof, the plaintiff Monsur has been damaged in the sum of $500, the amount paid by him as the consideration for said land, and is entitled to judgment against the said Rita L. Brittain as principal, and against Thos. Brown and I. Block, as sureties on her official bond, in said sum, together with interest thereon at 6 per cent, per annum from the 30th day of September, 1916.
“Fourth. That the plaintiff is not entitled to any judgment for any improvements made by him on said property, to which findings and conclusions and each of them the defendants in open court except.”

The first assignment of error is as follows;

“The court erred in overruling the general exceptions of the defendants to plaintiffs’ petition.”

This is followed by the proposition:

“Under the Texas statutes it cannot be held that a notary public is a guarantor or insurer, for the benefit of a remote subsequent vendee in the chain of title; that his certificate of the identity of the grantor named in the acknowledged deed with the person appearing before him to acknowledge it is true.”

On the contrary, it is contended:

“Under the Texas statute it is the absolute duty of the notary to personally know the person whose acknowledgment he takes, or in the absence of such personal knowledge to have proven to him by satisfactory evidence on the oath of a credible witness which shall be noted in the certificate, that the person appearing before him making such acknowledgment is the person described in the instrument.”

Article 6797, Yemon’s Sayles’ Tex. Civ. Statutes 1914, provides:

“The acknowledgment or proof of an instrument of writing for record may be made within this state before either:
“1. A clerk of the district court.
“2. A judge or clerk of the county court.
“3. A notary public.”

Article 6798, Id., provides:

“The acknowledgment or proof of an instrument of writing for record may be made without this state, but within the United' States or their territories, before either:
“1. A clerk of some court of record having a seal.
“2. A commissioner of deeds duly appointed under the laws of this state.
"3. A notary public.”

Article 6800, Id., provides:

“The acknowledgment, of an instrument of writing' for the purpose of being recorded shall be by the grantor or person who executed the same appearing before some officer authorized to take such acknowledgment, and stating 'that he had executed the same for the consideration and purposes therein stated; and the officer taking such acknowledgment shall make a certificate thereof, sign and seal the same with his seal of office.”

Article 6801, Id., provides:

“No acknowledgment of any instrument _ of writing shall be taken, unless the officer taking it knows or • has satisfactory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed and is described in the instrument.”

Article 6803, Id., provides:

“Any officer taking the acknowledgment of a deed, or other instrument of writing, must place thereon his official certificate, signed by him and given under his seal of office, substantially in form as hereinafter prescribed.”

Article 6804 prescribes the form of certificate of acknowledgment. Article 6806 provides for the proof of an instrument by witness, and article 6S07 is as follows:

“The proof by a subscribing witness must be by some one personally known to the officer taking the proof to be the person whose name is subscribed to the instrument as a witness, or must be proved to be snch by the oath of a credible witness, which fact shall be noted in the certificate.”

Article 0002, Id., provides:

“There shall be appointed by the Governor, by and with the advice and consent of the Senate, a convenient number of notaries public for each organized county, and not to exceed six notaries public for each unorganized county in this state, who shall hold their office for the term of two years from the first day of June after appointment at a regular session of the Legislature: Provided, that the Governor by and with the advice and consent of the .Senate may appoint additional notaries public at any special session of the Legislature, who shall hold their office until the first day of June succeeding the next regular session of the Legislature after their appointment: Provided that nothing herein be so construed as to exempt them from jury service.”

Article 6003, Id., provides:

“Every person who may bo appointed a notary public, before he enters on the duties of his office, shall execute a bond, with two or more good and sufficient sureties, to be approved by the clerk of the county court of his county, payable to the Governor and his successors in office, in the sum of one thousand dollars, conditioned for the faithful performance of the duties of his office; and shall also take and subscribe the oath of office prescribed by the Constitution, which shall bo indorsed on said -bond, with the certificate of the officer administering the same; said bond" shall be recorded in the office of the clerk of the county court, and deposited in said •office, and shall not be void on the first recovery, and may be sued on in the name of any party injured from 'time to time until the whole amount thereof has been recovered.”

Article 6011, Id., provides:

“Every notary public shall procuro and keep a well-bound book, in which shall be entered the date of all instruments acknowledged before him, the date of such acknowledgments, the name of the grantor or maker, the place of his residence or alleged residence, whether personally known or introduced, and, if introduced, the name and residence or alleged residence of the party introducing him; if the instrument be proved by a witness, the residence of such witness, whether such witness is personally known to him or introduced; if introduced, the name and residence of the party introducing him; the name and residence of the grantee; if land is conveyed or charged by such instrument, the name of the original grantee thereof shall be kept, and the county where the land is situated. The book herein required to be kept, and the statements heroin required to be entered, shall be an original public record, and the same shall be open to inspection by any citizen at all reasonable times; and such notary public shall give a certified copy of any record in his office to any person applying therefor on payment of all fees thereon.”

Above have been given the statutory provisions with reference to notaries public applicable to this ease.

In the case of Joost v. Craig, 131 Cal. 504, 63 Pac. 840, 82 Am. St. Rep. 374, which was a very similar case to the one under advisement, the following language is used in its decision:

“This is an action against a notary public and his sureties for damages charged to have resulted from the negligence of the notary. As appears from the record, in April, 1»91, one Fisher, who was a real estate broker in San Francisco, as such broker offered to sell to plaintiff ten lots of land situate in San Mateo county, then standing in the name of Charles A. Anderson. The lots were part of the Abbey Homestead Association’s lands. Plaintiff was familiar with these lands and had bought a portion of them. Pie contracted with Fisher at once for the property, agreeing to pay $1,000 for it, conditioned, as usual, upon the title. Ho had an abstract made, and, finding that the title of Anderson was good, informed the broker that he would pay whenever he received a deed from Anderson properly executed. A deed was produced, apparently executed by Charles A. Anderson, and acknowledged before the defendant notary, and certified by him as follows: ‘On this 27th day of April, in the year of our Lord one thousand eight hundred and ninety-one, before me, Lee D. Craig, a notary public in and for said city and county, duly commissioned and sworn, personally appeared Charles A. Anderson, known to me to be the person described in, whoso name is subscribed to, who executed the within and annexed instrument, and he duly-acknowledged to me that he executed the same,’ etc. In the body of the deed the grantor is described as ‘Charles A. Anderson, of Redwood City, county of San Mateo, state of California.’ It turned out that the deed was a forgery, and was not executed or acknowledged by Charles A. Anderson, of Redwood City, or by any person known by that name, but the name of Charles A. Anderson was written by one Frank C. Keen. Plaintiff accepted the deed and paid his money, relying solely upon the certificate of the notary. The lots were of the market value of $1,0.00., The plaintiff, through his reliance upon the cer-’ tificate, paid the said sum of $1,000, which was thereby lost.
“It is provided in section 801 of the Political Code that: ‘For the official misconduct or neglect of a notary public, he ahd the sureties on his official bond are liable to the parties injured thereby for all the damages sustained.’ This statute sets at rest one of the contentions of respondent that in taking an acknowledgment a notary acts judicially, and is therefore not liable in damages for mere negligence. At the trial the court, on motion of defendants, granted a nonsuit on the ground: ‘That it appears from the evidence that plaintiff was guilty of such negligence as to put it beyond his power to- recover anything from defendants.’ This ground implies that in other respects the case for plaintiff was made out. There could not be contributory negligence unless there was first negligence to which it contributed. There was no evidence which tended to show negligence on the part of tho plaintiff, except that when the deed, apparently executed by Anderson, acknowledged before the defendant notary, and certified as above set out, was delivered to him by Fisher, ho paid over tho money to Fisher without further inquiry as to the identity of the grantor. This was not negligence on the part of plaintiff, lie had a right to rely upon the certificate of the notary and to presume without question that such officer had done his duty.. No circumstance was brought to his attention which could raise a suspicion to the contrary. There was nothing' which could have put the most prudent man upon inquiry. And the notary cannot excuse his negligence, under such circumstances, by the claim that the party who has been injured has trusted to his faithful performance of duty. The whole theory that the record of such instruments gives constructive notice of the contents of recorded instruments is founded upon the proposition that upon. proper investigation. the genuineness of such instruments has been determined. The certificate is also received as evidenco in a trial in a court of law that the deed is genuine. If the deed is not genuine, hut is forged, the notary and his sureties ought to be" held for all damages unless they have taken the precautions expressly required by the statute. The Legislature has taken great care, though, considering the importance of tho matter, not too great, to make this certificate reliable. Section 1185 of the Civil Code provides as follows: ‘The acknowledgment of an instrument must not be taken unless the officer taking it knows or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed tho instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation.’ The notary is expressly forbidden to take the acknowledgment unless he knows that the person making the acknowledgment is the person described in tjie instrument. Here such person was described as Charles A. Anderson, of Redwood City. If he did not know this it should have been proven by the oath of a credible witness, whose name must be stated. Civ. Code, § 11811. It is not enough that the person be introduced to the notary by a responsible person. If that were enough there would be no purpose in requiring the oath, for such person could always furnish the introduction. This point has been often decided, although sufficiently obvious from the statute. To take an acknowledgment upon such introduction without the oath is negligence sufficient to render the notary liable in case the certificate turns out to be untrue.
“The matter was considered in Jones v. Bach, 48 Barb. [N. Y.] 568. It is there said: ‘The object of all these well-considered provisions relative to the proof and recording of conveyances of real estate was to protect owners of property and their creditors against forgery, as well as to secure the rights of grantees and mortgagees against spurious and fraudulent conveyances. Would this object be effected by the manner in which the acknowledgment in this case was made? Any one could bo falsely personated without check or liability to punishment for crime if a mere introduction at the moment shall authorize the officer to take the acknowledgment. Tho person who introduces, if the statement be false, only commits a falsehood; but if he is sworn as to the truth of his statement, should it be knowingly false, he is guilty of perjury, and liable to a prosecution for a felony.’ The-statute of New York there considered was not as clear on this proposition as ours. It did not expressly require the oath, but only ‘satisfactory evidence.’ But even under that language-it was held that a mere introduction is not enough. The certificate here gave assurance that the notary knew of his own knowledge, and not upon mere hearsay, that the grantor was Charles A. Anderson, of Redwood City. If this certificate was not true, the notary should be held. The same matter was discussed in State v. Meyer, 2 Mo. App. 413. The court makes some suggestions as to what degree of' acquaintance will authorize the notary to certify that ho has personal knowledge, and also upon the proposition that an introduction, even by a responsible person, could not -be relied upon, and says: ‘It is obvious that when an officer taking an acknowledgment and making a certificate assumes any such fact, he does it at his own risk. The law warns him when he has not “personal knowledge” of his own to resort to certain observances which the law supposes to be sufficient in practice to prevent imposition. * * * But such a certificate is infinitely less liable to deceive or mislead than a declaration that the party making tho acknowledgment is well known to the officer making the certificate. It puts all persons upon inquiry, and fur.i'shes a clue for conducting it; and it complies with the law.’ This makes the certificate upon personal knowledge a guaranty of tho genuineness of the instrument, and the court adds: ‘It is perfectly idle for him to protest that he did not know or suspect that his certificate was false. That may be taken for granted, but it is nothing to the purpose. His business was.to know that it was true.’ A notary may take all due precautions and fully comply witn tlie statute and still be deceived. In such case he would not beheld liable, but if he has not fully complied with the statute, tho rule announced above is-not a whit too stringent. This case was followed and commented upon in State v. Balmer, 77 Mo. App. 463. It may be here remax-kcd that the witness by whose oath the execution of an instrument is proven when the person executing the instrument was not previously known to the-officer must himself be known to the notary. This is implied by the requirement that the officer shall certify that such person is a credible-witness. When these necessary facts do not exist, the notary is expressly prohibited from taking the acknowledgment -at all. When the-notary does not obey this statute he should expect to be held liable. And I wish to repeat, these requirements are of great importance to-the business world, and not at all too exacting.”

Following this case in the case of State v. Meyer, 2 Mo. App. 413, the following language is used:

“It is the duty of a notary or other officer-taking an acknowledgment of any party to an-instrument in writing to exercise care to avoid a mistake as to the identity of the cognizor, and, when he is not acquainted with such party, to require satisfactory evidence of his personality-before certifying to the fact that he is satisfied of it. No one has a right to be satisfied of such a fact, when the interests of third persons are involved, upon anything short of legal evidence. That is, the cognizor must he personally known to the officer, or he must be proved to bo the-pei'son whose name is subscribed to the instrument by the requisite number of witnesses prescribed by the statute.”

And further:

“Noncomplianco with the formalities enjoined by the statute, and the assumption- of any.fact‘which afterward proves to be no fact at all, will subject the officer to all the risks attendant on the negligent performances of official duty. It may be very courteous to waive ¿11 such formalities; it may be disagreeable to speak plainly and tell a party that one is not willing to assume that he is not falsely personat-ing another; but no one is at liberty to practice courtesy or gain popularity, to indulge his own indolence, or avoid unpleasant things at the expense of others. If those others sustain loss by his laxity, it is impossible to listen to assurances from him that he meant well and really did not know better, where it was his plain duty to probe the matter to the bottom, and not to certify at all until he knew what ho was talking about. It is perfectly idle for him to protest that he did not know or suspect that his certificate was false. * * * I-Iis business was to know that it was true.” State v. Meyer, 2 Mo. App. 413, 421.

It is held in State v. Balmer, 77 Mo. App. 463:

“When a notary takes an acknowledgment and makes a certificate in which he assumes the identity of the person making the acknowledgment to be the same as that of the grantor, he does it at his own risk. ‘The law warns him, when he has not “personal knowledge” of his own, to resort to certain observances which tiio law supposes to be sufficient in practice to prevent imposition. The very lowest of these observances is proof by two witnesses who possess such personal knowledge of the identity of the cognizor with the grantor, for the statute says, cautiously, “at least two credible witnesses.” ’ Hence, it is seen ‘that in a case of any doubt, it is not only permissible, but imperative, that the number of witnesses should be increased; that not only their number but their credit must be looked to by the officer; that, as their testimony is to be taken, they must be sworn; and that, to secure them for future reference, their names and places of residence must be stated in the certificate.’ State v. Meyer, 2 Mo. App. 413, 420. If a notary certifies that he knows a person whom he does not know, on the mere introduction of some party, and loss results therefrom, and from false personation, he and his sureties must make it good.”

We believe the reasoning in the above cases holds good in the instant case. The California statute seems almost identical with the Texas statute. It seems that by the Missouri statute two witnesses are required. We are also cited to volume 1, p. 903, Corpus Juris, which lays down the degree of care and diligence required as fallows:

“Where there is no statute prescribing the manner in which the officer shall ascertain the acknowledgor’s identity, he is held to the care and diligence of a reasonably prudent man, but he is not an insurer of the truth of his recitals. Where, however, it is prescribed by statute that if the officer does not personally know the ac-knowledgor to be the person described in the instrument, his identity must be established by sworn witnesses, the officer acts at his peril in making the cex-tificate on the strength of a mere introduction or anything short of the evidence required by the statute.”

The cases cited, together with the reasoning of the same, are decisive of this case, so far as this court is concerned, and the test, therefore, of the liability of appellant and her bondsmen is whether the notary followed the statute. It does not leave the measure or degree of care, for the very reason that the statute prescribes what must be done. It is a plain statutory liability, in the opinion of this court, and must be followed, and really amounts to the fact that a notary public is a guarantor or insurer, for the benefit of ven-dees, that his certificate of identity of the grantor named in the acknowledged deed, and that he is the same person who appeared before him to acknowledge it as being true. We have carefully examined the case of Lindley v. Lindley, 92 Tex. 446, 49 S. W. 573 and Sowers v. Peterson, 59 Tex. 218, cited by the appellant. However, believing as we do and as above set out, the assignment is in all things overruled.

By the second assignment of error, the action of the lower court is challenged in rendering judgment for the sum of $500 against appellant, “because there was no evidence to support such a judgment for alleged damages; there was ho proof that the title to the land in controversy was in Tom Lucid; there was no proof that he was in possession thereof; nor of any other facts wherefrom it could be legally inferred that he was the owner or that a genuine deed from him would have had any value, and therefore there was no proof upon which any judgment for damages more than nominal could be sustained.”

The proposition under this assignment is:

“Before one can recover damages from a notary on' the ground that he has relied upon a false certificate of the notary and thereby failed to get a title which he would have gotten if the certificate had been true, it is certainly necessary for him to show that, if the certificate had been true, the thing he would have acquired, but for the falsity of the certificate, was of some value, and the claim acquired by purchase from the purported grantee in a deed reciting $1 consideration would be of no great value unless the purported grantor in said deed was shown or was admitted to have had title to the land.”

On the contrary, it is contended that where one sues for damages caused by a false certificate of a notary to a deed conveying land, and alleges that had said certificate been true the deed -to which it was annexed would have conveyed a good and valid title, the title to the land in said suit being a mere incident and not the main issue, and not being disputed by the defendant, the same burden of proof of title is not required as is required in suits of trespass to try title; that it was alleged by the appellee in this petition that the legal title to said land was in Tom Lucid; that had the certificate of the notary to the deed purporting to be from Tom Lucid to Henry Weber been true, he would have acquired a good and valid title; that appellant paid $500 to Henry Weber for a deed from him to appellant, and that in doing so he relied upon the truthfulness of the notary’s false certificate; that thereafter the real Tom Lucid recovered said land from him on the ground that said deed was a forgery; that the appellants do not deny that a good and valid title to said land was vested in Tom Lucid; that they .do not deny that' had the recitations in the certificate of the notary been true, that appellant would, as he alleges, have acquired a good and valid title to the said land.

The court’s conclusion on this proposition is as follows:

“I find that the question of the ownership of and title to said lot 6 in block 45 of the Van Wormer addition to the city of Beaumont was not made an issue in the trial of this cause, the only evidence submitted upon that question being the testimony of the witness Tom Lucid to the effect that he was the owner thereof, and the further evidence of the judgment rendered in the Fifty-Eighth district court of Jefferson county, awarding the title thereto to the said Tom Lucid, which title was not denied upon this trial; the said question of title being a mere incident, and not an issue herein.”

Upon careful consideration, we are of opinion that there is no merit in the contention of appellant, and the assignment is therefore overruled.

The third, fourth, fifth, and sixth assignments of error are as follows:

(a) “The court erred in overruling the defendants’ second special exception, and in giving heed to the pleading of the judgment in the case of Tom Lucid v. Jacob Monsur, because the defendants in this suit were not either of them parties to said judgment; the said judgment was res inter alios acta, and it was error to hold that these defendants could be in any way prejudiced or affected by the said judgment.”
(b) “The court erred in considering the judgment recovered by Tom Lucid against Jacob Monsur as being proof of the ownership of the property by Tom Lucid, that being the only evidence of such ownership appearing in the records, same being admitted with that effect over the objection of the defendants, that it was not competent evidence to prove such fact.”
(c) “The court erred in admitting over the objection of defendants the testimony of John W. Mackey to the effect that the title to the land to which the deed in question related was in Tom Lucid because said testimony was a mere legal conclusion of the • witness, and such being the objection urged to it at the time.”
(d) “The court erred in overruling the defendants’ objection to the testimony of Tom Lucid embraced in his deposition wherein he stated that he was the owner of the land described in the deed in question, the objection being that such statement was a more legal conclusion of the witness, and was not admissible for the purpose of showing ownership of the land.”

The trial court was of .opinion that there was no issue being made on the trial of this ease as to the title, and that the title was a mere incident. In our opinion, the judgment of the trial court was correct,- and these assignments are therefore overruled.

By the seventh assignment of error, appellants call in question the action of the court in rendering judgment for the sum of $500 against the defendants, because there was no evidence to support such judgment for "alleged damages.

The proposition- under this assignment is:

“A notary’s liability for mistake in certifying identity is no greater than that of an indemnitor, and no recovery can be had against the notary without showing reason for not suing the impersonator.”

On the contrary, it is contended that where the negligence of one, combined with the fraud of another, produced injury, the injured party may sue either or both of said persons upon the damage arising therefrom.

We cannot agree with appellants’ contention, and without giving undue length to this opinion simply say that there is no merit in the same, and therefore overrule the same.

By the eighth assignment of error, endeav- or is made to raise the question of appellant’s negligence. What we have said disposes of this assignment, and it is therefore overruled.

By the ninth assignment of error, complaint is made that the court erred in rendering judgment against the defendants for the reason that the undisputed evidence showed that the plaintiff Monsur was not a party to the deed alleged to have been forged. We will not discuss this assignment, more than to say that we find no merit in the same, and it is therefore overruled.

By the tenth assignment of .error it is claimed that the court erred in rendering judgment against either of the defendants, because it is manifest in the undisputed evidence that the damage and injury sustained by the plaintiff was not caused proximately by any act or omission of the defendants or either of them, but was directly and proximately caused by an actual fraud committed by H. V. Weber, without participation therein by any- of these defendants. The opinion, as written above, disposes of this assignment, and it is therefore overruled.

Challenge is also made to the court’s action in rendering judgment for plaintiff and against the defendants by the eleventh assignment of error, “for the reason that the deed alleged to have been executed by “Weber to the plaintiff in this suit, for which plaintiff alleged he paid the consideration of $500, was never introduced in evidence, and there is no legal evidence in the record by which this court could assume that the plaintiff herein obtained a deed from Weber to the property for which plaintiff alleged he paid the sum of $500.”

There is 'no dispute that Henry Y. Weber executed and delivered a deed from himself to Jacob Monsur, for which he received $500, and we do not. believe that it was necessary to offer in evidence the deed itself to prove its existence, and are quite certain that it was permissible to show that the same was so executed by parol testimony.

The twelfth assignment of error is as follows:

“The court erred in rendering judgment against the defendants because the undisputed evidence shows that if any of the defendants were guilty of negligence, the plaintiff was himself in person or through his agent, Mackey, guilty of contributory negligence in this, viz.: That at the time of the purchase of said property the plaintiff was represented in the examination of the title by his agent, John W. Mack-ey. That at the time of the payment of the purchase money and closing of the deal the said plaintiff and his said agent knew that H. Y. Weber was an adult stepson of Tom Lucid. That therefore Tom Lucid owed no obligation arising out of relationship to the said Weber; they knew that the purported deed from Tom Lucid to Weber recited no other consideration than $1 and love and affection; they knew that the same was at the time withheld from record; they knew that $500, the amount which Monsur agreed to pay for said property, was a very inadequate consideration; that even that $500 was divided up between the said H. V. Weber and those who assisted him in the transaction, viz. E. A. White and one Sheffield, and the abstractor of titles, in such a way as to leave to the said II. V. Weber a net consideration of not more than $205, the very fees for examination of title and recording and revenue stamps being paid by the said II. V. Weber out of the said $500, and such circumstances being so manifestly badges of fraud as to require inquiry of Tom Lucid as to whether or not he had in fact made a perfectly gratuitous transfer of the property to his stepson.”

The court, in its twelfth finding of fact, after finding that the reliance of Monsur was upon the recital of said purported deed of conveyance from Tom Lucid to Henry V. Weber, and that he relied upon the truth of the statement contained in the certificate of acknowledgment and authentication by said notary, that the same was the sole inducement moving to the said Monsur in the purchase of said land, and parting with the sum of $500 as a consideration therefor, further found as follows:

“I find that the said purported deed of conveyance from Tom Lucid to Henry V. Weber, and the certificate of acknowledgment by the notary appended thereto, when exhibited to plaintiff Monsur, appeared to be in regular form, and that there was nothing connected therewith • which would be calculated to put an ordinarily prudent person upon notice of any irregularity therein, or to excite his suspicions as to the genuineness thereof, and that it was not negligence on the part of said Monsur in relying thereon and in purchasing the said property.”

While this finding of the court was called in question, to say the least of it, the evidenae was conflicting, and the finding of the court on that question is binding on this court.

With reference to the cross-assignments of error filed by the appellee, we have carefully considered the same, and the same are overruled. The principles announced here seem to have received the assent, not only of the courts of California and Missouri, but of many other states, and they are in accord with sound reason and logic, and while the precise question has not, perhaps, been passed on in this state heretofore, we believe that the reasons heretofore assigned are of sufficient force to appeal to the bench and bar of this state as being correct.

We have carefully examined the record, and have given it that consideration which, as appellant asserts, should be given a question of such importance, and of such far-reaching effect, and we believe that the interests of the appellant were carefully guarded by the trial court, that his conclusions reached were correct, and that the appellant has in all things had a fair and impartial trial of this cause. So believing, and finding no error in the action of the lower court, we are of opinion that this cause should be in all things affirmed. It is so ordered.
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numoéred Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    SHERMAN ICE CO. v. KLEIN.
    (No. 1170.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1917.)
    1. WAREHOUSEMEN i®^24(1) — COLD STORAGE— Care Required.

      f One maintaining a cold storage for the purple of preserving meat impliedly agrees to- use ordinary care to maintain, it in such condition that meat can be safely kept there for the length of time usual and proper in such cold storage. \
    [Ed. Note. — For other cases, see Warehouse/ men, Cent. Dig. §§ 11, 48.]
    2. Warehousemen <&wkey;34(7) — Cold Storage-Action eor Damages — Sufficienox of Evidence.
    Where it is alleged that meat kept in defendant’s cold storage was molded, caused by dampness, the evidence need not specifically show the negligence producing dampness.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 79.} •
    3. Warehousemen <&wkey;34(9) — Cold Storage-Action for Damages — Sufficiency of Evidence.
    Evidence held sufficient to submit to jury question of defendant’s negligence in failing to keep dry his cold storage room, causing injury to plaintiff’s meat kept therein.
    [Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. § 84.]

      4. Trial <&wkey;251(3) — Instructions—Applicability to Pleadings.
    Where cold storage warehouseman based his defense upon the negligent manner in which plaintiff hung and crowded his meat, claimed to have been injured, there was no error in submitting such defense to the jury as pleaded.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. § 590.]
    5. Trial <&wkey;251(l) — Instructions—Affirmative Defense Not Pleaded.
    The trial court is not warranted in charging ■upon an affirmative defense not specially pleaded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587, 588, 594.]
    6. Appeal and Error <&wkey;l053(5) — Harmless Error — Admission of Evidence — Cube by Instructions.
    Error in admitting evidence relating to items sought to be recovered was harmless, where the issue was not submitted to the jury.
    [Ed. Note. — For 'other cases, see Trial, Cent. Dig. § 977.]
    7. Appeal and Error <&wkey;1052(5) — Harmless Error — Admission of Evidence — Cure by Verdict.
    Error in admitting evidence relating to items sought to be recovered was harmless, where the jury did not allow recovery of such items.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4175.]
    8. Trial <&wkey;260(1) — Refusal of Request Covered by Charge. _ ' .
    _ It was not erroneous to refuse instructions sufficiently covered by the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651.]
    Appeal from District Court, Grayson County ; Dayton B. Steed, Judge.

      Suit by W. S. Klein against tbe Sberman Ice Company.' Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Head, Diliard, Smith, Maxey & Head and J. F. Holt, all of Sberman, for appellant. Brame & Brame and Jones & Hassell, all of Sherman, for appellee.
   HUFF, C. J.

We adopt the statement of appellant as to part of the pleadings:

“Appellee filed this suit February 20, 1912, to recover of appellant damages in the sum of $730, alleging- that the appellant owned an ice factory and conducted the business of furnishing-refrigeration for meat, etc., and that appellee was conducting a meat market in the city of Sherman; that in 'conducting such business it is necessary or convenient to place fresh meat in cold storage, and that appellant, for hire, held itself out as furnishing such cold storage; that abQut February 1, 1911, appellee and appellant entered into a contract whereby the appellant, for $35 per month, agreed to furnish cold storage to appellee for one year from said date, and ‘to keep the cold storage room and the meats to be placed therein by plaintiff at a sufficiently low temperature to prevent the meats from becoming tainted and from spoiling, ■ and to preserve them fresh and pure, and also to receive and preserve such meats as plaintiff should see fit to place therein,’ but that in violation of said contract, and on or about October 1, 1911, the defendant ceased to keep said cold storage room sufficiently cool to preserve plaintiff’s meat therein; that said cold storage room was allowed by defendant to become, and did become, ‘warm and damp, and remain in that condition,’ and that the meat from seven head of plaintiff’s cattle placed therein, worth $300, became tainted and spoiled and a total loss.”

The appellee pleaded other issues which we do not consider essential in. disposing of this case. The appellant pleaded general denial and specially as follows:

“Sixth. For special answer herein defendant says that it did enter into a contract with plaintiff to rent him a storeroom in its refrigerator plant, and to keep the same within a temperature that is ordinarily maintained in refrigerators where meat is stored, and that it has carried out its contract with plaintiff, and kept its cold storage plant in such condition. Defendant says that if the plaintiff sustained any loss of meat, or damage to meat, stored in said room the same was due to the careless and negligent way in which plaintiff packed and stored said meat in said room and the careless and negligent way in which said room was kept by plaintiff; that plaintiff stored too much in said room; that.he packed the same so that pieces of warm meat overhung and touched each other, and permitted decayed flesh to accumulate on the floor of said room ; and that if he sustained any injury, or damage, or loss, in the meat stored in said room, it was occasioned by his own negligent and careless acts as aforesaid.”

The evidence shows that appellee called on the superintendent of appellant’s plant about February 1, 1911, and asked for a cold storage room located in the southeast corner of the building, and he was told that it would cost him $35 per month for one year; that appellee took the room at that price, and that there was nothing else stated, except, that the superintendent told him the room should be kept in proper shape for appellee. Mr. Arnolsti, the superintendent, the record shows,-was dead at the time of the-trial, and his testimony taken on a former trial of the case was reproduced, to the effect that he leased the room to appellee in the cold storage plant for $35 per month, $120 per year, which the appellee could use for the purpose of storing meat, and that he, in behalf of the Ice Company, agreed that it would keep the temperature of the room not above 40 degrees • — the minimum temperature not lower than 32 degrees and not above 40. The evidence further shows appellant had been engaged for a number of years in operating a cold storage for hire in connection with its ice plant, and that the appellee, and his father before him, had been customers of the plant for many years. It is shown by the evidence that the refrigerator room should, for keeping meat, be kept at a certain temperature, and appellee testified that the temperature should run about 35° or 36° and be kept dry; that moisture would cause the meat to mold, sour, and spoil.

The first assignment is urged against the fourth paragraph of the court’s charge which authorized a recovery for the meat lost by reason of being spoiled on account of improper refrigeration. In effect the court told the jury, if they found a contract by the terms of which appellant was to maintain the storage room, and to be maintained in such condition that meat placed therein would keep safely for the length of time that is usual to keep meat in cold storage, and that the room was not so kept by appellant at such temperature that meat could be safely kept, or if it failed to keep the room as to dryness in such manner as will keep meat safely, and that thereby appellee’s meat was caused to spoil, and that such failure on the part of appellee was negligence, to find, etc. It is objected to the charge that it was not supported by the evidence, was on the weight of the evidence, not supported by the pleadings, was on implied duties, and should have .been confined to the contract as made, and that it, and that part of it which imposed the duty of keeping the room in a state of dryness, was error, because there was nothing in the evidence to warrant the charge.

It will be observed by the answer of appellant that it is alleged that appellant agreed to rent the room in its refrigerating plant and to keep a temperature ordinarily maintained in refrigerators where meat is stored. We believe the facts in this case, as well as the petition and answer, show that appellant maintained a cold storage business in connection with its ice plant, and that the appellee agreed to take a room in the cold storage for the purpose -of preserving his meat and to keep it cool and sweet for the market. If his evidence is true, he contracted for the room for that purpose and there was nothing said as to how it should be kept, further than that it should be kept in shape. If the jury accepted this testimony, then under the circumstances as alleged and proved 'we believe, under the law governing cold storage, that the implied agreement- was, on the part of the appellant, to use ordinary care to maintain it in such condition that meat could be safely kept for the length of time usual and proper in cold storages. This appears to he the general rule, as we understand from the authorities, for such plants. Railway Co. v. Jackson & Co., 55 Tex. Civ. App. 407, 118 S. W. 853; Smith v. Diamond Ice & Storage Co., 65 Wash. 576, 118 Pac. 646, 38 L. R. A. (N. S.) 994, and notes; Allen v. Somers, 73 Conn. 355, 47 Atl. 653, 52 L. R. A. 106, and notes, 84 Am. St. Rep. 158; Union Compress Co. v. Nunnally, 67 Ark. 284, 54 S. W. 872; Elliott on Contracts, vol. 4, § 3100.

It has been held that, where it is alleged that meat was molded, caused by dampness, the evidence need not specifically show the act of negligence producing dampness. Leidy v. Quaker City Cold Storage Co., 180 Pa. 323, 36 Atl. 851.

However, we think in this case there is evidence showing that water stood on the floor of the room, causing it to become wet and damp. It is not conclusively shown by the evidence that it was the duty of the appellee to keep the room dry. We regard the evidence on this point as not entirely satisfactory, but we believe there was sufficient evidence to submit the issue to the jury. There is evidence to the effect that the frost which should be on the pipes used for cooling the room would melt and fall off on the floor, and cause it to become wet, and create dampness in the room, rendering the meat moldy. If the temperature had been kept at its proper degree, such would not have, been the result. We therefore think the evidence as to the dryness of the room was sufficient to bring it under the allegations and the implied contract to keep the room at a proper temperature. The appellant .was therefore required to maintain that required degree of refrigeration and temperature which an ordinarily prudent person would have exercised to preserve the meat so received into the cold storage. That duty was imposed upon it by the relation of the parties, and which was evidently also required by the contract in renting the room. Guaranty Trust Co. v. Diltz, 42 Tex. Civ. App. 26, 91 S. W. 596. The first assignment will be overruled.

The second assignment presents as error the fifth paragraph of the court’s charge:

“Also, if you believe from the evidence that plaintiff’s meat spoiled, but you further believe from the evidence that the same was caused to spoil by the plaintiff’s placing more fresh meat in said room than an ordinarily prudent person would have placed therein under the same or similar circumstances, or if you believe from the evidence that plaintiff was guilty of ‘contributory negligence,’ as that term has been defined to you, in placing meat in said room that had the animal heat in same, and that such animal heat of the meat so placed caused said meat to spoil, then, in either of these events, you will find for the defendant.”

And the third assignment is based upon-the fourth specially requested charge, which is as follows:

“If you believe from the evidence that the injury to plaintiff’s meat which was placed on storage in said room was caused by him or his employés placing too much meat in the room, or too much warm meat in the room, or placing-said meat in the room too closely, or keeping the meat on storage too long in said room, or by the unsanitary condition of the room (if -you find it was unsanitary), you will allow plaintiff nothing for any injury to said meat.”

It is contended by the appellant that, if the appellee placed too much meat in the room while it had the animal heat in it, etc., the appellant would not be liable, whether there was any negligence shown or not, and that it was not required to show negligence in order to defeat a recovery on that ground. Whether this is true or not, We have concluded there was no reversible error in giving the charge, or in refusing the requested instruction.

The appellant, by its answer, based its defense upon the wrong of the appellee in the manner in which he placed his meat in the room. Having elected to plead the matter as a wrong or tort on the part of the appellee, and rely thereon as a defense, we think that there would be no error on the part of the court in following his defense and submitting it to the jury as pleaded. He may have had the right to have presented this defense as a breach of an implied contract to properly place the meat in the room for refrigeration; but, having alleged it as a wrong on the part of appellee, it occurs to us it is in no condition to urge that the court was in error in submitting it as one of negligence. To have given the charge as requested would have submitted an issue not pleaded as a defense. The charge of the court had given both the affirmative and negative of the question whether appellant should keep the room at such vtempqrature and condition as to dryness as was usual and customary for the preservation of the meat, and whether it did so. The jury in effect found that under the circumstances of the case the appellant impliedly agreed so to do and that it failed. Having found that fact, the only affirmative defense presented by the answer was whether the appellee negligently hung or crowded his meat, or put it in while it was too warm, or whether it was too much at one time. The jury found that it did not, on what appears to be sufficient evidence.

We do not think the court would have been warranted to charge upon an affirmative defense not pleaded; that is, that appellee, in violation of his contract did those things. The finding by the jury that appellant failed in proper refrigeration, and thereby caused the damage, negatives that the injury was caused by improperly placing the meat in the room by appellee. The-only affirmative defense pleaded was sub--mitted to the jury as pleaded. We do not understand that a trial court is called upon, to present a detense affirmatively not specially pleaded. The issues as made hy the pleadings in this case were fully submitted hy the court to the jury.

The fourth, fifth, and seventh assignments will be overruled, for the reason, if the evidence to which objections were urged, and the charge of which complaint is made, were objectionable upon the grounds urged, the record shows that they related to items sought to be recovered, one of which was not submitted to the jury, and the other the verdict clearly evidences that the jury did not allow. The record, therefore, shows, if the action of the court was erroneous, which, as we view the cause, it is not necessary here to decide, no injury resulted to appellant therefrom. The damages sought to be recovered for the spoiled meat by reason of improper refrigeration was alleged in the petition to be $300. The verdict ia for that sum. The uncontroverted evidence shows that the value of the meat so lost was $315. The jury, it is thereby shown, did not allow interest on this amount, or for any other item to which the above assigned errors relate. They evidently were not improperly influenced by improper evidence to render the verdict they did, or by an improper charge upon other items! sought to be recovered by the pleading.

The sixth assignment is overruled, for the reason that we believe the issue here sought in the specially requested instruction was sufficiently covered by the court’s main charge, and especially by the fifth paragraph thereof.

The ease will be affirmed.
      <gu»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    ANDERSON v. McCAIN.
    (No. 194.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 17, 1917.)
    1. Trial <&wkey;260(6) — Requested Instructions Covered by General Charge.
    Refusing- a requested instruction that plaintiff could not recover for damages to his crops "by defendant landlord if he was a subtenant without defendant’s consent is not erroneous, where an instruction submitted the question whether plaintiff leased the land from defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 656.]
    2. Appeal and Error &wkey;>1003 — Verdict — Conclusiveness.
    Court of appeals will not disturb a verdict based upon ample evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 393S-3943.]

      3. Appeal and Error ¡&wkey;>260(l) — Reserving Grounds eo® Review — Admissibility of Evidence.
    The admission of evidence not excepted to at the time will not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1503, 1506-1509, 1511-1515.]
    Appeal from Liberty County Court; C. N. Smith, Fu'dge.
    Action by J. A. McCain against B. F. Anderson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    H. E. Marshall, of Liberty, for appellant. C. H. Cain, of Liberty, for appellee.
   BROOKE, J.

This was a suit instituted by J. A. McCain against B. F. Anderson, on September 29, 1915, for alleged injuries and damage to plaintiff’s crop grown on defendant’s premises during said year. On the trial before a jury, verdict was rendered for plaintiff in the sum of $39, and judgment duly entered thereon. Afterwards, motion for new trial was in due time filed, presented, and overruled, and notice of appeal given, and the case is now properly before this court for review.

Challenge is made by the first assignment of error to the action of the court in rofusing to give special charge No. 2 requested by defendant, for the reason that the evidence in the case raised and suggested the issues that originally J. B. McCain had rented the same, and subrented or sublet the same, without the consent of defendant, to the plaintiff in this case. Said requested charge is as follows:

“You are instructed that if J. B. McCain originally rented the premises in controversy from defendant, and said J. B. McCain then subrented or subleased same to 'his son, the plaintiff, without the consent of defendant, you will answer question No. 1 by saying, ‘No.’ ”

The court submitted the following charge to the jury upon the whole case:

“The court will submit this case to you upon special issues, and your verdict will be your answers to the questions hereinafter propounded to you by the court. A separate piece of paper will be given you on which to write your answers.
“The burden of proof is on the plaintiff to show by a preponderance of the testimony, and which is meant by the greater weight of credible testimony, all issues submitted to you hereinafter, except questions Nos. 1, 2, 3, 6, and 7, the burden of proof is upon the plaintiff. As to questions Nos. 4 and 5, the burden of proof is upon the defendant.
“Question No. 1. Did the defendant, B. F. Anderson, enter into a contract with J. A. McCain for the rental of the land and house belonging to the defendant as alleged, for the year 1915? Answer, ‘Yes,’ or ‘No.’ (Jury answered, ‘Yes.’) If you answer the foregoing question, ‘No,’ then you need answer no other questions in this case.
“Question No. 2. Was the crop, or any part thereof except the sorghum cane, belonging to J. A. McCain, damaged by ‘hogs, cattle, goats, or horses belonging to defendant depredating upon same in any manner, caused by the negligence of the defendant, B. F. Anderson? If so, to what extent, and state the amount of damages in dollars and cents to each kind of said crop?
“Question No. 3. Did defendant actually damage plaintiff by ploughing the ground on which the plaintiff had raised cotton during the year 1915? Answer, ‘Yes,’ or, ‘No.’ If you answer the foregoing question, ‘Yes,’ then you will state the amount of damages in dollars and cents.
“Question No. 4. If your answer to question No. 3 be ‘No,’ then you will answer this question: Did plaintiff wrongfully, and without cause, sue out the writ of injunction against the defendant restraining defendant from ploughing said land cause damages to the defendant? Answer, ‘Yes,’ or, ‘No.’
“Question No. 5. If you answer the foregoing question, ‘Yes,’ then state how much damages the plaintiff caused defendant? Answer this by stating- the amount of damages in dollars and cents.
“Question No. 6. Did the defendant, B. P. Anderson, forbid the plaintiff to put any stock in the pasture testified about which had been previously agreed upon between the parties, that could be placed in said pasture? Answer, ‘Yes,’ or, ‘No.’
“Question No. 7. If you answer the foregoing question, ‘Yes,’ then state how much damage, if any, defendant caused plaintiff by preventing plaintiff from putting such stock in said pasture that plaintiff had a right to put in said pasture under said contract? Answer by stating the amount in dollars and cents.”

It will be seen that the court submitted to the jury the direct question as to whether the plaintiff rented the property from the defendant in person. The jury answered this question in the affirmative; therefore, it negatived the idea, conclusively, that he was holding as a subrenter under his father, or anyone else. The special charge, therefore, having been covered by the court’s charge, there was no error in his refusal to again present practically the same question for the consideration of the jury. Therefore the assignment is overruled.

The second assignment of error seems to be grouped with the fourth and fifth assignments, as bearing- upon the same point, and the action of the lower court is complained of because the answer of the jury to question No. 1 is unsupported by the evidence, in this, that the greater preponderance of the testimony shows that J. A. McCain did not at any time rent the land and premises in controversy from defendant, but that J. B. McCain rented the same, and therefore J. A. •McCain has no right to sue, and because the answer of the jury to question No. 1 is erroneous, in that it is not supported by a preponderance of the testimony, which shows that the plaintiff did not rent said land from the defendant, but that J. B. McCain rented sai'd premises from the defendant, and subrented or subleased the same to J. A. McCain without tlie. consent of defendant.

The jury heard the testimony in this case, and, the witnesses having testified in their presence, they were better able to know the real facts, and therefore were in a position to ascertain the truth of the answers of the persons testifying. They having passed upon this matter, and the testimony being ample, we are not disposed to ‘disturb their action. The assignment is therefore overruled.

The third assignment of error complains of the answer of the jury to question No. 2, and says that the evidence offered to the jury had no basis for the jury to find dam•ages for $5 to cabbage, $24 to corn, and $5 to peanuts, and the evidence is insufficient for the jury to render any damages for cabbage, corn, and peanuts, and because said veiMict for damages for $5 for cabbage, $24 for corn, and $5 for peanuts is against the greater preponderance of the testimony, and is wholly insufficient to support the said verdict for the respective amounts therein given.

There is no bill of exception in this record with reference to the action of the court in admitting testimony, and therefore the record, having been carefully examined, affords ample justification for the verdict of the jury in the finding complained of. It may be said that, if evidence was improperly admitted, the appellant cannot be heal'd to complain, for the reason that no exception was taken at the time to the action of the court in admitting the testimony complained of. Therefore this assignment is overruled.

As presented by this record, the appellant has had a fair and impartial trial in the lower court. No error has been found in the action of the lower court of which the appellant can be heard to complain. The verdict of the jury seems to be based upon the testimony, and would appear to have been reasonable.

Therefore the appellant’s assignments are overruled, and the judgment is, in all things, affirmed.
      <&^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    J. I. CASE THRESHING MACH. CO. v. MORGAN et al.
    (No. 708.)
    (Court of Civil Appeals of Texas. El Paso.
    May 25, 1917.)
    1. Principal and Agent <&wkey; 147(2) — Third Person’s Doty to Ascertain Agent’s Authority.
    A third person dealing with an agent is bound at his peril to ascertain the fact of agency and extent of agent’s authority.
    [Ed. Noto. — Por other cases, see Principal and Agent, Cent. Dig. §§ 529, 531, 533.]
    2. Principal and Agent <&wkey;19, 119(1)— Agent’s Authority — Burden op Proop.
    Where the fact of agency or extent of agent’s authority is controverted, a third person relying thereon has the burden of proving such facts.
    [Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. §§ 36, 391, 393, 398, 399, 401.
    3. Principal and Agent &wkey;>124(3) — Agent’s Apparent Authority — Question por Jury.
    Evidence held sufficient to raise a question of fact as to agent’s apparent or implied authority to agree to deliver threshing machine parts within a specified time.
    [Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. § 724.]
    4. Principal and Agent <3&wkey; 194(2) — Instructions — Agent’s Authority.
    Evidence conclusively showing that agent had no express authority to agree to deliver threshing machine parts within specified time, the court should have given a correct special charge submitting the question of implied authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig'. §§ 728, 729.]

      5. Principal and Agent &wkey;>137(l) — Estop-pel to Deny Agent’s Authority.
    One claiming a principal’s estoppel to deny agent’s authority must base such authority upon facts, be actually misled by principal’s conduct or representations, and must have exercised due diligence to ascertain the truth.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 492, 494.]
    6. Sales &wkey;>418(16) — Buyer’s Action por Delayed Delivery — Special Damages.
    In action for failure to deliver threshing machine parts within specified time, plaintiff could recover damages naturally arising according to the usual course of things from such breach of the contract itself, or such as may reasonably be supposed to have been within both parties’ contemplation at the time contract was executed, as the probable result of a breach; hence, if seller knew that the buyer needed such parts for a particular purpose, buyer could recover damages resulting from failure to receive them within the specified time.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1197.]
    7. Trial <&wkey;252(4) — Instructions — Issues Not Raised by Evidence.
    Where there was no evidence raising issue of ratification of an agent's act, it was erroneous to instinct the jury as to such issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 599.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Suit by Jeff Morgan and another against the J. I. Case Threshing Machine Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded for new trial.
    Spence & Haven, of Dallas, for appellant. H. N. Goodson, of Comanche, for appellees.
   HARPER, C. J.

This is a suit for damages for failure to ship certain parts for a threshing machine, in accordance with an alleged contract, brought by Jeff Morgan and Joe Chrestman against the J. I. Case Threshing Machine Company. In substance, plaintiffs allege that they purchased from defendant, through its agent, the extras, with the understanding and agreement that they would be shipped on June 12th, but that through the negligence of defendant they were not shipped as agreed, that they did not get them for several days after they should have arrived; as a consequence, they lost their contracts to thresh certain wheat and 'oats and the profits, etc. The defendant denied that the employe, who sold the parts of machinery, had authority to contract to deliver machinery at any particular date so as to bind it. Further pleaded that it had no such notice of special damages as to charge it therefor. Tried with jury, and upon the verdict judgment was entered for $400, from which it- comes to this court for revision.

The evidence showed that plaintiffs were the owners of a threshing machine. It being in need of repairs, they went in person to 'the defendant’s place of business in Dallas for the purpose of purchasing same, and made known their wants to defendant’s manager. He took them to the repair clerk and introduced them to Mm. Whereup'on they made known what parts of machinery they desired to purchase. Plaintiff Morgan detailed what happened as follows:

“The repairman asked us what we wanted. I said we want a sieve for a threshing machine. He said, ‘we have them in stock.’ I said, ‘i want to look at it.’ He took us upstairs, and we gave him an order, but can’t recall everything we ordered. I told him we were in a hurry, and wanted to know if he had any of those things we wanted, and he answered that he did, and we asked him if he could ship them right out. He said he could. Mr. Lemon (manager) then came up and asked: ‘Did you get fixed up?’ We told him we did, and the repairman said, ‘Good.’ We told him that the goods were to come out to-morrow morning, and we loft with the understanding that the goods were to come the next morning by express, and he said, T know you are ready and the goods will go forward in the morning by express.’ That was the contract. When I was there at the repair clerk’s desk and Mr. Lemon asked ús if I got fixed up, Mr. Dale was in 8 or 10 feet from us. We were on one side of the desk, and the repairman was on the other. In talking with Mr. Dale, the repairman, about getting these extras out Saturday morning, I told him we came down there to buy those repairs because our trade demanded it, and we come in person because we wanted to be sure to get thorn and wanted to see what we were buying and we was going to start and had to get busy right now. I explained i't to him and made him understand. I told him we was bound to start on that date, and said: ‘If you get them out in the morning, I am sure they will get there in time.’ Mr. Dale said: T will sure get them out.’ I told him that we was making calculations to start threshing on Tuesday or Wednesday, and that was why we wanted the order rushed. We were talking on Friday, the 11th, and next day, Saturday, the 12th. I told him' that we had contracts that wore pushing us. Mr. Dale said lie had these repairs in the Dallas house. We looked for them, and I asked him if he had them in stock, and he said he did; that it was all there.”

The manager of the defendant company testified that Dale had no authority to make the contract binding it to a definite day for shipment, and Dale testified that he had n'ot been given such authority. And there is no evidence to the contrary as to express authority.

The first proposition urged by appellant is that the undisputed evidence shows that Dale was not authorized expressly or impliedly to bind the company t'o carry out the contract charged; therefore the court erred in refusing to give peremptory instruction for defendant.

The rule is that:

“A party dealing with an agent is bound, at his peril, to ascertain, not only the fact of the agency, b'ut the extent of the agent’s powers, and, in case either is controverted, the burden of proof is upon him to establish it.” Overton v. First Texas State Ins. Co., 189 S. W. 514.

We are of the opinion that there is sufficient evidence to raise a question of fact for the jury upon the question of apparent or implied authority. Therefore the court did not err in refusing the instruction upon that ground.

The fifth assignment urges that the court erred in refusing to give a special charge requested upon the question of apparent authority of the agent. The special charge requested is a substantially c'orrect charge upon the law and the facts of this record, and should have been given. The evidence being conclusive that Dale had no express authority to bind the defendant by the contract alleged, it becomes a question of fact for the jury whether he had apparent authority governed by proper instructions.

The rule adopted in this state is laid down in Cleveland & Sons v. Houston Sporting Goods Store, 166 S. W. 912:

“The doctrine of apparent authority to act as an agent is founded upon the law of estoppel, but in every case in order to create an estoppel the «authority to act must be based upon facts. * * * Tlie doctrine * * * does not apply unless the person dealing with the * * * agent * * * was misled by * * * the representation or conduct of the * * * principal. He must have been actually misled and induced to act to his prejudice by reason of the principal’s conduct; he having on his part exercised due diligence to ascertain the truth”— citing Clark & Skyles, Agency, p. 149.

Upon this question, the court gave the following instruction:

“Should you find from the evidence that plaintiffs made the contract for the delivery of said extras, alleged by them with H. M. Dale, such contract would not be binding on defendant, unless you find from a preponderance of the evidence that said H. M. Dale was the agent of defendant, and as such agent had authority from defendant to make such contracts; and, unless you find that said XI. M. Dale was the agent for defendant and acting within the scope of his authority in making the contract alleged in .plaintiff’s petition (if he did make such contract), you will find for the defendant, unless you find that defendant is estopped from denying such agency under the instruction hereinafter given you. In this connection, you are instructed that the undisputed testimony shows that W. 0. Demon is and was the general manager for defendant at Dallas, Tex., and if you find that said W. O. Demon held out or represented to plaintiffs that H. M. Dale was agent for defendant with authority to make shipping contracts like the one alleged in plaintiff’s petition, or if you find that said H. M. Dale, with the knowledge of defendant or its said general manager, was accustomed to making such contracts, or if you find that after said contract was made between plaintiffs and H. M. Dale (if they did make such contract) the same was ratified by said general manager, then I instruct yon that, in either of those events, defendant is estopped from denying the agency of said H. M. Dale.” -

It will be noted that the charge given does not cover the question of diligence of plaintiffs to ascertain the truth, nor that of whether they were misled by the acts of defendant to their prejudice.

By other assignments and propositions it is urged that:

‘The lost profits which the plaintiffs sought to recover as damages in this case, because of the alleged violation of the contract had with Dale, were such as not to be recoverable in law. The alleged contract with Dale was not made by him in contemplation of profits which appel-lees would make from threshing the grain of any of their customers, because they did not make known to Dale that they had contracts to thresh grain for any one, or that they would make a profit in threshing grain for anyone. Therefore the profits, if any, which they might have made from threshing grain for their patrons, wore too speculative, remote, and contingent to be recoverable in law.”

In view of another trial, we think it proper to add that the rule for the measure of damages in case like this, adopted by the .courts of this state, is that laid down in Hadley v. Baxendale, 9 Exch. 353; Pac. Ex. Co. v. Darnell Bros., 62 Tex. 640.

“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendants and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances wore unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would generally arise, and in the great multitude of cases not affected by any special circumstances from such a breach of contract.”

If, upon another trial, the plaintiffs by evidence bring their case within the above rule with respect to damages, the questions should he submitted to the jury by appropriate instructions, which was not done upon the former trial.

By the tenth, it is urged that the court erred in giving charge upon ratification because there was no evidence raising the issue. This is well taken.

The other assignments raise questions largely based upon the sufficiency of the evidence to support issues submitted by the court and are overruled, because we believe what is said above sufficiently indicates the tests to be applied upon another trial, so, if errors, not likely to occur upon another trial.

Eor the reasons indicated, the cause is reversed and remanded for a new trial.
      <Ss»Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ¿s^aFor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    BARKLEY v. STONE et al.
    (No. 7784.)
    (Court of Civil Appeals of Texas. Dallas.
    May 12, 1917.
    Rehearing Denied June 16, 1917.)
    1. Partition <&wkey;5 — By Acts of Parties — Oral Agreement.
    An oral agreement between surviving husband and first wife’s sons, by which the husband conveyed community property to an attorney for his son’s benefit in consideration that he release residue of the estate from any claim, did not constitute a partition, since under the statute partition can only be had between joint owners or those jointly interested, and neither vendors nor vendees had any interest in the estate conveyed.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 18-17.]
    2. Husband and Wife <&wkey;274(l) — Community Property — Effect on Wife’s Death.
    Upon a wife’s death legal title to her share in community property vested in her children subject to surviving husband’s rights to occupy premises as homestead.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026, 1029, 1030.]
    3. Husband and Wife <&wkey;273(8) — Community Property — Surviving Husband’s Right to Convey.
    The surviving husband can only convey community real estate to pay community debts, although a conveyance for another purpose, acquiesced in by all interested, will pass title.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1019.]
    4. Partition &wkey;>22 — Right to — Former Agreement.
    Where plaintiff had acquiesced in deeds previously made by his mother’s surviving second husband, conveying a portion of community property to a lawyer for plaintiff’s benefit under plaintiff’s oral agreement to release his interest in the residue, and value of which was equal to his interest in the property, equity will deny him partition of the residue, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6100, providing that all questions of law or equity affecting the title may be considered in partition proceedings.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 73, 74.]
    5. Partition &wkey;s83 — Jurisdiction to Determine Equities — Construction of Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6100, providing that all questions of law or equity affecting the title may be considered in partition proceedings, was intended to confer authority to adjust every conceivable equity existing between cotenants relating to the parties and property partitioned.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 228, 229.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by Henry Barkley against Homer Stone and another. Judgment for defendants, and plaintiff brings error.
    Affirmed.
    Allen & Allen, of Dallas, for plaintiff in error. Thompson, Knight, Baker & Harris, and Thomas A. Knight, all of Dallas, for defendants in error.
   RASBURY, J.

Plaintiff in error sued defendants in error to compel partition of a lot of land 173xlS8 feet, situated in the city. of Dallas, alleged to be owned jointly by the parties, two-twelfths by plaintiff in error, and the remainder by defendants in error. There was trial by jury to whom the court conferred for determination certain issues of fact and upon the answers to which judgment was entered for defendants in error.

The facts arising upon the evidence are without dispute and are these: Alfred Stone married Evelyn Barkley in 1864. At the time of the marriage Evelyn had by a former husband two children, Henry Barkley, plaintiff in error, and James Barkley. After the marriage, and in 1874, Alfred Stone acquired from Nat M. Burford about one acre of land, which is conceded to have been community property, and of which the lot sought to be partitioned is a part. Homer and Charlie Stone are the children of Alfred and Evelyn Stone. Evelyn Stone died in the year 1881, intestate, leaving as surviving heirs her four sons, James and Henry Barkley and Homel- and Charles Stone. She left no debts, nor was there any administration upon her estate. Shortly after the death of Evelyn Stone her surviving husband, Alfred Stone, married again. Subsequent to the death of his mother, and in 1897, James Barkley died. He left no debts, nor was his estate administered upon. Alfred Stone died in 1911. His second wife died in 1914. The land sought to be partitioned was occupied by Alfred Stone from the time he bought it until his death as his homestead, and after his death it was so occupied by his surviving widow until her death. After the death of Evelyn Stone a portion of the community estate was deeded by Alfred Stone and his second wife, Fannie, to R. B. Seay and J. D. Fouraker. The consideration for the lands so conveyed, between the' vendors and the vendees, was that the vendees, who were lawyers, would defend Henry Barkley in the courts against a charge of murder. The services were rendered. As between the vendors and Henry and James Barkley the agreement, which was oral, was that the conveyance should constitute a partition of their mother’s interest in the community estate, and that the property conveyed represented their interest or share therein, and should, between the parties interested, have the effect of releasing the residue of the common estate from any claim of theirs in that respect. Defendants in error acquiesced in the transaction we have detailed. The land sought to be partitioned is no part of the land conveyed to Seay and Fouraker, but a part of the original one-acre tract left by Alfred Stone at his death and since occupied and claimed by the defendants in error. Notwithstanding the facts related were not disputed the court submitted to the jury the issue as to whether the deeds were executed in pursuance of the agreement we have detailed, and the jury found they were.

It is' tlie contention of plaintiff in error, raised in several ways, tliat the conveyance by Alfred Stone to Seay and Fouraker, under the circumstances and for the purposes detailed, in no way affects his right to have the remaining portion of the common estate partitioned. The claim is that the facts detailed did not in law constitute a partition between the tenants in common at the time. ■ Such claim we believe to be a correct legal statement. When Evelyn Stone died, the property being community, the legal title to her undivided one-half vested in her children, Henry and James Barkley and Homer and Charles Stone, subject to the right of her surviving husband to occupy the premises as his homestead. Johnson et al. v. Harrison et al., 48 Tex. 257. Partition, correctly speaking, can only be had between joint owners or those jointly interested. The statutory remedy so provides. Thus, so far as pertained to the interest of the heirs of Evelyn Stone in the estate, there was literally no partition, since neither the vendors nor the vendees had any interest in the estate intended to be conveyed. But it is not correct to say that the conveyances and the consideration therefor are without controlling effect in this proceeding upon plaintiff in error’s right to partition the land in controversy.

While the surviving husband can only convey the community real estate to pay community debts, a conveyance for other purposes, acquiesced in by all interested and ■ supported in equity, will pass title to his vendee. McAnulty v. Ellison, 71 S. W. 670. It is not disputed in this proceeding that plaintiff in error, as well as defendants in error, have acquiesced in the deeds made more than 20 years ago by Alfred Stone to Seay and Fouraker, or that it was intended to pass the title to the land described in the deeds. Plaintiff in error does not even deny that the purpose of the deeds was to convey to the vendees his interest and that of his brother in his mother’s estate, and that he received the consideration therefor, nor that portion conveyed was equal to the portion which they were entitled to receive. Such being the facts, the application of well-settled rules of equity will deny a partition of the residue of the community property; in fact a denial in such cases, we believe, is contemplated by the statutory remedy, which declares that at the hearing in partition the court shall determine the interest of the joint owners and all questions of law or equity affecting the title. Article 6100, Vernon’s Sayles’ Civ. Stats.

The effect and purpose of the statute, it occurs to us, is to confer upon the trial court authority to adjust and enforce between cotenants every conceivable equity relating to the parties and the property. Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; Wipff v. Heder, 41 S. W. 164; Morris v. Morris, 47 Tex. Civ. App. 244, 105 S. W. 242; Miller v. Odom, 152 S. W. 1185. The rule is also stated to be that:

“When a suit for partition is in a court of equity, or in a court authorized to proceed with powers as ample as those exercised by courts of equity, it may be employed to adjust all the equities existing between the parties and arising out of their relation to the property to be divided.” 30 Cyc. 230.

The effect of the verdict and judgment, in which we concur, is to declare that upon the equities disclosed by the undisputed evidence plaintiff in error had no interest in the land, and was hence not entitled to partition.

The judgment is affirmed.
      ®a»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes