author: BROOKE, J.

text:
    KELLOGG et al. v. CHAPMAN.
    (No. 268.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 1, 1918.
    Rehearing Denied March 20, 1918.)
    1. Evidence <§=>372(6) — Ancient Instruments.
    As delivery and acceptance is essential, an ancient deed against which a plea of non est factum is interposed is not, without proof of execution, admissible in evidence or effective as a conveyance; it having been found among the papers in the county clerk’s office, and no rights having been claimed or exercised thereunder until many years after its execution.
    2. Deeds <§=>53 — Execution—Juey Question —Speculative Issues.
    Where there was no evidence of the execution of an ancient deed offered against which a plea of non est factum was interposed, the question whether title passed should not be submitted to the jury as it would depend on speculation.
    3. Deeds <§=>193 — Actions—Plea oe Non Est Factum.
    Where a plea of non est factum is interposed as against a deed, the burden of establishing the execution as at common law is cast on the party relying on the deed.
    4. Deeds <§=>207 — Execution—Evidence.
    Execution of a deed against which á plea of non est factum is interposed is not established by proof that after the date of its alleged execution taxes were assessed against the grantee named, for such evidence is at best only hearsay and shows no claim of ownership or assertion of rights under the deed by the grantee.
    5. Evidence <§=>324(3) — Hearsay — What Constitutes.
    Evidence that after the purported execution of a deed the land was assessed against the grantee is hearsay.
    6. Evidence <§=>343(3) — Copies — Records —Admissibility.
    Where the original conveyance was not produced or accounted for, a certified copy of such deed as it appeared in the records is not admissible, particularly where the book containing the deed was shown to have contained copies of other instruments confessedly and admittedly forged.
    7. Evidence <§=>324(3) — Reputation—Admissibility.
    In an action involving title to land, testimony by a witness that it was generally understood in her family that the deed to her father, the original of which was not produced, was executed in payment of legal services was improperly admitted, where it did not appear that the witness’ father ever asserted any claim to the land, but it was shown that the witness never saw any of her father’s papers, and that she was too young when he died to understand anything of the matter.
    Appeal from District Court, San Augustine County; W. R. Blackshear, Judge.

      Trespass to try title by Mrs. Rose Kellogg and others against J. R. Chapman. From a judgment for defendant, plaintiffs appeal.
    Reversed and rendered.
    W. D. Gordon, of Beaumont, for appellants. Oliver J. Todd, of Beaumont, and Terry, Cavin & Mills, of Galveston, for ap-pellee.
   BROOKE, J.

On the 15th day of August, 1915, appellants instituted suit of trespass to try title against appellee, the land involved being the A. G. Kellogg 1107-acre survey in San Augustine county. The defendant answered by a plea of general denial and not guilty. The case was submitted to the jury upon three special issues, as follows:

Question No. 1: “Did or did not A. G. Kellogg execute and deliver to William Coote, as a conveyance, the instrument purporting to be from Kellogg to Coote, and was it accepted by William Coote as a conveyance to him of the title to the land in controversy? If you find the affirmative of the issue, you will answer ‘Yes.’ If you find the negative of this issue, you will answer ‘No.’ ”
To this question the jury answered “Yes.”
Question No. 2: “Was or not the purported transfer from William Coote to Terry H. Cabal, purporting to convey to Terry H. Cahal all the right, title, and interest of Coote to the land in controversy, a genuine instrument of conveyance from William Coote mentioned in the Kellogg deed? If you answer this in the affirmative, the form of your answer may be ‘Yes.’ If you answer in the negative, the form of your answer may be ‘No.’ ”
To this question the jury answered “Yes.”
Question No. 3: “Did or did not, William Coote, prior to the 28th of February, 1838, rescind the deed from Kellogg to himself or retransfer to Kellogg, or his estate, the land in controversy? If you determine this in the affirmative, let your answer be ‘Yes.’ If you determine this in the negative, let your answer be ‘No.’ ”
To this question the jury answered “No.”

Judgment was rendered on January 3, 1917, against the plaintiffs in favor of defendant Chapman for the land in controversy. Motion for new trial was filed and overruled, and notice of appeal given, and appeal duly perfected.

It appears from the record that Kellogg, the original grantee, was a single man, and was killed by the Indians in the year 1839; that Kellogg was an immigrant to Texas, and at his death his estate was administered on in Texas by his brother, Ebenezer Kellogg. Ebenezer died in 1810, and K. L. Anderson became his administrator. It further appears that A. G. Kellogg had been a merchant in 'San Augustine from the year 1835 down to his death, and dealt extensively in lands as well as merchandise. After the death of A. G. Kellogg, one A. Horton, custom collector of the republic of Texas, obtained h judgment against K. E. Anderson, administrator of the estate of A. G. Kellogg, Matthew Cartwright, and L. E. Griffith, rendered at the March term of the court in 1840. On the 2d day of November, 1841, there was issued an original execution on the judgment, and the writ on this shows that A. G. Kellogg’s headright was pointed out as his property, and levied upon to satisfy the judgment. A deed was made by William Kim-brough, sheriff, to M. Cartwright, dated July, 1842. M'atthew Cartwright conveyed 100 acres of this headlight on the 19th of December, 1858,. to Josiah Parker. Matthew Cartwright died about the year 1870. On the 30th of May, 1871, a partition of his lands among his children was had, and the land in controversy was set aside to his son, Leonidas Cartwright. Leonidas Cartwright conveyed 100 acres of land to H. L. Lucas in 1899, 100 acres to D. C. Odom in 1899, and on the 2d day of October, 1905, he conveyed the remainder of the tract to H. T. Weir for a consideration of $2,000, and H. P. Weir, on October 16, 1905, executed a deed thereto to Marrs McLean to secure a note due by Weir to W. D. Gordon for $2,000, due'12 months after date. On the 18th of October, 1906, Weir executed a deed to Gordon transferring the said land, reciting that it was in full settlement of the indebtedness of said Weir recited in the deed of trust. On the 5th day of January, 1907, Gordon and Weir executed a deed to Wm. L. Pearson conveying the said land, except the 300-acre tract as above set out. This record also reflects the fact that, from 1846 down to Leonidas Cartwright’s sale of the land to Weir in 1905, the land was assessed for taxes to M. Cartwright in his lifetime, and after his death to his son, Leonidas Cartwright, and parties claiming under them. It is further shown by the record that Kellogg and Coote were partners in the mercantile business in 1835; that from 1836 to 1838 Kellogg was running the business alone, and Coote does not appear to have had any interest in the same. It is also shown that in 1835 Coote had a wife and two boys, as shown by the application he made for a grant in Texas on January 24, 1835.

On the part of defendant, Chapman, there was offered in evidence the county clerk of San Augustine county, and he testified that there is in his 'custody an original deed among papers commonly designated as the archives, dated January 3, 1836, purporting to be executed by A. G. Kellogg before John G. Love, and witnessed by David Brown and Samuel Stivers. This original instrument was then read in evidence, and purported to be a conveyance of the Kellogg headright by Kellogg to Wm. C'oote for a considei’ation o£ $200. There was also offered in evidence a certified copy of the same instrument.

Objections were made as follows by the plaintiffs: That there was no proof adduced that the grantee in that instrument ever accepted the deed or claimed that land, because it does not appear to come from the custody of the grantee, nor was it a filed paper, whereby constructive delivery of the paper might be inferred; objection was further made to the introduction of said in-¡átrument until there was evidence tending to show that the grantee in that instrument so accepted under it by receiving it or by claiming the property under it, because the instrument does not come from the proper custody, in that it was a private deed left or found among the papers in the county clerk’s office without ever having been filed for record with the county clerk, and without ever having been recorded.

■ Objection was made to the certified copy of the instrument: (1) Because, as a certified copy, it is not authenticated so as to make ■it admissible in evidence under the registration laws of this state, in that the instrument purports to be authenticated by a man named Lakey, who is not a witness to the deed, before .Charles Epps as county clerk of said county, and the certificate of authentication is not in form of law as required by the statute; (2) because under what is known as the Townsend Curative Act, which provides that where an instrument has been actually recorded for a period of 10 years it •should be admissible in evidence, whether ■properly acknowledged or not, it is provided that that can only be where there has been no adverse claim asserted to that instrument during that period of 10 years next after it was registered, and there is no proof adduced here that would fulfill the condition which made a condition precedent to the introduction of such an instrument under that act; (3) because there is an affidavit of forgery filed to this instrument, which requires the proof of this instrument as at common law, and there has been no proof tending to establish the genuineness and existence of this instrument other than the certified copy now offered; (4) no predicate has been laid for the introduction of secondary evidence of the claimed deed.

The first assignment of error is as follows:

“The verdict of the jury on special issue No. 1 ’is contrary to the evidence and without support, in this, that there is no evidence that William Coote ever received said deed made out to him by Kellogg, or ever acted thereon or claimed the land thereunder, and therefore said finding is without the precedent of sufficient evidence to sustain it.”

Under this assignment are submitted two propositions, to wit:

“(a) In the face of the plea of non est factum, there is no basis in the evidence for the finding 'of the jury that Kellogg executed and delivered to William Coote as a conveyance an instrument purporting to be from Kellogg to Coote, and that William Coote accepted such conveyance and became the owner thereby of the land in controversy.
“(b) Where the evidence is without dispute, as in this case, and fails to establish the execution and delivery of the deed from Kellogg to 'Coote, it was error to submit that issue to the jury and allow them to surmise and speculate upon the probability of the land being conveyed by Kellogg and accepted as such by Coote.”

On the contrary it is urged:

“(a) The archive from Kellogg to Coote was an original instrument, retained in the records of the officer' before whom it was executed in compliance with the civil law more than 80 years before, and of itself proved title into William Coote.
“(b) The certified copy of the archive from Kellogg to Coote was admissible to the record, and having been duly recorded in the year 1845, the record thereof is an ancient record and ■ in itself proved the conveyance and its invalidity not having been affirmatively established did, in itself, place the title in William Ooote.”

It will be seen that it is contended that a private deed of conveyance found with the clerk, but never recorded there, under which no title has ever been asserted by the grantee therein, must be shown to have been delivered to the grantee and accepted by him before title can be said to pass thereby, and the cases of Turberville v. Fowler, 101 Tenn. 88, 46 S. W. 577, Culmore v. Genove, 24 S. W. 83, Koppelmann v. Koppelmann, 57 S. W. 83, and Tuttle v. Turner, 28 Tex. 773, are cited as the authorities for the contention.

The court in Tuttle v. Turner, supra, 28 Tex. on page 773, uses the following language:

“A deed takes effect only from the date of its delivery, which may be either actual or constructive. It is essential to the operative force and validity of the deed, if not actually delivered to the grantee or his agent authorized to receive it, to prove notice to him of its execution, and such additional circumstances as will afford a reasonable presumption of his acceptance of it. The presumption that a party will accept a deed because it is beneficial to him, it is said, will never be carried so far as to consider him as having accepted it. * * * But possession of a deed by the grantee raises á presumption of its delivery. * * * This presumption may be rebutted by proof to the contrary.”

In our opinion, the Supreme Court has announced a correct legal proposition. The record in this case neither shows nor indicates in any manner that the instrument was either known to or accepted by Coote as a conveyance. The delivery of a deed to a grantee is part of the conveyance .of the title. In this case, the document was found among the papers in the county clerk’s office, where it was neither filed for record nor recorded. Perhaps the presumption would be, if the deed was filed for record, that a delivery was had to the grantee, but with this admission it may be shown that the grantee never claimed any benefit thereunder, especially when it is attacked by a plea of non est factum. This record is silent as to the alleged fact, or the claimed fact, or the fact which is shown to be presumed in the case, that William Coote ever claimed any title under this deed of conveyance. On the contrary, the proof is plain and undisputed that the Kellogg headright of land was levied upon and sold in 1842 as the property of Kellogg, and bought by Matthew Cartwright, and that this was the only claim to the land, at least actively, until in the year 1005 a deed was had from Mrs. Osborne and Miss Cahal setting up claim to the land under the alleged conveyance from Kellogg to Coote.

To our minds, when a deed or conveyance, whether an ancient instrument or whether recently executed, has a plea of non est factum interposed against it, the burden of establishing it as a conveyance of title is not made out simply by the introduction of the instrument in evidence without proof of its execution, and without proof that it was ever acted upon by the grantee therein, and the burden of proof, before the instrument should be admitted in evidence, is upon the party offering and claiming under the instrument in question. Harris v. Hoskins, 2 Tex. Civ. App. 486, 22 S. W. 251; Cairel v. Higgs, 1 Posey Unrep. Cas. 66; 1 Wharton on Evidence, §§ 726, 1359; Belcher v. Fox, 60 Tex. 529; Holmes v. Coryell, 58 Tex. 685.

The case of Harris v. Hoskins, supra, reading from the syllabus, uses the following language:

“An ancient document transferring a head-right certificate, free from suspicion, and over 30 years old, found in the county clerk’s office, in an old package of deeds, should be admitted in evidence, when accompanied with an offer to prove the genuineness of the signature of one of the attesting witnesses, though the office of the clerk of the court is not the proper depository for such documents.”

So, in our opinion, the first proposition of appellants, under the first assignment, should be sustained; and, with reference to the second proposition, we are of opinion, also, that the evidence, as shown by this record, fails to establish the execution and delivery of the deed from Kellogg to Coote, and that it was error to submit that alleged issue to the jury, thereby permitting them to surmise and speculate upon the probability of the land being conveyed by Kellogg and accepted by Coote. Therefore we conclude that the assignment must necessarily be sustained, for we are persuaded to believe that the ancientness of the instrument did not, of itself, prove title in William Coote, nor that the record of the same is an ancient record and in itself proof of the conveyance; neither was the burden of proof upon appellants to establish the validity of the instrument, nor did this record, in itself, place the title in William Coote. Joske v. Irvine, 91 Tex. 582, 44 S. W. 1059, and cases cited.

The second assignment of error is as follows:

“The verdict of the jury on special issue No. 2 is contrarj' to the law and the evidence, and without support in either, in this, the instrument introduced in evidence as to which said special issue No. 2 is a finding was not proved by any competent evidence to have ever been executed, delivered, accepted, and acted upon by the putative grantee there' nor was the same proved as a matter of fact as the act and deed which it purports to be under the rules of the common law or otherwise.”

There are two propositions under this assignment, as follows:

“(a) When the plea of non est factum was filed against the purported transfer from William Coote to Terry H. Cahal, the burden was thereby placed upon the defendant Chapman to establish the execution of the alleged transfer as at common law, and this the defendant failed to do.
“(b) The only evidence offered in support of the purported deed from Coote to Cahal, attacked as a forgery, was the assessment for three years in the name of T. H. Cahal, without any showing as to why the land was assessed to Cahal, and without any showing that Cahal ever paid the taxes or knew that the land had ever been assessed to him; and this was not sufficient as a matter of law to establish the genuineness and validity of the deed, against a plea of non est factum. It would not be sufficient even in the absence of such a plea.”

In our opinion, without going into the matter extensively, it is sufficient to say that, when a plea of non est factum was filed against the purported transfer from William Coote to Terry H. Cahal, the burden was thereby placed upon the defendant Chapman to establish the execution of the alleged transfer as at common law, and the record shows that under the second proposition offered under the second assignment of error by the appellants, as a matter of fact, there was neither claim of any kind nor any showing as to why the land was assessed to Cahal. There was no showing at all, as reflected by this record, that Cahal ever paid the taxes, or knew that the land had been assessed to him, or that he claimed to own it. Outside of this, testimony should not have been received by the lower court, and was clearly, as shown by the decision of the Supreme Court, hearsay, and not admissible in evidence in this case.

The fact that the land was assessed in the name of T. H. Cahal for three years, not being coupled with any fact which shows a claim of ownership or a payment of any taxes at any time, or a knowledge on the part of the alleged owner that he at any time knew there was a transfer to him, and without any circumstance, so far-as the record is concerned, showing that Cahal had any knowledge that the land was so assessed in his name; there was only the isolated fact in this record; that is to say, the fact of the admitted testimony of Mrs. Osborne and Miss Cahal about what they liad heard, nothing being specific, the information being perhaps not from the alleged owner, at least not shown to have been made by him, that there was any connection with the land in controversy. This fact alone, in the entire record, connects or is indicative of the fact that Cahal ever heard of the land in controversy or had any connection therewith.

We believe that as to the burden of proof there can be no question, under the decisions of this state, and cite the cases of Belcher v. Fox, 60 Tex. 530; Holmes v. Coryell, 58 Tex. 685; Wilson v. Simpson, 80 Tex. 283, 16 S. W. 40; West v. Houston Oil Co., 56 Tex. Civ. App. 341, 120 S. W. 230; 1 Wharton, Ev. § 732; Greenl. Ev. §§ 570, 575B, par. 3, p. 720, also paragraph 4, p. 721; Schultz v. Tonty Lumber Co., 36 Tex. Civ. App. 448, 82 S. W. 353. The assignment therefore must be sustained.

The third assignment oí error is as follows:

“The finding as to issue No. 3 is without support in the evidence, in this, that all the facts and circumstances in evidence show that there was no claim made to the land by William Ooote contemporaneous with and subsequent to the period therein mentioned, but all the evidence shows that the only claim asserted was by Albert G. Kellogg’s estate and those claiming thereunder.”

From what has been said heretofore, this assignment must be sustained.

The fourth assignment of error is as follows:

“The court erred in granting the defendant’s motion for judgment based upon the findings of the jury and the evidence in the record because, as a matter of law, the defendant is not entitled to such judgment, and it has no sufficient support in the evidence or predicate- upon the issues found.”

With reference to said assignment, it is sufficient to say that in our opinion the defendant was not entitled to such judgment, and that no sufficient support is found in the evidence.

The fifth assignment of error is as follows:

“The court erred in admitting in evidence the document spread upon Book F, at pages 451 to 452, of the Deed Records of Ban Augustine county, purporting to be a copy of the alleged deed from Kellogg to Ooote and the transfer thereon from Ooote to Oahal, in this, there were no facts and circumstances sufficient in law accompanying the production of said instrument to justify the prima facie case required to be made in view of the plea of non est factum as a condition precedent to its admission in evidence. On the contrary, the facts and circumstances affirmatively showed the instrument (1) not to be free from suspicion; (2) not to come from proper custody; and (3) not to be genuine.”

It is sufficient to say, upon the authority of Belcher v. Fox, supra, which was reversed by the -Supreme Court, because deeds were admitted in evidence without the precedent conditions of showing corroboration of the ancient existence and genuineness thereof, and claim thereunder by the parties immediately concerned, and the court, in its opinion, used the following language:

“The original deeds were not produced, and strong must be the corroborating facts to authorize the holding that a deed even 30 years old is genuine when the original is not produced, and a copy from the record, or the record [itself] is relied upon to show even the existence of the paper. Such proof, at best, is but secondary. When the deed itself is introduced, coming free from suspicion and from proper custody, even then facts corroborative of its ancient existence and genuineness must be proved.”

In the instant case the original was not produced or even accounted for, except the record shows that perhaps Cahal’s papers had been burned. It was never shown that Ooote was at any time in Tennessee. In fact, the record shows that he was not. No fact or circumstance which even attempts to bring out the fact that Oahal ever knew or ever heard of Ooote, but rather it is shown by this record that Ooote left this country and was li. ing in Ireland at the time this deed purports' to have been executed in 1838; the deed purporting to have been made in Tennessee. It is not shown by this record that there were any such witnesses living in Tennessee such as purport to be signers of that paper. It did not purport to be proven by either of the witnesses, as required by law. The prerequisites, therefore, by the decisions of this state, were lacking when the paper was introduced in evidence. The only evidence in this record which shows any such paper ever existed is furnished by the Ohas. Epps copy in the same book with other copies of instruments confessedly and admittedly forged by Epps.

This assignment must also be sustained.

The sixth assignment of error is submitted as a proposition, as follows:

“The court erred in admitting in evidence, against the plea of non est factum, the reputed deed from Albert G. Kellogg to William Ooote, because it was unaccompanied by any facts and circumstances sufficient in law to establish it as a conveyance of the land by Kellogg and an acceptance thereunder by Ooote.”

From what has been heretofore said, the assignment is sustained.

The seventh assignment- of error is also presented as a proposition, as follows:

“The court erred, as will more fully appear from the bill of exception taken thereto, in overruling the plaintiffs objection and admitting in evidence the assertions made in the deposition of Marh Oahal Osborne • to the substantial effect that it was generally understood in her family that the alleged deed to Terry H. Oahal had been made upon consideration of a fee to her father for legal services; to all of which evidence of this nature and kind seasonable objections were interposed and exceptions taken, more fully shown by said bill.”

The question propounded to Marh Oahal Osborne was as to whether there was any tradition in her family as to the ownership of 1,107 acres constituting the Kellogg survey ; if there was such tradition, from whom she understood said land to be obtained by her father. Objection was made to this question as follows: As calling for hearsay and opinion, and as being incompetent to prove any issue in the case; and, further, because this witness, in answering the same interrogatory, in the first sentence says that she was too young when her father died, and did not know anything about his business or legal papers, and in the next place the tradition or knowledge asked about is entirely an opinion of the witness.

This testimony was offered as evidence of the claim of title to these people. Further objection was that in another portion of her deposition it appears that she never asserted any claim until she gave a quitclaim deed to the people they are holding under for $400 five or six years ago, and that was the only claim she ever asserted to the property.

The witness was permitted to testify that there was the information and knowledge in her family that her father owned the body of land in Texas inquired about in this interrogatory; it was talked of and discussed in the family; that it was always understood that her father was deeded the land in payment of a fee for his services in representing the party deeding him the land; that she never saw any of the papers of her father, land titles or otherwise, for any years; that she was too young when he died to know about business or legal papers.

Without undertaking to consider the various decisions of the Supreme Court and other courts of this state, it is sufficient to say that in our judgment the testimony sought ■to have been eliminated, and which was introduced in evidence, and which most probably brought about the verdict of the jury upon which judgment was rendered in the case, was clearly hearsay, not admissible, and should have been excluded from the consideration of the jury. Therefore the assignment must be sustained.

From what has been said, therefore, it is impossible for this court to arrive at any other conclusion except that, not only must this judgment be reversed, but that the judgment must be rendered in favor of appellants.

There seems to be in our good state a desire on the part of the bench and bar that in the consideration of cases in the appellate court extensive opinions should not be handed down, but that briefness should by the appellate courts be considered, among other things, of prime importance in the consideration of the cases submitted. Many nice questions, therefore, which might have been interesting and perhaps somewhat instructive, have, in obedience or in conformity to the aforesaid demand, been eliminated, and this opinion has been made as brief as possible.

Therefore it is ordered that this case be reversed and the cause rendered in favor of appellants.
      ©s^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    HORN v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 8801.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 23, 1918.)
    1. Appeal and Error <⅜=»389(3) — Perfecting Appeal — Inability to Pay Costs — Proof.
    Proof of inability to pay costs in perfecting an appeal required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 209S, to be made before the court trying the case, must he before the court, if in session, and it must affirmatively appear that it was thus made to give the appellate court jurisdiction.
    2. Appeal and Error <§=⅛)89(3) — Perfecting Appeal — Inability to Pay Costs — Proof.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 209S, requiring proof of inability to pay costs in perfecting appeal to be made before the court trying the case, the judge has no power to hear proof after adjournment for the term.
    3. Appeal and Error ®^389(3) — Perfecting Appeaj>-Inability to Pay Costs — Proof.
    Hearing, while in session, proof of inability to give cost bond in the trial court would not cure irregularity in perfecting appeal in hearing proof of inability to pay costs after the court has adjourned.
    4.Appeal and Error |⅝=>792 — Dismissal on Court’s Own Motion.
    An appeal will be dismissed on the court’s own motion, where absence of jurisdictional requirements appear on the face of the record, though called to the court’s attention by a motion to dismiss, which under the rules need not be entertained.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    • Action by O. D. Horn against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for defendant, plaintiff appeals.
    Appeal dismissed.
    D. G. Hunt and E. A. Hill, both of East-land, for appellant. D. K. Scott, of Cisco, H. P. Brelsford, of Eastland, and Theodore Mack, of Ft. Worth, for appellee.
   BUCK, J.

A judgment having been rendered against the plaintiff below in the district court of Eastland county, he gave notice of appeal, and sought to perfect his appeal ■by filing his affidavit of inability to pay costs or give security therefor, in lieu of appeal bond, as provided under article 2098, Vernon’s Sayles’ Tex. Civ. Stats. The affidavit was made before a notary public on March 9, 1917, and in connection with said affidavit plaintiff made the following prayer:

“Wherefore affiant prays the court to grant his order allowing this appeal and order the stenographer of -this court to prepare in narrative form a statement of facts proven on the trial of said cause.”

The certificate of the trial judge, filed March 10, 1917, is in part as follows:

“I, Joe Burkett, jud^e of the district court of the Eorty-Second judicial district of Texas, and being the judge before whom the above cause was tried in the court below, having heard the evidence of the affiant, O. D. Horn, of his inability to pay cost or give security therefor in the trial court which evidence is here considered and found sufficient to show the inability of O. D. Horn to pay the costs of appeal or give security therefor,” etc.

The caption of the transcript shows that the term of the district court for East-land county began January 1, 1917, and ended February 24, 1917. Under the law the next term of the district court for Eastland county began the first Monday in July. Article 30, par. 42, Vernon’s Sayles’ Tex. Civ. Stats. It therefore appears that at the time the affidavit was made and filed, and at the time the certificate and order of the district judge was made, the" district court of East-land county was not in session. Article 2098, supra, provides that proof of the inability of appellant or plaintiff in error to pay costs shall be made before the county judge of the county where such party resides, or before the court trying the case. The proof must he made before the court, if it is in session; that is, the affidavit must he presented to the judge while holding session. Graves v. Horn, 89 Tex. 77, 33 S. W. 322. While it is held in Harwell v. Southern Furn. Co., 75 S. W. 888, that an affidavit filed- in' lieu of cost bond and presented to the judge of the court while not actually on the bench, .but who is in the courtroom and in the performance of his judicial duties as a court, and while the court is in session, is in compliance with the statute, yet it must affirmatjively appear that the proof was made before the judge while the court was in session, when made before the judge trying the case,, to give the appellate court jurisdiction. Sanders v. Benson, 114 S. W. 436; Fletcher v. Anderson, 145 S. W. 622.

Under this article the judge of the district court has no power to hear proof after the court has adjourned for the term. See, also, Sidoti v. Rapid Transit (Railway Co., 35 Tex. Civ. App. 131, 79 S. W. 326; Lambert v. Tel. Co., 19 Tex. Civ. App. 415, 47 S. W. 476; Smith v. Oil Co., 85 S. W. 481; Wood v. Railway Co., 43 Tex. Civ. App. 590, 97 S. W. 323. While article 1609, Vernon's Sayles’ Tex. Civ. Stats-., provides that where ■there is defect of substance or form in any appeal or writ of error bond, on motion to dismiss the same for such defect, the court may allow the same to be amended, etc., yet it has been held that this statute is not applicable to affidavits in lieu of bond. Washington v. Haverty Furn. Co., 136 S. W. 832.

Nor do we think the fact that the court while in session heard proof of plaintiff’s inability to give cost bond in the trial court would cure the irregularity here shown.

Appellant urges that the motion to dismiss comes too late under rule 9 (142 S. W. xi) for the guidance of Courts of Civil Appeals, citing Tompkins v. Pendleton, 160 S. W. 290, 292. In that case a motion was made for certiorari to amend the transcript. On original hearing, the Court of Civil Appeals for the Austin District held that, inasmuch as it appeared that said motion was filed more than 30 days after the transcript was filed in the Court of Civil Appeals, the motion came too late, and the court accordingly overruled appellant’s motion for certiorari and sustained appellant’s motion to dismiss. On rehearing, it reversed its holding in both respects, and granted appellant’s motion to file its amended transcript and overruled ap-pellee’s motion to dismiss the appeal. It appeared in that case that an appeal bond had in fact been filed in the appeal from the county court to the district court, and the amended transcript so showed. It affirmatively appears here that no proof of inability to pay costs or give bond was made in the manner and form required by article 2098, supra. Hence we conclude that we must order the appeal to be dismissed. Even though rule 9, above referred to, should be held to require that all motions to dismiss for the want of jurisdiction on the part of Courts of Civil Appeals to try the case should be filed within 30 days after the filing of the transcript in such courts, in order for Courts of Civil Appeals to-be required to entertain such motions, which construction we can hardly believe to be the correct one, yet our attention having ■ been called to the condition of the record which discloses an absence of compliance on the appellant’s part with the statutory requirement giving us jurisdiction, we feel that the appeal should be dismissed on the court’s own motion. The absence of jurisdictional requirements being apparent on the face of the record, even though it was called to our attention by a motion -which under the rules we would not be required to entertain, yet, having been advised of the jurisdictional failure, it becomes our, duty to dismiss the appeal for want of jurisdiction, and it is so ordered.

Appeal dismissed.
      (§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    SYPERT v. ROGERS LUMBER CO.
    (No. 323.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 8, 1918.)
    1. Process <s=>33 — Citation — Statement of Date of Filing Petition.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1852, requiring citation to state the date of filing of plaintiff’s petition, a citation stating the petition was filed on a certain day and month, “A. D. 191,” is insufficient to sustain judgment by default against defendant not appearing in response thereto; the statute being mandatory.
    2. Appeal and Error <®=»407(1) — Writ of Ee-bok — -Defect in' Citation — Effect.
    A defect in the sheriff’s return of citation in error served upon defendant in error, if but an amendable irregularity, does not deprive the appellate court of jurisdiction to determine the cause.
    Error from District Court, Milam County; J. C. Scott, Judge.
    Suit by the Rogers Lumber Company against J. B. Sypert. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Chambers & Wallace, of Cameron, for plaintiff in error. Lewis H. Jones, of Belton, for defendant in error.
   HIGHTOWER, C. J.

The defendant in error, Rogers Lumber Company, was the plaintiff below, and filed this suit in the district court of Milam county on the 2Qth day of September, 1916, against J. B. Sypert, the plaintiff in error. Citation was immediately issued to the defendant, and was served on him on the 4th day of October next thereafter. On October 17th following the defendant, Sy-pert, having failed to answer, judgment was rendered by default in favor of the plaintiff for the sum of $929.62, with 10 per cent, interest thereon from that date. From this judgment the defendant, Sypert, within the statutory time, sued out a writ of error, and carried the case to the Court of Civil Appeals for the Third Supreme Judicial District. After the record had remained in that court for some time, the ease was, by order of the Supreme Court, transferred to this court for disposition.

We find in plaintiff in error’s brief but one assignment of error, which is also submitted as a proposition, and is as follows:

“The court erred in rendering judgment by default against this defendant, because the citation served upon him was not sufficient in law to require him to appear and answer in this cause, because the said citation shows that this suit was filed in the district court of Milam county, Tes., on the 29th day of September, A. D. one hundred ninety-one (191) and because the file mark on the petition shows that it was filed on the 29th day of September, A. D. 1916, and because the said citation was insufficient in law and this defendant was not required by law to appear and answer at the October term, 1916, of said court, at which said term judgment was rendered.”

It does appear from the file mark on the original petition that it was filed in the trial court on September 29, 1916, but in the citation served upon the defendant, Sypert, it is stated that the plaintiff’s petition was filed in the trial court on the 29th day of September, “A. D. 191.”

The requisites of a citation are prescribed by article 1852, Vernon’s Civil Statutes, as follows:

“Such citation shall be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be, and shall command him to summon the defendant to appear and answer the plaintiff’s petition at the next regular term of the court, stating the time and place of holding the same. It shall state the date of the filing of the plaintiff’s petition, the file number of the suit, the names of all the parties and the nature of the plaintiff’s demand, and shall contain the requisites prescribed in article 2180.”

Tested by the above article of the statute, it must be held that the citation in this ease-was fatally, defective, for the reason that it failed to state the true date of the filing of plaintiff’s petition. The appellate courts of this state, by an unbroken line of decisions, have held that the provision of the above-quoted statute with reference to the statement in the citation of the true date of the filing of plaintiff’s petition is mandatory, and that a judgment by default, in the absence of such statement in the citation, is void. There is nothing to be gained by a further discussion of this matter, and w.e are constrained to sustain the above assignment and reverse this judgment. Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060; Pruitt v. State, 92 Tex. 434, 49 S. W. 366; Simms v. Miears, 190 S. W. 544.

Several months subsequent to the date of the filing of the transcript in this case in the Third Court of Civil Appeals, defendant in error filed a motion in that court praying that the cause be dismissed from the docket of the court, basing the motion on the ground that the return made by the sheriff on the . citation in error served upon the defendant in error was defective, and defendant in er>ror claimed that by reason of that fact the Court of Civil Appeals acquired no jurisdiction to revise the judgment.

We think this contention is- incorrect, and that the defect in the sheriff’s return, if it was such, was nothing more than a defective return, and that at most it was but an irregularity, and the return itself could have been amended, if necessary, and that such irregularity was not of such nature as to deprive the appellate court of jurisdiction to determine the cause; and since the motion to' dismiss for the reason stated was not filed within 30 days after the transcript was filed in the Court of Civil Appeals, the motion came too late under rule 8 (1.42 S. W. xi) governing proceedings in the Courts of Civil Appeals, and therefore the motion could not be sustained.

From what we have said, it follows that the judgment of the trial court must be reversed, and the cause remanded; and it is so ordered.
      <S=»For otner eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    DIXON v. WINTERS.
    (No. 5980.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 6, 1918.)
    1. Gaming <§=>48(1) — Speculative Transactions — Pleading.
    A petition alleging the ordinary transaction of the purchase by plaintiff from defendant of 15 bales of cotton for delivery October 15th, and the making by plaintiff of a contract for the resale of the cotton, also calling for delivery October 15th', which delivery plaintiff was unable to make because of defendant’s breach, did not show on its face that the transaction was a gambling one, though it alleged that in order to prevent his being forced to pay a sum in redemption of his resale contract, plaintiff replaced the cotton at a price per pound higher than he had contracted to pay defendant.
    2. Appeal and Error <§=>1056(3) — -Harmless Error — Exclusion op Evide'ncb.
    In an action for breach of contract for the sale of cotton, if certain, testimony was admissible as tending to corroborate defendant’s testimony on a collateral issue, its exclusion did not constitute reversible error, where additional evidence on the collateral issue could not have induced the jury to believe defendant’s testimony on the main issue.
    3. Appeal and Error <§=>544(1) — Record-Requests for Special Charges — Exception to Refusal.
    In a case tried before Acts 35th Leg. c. 177 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), as to the effect of the refusal of the court to give special instructions, went into effect, where there are no bills of exception in the record disclosing that special charges were presented at the time and in the manner required by law, and the refusal to give same excepted to, the assignments relating to such charges must be overruled.
    Appeal from Atascosa County Court; W. J. Bowen, Judge.
    Suit by W. A. Winters against C. D. Dixon. From a judgment for plaintiff, defendant appeals'.
    'Affirmed.

      W. M. Abernethy, of Jourdanton, for appellant. Jones & George, of Brownsville, for appellee.
   MOURSUND, J.

W. A. Winters sued 0. D. Dixon for damages alleged to have been sustained by reason of the breach of two contracts by Dixon with Winters for the sale, respectively, of 10 and 5 bales of cotton to be delivered on October 15, 1916. He alleged that he bought the cotton at 12 cents per pound, basis middling, and resold it for delivery on October 15, 1916, and by reason of defendant’s breach of the contracts was compelled to purchase 15 bales of cotton in open market to fill his contract, paying therefor the market price of 16s/m cents per pound. He alleged the weight of the cotton at -7,800 pounds, and his damages at $336.37. Defendant answered by general demurrer, special exceptions and a general denial. The trial resulted in a verdict and judgment in favor of plaintiff for $300.

By the.first assignment complaint is made of the overruling of a special exception to the effect “that plaintiff’s petition showed on its face that the transaction was a gambling one.” There is no merit in the contention. The petition alleged the ordinary transaction of the purchase of 15 bales of cotton to be delivered on October 15, 1916, and the making of a contract for the resale of the cotton which also called for delivery on October 15,1916. We gather from plaintiff’s statement and argument that his contention is not that the contract sued on constituted a wager or a contract in futures, but that the resale contract, pleaded for the purpose of showing the measure of damages, was attacked as a gambling transaction. The portion of the petition relied on is the allegation that, in order to prevent his being forced to pay said sum of $936 in redemption of his sale contract, plaintiff replaced said cotton at the price above stated. Plaintiff had previously alleged that he bought the cotton at 12 cents, which would make $936 for the 15 bales. The allegation relied on supports ■ an inference that it was provided in the resale contract that the measure of damages for plaintiff’s breach thereof was stipulated at $936 but it does not support any inference that he contracted for the sale of futures or made a wager. The petition was not subject to the exception relied upon.

Defendant testified to making two contracts with plaintiff, one for himself for the sale of 10 bales of cotton, 3 of which were to be put in by his father-in-law, and the other for Ramon Ramos,, his subtenant, for the sale of 5 bales of cotton; that both contracts were expressly conditioned upon the approval of his landlord. Davis; that Davis refused to consent to the sale; that he could not have delivered the cotton without Davis’ consent, even if it had gone down in price; that his contract with Davis was that he should give Davis one-fourth of each bale and one-fourth of the seed, the cotton to be sold and the proceeds divided that way. Davis testified that defendant spoke to him about the sale of some cotton on August 15th, and that he did not consent to the sale. Ramos testified to authorizing defendant to sell 5 bales for him, at 12 cents a pound; and, according to his version of the conversation, no statement was made that the sale was to be a conditional one. Defendant tried to introduce in evidence the rent contract between himself and Davis, and to prove that Davis had advanced money to him to make his crop for the year ’16. The court declined to permit the introduction of this evidence. The bills of exception disclose that the rent contract contained a provision giving Davis a contract lien on the crops in addition to his statutory landlord’s lien, and that Davis would have testified that he advanced money, no sum being stated, to defendant to enable him to make and gather his crop. The evidence thus excluded would therefore have shown that there was a contract lien in addition to the statutory lien, and that the liens covered an advancement of some sum of money as well as the rent. This evidence was offered on the theory that it corroborated defendant’s testimony to the effect that he had no authority to sell the cotton raised on the Davis place without Davis’ consent, and that had it been admitted the jury would probably have found that defendant’s testimony was true with regard to the real issue in the case, namely, whether he made unconditional contracts to sell and deliver 15 bales of cotton to plaintiff. As there was no dispute with regard to the collateral issue, whether defendant had authority to sell cotton from the Davis place without Davis’ consent, his testimony on such issue needed no corroboration, and it is impossible to see how any additional evidence on that issue could have induced the jury to believe his testimony on the main issue. If the testimony was admissible, its exclusion did not constitute such error as would justify a reversal of the judgment. Biggar v. Lister, 27 S. W. 707.

Complaint is also made of the refusal of the court to give certain special charges. There are no bills of exception in the record disclosing that the charges were presented at the time and in the manner required by law, and the refusal to give same excepted to. The case was tried before chapter 177, General Daws of the 35th Legislature (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), went into effect. The assignments relating to such charges must therefore be overruled. G., T. & W. Ry. v. Dickey (Sup.) 187 S. W. 184; Heidenheimer, Strassburger & Co. v. H. & T. C. Ry. Co., 197 S. W. 886.

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


author: PHILLIPS, C. J.

text:
    STOCKWELL et al. v. ROBISON, Commissioner of General Land Office, et al.
    (No. 2900.)
    (Supreme Court of Texas.
    April 3, 1918.)
    1. Public Lands <®=j172(8) — Payment of Interest — Eokfeiture.
    Purchasers of public lands, against whom forfeiture has been declared for failure to pay installments of interest, may be relieved of the forfeiture only in the absence of intervening rights of other persons.
    2. Public Lands <®=al72(3) — Reappraise-MSNT AND S'ALE — APPLICATIONS — TIME OF Making Affidavit.
    Where purchasers of public lands failed to pay installments of interest, and the sale was declared forfeited, and other persons made application in due course of mails, as required by Vernon’s Sayles’ Ann. Civ. ,St. 1914, art. 5410, and made bids for more than the appraised value, tendered the required cash payment, and filed the necessary affidavit, they perfected their rights to the land, although the affidavit was made a few days before the land was officially declared to be for sale, but was duly filed as required, by mail.
    3. Public Lands <§=^172(8) — Reappraisement — Discretion of Commissioner.
    The commissioner of public lands may, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5407, when a _ second forfeiture has been declared, reappraise land at less than the amount at which it was once appraised, under Acts 33d Leg. c. 160 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5423a-5423f), permitting repurchase by former purchasers whose purchase was declared forfeited; his powers under the general statute being independent of those inferred by the act of 1913.
    Original petition for mandamus by William R. Stockwell and another against J. T.’ Robi-son, as Commissioner of the General Land Office, and others.
    Writ refused.
    • Gregg & Love, of Austin, and Hudspeth, Pale & Harper, of El Paso, for Clyde Hudson. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondents.
   PHILLIPS, C. J.

The relators, William R. Stockwell and H. L. Tolar, here seek a mandamus to require the Commissioner of the Land Office to re-instate their purchases of two sections of public land. The land was originally awarded to George C. Harris and A. L. Harris. Tne awards to them were forfeited on July 12, 1913, for failure to pay the interest on their obligations. They applied for its re-appraisement under the Act of 1913 (Chapter 160, General Laws of 1913), and it was re-appraised-under that act, one of the sections being valued at $5.00 per acre and the other at $6.00 per acre. Thereafter, the two sections were re-awarded to the original owners, to whose rights the relators succeeded as substitute purchasers. They failed to pay the interest accruing November 1, 1915. They were notified by the Commissioner in April, 1916, that a forfeiture would be declared on August 15, 1916, unless they paid the interest by that time. It was not paid, and on August 25, 1916, the sales to them were duly declared as forfeited. Following the forfeiture, the Commissioner, on the same day, classified the land as agricultural and appraised it at $4.00 per acre; the list, ap-praisement and notice of the forfeiture being sent at the same time to the county clerk of the county where the land lay, and received by him at 4 P. M. on August 29, 1916, and recorded in his office at 10 A. M. on August 30, 1916. In the list of lands duly advertised by the Cbnmiissioner as subject to forfeiture if the interest were not paid by August 15, 1916, and as subject to purchase on September 1, 1916, these sections were included,— classed as agricultural land and their appraised value being stated as $4.00 per acre.

On September 1, 1916, the applications respectively of Clyde Hudson and W. T. Morris to purchase the two sections as home tracts at $4.03 per acre were received by mail at the Land Office. Each was in due form and accompanied by the necessary preliminary payment, the obligation of the applicant, and the affidavit required of him by law, dated August 28, 1916. The applications were duly filed at 10 A. M. the following day, September 2d. On the same day, September 2d, the relators had a bank of Alvin, Texas, wire the Commissioner that it was remitting him the interest due by the relators, the amount of which they had delivered to the bank for that purpose. The telegram was received by the Commissioner that afternoon. The amount of the interest was forwarded and received at thé Land Office on the morning of September 5th. The Commissioner refused to reinstate the purchases of the relators because of the rights acquired by Hudson and Morris.

The relators were entitled to be relieved of the forfeiture declared against them for the non-payment of their interest only in the absence of intervening rights in others. They made no offer to pay the interest until after Hudson and Morris had filed their applications to purchase. Hence the question in the case is whether Hudson and Morris acquired any rights to the land.

When the applications of Hudson and Morris were filed in the Land Office the land was on the market for sale. From aught that appears here, their bids were the highest offered. Each was for more than the appraised value. They tendered the required cash payment and obligation, and filed with their applications the necessary affidavit. In our opinion they perfected their rights to the land.

The chief objection urged against their claims is that they made their affidavits on August 28th, — prior to the time the land was on the market, rendering, it is said, their applications premature. We. think the objection is wholly without force.. Anyone entitled to purchase land in the situation of this may make application for it at any time after it is open to purchase, even though it be immediately afterward. This is plainly the contemplation oí the law since it does not postpone the right to make the application to any particular period after the land is upon the market. The application is of no effect until filed in the Land Office, though the statute — Article 5410 — provides that it shall be filed “through due course of mail and not by anyone in person.’’ Byrne v. Robison, 103 Tex. 20, 122 S. W. 256. It would be a very unreasonable requirement to compel everyone entitled to bid upon these lands on the day they are subject to purchase to come to the state capital for the purpose of making the necessary affidavits to accompany their applications, in order to avoid their being made before the identical day the applications may he lawfully filed. On the contrary, it is the theory of the law that the applications may be mailed from points in the region of the land, in most instances remote from the 'capital, requiring ordinarily a few days for transmission. It is apparent that this was true of the applications of Hudson and Morris which were made in Yoakum County where this land is situated. In such cases there can be to our minds no objection to the affidavits being made substantially at the time the applications are mailed, where, as here, the truthfulness of their statements, either when made or when the applications are filed, is in nowise challenged. It is evident that the affidavits of Hudson and Morris were made on August 2Stli for the purpose of having their applications reach the Land Office as early as possible after the land was upon the market. They were made only a few days prior to that date. The applications were not received or filed before the land was open to purchase, and were therefore not premature. The affidavits were of no effect until the applications were filed. Under the facts they are to be treated as having been made contemporaneously with the filing of the applications. McGee et al. v. Corbin, 96 Tex. 35, 10 S. W. 79.

The further contention is made that the Commissioner’s re-appraisement of the land at $4.00 an acre after its appraisement under the Act of 1913 at a higher value and after the forfeiture of the sales to relators declared on August 25, 1916, was void. In so appraising the land the Commissioner acted under the authority conferred upon him by Article 5407. The office of this article is entirely distinct from the provisions in respect to appraisements found in the Act of 1913, and it was not affected by that act It gave full warrant to the Commissioner’s action.

The mandamus is refused.
      (g^aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    Ex parte ROGERS.
    (No. 4967.)
    (Court of Criminal Appeals of Texas.
    March 13, 1918.)
    Habeas Corpus <⅜=>92(1) — Matters Reviewable — Guilt or Innocence.
    The merits of a case involving the guilt or innocence of-an accused is not a proper subject of inquiry in a writ of habeas corpus.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Habeas corpus proceedings by Pearl Rogers, indicted for statutory rape. From judgment fixing bail, she appeals.
    Reversed, and amount of bail reduced.
    P. E. Gardner and Jackson, Isaacks & Les-sing, all of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The relator was the keeper of a house of prostitution. One of the inmates of the house was a girl under 15 years of age. She appears to have been a prostitute in Mexico and had come to the relator’s house at the instance of her sister and to have continued her vocation while there with relator’s knowledge and at her instance. Based on the facts thus briefly summarized, relator was indicted for statutory rape in three cases. She was ordered released on bail in the sum of $10,000 in one case and $5,000 in each of the others.

Her appeal is based on the proposition that the facts do not show she was a principal. The merits of a ease involving the guilt or innocence of an accused is not a proper subject of inquiry in a writ of habeas corpus. Ex parte Windsor, 78 S. W. 510; Ex parte Adams, 90 S. W. 24; Ex parte Kent, 49 Tex. Cr. R. 12, 90 S. W. 168; Ex parte Jennings, 76 Tex. Cr. R. 116, 172 S. W. 1143; Ex parte McKay, 199 S. W. 637.

We think, considering the facts of the case, that the amount of the bail should be reduced. It is accordingly ordered that the judgment of the lower court fixing the bail at the amounts stated be reversed, and the amount be reduced in each case to the sum of $3,000.
      SrrnFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    MORSE v. STATE.
    (No. 4935.)
    (Court of Criminal Appeals of Texas.
    March 13, 1918.)
    1. Intoxicating Liqtjobs <S=p236(1) — Engaging in Business of Selling — Sufficiency of Evidence.
    Evidence held to sustain 'conviction for engaging in business or occupation of selling intoxicants in a prohibition county.
    2. Criminal Law <§^1090(19) — Review—Motion fob Continuance.
    Although appellant on motion for new trial complained of the overruling of his motion for a continuance, where he took no bill to the court’s action, the ruling cannot be reviewed.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Ben Morse was convicted of engaging in the business or occupation of selling intoxicating liquors in a prohibition county, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of engaging in the business or occupation of selling intoxicating liquors in Lamar, a prohibition, county, and assessed the lowest punishment.

The proof shows that prohibition had been in force in Lamar county for three years before this prosecution was begun and at the time of the trial. The state proved four sales of intoxicating liquor by appellant from the latter part of September to some time in January following, and that during and before this time he had received through the express company eight distinct shipments of liquor, which he admitted receiving. The court in a proper charge, to which there was no complaint, submitted every issue aptly to the jury. The evidence was sufficient to sustain the conviction.

There is no bill of exceptions. In his motion for a new trial he complains of the court overruling his motion for a continuance. He took no bill to the court’s action; hence that question cannot be reviewed under the well-established law of this state. Appellant has filed no brief.

The judgment is affirmed.
      <S^>For oilier eases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DYE v. STATE.
    (No. 4877.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Will Dye, alias Red, was convicted of theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of theft, and his punishment at two years’ confinement in the penitentiary.

The record contains neither a statement of facts nor hills of exception. In the absence of these, there are no questions raised that can be reviewed.

The judgment of the lower court is affirmed.


author: DAVIDSON, P. J.

text:
    RED v. STATE.
    (No. 4902.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Phil Red was convicted of violating the local option law, and he appeals.
    Appeal dismissed, at defendant’s request.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, and prosecuted an appeal.

The record is without statement of facts or bills of exception, and was submitted upon the record at the last session of this court. Since its submission, appellant has filed an application, properly certified and sworn to, asking the withdrawal of his appeal.

The application will be granted, and the appeal wifi, be dismissed, at appellant’s request.


text:
    FIELDS v. STATE.
    (No. 4896.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Albert Fields was convicted of rape, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for tho State.
   PRENDERGAST, J.

Appellant was convicted of rape, and appealed.

There is no statement of facts, nor any hills of exception, and nothing presented which can he reviewed in the absence of these.

The judgment is affirmed.


author: GRAVES, J.

text:
    WILSON et al. v. HUTCHESON.
    (No. 7430.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1917.
    Rehearing Denied Feb. 7, 1918.)
    Jud gment @^>720 — Conclusiveness—Bound - ABIES.
    Where a decree dividing land between the owners contained a call for distance, and also incorporated therein prior partition deeds and a subdivision map, held, the distance call could not be selected from among such descriptions, so as to render the decree conclusive as to adjoining tract’s common boundary line.
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Suit by J. C. Hutcheson, against H. T. D. Wilson and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Harry Holmes and Ross & Wood, all of Houston, for appellants. J. C. Hutcheson and Hutcheson & Hutcheson, all of Houston, for appellee.
   GRAVES, J.

This is a boundary suit, involving the true location on the ground of the west line of the lower A. Miles tract in the Harris & Wilson two-league grant in Harris county, Tex.; appellants owning upon the west and appellee upon the east of that line. Appellee, who was plaintiff below, sued appellants for a part of this A. Miles tract, describing it in his petition as follows:

“Beginning at an iron stake set in the south side of the Wallisville road, the same being the northwest corner of the A. Miles tract of land, and the northeast corner of the James T. D. Wilson tract, as the same was described and set apart to the said James T. D. Wilson by decree of the Circuit Court of the United States in the suit of Glenn M. Harris v. James T. D. Wilson et al., C. L. 1476, which decree is recorded in Volume 49, page 68, of the Deed Records of Harris county, Texas, which said corner is the beginning corner of the land herein sued for, and which said beginning corner is 1,062 varas west from the northeast corner, being located on the east line of the Harris & Wilson two-league grant about 100' feet north of the northwest corner of the John Brown league on the east line of the said Harris & Wilson survey, and the said northeast corner being marked by a stake set in said east line at a point where the Wallisville road crosses same, and also marked by a wire fence, which corner is at said stake in said road.
“Beginning at said iron stake as fixed for the northwest or beginning corner of the land herein sued for, as described above, plaintiff’s west line runs thence south with the east line of the tract decreed and sot apart to James T. D. Wilson by the decree above referred to and parallel with the east line of the Harris & Wilson survey, as above described, and 1,062 varas therefrom, for a distance of 2,474.3 varas, or 6,873 feet, at which a stake is set for corner marking the southwest corner of the tract herein sued for, said corner also being the northeast corner of the Norton or Knowslar tract as the same is described in the Deed Records of Harris county, Texas, in Book D, page 169, conveying said tract to O. G. Norton, and which corner is also an interior corner of the James T. D. Wilson tract as set apart and described in said decree of the federal court above referred to, which said corner is 61S varas east of the northwest corner of the Norton or Knows-lar tract, and 1,062 varas west of the east line of the Harris & Wilson two league grant; thence running east, parallel with the Wallis-ville road and with the north line of the A. Miles tract, a distance of 150 varas, for the southeast corner of this survey; thence north, parallel with the west line of- this tract heretofore described, to the north line of the A. Miles tract on the Wallisville road; thence west, with the south line of the Wallisville road, to the northwest corner of this tract, the place of beginning.”

His contention was that the location of the land he sued for was dependent alone upon the location on the ground of the northeast corner of this A. Miles tract, which it was asserted was in fact where his quoted description placed it; that such was the only fact issue in the case, and that the length of the north line, or the width, of the A. Miles tract, had been conclusively settled and adjudicated to be 1,062 varas from its northeast corner by the federal court at Galveston in the case of Harris v. Wilson, referred to in this description. The trial court sustained this theory of the case, refused to admit any evidence of the possible location of the west line of the Miles at any other or different place than 1,062 varas west from its northeast corner, and submitted to the jury the sole question as to whether this northeast corner was located on the ground as claimed by the one or the other of the litigants. Upon the jury’s answering that they found it located where appellee claimed it to be, judgment was entered in his favor against appellants for the land sued for, from which they prosecute this appeal.

The appellants contended below, and tendered voluminous evidence in support of it, that the location of the disputed line which separated their land from appellee’s — that is, the west line of the lower A. Miles tract — was not at all dependent upon the location of its northeast corner, but by the very muniments of his title, as well as by the judgment of the federal court in Harris v. Wilson, invoked and relied upon by appellee, was made dependent upon two other well-known tracts in the Harris & Wilson two leagues, namely, what were designated as “the 160-acre reserve” and the G. C. Norton or Knowslar 192½ acres; that therefore the only fact issue submitted to the jury was wholly immaterial, and its determination had nothing to do with the main issue in the case, which was:

“Where is the dividing line between the lower A. Miles and the lower Franklin or Wilson tract?”

The court having rejected their contention and excluded all their proffered evidence, charges, and other tendered means of having them passed upon by the jury, they duly preserved their right to complain through exceptions and otherwise, and have by appropriate assignments and procedure here properly invoked this court’s authority to review that action.

We think the position of appellants was correct, and that the trial court erred. In aid of a clearer appreciation of the issues raised, we attach a map of the subdivision of the Harris & Wilson survey made in 1861 by its then owners, B. O. Franklin and A. Miles, by J. L. Latham, his attorney in fact, showing the “160-acre reserve” at the junction of the two railroads, and the C. O. Norton or Knowslar 192½ acres at the lower end on Buffalo Bayou, and between what are elsewhere herein referred to as the lower A. Miles and B. C. Franklin, or Wilson, tracts; the land sued for in this suit lay in the northwest corner of this lower A. Miles, in the form of a long, narrow parallelogram, 150 varas east and west by 2,474.3 varas north and south, the approximate position of which we have taken the liberty of indicating on the map by clotted lines of our own.

Back in 1839 these two joint owners, as their first conveyance of any of the property, had sold to 0. O. Norton his 192½ acres, which subsequently passed to Knowslar, and then, by this subdivision of 1861, which was also a partition by deed between them, they had divided the balance of the survey between themselves according as their names appear upon this copied map, except that the “160-acre reserve” and also a small 20-acre tract in the southeast corner of the survey, the latter not sufficiently material here to require further mention, were left in common ownership for future disposition. By their joint deed to Norton, in describing this 192½ acres, they had tied it to the east side of Buffalo Bayou, reciting that it comprised lots 6, 7, and 8 according to a prior plat and survey made by Darius Gress, aggregating 115½ acres, and 77 acres lying in the rear of these lots, surveyed by IP. Jacob Rothaus on April 22, 1S39. With the Norton tract having been thus conveyed and described 22 years before, when they later came in 1861 to partition and segregate to each his part of their remaining holdings, and to first set apart the 160 acres reserved for continuing common ownership, as one of the bases upon which to make division of the balance, they thus described the reserve tract:

“In order to ascertain the beginning, run a line parallel with the back line of the said two leagues from or through the point where the lines of the Tyler Railroad and the Gentry or New Orleans Railroad cross or intersect each other, to the west line of the said two leagues, on this line 1,680 varas east of said boundary lino is the beginning point; thence south 537½ varas, establish a corner; thence east SiO varas; thence north 1,075 varas, establish corner ; thence west 840' varas, establish a corner; thence south to the place of beginning.”

This brings us to what we deem the decisive feature of this record; for these two joint owners, Franklin and Miles, having thus set apart the 160-acre reserve and tied it to the meeting point of the two railroads crossing it, which- was surely no uncertain anchorage, then further provided in the deed that the remainder of the land should be divided into two divisions, to be known as the first and second divisions, and that the dividing line between the two divisions should ■begin at the southwest corner of the reserve, and should then run east to the east boundary line of the original grant, the land lying south of the line to be known as “Division No. 1,” and the land lying north of the line to be known as “Division No. 2.” The land lying south of the division line, being tract No. 1, was to be subdivided into two tracts, as follows:

“Beginning at a point on said division line (south line of 160-acre reserve extended east), from w-Mch a Une drawn south will strike the northeast corner of the 192½ aores* conveyed to G. 0. Norton as aforesaid. That portion of the land hereinbefore described held now in common which lies south and west of said division line is set apart to Benjamin O. Franklin, to be held by him henceforth in severalty and separate ownership. That part or portion of said land south and east' of said division and subdivision lines is set apart to Augustus Miles, to be henceforth held by him. in severalty and separate ownership.”

As is indicated on the above map, the east part of division No. 1 was assigned to Miles, and has. since been known as the lower Miles tract, to distinguish it from a tract awarded to Miles out of the north end of the survey, or division No. 2, and the west part of division No. 1 was awarded to Franklin, and has since been known as the lower Franklin tract, and later on as the Wilson tract.

The location upon the ground of the line so referred to in this partition deed as the line dropped south from such a point on the division line as to strike the fiortheast corner of the C. C. Norton 192½ acres is the west line of the lower A. Miles tract, and constitutes the main, if not indeed the sole, issue in this case. That this definite, accurate, and original call for it in appellee’s title furnished the proper criterion for its actual location, we have no douht; and this, despite the recitation as to 1,062 varas appearing in ap-pellee’s description of the tract he sued for, because the evidence disclosed that there was not in the title to the Miles tract, nor in any conveyance or muniment of title ihto and under which appellee -claimed, any call placing the west line of that tract, or of his land, at 1,062 varas from its east line; and that the only way that call for 1,062 varas got into his chain of title wajs by appropriating it from the decree of the federal court in the Harris v. Wilson Case, above mentioned, which judgment' was rendered April 7, 1890. But that recitation, as there used, was not in description of the A. Miles tract, out of which appellee claimed, but of another and different tract, the one there adjudicated to James T. D. Wilson, lying north and west of the Milas, and described, so far as material, as follows:

“Beginning at the S. W. corner of the 160-acre reserve tract in the said two-league grant; thence east to the S. E. corner thereof; thence north to the center of the Texas & New Orleans Kailroacl track; thence northeastwardly, along said railroad track, to its intersection with Hunting Bayou in the east line of said two-league grant; thence south, along the east line of said two-league grant, to the ⅞\ E. corner of the A. Miles tract; thenoe ivest 1,062 varas to the M. W. corner of said Miles tract; thence south to the N. E. corner of the O. O. Norton ■ or Knowslar 192%-acre tract.”

The court, however, in that decree, did not stop with that description, but went further, and made the partition of 1861 between Franklin and Miles, and the above-copied subdivision map thereto attached, as much a part of its judgment as if that agreed division had been originally made by such judgment. James T. D. Wilson, to whom the tract just referred to was adjudged, was the predecessor of appellants in title to the land in lower B. C. Franklin tract lying west of the dividing line between it and the lower Miles tract and north and west of the C. O. Norton tract, but not to any land within this last-mentioned tract.

In these circumstances, we think that the call selected by appellee out of the other calls contained in the description of the lands awarded J. T. D. Wilson in the decree in the case of Harris v. Wilson, and which call from the east line of the Harris & Wilson survey read, “Thence west 1,062 varas to the northwest corner of- said Miles tract,” etc., was •not an adjudication that the northwest corner and the west line of the Miles tract were located 1,062 varas from the east line of the Miles tract, nor that the distance between the east and west lines of the Miles tract was 1,062 varas; but, on the contrary, that such call was only a descriptive term among the many other descriptive elements employed in -the judgment for the purpose of describing the tract awarded to Wilson, having no greater, if indeed it was of equal dignity with others of such calls, and that appellants were not precluded and estopped from showing a different location and distance. So concluding, we sustain appellants’ first two assignments, reading as follows:

“The court erred in ruling and holding that the judgment in the case of Harris v. Wilson et al. conclusively fixed and established the northwest corner and the west line of the lower or southern A. Miles tract of land at a distance of 1,062 varas from the northeast corner of the said A. Miles tract, and that the said call for distance of -1,062 varas was an adjudication as to distance between the east and west lines of the said A. Miles tract, and that the defendants were estopped and precluded from showing .that the west line of the A. Miles tract, or its northwest corner, was located at any other point on the ground than 1,062 varas; plaintiff’s chain of title, and the conveyances to him, and the decrees of the court to which he was a party, calling for said corner to be at a point from which a line dropped south would fall upon the northeast corner of the Norton or Knowslar tract.
“The court erred in refusing to permit the defendants to offer any evidence as to where the northwest corner of the A. Miles tract and the west line of the miles tract were located upon the ground, or offer any evidence as to where tlie Norton or Knowslar tract of land was located; the evidence in this case and the deeds and conveyances to plaintiff, and the decrees and plats in the case of Harris v. Wilson and in Jones, Guardian, v. J. C. Hutcheson et al., showing and calling for the northwest corner of the Miles tract to be located at a point on a dividing line from which a line dropped south would fall upon the northeast corner of the Norton or Knowslar tract.”

Upon the same considerations, we must likewise sustain those further assignments challenging a similar holding of the trial court with reference to the conclusive character of descriptive calls, to the same practical effect, contained in the judgment in this last-mentioned case of Jones, Guardian, v. Hutcheson, also invoked by appellee as being res adjudieata upon the question of the location of the west line of his land. Wood v. Cahill, 21 Tex. Civ. App. 38, 50 S. W. 1071; Goodson v. Fitzgerald, 135 S. W. 696; Steusoff v. Jackson, 40 Tex. Civ. App. 328, 89 S. W. 447; Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317; Maddox v. Fenner, 79 Tex. 290, 15 S. W. 237. If the legal effect of the two judgments was not such as appel-lee contends it was, and did not amount either to a conclusive adjudication or an estop-pel against appellants, then his contention in this court that estoppel arose from alleged agreements as to the position of these disputed lines must likewise fall, because based and dependent upon the same recitations in those judgments. There was no independent issue of agreed boundary lines involved in the trial in the court below, since that court, by its previously recited action, took all other issues than the location of the northeast corner of the lower A. Miles tract, that one necessarily included, from the jury.

Since the first two assignments present the controlling question in tlie case, tlie determination of which disposes of the merits of this appeal, it becomes unnecessary to discuss in detail the great number of remaining assignments. We have, however, carefully read and considered them all, and conclude that, if they point out any material errors not disposed of in our conclusions upon the assignments sustained, they are not such as are likely to occur' upon another trial. We deem it proper to'further say, however, that throughout this opinion we have spoken of the dividing line between the lower Franklin and Miles tracts as being the line in dispute between the parties, under the view that the north line of the lower Miles was not really in dispute, since its location was fixed by the partition deed and plat of 1861 as being coincident with the south line of the reserve 160 acres, and, if it was, that the location of the west line of this Miles tract in the only way that could properly be done would necessarily locate it also.

For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: HIGGINS, J.

text:
    McKinney v. SOUTHWESTERN LIQOUR CO.
    (No. 816.)
    (Court of Civil Appeals of Texas. El Paso.
    March 14, 1918.)
    Set-Off and Counterclaim <⅞^35(1) — Liquidated Items — Value of Time, and Expenses.
    In suit on a note, where defendant counterclaimed for plaintiff’s breach of agreement to pay defendant the reasonable value of his time in the performance of certain services and the expenses which he incurred, the value of defendant’s time and the amount of expenses incurred being alleged, the trial court erred in sustaining exception on the ground that the the items were unliquidated demands.
    Appeal from El Paso County Court; E. B. McClintock, Judge.
    Suit by the Southwestern Liquor Company against B. F. McKinney.- From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    P. E. Gardner, Hudspeth & Harper, and L. A. Dale, all of El Paso, for appellant. A. R. Grambling, Juan Smith, and Beall, Kemp & Nagle, all of E’l Paso, for appellee.
   HIGGINS, J.

Appellee sued appellant upon a promissory note. By cross-action, appellant set up a counterclaim arising out of a breach of contract. It was alleged by McKinney that he had performed certain services for appellee and incurred certain expenses in the performance thereof; that ap-pellee had agreed to pay the reasonable value of his time in the performance of said services and the expenses which he had incurred. The value of his time and the amount of expenses incurred were alleged.

An exception to the counterclaim was sustained upon the ground that the items thereof were unliquidated demands, and could not be set off against the plaintiff’s demand. The items claimed in set-off were not unliquidated. McCarty v. Squyres, 34 S. W. 356; De June v. Brubaker, 5 Tex. Civ. App. 79, 24 S. W. 79; Bank v. Lynch, 6 Tex. Civ. App. 590, 25 S. W. 1042; Snelling v. Koerner, 27 S. W. 887.

The court erred in sustaining the exception. Reversed and remanded.
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author: WALTHALL, J.

text:
    HEMMAN v. JANSSEN OSTERTAG MFG. CO.
    (No. 813.)
    (Court of Civil Appeals of Texas. El Paso.
    March 14, 1918.
    Rehearing Denied March 28, 1918.)
    Appeal and Error <§=^1161 — Assignment-Confession of Error.
    Where appellant assigns error to the trial court’s failure to file findings of fact and conclusions of law, request therefor having been made by appellant, and appellee confesses error, the assignment will be sustained.
    Appeal from El Paso County Court; E. B. McClintock, Judge.
    Suit by the. Janssen Ostertag Manufacturing Company against Nelson I-Iémman. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Harrington & Bridgers, of El Paso, for appellant. McKenzie & Loomis and W. E. Loose, all of El Paso, for appellee.
   WALTHALL, J.

This suit was filed by appellee against appellant under allegations that appellant and C. A. Bartels were co-partners and doing business under the trade-name of Now Manufacturing Company, and based its suit upon an account for merchandise sold by it to said company. Appellee recovered judgment on a trial before the court without a jury.

Appellant assigns error to the court’s failure to file findings of facts and conclusions of law, request that such findings and conclusions be filed having been made by appellant. Appellee confesses error in the matter complained of.

The assignment is sustained, and the case is reversed and remanded;


text:
    KAHN v. J. W. CARTER MUSIC CO.
    (No. 333.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 7, 1918.)
    Sequestration <S=^>1 — Chattel Mortgages— Foreclosure — Necessity.
    Where a purchaser of a musical instrument gave a chattel mortgage for the unpaid balance of the price, the seller cannot sequester the property, but to obtain possession in event of nonpayment must foreclose the lien of the mortgage.
    Appeal from Harris County Court; W. E. Alouteith, Judge.
    Suit by the J. W. Carter Music Company against H. E. Kahn, begun in justice court, and appealed by defendant to county court. From a judgment of the county court for plaintiff, defendant appeals.
    'Reversed and remanded.
    Aieek & Kahn, of Houston, for appellant. Andrews, Streetman, Burns & Logue, of Houston, for appellee.
   BROOKE, J.

The J. W. Carter Music Company was the owner of a victrola and sold the same to Mrs. L. E. Allen, who was formerly Aliss Alice Bond, reserving a chattel mortgage lien upon said instrument. Mrs. Allen afterward sold said instrument to H. E. Kahn, who at the time of the purchase had knowledge of the fact that there was $30 balance due upon said instrument. Kahn not only had this knowledge by inspection of the mortgage récords, but he also had personal knowledge from the president of the J. W. Carter Music Company, who informed him of the balance due. On the 16th day of October, 1915, the Carter Music Company filed this suit against the appellant and Mrs. L. E. Allen for the title and possession of said victrola and prayed judgment for the title and possession of same. On the day of filing the suit the Carter Music Company sued out a writ of sequestration, wherein they alleged that they were the owners of the victrola and entitled to the possession thereof. The appellant, H. E. Kahn, replevied said property. A trial was had in the justice court on the 18th day of January, 1916, in which the court rendered a judgment in favor of the Carter Alusie Company, the court finding that the said company was the owner of said property, and entitled to the possession thereof. Upon appeal to the county court the same judgment was had. Notice of appeal was given, and in due time the appeal was perfected.

The first assignment of error is that the court erred in holding as a matter of law that the instrument executed by Alice Bond was not a chattel mortgage, and the judgment of the court was erroneous in awarding the plaintiff the title to and possession of the property in controversy, and the court also further erred in not declaring said instrument to -be a chattel mortgage, and compelling plaintiff to foreclose its lien, the proof having shown that there was a balance due of $30, and the testimony of defendant being that he was ready and willing to pay said amount. This assignment must be sustained. There seems to be no controversy about the amount due, and the only controversy in the ease is as to whether or not the instrument itself was a chattel mortgage. Without setting out the instrument in hsee verba, we are of oxiinion that the same was security for the unpaid purchase money on the victrola af oret-said, and that the lien thereon should have been foreclosed by the court until the balance of the purchase money was paid.

The second assignment complains that the court erred in rendering judgment for the title and possession of the property in controversy, because the undisputed proof in this cause showed that the only claim that plaintiff had against said property was a chattel mortgage lien for a balance due of $30, and plaintiff had never foreclosed a chattel mortgage thereon in any court of conrpetent jurisdiction, and that the instrument relied on by plaintiff being a chattel mortgage in terms, as well as according to the understanding of the parties, the court was in error in awarding judgment for the title and possession of said property - in controversy, instead of requiring plaintiff to establish what indebtedness was due him, and in failing to grant a foreclosure of the lien retained to secure the payment thereof. This assignment must also b'e sustained. Hughes v. Smith, 61 Tex. Civ. App. 443, 129 S. W. 1142.

For the errors complained of, the cause is reversed and remanded for a new trial, in accordance with this opinion.
      <S=»IPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes