Volume 13 — Texas Civil Appeals Reports

Plaintiff had judgment for Si0,000.' ' The special charge No. 1, requested by defendant and refused, was of the nature in the first paragraph of the head-notes. All other instructions given or refused and evidence material to an understanding of the points ruled are given in the opinion.

<p>Error from Milam. Tried below before Hon. Jno. N. Henderson.</p>

<p>1. Judgment Binds Only Parties — Parties Only in Capacity as Sued.</p> <p>A judgment of foreclosure upon five tracts of land against J. T. and wife, owners of two tracts, and against B. as alleged owner through execution sale of the title of M. T., former owner of the other three tracts, was offered in evidence to show title in the purchaser at the foreclosure sale. As to the three tracts formerly owned by M. T., it was not admissible against M. T.’s widow who was not made a party to the foreclosure suit, nor against his daughter who was made a party to the foreclosure, but was there sued as the wife of J. T., claiming title in the two tracts, and not as the heir of M. T.’s title in the three tracts claimed by him.</p> <p>2. Trespass to Try Title — Pleading Title.</p> <p>Plaintiff who pleads specially cannot. introduce evidence of title not pleaded. Where plaintiffs set forth specially the title under which they claimed the rights formerly held by defendants, a justice’s judgment and execution sale of the land not specially pleaded was inadmisible.</p> <p>3. Homestead — Foreclosure—Res Judicata.</p> <p>Where mortgage lien is foreclosed upon the homestead of defendant and the property sold, the judgment is an adjudication against the homestead rights of defendants in the property in any subsequent proceeding between the same parties. The foreclosure binds homestead rights which the parties might have plead to defeat it.</p> <p>4. Same.</p> <p>This rule, announced under homestead laws, is not affected by the changes which have made the mortgage against the homestead void.</p> <p>5. Cases Distinguished.</p> <p>Rackley v. Fowlkes, 36 S. W. Rep., 75, and Higgins v. Bordages, 88 Texas, 458, distinguished.</p> <p>6. Practice on Appeal — Affirming in Part.</p> <p>Following Hamilton v. Prescott, 73 Texas, 565, the Court of Civil Appeals will in a proper case affirm the judgment below in part and in part reverse and render.</p>

<p>1. Continuance.</p> <p>See opinion for circumstances under which the discretion of the court was held properly exercised in overruling an application for a continuance for want of testimony of a subpoenaed witness, a party to the suit, whose ex parte deposition was on file and available as testimony.</p> <p>2. Evidence — Consideration of Deed.</p> <p>Parol evidence is admissible to show the real consideration for a deed, though a different one was expressed in it, when the expressed consideration is not a contract stipulation; and the fact that the deed is attacked by a creditor for fraud, does not change the rule.</p> <p>3. Same — Harmless Error.</p> <p>Improper «admission of evidence is immaterial where same fact was proven by other evidence without objection; also where findings on other points would require the same judgment if the evidence were admitted.</p> <p>4. Acquisition of Homestead — Fraud.</p> <p>A disposition of property subject to execution for the purpose of procuring a homestead will not be deemed a fraud on creditors. Without a previous lien such creditors can neither sell the homestead so acquired nor follow the property exchanged for it.</p> <p>5. Absence of Testimony — Immaterial Error.</p> <p>A finding of fact by the court, though without evidence to support it, will be deemed immaterial error where the judgment of the court did not depend upon it, and was supported by other independent findings based on evidence.</p> <p>6. Homestead — Fraud—Vendor’s Lien — Removing Cloud — Limitation.</p> <p>K. and L., heads of families, lived on separate tracts of land in each of which they each owned an undivided interest. They exchanged their undivided half interests in the respective tracts, whereby L. converted his interest in K.’s tract, which was subject to execution, into one in his own place of residence, which, when so acquired, became homestead. Previous to this exchange, in consideration of F., the vendor of the tract occupied by L., procuring an extension of time upon a lien held by a former vendor against that tract, L. had executed a note to F.’s wife.which recited that it was given for purchase money of L.’s tract, but retained no express lien. K. agreed • to sign the note but did not. F., having obtained judgment against L. on the note, levied on and sold his interest in K.’s home — which L. had conveyed to K. in exchange for K.’s interest in L.’s — claiming that this transfer was made to defraud L.’s creditors. Held:</p> <p>1. L. had a right to make such exchange and it was not fraudulent in law, though done to place his property in a homestead free from creditors.</p> <p>2. The note, not in fact given for purchase money, created no lien, express or implied, against the land by reciting that it was so given.</p> <p>3. K. was entitled to cancellation of the sheriff’s deed as a cloud on his title.</p> <p>4. He was not bound by the note, not having signed it, and his paroi promise to do so was barred by statute of limitations of two years.</p>

<p>Homestead — Houses Built to Bent not Exempt.</p> <p>Where the head of a family erected on his homestead lot in a city several dwelling houses other than the one in which he lived, for the-purpose of renting them for t'he revenue to be derived therefrom, such rented houses and the grounds occupied by them were not exempt from execution.</p>

<p>1. Contract — Waiver of Breach — Estoppel.</p> <p>The recognition of a contract as still in force by one of the parties, after its breach by the other, when induced by a promise to remedy the default, will not constitute a waiver of the breach or raise an estoppel.</p> <p>2. Practice on Appeal — Admission of Immaterial Evidence. .</p> <p>Appellate courts will not reverse judgments merely because illegal testimony may . have been admitted, when there is nothing to indicate that it affected the verdict, and there was sufficient legal evidence to support the verdict.</p> <p>3. Same — Assignments of Error. .</p> <p>Assignments of error which merely set out instructions objected to, but do not point out wherein they are erroneous, will not be considered (Art. 1018, -Revised Statutes of 1895); nor will propositions in the brief be looked to in assistance of such assignments.</p>

<p>1. Practice on Appeal — Assignment of Error — Brief.</p> <p>An assignment of error which is not copied into the brief of the appellant will not be considered</p> <p>2. Trespass to Try Title and Partition — Rents Offset Against Value of Improvements — Immaterial Error in Judgment.</p> <p>Where, in an action of trespass to try title and for partition, the verdict and judgment charged the defendant with a larger amount of rent than he was liable for, but allowed him as against such rent a larger sum for the value of improvements than he was entitled to, the difference in the errors being in his favor, he could not be heard to complain.</p> <p>3. Same — Cotenants—Liability of Minor for Improvements.</p> <p>In an action for partition, a cotenant who is a minor, being incapable of consenting to the erection of improvements upon the joint estate, cannot be charged therewith.</p> <p>4. Same — Liability of Surviving Husband for Rents.</p> <p>Where the homestead farm was the separate property of the wife and her children by a former marriage, and she died after the crops for that year were about matured, the husband, continuing to occupy and use the premises, is liable to such children, if not for rent, for their community share of the products of the farm for such year.</p> <p>5. Same — Demand Upon Cotenant not Necessary.</p> <p>It was not erroneous, under the circumstances of the case just stated, to charge the husband with rents for two years; nor did he occupy such a relation to the children of his wife as would entitle him to a demand for posesssion before he became liable for rent.</p>

<p>1. Fire Insurance Policy — Waiver by Agent — Iron Safe Clause.</p> <p>The requirements of the “iron safe clause” in a policy of insurance cannot be waived by an agent of the company, where the power to do so is by the terms of the policy expressly withheld from him.</p> <p>2. Same — Waiver by Adjuster — Evidence.</p> <p>An insurance adjuster, after being informed of the destruction by fire of the ledger, scratch book and itemized inventory of the insured, declined to proceed with the investigation of the loss until the insured agreed that such examination “shall not be taken as any waiver of any defense the companies may have by reason of the breach of warranty as contained in the iron safe clause, we having lost our detailed inventory.” Held, that this was evidence tending to prove a waiver of the requirement to produce the books other than the detailed inventory, as was also the further fact that the adjuster, after making an estimate of the loss pursuant to such agreement, applied to plaintiffs, to whom the policies had been assigned, for duplicate invoices of purchases of the goods.</p> <p>3. Same — Inventory.</p> <p>The requirement in a policy of insurance for the production of an inventory, is ■ sufficiently complied with by the production of a summarized inventory as entered in a ledger.</p> <p>4. Same — Waiver by Adjuster After Loss.</p> <p>After an insurance policy has become a demand against the company, a limitation in the policy of the power of an agent to waive its conditions does not apply to an adjuster.</p> <p>5. Same — Breach of Iron Safe Clause — Insurance on House.</p> <p>While a breach of the iron safe clause will forfeit an insurance policy so far as it covers the stock of goods, it will not have such effect as to the store house, where the amounts of insurance on each of the two kinds of property are separately stated, though the premium is in gross.</p>

<p>Homestead — Donation not Patented — Conveyance by Husband Alone.</p> <p>Where a family settled upon vacant public land under the homestead donation law, and before the end of three years’ occupancy, the husband alone conveys the land to another who subsequently obtains the patent from the State, the wife cannot assert the homestead interest as against the grantee, the homestead right not. attaching to the land until occupancy for three years is complete.</p>

<p>1. Agreed Case-Record on Appeal — Waiver of Issues as to Pleading.</p> <p>Under article 1293, Revised Statutes (1895), the record in a cause triecl^ below as an agreed case consists of the judgment and the agreed statement of facts, and issues as to the pleadings are pretermitted, so that the only question on appeal is whether or not the judgment rendered was the proper one upon the agreed facts.</p> <p>2. City Officers — Compensation—Mayor and Recorder.</p> <p>Where a city council neglected for several years to appoint a recorder, as required by an ordinance which also specified the recorder’s fees, and the mayor, under articles 357-361, Revised Statutes (1879), had acted as recorder, receiving the fees, and his court was known as the “Mayor’s Court,” the council, by providing prior to an annual election that the mayor then to be elected should receive no salary, but should receive the fees of the mayor’s court, thereby fixed his compensation within the meaning of the statute requiring city councils prior to every regular election to fix the compensation of the mayor to be elected.</p> <p>3. Same — Change of Compensation During Term — Recorder’s Fees.</p> <p>Where the city council thus fixed as the mayor’s compensation the fees to be received by him in acting as recorder, which fees were in law subject to be taken away by the appointment of a recorder, and a recorder was duly appointed as soon as the mayor took office, this was not a change of the mayor’s compensation during his term of office, as prohibited by article 498 of the Revised Statutes, since the mayor took the office subject to such contingency; and the payment of a salary allowed him by the council in lieu of the recorder’s fees was properly restrained by injunction.</p>

<p>1. Registration — Instrument to be Recorded — Appointment of Substitute Trustee.</p> <p>The written appointment of a substitute trustee, who, by the terms of -the trust deed, is to have the same “power and estate” in the lands conveyed in trust as are delegated to the original trustee, is an instrument in writing concerning lands authorized by the statute to be recorded.</p> <p>S. Parol Evidence of Written Instrument.</p> <p>For the purpose of testing the credibility and memory of the witness, one who heard or saw him make an affidavit contrary to what he has stated on the stand, may testify to that fact, without the production of the affidavit.-</p> <p>3. Practice — Admission of Irrelevant Evidence — Harmless Error.</p> <p>The admission of irrelevant evidence which could not have prejudiced the complaining party, is not reversible error.</p> <p>4. Charge of Court — Immaterial Error — Issues.</p> <p>Where it is evident irom the charge of the court and the record that the parties considered but one issue material in the case, all the evidence being directed to it, the attention of the jury being called to it, and it being the only issue submitted for determination, — a misstatement by the court in the introductory part of the charge of a matter having no relevancy to the main issue is not reversible error.</p> <p>5. Power of Sale — Notice.</p> <p>Where the notice of sale under a trust deed recited that default had been made, it was not defective in failing to state the amounts that had been paid on the notes.</p>

<p>Error from Collin. Tried below before Hon. J. E. Dillard.</p>

<p>1. Supersedeas Bond — Kent of Land Pending Appeal — Improvements.</p> <p>Where, in trespass to try title, plaintiff obtains judgment for the land, and defendant for the value of improvements, and defendant appeals, executing a supersedeas bond, conditioned to pay plaintiff the rental value of the land pending appeal, if the judgment be affirmed, it is no defense to an action on such bond that the premises had no rental value aside from the improvements, and that the possession of the land was surrendered when the judgment for the value of the improvements .was paid to defendant.</p> <p>2. Same — Improvements Made Pending Appeal.</p> <p>Where a defendant who has recovered judgment for the value of improvements appeals from the judgment against him for the land, and, pending such appeal, places-further improvements on the land, he is not entitled to recover the value of such later improvements, or have it set off against the rents that accrued pending the appeal.</p> <p>3. Same — Time for Which. Kent is Kecoverable — Conveyance of the Land.</p> <p>In an action on a supersedeas bond given on appeal for the rental value of the land in controversy, plaintiff is entitled to recover such rental value from the time the appeal was taken to the filing in the court below of the mandate of the Supreme Court, and this right is not defeated by the fact that plaintiff had conveyed the land after the appeal was taken and before the filing of the mandate, where the grantee-had assigned to plaintiff the rents due to the time when the mandate was filed.</p>

<p>Attorney and Client — Written Contract for Fee — Mistake—Pleadings.</p> <p>A written agreement between attorney and client stipulated that the attorney was to collect a note of the client by suit for a commission of five per cent, one-half to be paid as retainer when the suit was filed, and the other half when the collection was made. The maker of the'note defended, and the collection was effected only after an appeal to the Supreme Court; and the attorney having charged more than five per cent and retained it out of the collection, the client brought suit to recover back such excess. Defendant answered, alleging that both parties, in making the contract as to the fee, contemplated that the maker of the note would pay as soon as sued, and had entered into the contract upon that basis. Held, that such defense was at variance with the contract, and could not be entertained, unless upon further averment; that through some fraud, accident or inadvertence the contract failed to embody the real agreement of the parties.</p>

<p>1. Divorce — Allowance of Permanent Alimony.</p> <p>Our statutes make no provision for permanent alimony, and in the absence of direct statutory authority, it seems that a decree for permanent alimony cannot be appended to a decree for a divorce.</p> <p>8. Same — Allowance for Support of Children.</p> <p>Where a decree for divorce gives to the wife the custody of the children, and practically the whole of the community property, a provision requiring that the husband shall pay annually a stipulated sum for seventeen years for the support of the children, made without respect to the income or property of the husband or his earning capacity, and without regard to the ability of the children to earn their own support, is unwarranted and erroneous.</p>

<p>1. Notice of Appeal — -Verbal Omission.</p> <p>A recital in the concluding portion of a decree, that'eertain parties “in open court give notice to the Court of Civil Appeals of Fifth District,” sufficiently shows that notice of appeal was given.</p> <p>2. Practice — Placing Witnesses Under Rule.</p> <p>The action of the trial court in refusing to place under the rule a witness who was also a party to the suit, will not be revised on appeal unless it is shown to have worked an injury.</p> <p>3. Mercantile Corporation — Retirement of Stock — Payment of Dividends.</p> <p>Where undivided profits of a mercantile corporation were applied to the purchase and retiring of its stock, the remaining stockholders cannot be charged with holding the stock so retired, and held liable under article 560, section 24, Sayles’ Civil Statutes, providing that any person holding more than §500 of the stock of such a corporation shall be liable for all its debts; nor would such application of the money constitute the payment of dividends, rendering the directors liable under article 594, where the corporation is insolvent.</p> <p>4. Practice on Appeal — Contempt of Court.</p> <p>The action of the trial court in refusing to punish for an admitted contempt of court a director who had disposed of corporate assets after the appointment of a receiver for the corporation, is a matter of discretion which will not be revised on appeal.</p> <p>5. Corporation — Borrowing Money Beyond Capital Stock.</p> <p>Under article 577, Sayles’ Civil Statutes, providing that corporations shall have power to borrow money on the credit of the corporation, not to exceed its authorized capital stock, a note for a loan made to a corporation for a larger amount is valid and enforceable, at least to the extent of the capital stock.</p> <p>6. Insolvent Corporation — Right of] Creditors to Secure Preference Bien by Attachment.</p> <p>When an insolvent corporation is so circumstanced that its early cessation of business must result, it may be proceeded against by attachment of its property by creditors, who may acquire thereby a valid preference lien upon such property.</p>

<p>1. Fire Insurance Policy — Pleadings—Accrual of Cause of Action.</p> <p>Where plaintiff’s petition on a fire insurance policy was filed more than three months after the fire, but did. not state when proofs of loss were made, it was not subject to demurrer on the ground that it did not show that the cause of action had accrued, in failing to show that the sixty days allowed the company after proofs of loss had not expired.</p> <p>2. Evidence — Harmless Error.</p> <p>Error in admitting the testimony of a witness for plaintiff, over objection, is rendered harmless where a witness for defendant testifies to the same facts, without objection.</p> <p>3. "Witness — Impeaching Credibility.</p> <p>The credibility of a witness cannot, in a civil case, be impeached by the testimony of other persons, to the effect that she is a disreputable character and is keeping a house of assignation.</p> <p>4. Insurance Policy — Verbal Waiver by Agent.</p> <p>Where an insurance policy stipulates that the conditions contained therein may be waived by an agent, but only by writing in the body of the policy, a verbal waiver on the part of an agent will bind the company.</p> <p>5. Same — Proof of Waiver by Agent.</p> <p>Declarations of a young man found in the office of an insurance agent are not admissible to prove a waiver of a condition of the policy, without further proof of the declarant’s relation to the insurance company and its business.</p> <p>6. Same — Charge of Court Without Evidence — Notice.</p> <p>Where the insured had executed two mortgagés upon the property, and there was no competent evidence that the company, as to the first mortgage, had waived the condition forbidding a mortgage without its consent, it was error for the court to instruct that if the company had knowledge of and consented to the first mortgage, and the second mortgage was given to raise money to release the property from the first, the company was charged with notice of the second mortgage.</p> <p>7. Same — Breach of Condition — Use of Gasoline.</p> <p>The breach of a condition in a fire insurance policy forbidding the use of gasoline upon the premises will avoid the policy, although the fire causing the loss did not result from the use of the gasoline.</p>

<p>1. Counties — Liability of New County for Debts of Old — Uniformity in Taxation.</p> <p>Article 9, section 1, of the Constitution; provides that any part of a county which is created out of another county shall be liable for its proportion of all the existing liabilities of the county from which it was taken, and the Act of the 20th Legislature, page 27, creating Jeff Davis County from territory forming a part of Presidio County, provides that such new county shall be liable for a pro rata share of the legal debts of the parent county, and declares that “there shall be set apart so much of the county taxes levied and collected upon the property situated in the portion taken from Presidio County annually, as will be sufficient to speedily liquidate said existing debts, if any, and the said pro rata to be based upon the value of the property taken from the parent county for each year of the existence of said debt, to be determined from the tax rolls of the said county as made by the board of equalization.” Held, that the act does not violate section 1, article 8, of the Constitution, requiring that taxation shall be equal and uniform.</p> <p>:Z. Same — Presentment of Claim to Commissioners’ Court.</p> <p>Article 677 of the Revised Statutes, providing, as a condition precedent to a suit against a county, that the claim sued on shall have been first presented to the County Commissioners’ Court, and disallowed in whole or in part, is applicable to a suit by one county against another formed therefrom, to enforce the statutory liability of the new county for the payment of its share of the debts of the parent county.</p>

<p>1; Replevy Bond Given in Aid of Wrongful Possession — Liability on — Order of Court as Defense.</p> <p>In an action against a trustee for the benefit of creditors and his assignors, plaintiffs’ petition charged the defendants with having conspired to defraud plaintiffs by obtaining goods by false representations and fraudulently transferring them by the trust deed. The goods were seized under plaintiffs’ writ of sequestration and were replevied by the trustee. Held, that it was no defense for the trustee and the surety on his replevin bond that the goods were taken from the trustee’s possession on an order of court in another action appointing a receiver, nor can plaintiffs be required to follow the goods into the hands of the receiver.</p> <p>2. Parties — Garnisheeing Creditors.</p> <p>In an action by a vendor against his vendees and their trustee for the benefit of cred-tors, to recover goods the sale of which was procured by false representations, the defendants have not the right, as against the plaintiffs, to make other creditors who have garnisheed the trustee parties to the suit and have them litigate their rights therein.</p> <p>3. Evidence — Statements by Partner.</p> <p>Statements by a partner made after the firm had ceased doing business, and in a petition filed by him against the other partner, are not binding on the firm as admissions in favor of third parties, nor admissible in evidence for such purpose.</p> <p>4. Fraud — Vendor’s Right to Rescind Sale and Recover Goods.</p> <p>In an action by a vendor to recover goods the sale of which was procured by false representations, the plaintiff must prove that such representations were made, and that they were false and fraudulent, and that, relying upon them, he was induced thereby to part with the goods, in order to be entitled to rescind the sale and recover the property.</p>

<p>1. Fire Insurance — Mortgaged Property — Transfer of Property — Subrogation.</p> <p>A transfer of insured property, mortgaged by deed of trust, made to one who assumes the mortgage, with the consent of the insurer, the trustee, and the beneficiary, converts the original mortgagors from principals to sureties, as between all the parties, and entitles them to all the rights of sureties; and the purchaser of the property becomes the “mortgagor,” within the meaning of that term as used in the subrogation clause of the insurance policy, providing that the trustee’s interest in the insurance should not be invalidated by any act or neglect of the mortgagor, and that when the insurer should pay to the trustee any sum for loss on the policy, he should be subrogated therefor to all the rights of the parties to whom such payment should be made.</p> <p>2. Same — Surety—Forfeiture.</p> <p>The mortgage company “and its assigns” being entitled to the benefit of the insurance under the subrogation clause of the policy, the surety is entitled to the same benefit, unless the contract expressly excludes him therefrom; and after loss under the policy, may pay to the trustee the amount of the mortgage debt and become the assignee of the mortgage company, notwithstanding a forfeiture of the policy by parties who had become primarily liable.</p> <p>3. Samé — Bight of Surety — Payment of Premium as Consideration.</p> <p>Such right of the surety cannot be defeated by the prior purchase of the mortgage by the insurance company; and the premium paid by the original mortgagor, who, as surety, claims the benefit of the insurance, the contract of insurance being a burden on the property, will be considered a full equivalent for the risk assumed.</p> <p>4. Same — Forfeiture—Construction.</p> <p>The forfeiture of a fire insurance policy will not be permitted, unless clearly provided for, and then only to the extent that the contract may expressly require.</p> <p>5. Same — Surety Protected Against Forfeiture.</p> <p>The surety, having parted with the property, and having no means of knowing or preventing a violation of the policy, stands in the same position as the beneficiary, under the subrogation clause; and the violation of the policy, if he be not at fault, does not invalidate it as to him.</p>

<p>1. Receiver — Grounds not Authorizing Appointment of — Action Against Executors.</p> <p>In an action against executors appointed by a testator without bond, brought by devisees under the will for their interest in the estate, and for partition, the court was not authorized to appoint a receiver pendente lite upon evidence that the executors had paid over money to the surviving wife of the testator, and that one of the executors had occasionally played at cards, when it also appeared from the evidence that the surviving wife had elected not to take under the will; that the amount so paid her was probably much less than her community interest in the property; that she was without ready means and in need of the money for her present support; that the executor charged with gaming had ample means of his own and was a man of strict integrity, and that all three of the executors had been diligent and faithful in their duties as such.</p> <p>2. Same — Bond May be Required, When.</p> <p>The appointment of a receiver is not the only remedy for the protection of property pending suit; and the court, it seems, may refuse to appoint a receiver upon condition that the defendant execute a bond to account for the property; and under article 1944, Sayles’ Civil Statutes, in cases where no bond had been required of an executor, any person having a claim against the estate may upon proper written showing made in the court where the will was probated obtain an ordevf or the executor to show cause why he should not be required to give bond.</p>

<p>1. Special Demurrers — Harmless Error.</p> <p>Error of the court in overruling certain special demurrers is not material, where, notwithstanding the defects attacked by the demurrers, there were sufficient allega tians in the petition to constitute a good cause of action.</p> <p>2. Parties Plaintiff — Action by City Against Water Company.</p> <p>Where a city has contracted with a water company to furnish water to its citizens, an action against the company to restrain it from enforcing higher rates than those stipulated in the contract, is properly brought by the city, instead of by the citizens.</p> <p>8. Injunction — Proper Remedy, When.</p> <p>. Where a city has contracted with a water company to furnish water to the citizens at certain stipulated prices, and the water company raises the prices and threatens to cut off the water supply if such higher prices are not paid, the city is entitled to an injunction as the appropriate remedy, because of the utter uncertainty in any calculation of damages for the breach of such contract.</p> <p>4. Construction of Contract — Water Company Rates.</p> <p>A contract between the city of C. and a water company stipulated that the water company “proposes to charge consumers of water the same rates as are now charged at Waco, Texas, by the Bell system of water works, or such other reasonable rates as from time to time shall be fixed by the city council of C.; it being expressly understood that the limits of said rates shall not be less than is allowed by cities of like size and population in this State.” Held, that the contract fixes the Bell rates as a basis, and that the company was bound to furnish water at that rate until the city council should fix other reasonable rates, not to be less than those allowed by cities of like size and population; that without such action by the city council, the company was not authorized to charge a higher rate than the Bell rates; and that the facts and circumstances attending the execution of the contract, as also the fact that the company had for four years furnished water at the Bell rates, could be considered in determining the intention of the contract as to the rates.</p>

<p>1. Statute of Frauds — Parol Sale of Land — Trust—Payment—Specific Performance.</p> <p>A paroi sale of land by the owner and holder -of the legal title, with payment to him of the purchase money, and a verbal agreement by him to hold the title in trust for the purchaser, is obnoxious to the statute of frauds, does not create an equitable title which the courts will enforce by decree for "specific performance, and is not within the exception recognized where the legal title is originally obtained and taken under an agreement to hold in trust.</p> <p>2. Same — Parol Exchange of Lands — Remedies of Vendor.</p> <p>Where plaintiff, upon a paroi agreement to exchange lands, executed a deed to defendant, and thereafter defendant, being in possession of both tracts, refused to make a deed to plaintiff, the remedy of plaintiff was not by suit for the recovery of the land, which should have been conveyed to him, but he had his election either to rescind the contract and recover the tract that he had conveyed, or to sue for its value and have the same enforced as a lien thereon.</p>

<p>Error from Dallas. Tried below before Hon. Edward Gray.</p>

<p>1. Municipal Corporation — City Ordinance — Grant to Railway Company of Right to Use Street.</p> <p>In an action involving the right of a railway company to construct its line of road over certain streets, a city ordinance granting it such privilege and clearly specifying the streets in controversy will not be held void because not sufficiently specific as to other parts of the line.</p> <p>2. Same — Construction—Extent of Grant.</p> <p>Where a city ordinance grants to a railway company a right of way over certain streets, and in a separate section authorizes it to construct at convenient points on its line roundhouses, yards, shops, switches, depots, and sheds, this does not give the company the right to place the things mentioned in the latter section in the streets, but only within the city limits.</p> <p>3. Same — Damage to Abutting Lot Owners — Injunction.</p> <p>In an action to restrain a railway company by injunction from constructing its road upon certain streets of a city, because the owners of a majority of front feet thereon were not willing to the grant of such privilege, the amount of damage such construction will severally cause to such owners is not a matter to be adjudicated.</p> <p>4. Same — Taking, of Property — Constitutional Provision — Damages Paid in Advance.</p> <p>The appropriation by a railroad company of a right of way over the streets of a city under a valid city ordinance granting such privilege, is not, as to damages thereby occasioned to abutting property, a taking of such property, within the meaning of section 17, article 1, of the Constitution, requiring 'that adequate compensation to the owners of property taken shall be first made or secured by deposit of money.</p> <p>5. Same — Evidence—Assent of Abutting Owners — Fraud—Equitable Title.</p> <p>In an action to restrain a railway company from constructing its road along and upon certain streets, because the owners of a majority of front feet were not willing thereto, plaintiffs cannot complain of the exclusion of evidence offered to show that a city ordinance granting defendant the right of such construction had been obtained by false and fraudulent representations to the effect that the owners of a majority of front feet were willing thereto, where the court has admitted evidence to show the willingness or unwillingness of such owners, and has instructed the jury that unless the owners of a majority of front feet were willing, they should find for plaintiffs; nor can plaintiffs complain of the admission of evidence showing the written consent of certain equitable owners of such front feet property, the legal title to which was in a trustee who had declined to express himself as being either willing or unwilling.</p> <p>6. Same — Street or Public Highway Only — Right of Abutting Owners.</p> <p>Where a street was originally dedicated as such, and is still used by the public as a street, the fact that several railway companies have obtained and are using a right of way on and along it, does not deprive it of its character as a street and convert it into a “highway” only, as affecting the rights of the owners of property fronting on a street to object to another company constructing a railroad thereon without their consent.</p>

<p>1. Foreign Corporation — Pleading—Allegation of Permit to do Business.</p> <p>In an action by a foreign corporation doing business in this State, unless engaged in interstate or foreign commerce, the petition should allege that the corporation has obtained a permit to do business in the State under the provisions of the statute.</p> <p>2. Assumption of Debt — Release of Assumption.</p> <p>Where a purchaser of property assumes the payment of a lien debt thereon, and afterwards reconveys the property to his grantor, who thereupon releases him from such assumption, before there is an acceptance by the creditor, or before suit brought by the creditor, the party assuming such indebtedness is released, and the creditor has no right of action against him.</p>

<p>1. Juror — Disqualification—Formed Opinion.</p> <p>A juror who has formed an opinion from hearsay, but says he can try the cause impartially, and uninfluenced by his previously formed impressions, is competent; but where, from having heard the evidence in a former trial, he is unable to say positively that he could try the cause just as if he had never heard of it, he is incompetent.</p> <p>3. Trespass to Try Title — General Issue — Special Defenses.</p> <p>Where in trespass to try title the defendant, in addition to the general issue of not guilty, sets up special defenses, he is restricted in the introduction of evidence to such as tends to establish his special defenses.</p> <p>3. Limitation — Specific Performance of Contract for Sale of Land.</p> <p>In an action for specific performance of a contract for the sale of land, to be paid for by plaintiff, his cause of action does not arise until such payment is made, and limitation runs from that time, not from the date of the contract.</p> <p>4. Statute of Frauds — Agreement Performable Within One Year.</p> <p>Article 2543, section 5, Revised Statutes (1895), placing within the'statute of frauds verbal agreements not to be performed within one year, does not apply to an agreement which may or may not be performed within that time.</p> <p>5. . Same — Parol Contract for Sale of Land.</p> <p>Article 2543, section 4, Revised Statutes (1895), prohibiting suits based on paroi contracts for the sale of land, does not apply to an action for the recovery of land purchased with borrowed money, the title to which is taken in trust in the name of the lender under an agreement that it shall be reconveyed to the plaintiff upon payment of the debt.</p> <p>6. Evidence.</p> <p>It was properly submitted to the jury to determine what items were intended by the expressions “all indebtedness,” and “my indebtedness,” used in an instrument executed between the plaintiff and defendant.</p> <p>7. Same — Statement of Accounts — Estoppel.</p> <p>Under allegations that plaintiff has never been able to obtain a full and correct statement of his account from defendant, though he had repeatedly requested and demanded it, plaintiff may make use of statements of the account between plaintiff and defendant to aid him in establishing his claim against defendant, and is not thereby estopped from attacking the accuracy of such statements.</p> <p>8. "Verdict for Damages — Several Defendants — Judgment Against One Only.</p> <p>In an action against a corporation and other defendants for the recovery of land and for damages, there was nothing in either the pleadings or evidence to warrant the jury in finding damages against any defendant other than the corporation. The jury rendered a verdict for damages, not stating against which defendant such damages were rendered. Held, that a judgment against the defendant company was authorized by the verdict.</p> <p>9. Trespass to Try Title — Vindictive Damages — Allegations Sufficient. Allegations that defendant wrongfully and maliciously, with the purpose of injuring and oppressing plaintiff, forcibly entered on plaintiff’s lands, and unlawfully excluded him therefrom and deprived him of the use and profits of the same, for the purpose of forcing him to submit to unlawful and oppressive demands, will authorize the recovery of vindictive damages.</p> <p>10. Trespass by Mortgage "Upon Mortgaged Hand.</p> <p>One who, holding a deed absolute upon its face, but which is only a mortgage upon land, enters upon the land and takes timber therefrom, over the protest of the owner of the land, pending a suit for the land, is a trespasser.</p>

<p>1. Death by Wrongful Act — Accident Insurance as Setoff Against Damages.</p> <p>In an action against a railway company for negligently causing the death of an employe, money received by plaintiffs from accident insurance held by the deceased cannot be set off against the damages resulting from the death.</p> <p>2. Same — Minor’s Right of Recovery.</p> <p>A charge of the court in an action by a minor to recover for the death of his father, caused by negligence, which limits his right to the damages which he may suffer before reaching majority, is properly refused.</p> <p>3. Same — Evidence,</p> <p>It was proper, in an action for the death of a person caused by the explosion of an engine boiler, to allow a witness who had testified to the good condition of the boiler and flues, to be asked on cross-examination, if after plaintiff’s attorney had requested him not to do so, he had not shipped the flues and cylinder to another place.</p> <p>4. Same — Defective Condition of Boiler.</p> <p>In an action for death caused by the explosion of a locomotive boiler, a witness who had exhibited to the jury certain bolts which he had taken from the fire-box of the engine was properly permitted to state that one of thebolts was a fair specimen of those in the fire-box, and that the others were about as badly rust-eaten as the one shown.</p> <p>5. Death hy Wrongful Act — Verdict not Excessive.</p> <p>In an action against a railway company for negligently causing the death of a fireman, thirty years old, healthy and industrious, and earning eighty dollars per month, a verdict for $14,000 in favor of his mother, wife and infant child, is not excessive.</p>

<p>Appeal from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>Appeal from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>1. Business Homestead — Bents Subject to Garnishment.</p> <p>The rents of a business homestead are not exempt from garnishment by creditors of the owner.</p> <p>2. Same — Abandonment.</p> <p>A merchant had used as his business homestead a building 100 feet by So feet, twe stories high; but having failed in business, he thereafter rented out the building except a space 12 by 15 feet in one corner of the lower floor room, surrounded by a railing, which he used as a real estate and insurance office, and to which ingress and egress could be had only through the main room. Held, that the building was noi abandoned as a homestead.</p> <p>3. Same — Community Property.</p> <p>The fact that the building was community property, one-half of it belonging to the heirs of the deceased wife, did not entitle such heirs to claim one-half the rents thereof as against creditors of the owner who had garnished such rents.</p>

<p>. Principal and Surety — Discharge of Surety.</p> <p>A surrender by the creditor to the principal debtor of property held as security for the entire debt has the effect to discharge a surety on a note given for a part of the debt.</p>

<p>1. Town Incorporation — Mandamus—Sufficiency of Petition — “Duly Incorporated.”</p> <p>"A petition for mandamus to compel the town authorities to count the vote and declare the result of an election held to determine whether certain territory should be withdrawn from the town showed that the town had a superficial area of 27.8 square miles. Held that an allegation merely that the town was “duly incorporated” was insufficient on general demurrer, there being no fact averred to show that such incorporation was not void because including a larger superficial era than allowed by statute.</p> <p>2. Same — Withdrawing Territory — Act of 1895 — Premature Election.</p> <p>Since the act of the 24th Legislature (Laws 1895, p. 17) “to define the territory and provide for establishing the boundaries of cities and towns * * * and to validate the incorporation of any city or town heretofore incorporated,” etc., allowed 90 days for a resurvey of the corporate limits of towns containing a larger superficial area than was authorized, an election for the purpose of withdrawing territory from such town could not be held under Sayles’ Civil Statutes, article 503a, until the period allowed for the resurvey had elapsed.</p>

<p>Appeal from Rusk. Tried below before Hon. W. J. Graham.</p>

<p>1. Judgment — Bill of Review Will Not Lie, When.</p> <p>A bill of review to revise a judgment for errors apparent upon the face of the record is not recognized in this State, the remedy being-by appeal or writ of error.</p> <p>.2. Same — Action to Set Aside Judgment — Collateral Attack.</p> <p>An action to set aside a judgment and sheriff’s sale thereunder for errors apparent upon the face of the record, will not lie; but if the errors are such as to render the judgment void as against collateral attack, such action may be maintained as a suit to recover the property.</p> <p>3. Same — Citation Without Seal.</p> <p>The want of a seal to the citation is a defect which is amendable, and will not render a judgment by default thereon void as against collateral attack.</p> <p>4. Same — Recitals of Service in Judgment.</p> <p>The recital in a judgment that the defendants were duly and legally cited to appear and answer, as against a collateral attack on the judgment, is conclusive on the defendants, and precludes them from disputing the validity of the citation for want of a seal.</p> <p>5. Same — Judgment by Default Upon Petition Subject to General Demurrer.</p> <p>A judgment by default is not void and subject to collateral attack because the petition upon which it was rendered was subject to general demurrer, where the court had jurisdiction of the subject matter, and such petition sets forth facts sufficient to challenge the attention of the court with regard to its merits.</p> <p>6. Same — Misnomer.</p> <p>Where suit is brought on a street improvement certificate, the judgment therein will not be held void on collateral attack, because the copy of the certificate sued on recited that John and Lucy Perry were the owners of the property affected, if the petition clearly alleged such ownership and liability on the certificate in the defendants, John and Lucy Perry, the owners in fact, and against whom the judgment was rendered.</p> <p>7. Execution Sale — Inadequacy of Price.</p> <p>Improved city property worth $4000, but subject to a vendor’s lien of $900, was sold under execution for $375. Held, that the sale would not be held void because of such inadequacy of price, where no irregularities in making the sale were shown.</p> <p>8. Same — Order of Sale — Lots to be Sold Separately.</p> <p>Article 2305, Revised Statutes (1879), relating to executions, and providing that if real property in any town- or city taken in execution consists of several lots, each shall be offered by the sheriff for sale separately, if susceptible of a separate sale by reason of the character of improvements thereon, applies also to an order of sale issued upon a judgment in an action on a street improvement certificate, and the sale thereunder should be made accordingly.</p>

<p>1. Railway Passenger Ticket — Limitation as to Time of Use.</p> <p>Common carriers have the right to place upon tickets issued by them for passage a limitation as to the time within which the ticket must be used.</p> <p>2. Same — Words of Limitation Held Sufficient.</p> <p>A railway ticket contained the words “Good for one continuous passage on and from the date stated on the back,” and also a notice that “This ticket or any unused part thereof is receivable by the company at any ticket office of the company, when presented for redemption, within ten days after the right to use the same has expired by limitation of the time as stipulated herein.” Held, that this language sufficiently limited the use of the ticket to the day upon which it was dated, and such further time only as was necessary to complete the continuous passage.</p>

<p>1. Railway Company — Liability for Acts of Receiver — Necessary Pleadings.</p> <p>In an action against a railway company for damages to property resulting from the construction of a switch track, it was shown by the evidence that the switch was built by a receiver of the railroad; that the receiver, prior to the filing of the suit, had turned the property back to the company without sale, and had expended in betterments upon it a large amount of revenues derived from its operation while in his hands, but none of these facts were averred in the pleadings. Held, that a judgment against the company was not warranted by the pleading, and the fact that proof of these matters was made and admitted without objection would not change the rule requiring that a judgment must be supported by the pleadings.</p> <p>2. Separate Property of Wife — Parties—Joinder of Husband and Wife.</p> <p>Damages recovered for injury to the separate real estate of the wife are her separate property, and a suit therefor is properly brought in the name of the wife, joined by her husband.</p> <p>3. Same — Res Judicata — Former Suit by Husband.</p> <p>A suit for damages to the real estate of the wife, brought by the husband alone, and in his own right, cannot be pleaded in bar' of a subsequent action brought by the husband and wife for such damages, in the right of the wife.</p>

<p>1 Venue — Plea of Jurisdiction not Waived by Continuance.</p> <p>A plea to the jurisdiction setting up the defendant’s privilege to be sued in the county of his residence is not waived by reason of the fact that after it was filed the case was continued to the next term as upon agreement of the parties.</p> <p>2. Venue — Liquor Dealer’s Bond — Breach.</p> <p>A retail liquor dealer’s bond is a written contract to he performed in the county where the business is carried on, and upon breach of its conditions suit may be brought there, although the parties executing the bond reside in another county.</p>

<p>Appeal — Jurisdiction of Court of Civil Appeals — Judgment for $100.</p> <p>Where a suit is brought on. a note for 8100, given for rent, and the judgment is for only 8100, exclusive of interest and costs, an appeal will not lie to the Court of Civil Appeals, although a distress warrant, issued in the case, was levied and its lien foreclosed upon property exceeding $100 in value.</p>

<p>1. Mortgage or Conditional Sale — Construction of Instruments.</p> <p>Where a deed absolute and an accompanying agreement are executed by the grantor to secure the payment of money by him, and after their execution the relation of debtor and creditor continues to exist between the parties, the deed will be construed as only a mortgage, despite the fact that the agreement expressly stipulates that the transaction is a conditional sale, and the further fact that the grantee destroyed the unpaid note at the expiration of the time stipulated in the agreement.</p> <p>2. Promissory Mote — Fraud.</p> <p>One who by fraudulent representations procures the transfer and endorsement to himself of notes held by third parties is not entitled to recover thereon against such parties as endorsers.</p>

<p>1. Deed — Description of Property — “All Interest” — Breach, of Warranty— Mistake.</p> <p>Where a general warranty deed describes the property as “all our interest in and to block 91, which interest is one-half of said block, more or less, being out of the north one-third,” of a certain tract, it purports to convey one-half of said block, and not merely whatever interest the grantors might have therein; and the fact that, through mistake, the block actually falls outside of the north one-third of such tract, and for that reason alone the land covered by it is owned by other parties, will not absolve the grantor from liability on his warranty of title.</p> <p>2. Limitation of Two Tears — Breach of Warranty.</p> <p>The statute of two years’ limitation is not applicable to an action brought for a breach of the covenants of warranty in a deed of land, nor to a suit in equity to recover on account of gross mistake, for a material deficiency in the quantity of land conveyed. Bass v. James, 83 Texas, 110, discussed.</p> <p>3. Parties — Warrantor may be Joined.</p> <p>In an action to recover land, the plaintiff may join the adverse claimants of the land, and his warrantor, in order that one judgment may settle all the issues involved.</p>

<p>1. Accident Insurance — Change to Less Hazardous Occupation — Benefit of Exception not Forfeited.</p> <p>Where a railway employe takes out an accident insurance policy, contracting to pay the higher premium demanded for such hazardous employment, he does not, by afterwards changing his occupation to the less hazardous one of a farmer, forfeit his right to the benefit of an exception in the policy allowing railway employes to board a moving train.</p> <p>3. Same — Pleading—Negative Averments as to Matters of Defense.</p> <p>It is not incumbent on the plaintiff, suing upon an accident insurance policy, to deny that the insured came to his death by any of the means which, by the terms of the policy, would relieve the defendant from liability thereon, such exceptions in the policy being matters of defense.</p> <p>3. Same — Payment of Premiums — Separate Periods of Insurance — Forfeiture.</p> <p>An accident insurance policy was issued in consideration of an order on the employer of the insured for the premiums, such order directing separate payments of a specified sum for each of four consecutive 'months, and reciting that the first payment makes the policy good for two months, the second for four, the third for seven, and the fourth for twelve months from date of policy, and the policy declared that the premiums specified in the order were for consecutive periods of two. two, three and five months, and each should apply only to its corresponding insurance period, and that the insurer would not be liable for injuries to the insured during any period for which its respective premium had not been paid. The employer, after making two of the payments, returned the order to the insurer, with a refusal to make the third payment, because, and with notice that, the insured had left its employment and nothing was due him that month. Held, that the policy was not a contract of insurance for the entire period of a year, but for separate periods, and ceased to operate after the expiration of the periods for which the premiums had been paid.</p> <p>4. Same — Return of Order and N otice of Nonpayment.</p> <p>That the order was not returned to the insured, and notice given him of its nonpayment, was immaterial, as also the fact that the insured re-entered the service of his employer, só that pay was due him the next month after such nonpayment.</p> <p>5. "Waiver of Proofs — Denial of Liability.</p> <p>The denial of liability and refusal to pay its policy by an accident insurance company, in order to amount to the waiver of the notice of the accident acquired by the policy, must be made within, and not after, the time in which proof of the accident and injury can be made.</p> <p>6. Same — Statutory Penalty.</p> <p>A recovery of the statutory penalty of twelve per cent upon the amount of an insurance policy for failure to pay the policy within the time specified, after demand made, cannot be had where there is no proof showing demand made for payment within the required time.</p>

<p>1. Venue — Written Contract to Pay in Another County — Tenant Holding Over.</p> <p>A tenant residing in one county agreed by the terms of a written lease to pay the rents in another county, and having held over after the expiration of his term, he was sued in such other county for the rents for the second term. Held, that the contract raised by holding over was merely an implied one, and was not within the exception contained in subdivision 5, article 1198, Revised Statutes, providing that a person may be sued in a county other than that of his residence, where he has “contracted in writing to perform an obligation in a particular county.”</p> <p>2. Same — Exceptions to General Buie.</p> <p>One who sues in a county other than where the defendant resides, must bring his case clearly within some one of the exceptions to the general rule requiring suits to be brought in the county of the defendant’s residence.</p>

<p>1. Citation toy Publication — Judgment toy Default — Next Term of Court.</p> <p>A citation by publication was duly made returnable to an ensuing term of court which began on the first Monday in August. After the court had convened for the August term, an act of the legislature took effect which provided that the terms of that court should begin on the second- Monday after the first Mondays in July and January, and the court thereupon reconvened for the summer term. Held, that such reconvened term could not be considered as the “next succeeding term,” at which judgment by default could, under the statute, be entered upon the citation by publication</p> <p>2. Same — New Trial Within Two Years — Equitable Grounds.</p> <p>Where judgment by default has been taken upon service of citation by publication, the desendant’s motion for new trial may, under the statute, be filed at any, time within two years, and it is immaterial that it is numbered and docketed as a separate suit; and where it appears that the defendant has a meritorious defense, and that he had not actual notice of the pendency of the suit when the default judgment was entered, and that the person who made the affidavit for publication, stating that defendant’s place of residence was unknown, could readily have ascertained that fact, a new trial should be granted.</p> <p>3. Administrator’s Deed— Ancient Instrument — Presumptions.</p> <p>Where an administrator’s deed is fifty years old, and it is shown that the probate records relating to the estate have all been destroyed by fire, it will be presumed from the recitals in the deed and other circumstances that such administrator was duly authorized by the court to sell the land and execute the deed, and that another person who was appointed joint administrator either failed to qualify or resigned as such.</p> <p>4. Same — Confirmation of Sale.</p> <p>The law in force in 1846 did not, it seems, require that a sale of land by an administrator under order of court should be confirmed, but if it did, such confirmation would be presumed after the lapse of fifty years and the destruction of the probate records by fire.</p> <p>5. Same — Description of Land — County—Judicial Notice.</p> <p>An administrator’s deed fifty years old described the land as part of a headright league situated in Liberty County, but did not specify the State or Republic of Texas. Held, that the omission was not material, as the court would take judicial notice that Liberty County was, in 1846, a part of the Republic of Texas.</p>

<p>Appeal from Galveston. Tried below before Hon. William H. Stewaet.</p>

<p>1. Injunction — Jurisdiction of District Court — Judgment of Justice Court for Less Than $20.</p> <p>The District Court has jurisdiction to restrain by injunction the enforcement of a void judgment rendered by a Justice Court, where the amount is less than $20, and there is consequently no right of appeal from such judgment.</p> <p>2. Same — Parties.</p> <p>In an action by injunction to restrain the enforcement of a judgment rendered by a Justice Court, the justice of the peace and the officer holding the execution issued upon such judgment are not proper parties; notice to them of the injunction being sufficient.</p> <p>3. Railway Company — Injury to Livestock — Fencing Track.</p> <p>A railway company is not required to fence that portion of its track within the limits and terminals of its side tracks, switches and switch stands, at any of its depots and stations, and hence it is not liable for the value of livestock killed by its engines within such limits, unless negligence is shown.</p>

<p>Sale Under Trust Deed — Inadequacy of Price — Setting Aside.</p> <p>Plaintiff, having purchased certain blocks of land forming part of a larger platted tract, without actual knowledge of a duly recorded trust deed on such tract, brought an action to set aside a subsequent sale of the tract made by the trustee, and to redeem therefrom on the ground that the sale was made in bulk and for an inadequate consideration. The trust deed authorized a sale in bulk, in the discretion of the trustee, and the evidence showed that the property, while it would have sold for more if it had been sold at private sale, and time been taken to find purchasers, would not likely, at a public sale made in lots and parcels, have realized more than at the sale made in bulk. Held, plaintiff was not entitled to the relief sought.</p>

<p>1. Railway Company — Ejection From Train — Excessive Damages — Remittitur.</p> <p>Plaintiff, because of a failure of a ticket agent to officially stamp his ticket, was ejected from a train by the conductor, acting somewhat rudely but in good faith, and using no more force than was necessary; was thereby compelled to walk four miles to the nearest station; was delayed about twelve hours; reached his own station in the night, found no one there to meet him, and the next day had to make his way home, about 22 miles out in the country, the best way he could. Held, that a verdict for $500 damages was excessive, and the judgment would be affirmed only upon the entry by plaintiff of a remititur of $250.</p> <p>2. Same — Round Trip Ticket — Liability for Negligence of Agent of Connecting Lines.</p> <p>Defendant railway company sold plaintiff a round trip ticket good over its own and a connecting line, with printed conditions thereon stipulating that it acted only as agent of the connecting line, and was not liable beyond its own line, that no agent of any line had authority to modify the contract of the ticket in any respect,, and that the ticket should not be good for return passage unless officially stamped by the agent’of the connecting line at the terminal point. Plaintiff duly presented the ticket to such agent at the terminal point, who handed it back to him saying that it was all right, but neglected to officially stamp it, and when plaintiff reached defendant’s line on the return trip, its conductor refused to honor the ticket because not stamped as required, and compelled plaintiff to leave the train. Held, that defendant was liable for the resultant damages, since the agent of the connecting line at the terminal point must be treated, as regards the matter of stamping the ticket to render it valid for return passage, as the agent of defendant the issuing line. Taelton, Chief Justice, dissenting.</p>

<p>1. Evidence — Declarations of Decedent — Wife as Party.</p> <p>In an action for conversion, brought by an administrator to recover money alleged to belong to his decedent’s estate, the wife of the defendant was incompetent, under article 2248, Sayles’ Civil Statutes, to testify as to declarations of decedent showing that the money was a gift by him to the defendant.</p> <p>2. Same — Separate Property — Action for Conversion.</p> <p>The fact that the excluded testimony of the wife would have shown the money to be the separate property of the husband, does not change the rule excluding her evidence as that of a party, since, as the action was one of conversion, the judgment therein, if for the plaintiff, would have been collectible out of the community estate of the husband and wife.</p> <p>3. Principal and Agent — Allowance of Credits to Agent.</p> <p>In a settlement between a principal and his agent, acting under power of attorney, the right of the agent to have certain expenditures allowed him as a credit does not depend solely upon his good faith in making such expenditures, but also upon whether he acted for his principal with reasonable prudence in that respect.</p>

<p>1. Judgment as Muniment of Title Against One Mot Party Thereto.</p> <p>Where the legal title to land was in R., and a judgment was rendered in an action to which R. and E. were parties, by which the title of R. was divested and vested in E., in a subsequent contest between E. and a stranger to that action, claiming under a prior equitable transfer, the judgment will be admissible as a muniment of title.</p> <p>2. Practice on Appeal — Bill of Exceptions — Issue not Raised.</p> <p>Where a bill of exceptions to the admission in evidence of a judgment shows merely that appellants introduced evidence “tending to establish” that the defendant in the judgment was dead at the time of its rendition, it does not properly raise the question presented in an assignment based thereon, urging the invalidity of the judgment because of such death.</p> <p>S. Bona Fide Purchaser Protected.</p> <p>One who purchases the legal "title to land, for value, without notice of a prior equitable interest, will be protected.</p> <p>4. Judgment Against Deceased Party Mot Void, When — Collateral Attack,</p> <p>Where, in a collateral action, a judgment is offered in evidence as a muniment of title, it will not be held void upon proof that the defendant in such judgment was dead at the time of the institution of the suit which resulted in the judgment.</p> <p>5. Land Certificate — Patent Passes Legal Title to Assignee.</p> <p>Where one obtains title by judgment to a land certificate which has been already located, the legal title to the land passes to him on the subsequent issuance of patent to the original grantee of the certificate.</p>

<p>1. Bona Fide Purchaser for Value — Actual Payment — Bond for Title.</p> <p>Where a sale is made with intent to defraud creditors, the purchaser is protected only as to the interest actually paid for by him before he receives notice or knowledge of the fraud of the seller, and a bond for title given by the purchaser, agreeing to convey land to the seller as part of the consideration, will not have the effect of actual payment.</p> <p>2. Same — Fraudulent Conveyance — Burden of Proof.</p> <p>Where the creditor has shown that the conveyance was made with fraudulent intent, the purchaser has the burden of proof to show that he paid value; and if this be shown, the burden again shifts, and the creditor must prove that at the time of the payment the purchaser had notice of the fraud. Article 2465, Sayles’ Civil Statutes, construed.</p> <p>3. Charge of Court — Assignment of Error Thereon.</p> <p>Where error is assigned to a charge of the court, the charge will be reviewed, although a wrong reason be given in the assignment, if the issue be raised by the pleading and proof.</p>

<p>1. Civil Action for Assault — Exemplary Damages.</p> <p>One who commits an unprovoked and malicious assault upon the person of another, is liable to the latter for exemplary as well as actual damages.</p> <p>2. Same — Payment of Fine.</p> <p>In a civil action for an assault, the fact that the defendant has been, in a criminal proceeding, adjudged guilty of an assault, and has paid a fine and costs therefor, can be pleaded in mitigation of exemplary damages, but not in bar thereof.</p> <p>3. Same — Pleading—Statement of Separate Kinds of Damage — Practice. It is not reversible error, in a civil action for assault, for the court to overrule exceptions to the plaintiff’s petition, because it fails to state the grounds for actual and exemplary damages separately, where the cause of action with reference to the claim for both kinds of damage is fully and clearly set out, and the amounts claimed for the two kinds of damage are separately stated in the petition, and submitted separately in the charge.</p> <p>4. Same — Evidence—"Value of Time — Estimate.</p> <p>In a civil action for assault, plaintiff may give in evidence his estimate as to the value of the time lost by him while recovering from his injuries, accompanied by a statement of the facts upon which such estimate is based.</p> <p>5. Same — Evidence of Malice.</p> <p>In an action for actual and exemplary damages for an assault, evidence showing that plaintiff had hemorrhages of the lungs some time prior to the assault, and was weak and feeble at the time it was committed, is admissible, where accompanied by evidence from which it could be inferred that defendant had knowledge of such facts.</p> <p>6. Same — Practice—Charge of Court.</p> <p>Where, on the trial of a civil action for assault, no element of justification appeared, it was not reversible error for the judge to inform plaintiff’s counsel, in the absence of defendant’s attorneys, that the court would not instruct on the issue of justification; nor was it error to charge the jury to find actual damages for the plaintiff in such case.</p> <p>7. Same — Evidence of Injury — Res Gestee.</p> <p>In a civil action for assault, it was not error to permit witnesses to testify that they were with the plaintiff soon after he was hurt, and heard him groaning and complaining, and that he seemed to be suffering a great deal.</p> <p>8. Same — Charge of Court — Mitigation.</p> <p>Where, in a civil action for assault, evidence had been admitted for the purpose of mitigation, it was not error for the court to refuse to specify in the charge the facts-of mitigation, and to instruct the jury that, if they found them to be true, they should consider them in mitigation of the damages.</p> <p>9. Same — Personal Examination by Jury.</p> <p>It was not error for the court, in a civil action for an assault, to permit the jury by means of their fingers to examine the scars upon the plaintiff’s head caused by the blow from defendant’s pistol.</p>

<p>Appeal from Tarrant. Tried below before Hon. W. D. Harris.</p>

<p>Error from Tarrant. Tried below before Hon. S. P. Greene.</p>

<p>Plaintiffs in a suit of trespass to try title appealed from a judgment in favor of defendant.</p>

<p>1. Change of Venue — Controverting or Qualifying Affidavits.</p> <p>Under Revised Statutes, 1879, art. 1271, prior to the amendment of 1893 permitting affidavits for a change of venue to be controverted, it was error to grant change of venue on affidavits complying with the statute, where affiants by subsequent affidavits had so far qualified their original affidavits as to leave no ground for a change of venue.</p> <p>2. Same.</p> <p>The court should have considered such qualifying affidavits with those of other parties showing how the original affidavits were procured, in determining whether there was a compliance with the statute.</p> <p>3. Boundary — Evidence—Affidavit of Deceased Surveyor.</p> <p>A certified copy, from the general land office, of an affidavit of a deceased surveyor, there on file, as to the connection of lines of certain surveys made by him, upon the ground, was not properly authenticated, not being an archive of the land office, and was not admissible in evidence as a declaration of such deceased surveyor.</p> <p>4. Same — Declaration of Deceased Surveyor.</p> <p>Upon a question of boundary a deed to and shown to be in the handwriting of a deceased surveyor, who had located one of the surveys in controversy, was properly admitted as a declaration by such deceased as to the location of a corner, the bearing trees of which were therein described.</p> <p>5. Same.</p> <p>Patent and field notes of another survey made by such deceased surveyor, and tending to show that a line called for in the survey in controversy, and also in the one offered in evidence, was a marked boundary, recognized by him, was properly admitted as a declaration by such surveyor.</p>

<p>Married Minor — Injury to Wife — Suit by Hext Friend.</p> <p>A married minor, suing by next friend, may recover damages occasioned, both to himself and to his wife, by a nuisance committed by defendant (in this case inconvenience to and sickness of both caused by leaving a dead horse unburied on the right of way near his residence).</p>

<p>County Warrants — Payment.</p> <p>Where county warrants were paid by the treasurer out of the county funds, but being mislaid by him, he was compelled to account for and settle with the county for such funds without receiving credit for the amount of such vouchers, — the warrants were extinguished, and, upon their subsequent discovery, such'former treasurer or his assignee could not recover upon the warrants as obligations of the county.</p>

<p>Insurance — Premises Vacant.</p> <p>The legal effect of a clause in a policy of fire insurance avoiding the policy if the premises are vacant for ten days is not waived by reason of knowledge on the part of the insurer that they are vacant at the time the policy issued.</p>

<p>1. Jurisdiction — Plea of Privilege — Waiver.</p> <p>A warrantor, made party on his warranty to a suit for the land, waived his privilege of being sued in the county of his residence by answering to the merits before pleading his privilege.</p> <p>3. Warrantor — Suit in County of Residence.</p> <p>A vendee of land with warranty, when sued in the District Court for its recovery, may implead his warrantor, though the latter resides in another county and the claim is for less than $500.</p> <p>3. Amendment — New Cause of Action.</p> <p>An amendment which only enlarges the averments of the original pleading as to liability of a warrantor does not set up a new cause of action.</p> <p>4. Warranty — Boundaries Pointed Out.</p> <p>A warrantor is liable to his warrantee for the purchase money of land recovered from him by suit and which was included in the boundaries marked out and pointed out by the vendor, though the calls in the deed would not, in fact, include such land.</p> <p>5. Same — Reforming Deed.</p> <p>It was not necessary to have the deed corrected and reformed, in order to make the warranty apply to land so pointed out.</p> <p>6. Same — Limitation.</p> <p>It seems that limitation would only run against such action from the date of eviction of the warrantee. (But recovery here was less than four years from the date of the warranty.)</p>

<p>1. Judgment — Irregularities—Collateral Attack.</p> <p>See opinion and statement for judgment in trespass to try title and partition, obtained against unknown heirs on service by publication, and irregularities therein held not of a character which could avail in a collateral attack.</p> <p>3. Judgment — Unknown Heirs — Community—Interest of Widow.</p> <p>The community interest of a widow of the grantee of land was not affected by a recovery obtained in a suit against his unknown heirs (Heidenheimer v. Loving, 26 S. W. Rep., 101).</p> <p>3. Sheriff’s Deed — Description of Land.</p> <p>A levy on, sale of and sheriff’s deed to 426%' acres out of the S. W. side of a 640 acre survey of land was void for want of sufficient description, and would neither show title, nor serve as a basis for limitation, nor for a suggestion of improvements in good faith.</p> <p>4. Deed — Description of Land</p> <p>Such description, however, in voluntary deeds by such purchaser and subsequent vendees, where one-third of the north-east side of the 640 acre survey had been previously conveyed by metes and bounds, leaving title in the vendor to 426% acres out of the south-west side, which fact was known to vendor and vendee, was not void for insufficiency of description, and would support limitation.</p> <p>5. Same — Improvements in Good Faith.</p> <p>Defendants, holding under such sheriff’s and subsequent voluntary deeds, could establish claim for improvements in good faith only as to such as were placed on the land after they might believe that they had title by limitation under the voluntary conveyance, they being charged with notice of the want of title under the void sheriff’s deed.</p>

<p>Municipal Corporation — Water-works—Liability for Failure to Supply Water for Extinguishing Fires.</p> <p>A city which, for its advantage and gain, has voluntarily assumed the duty of supplying its inhabitants water for general purposes and for the extinguishing of fires, is liable to a patron of its works for its negligence, whereby a failure to supply water resulted and such patron’s property was destroyed by fire, which but for such negligence would have been extinguished.</p>

<p>The briefs-of counsel show the nature of the charges given and refused not contained in the opinion.</p>

<p>1. Limitation — Conversion.</p> <p>A suit for wrongfully shipping away and selling cattle of plaintiff which defendants held under a deed of trust was an action for conversion and not a suit on the written contract or trust deed, and was barred by limitation in two years.</p> <p>2. Limitation — Absence—Non-Resident.</p> <p>Our statute of limitations (Rev. Stats, art. 3216) which provides against counting the time of defendant’s absence from the State, applies only to resident defendants. This did not prevent limitation from running in favor of a resident of another State, though he had occasionally visited Texas during the period to attend cattlemen’s conventions.</p>

<p>School Land — Correction of Field Notes.</p> <p>The Commissioner of the General Land Office has no authority to correct the field notes of a survey of land belonging to the public free school fund, so as to include less land than was included in the original field notes. (Acts, Feb. 3, 1883, and March 22,1889, in relation to school lands construed.)</p>

<p>1. City Stock Ordinance — Constitution.</p> <p>A city ordinance providing for the impounding and sale of stock running at large, which requires reasonable notice of sale and provides for the owner obtaining its release before sale on payment of a reasonable fee, or the net proceeds after sale on proof of ownership, is not unconstitutional, as depriving a citizen of his property without due process of law.</p> <p>2. Stock Ordinance — Running at Large.</p> <p>An animal which, kept confined by the owner, has escaped without his fault, is “running at large” within .the meaning of an ordinance providing for impounding stock so found. It is not necessary that the owner knowingly or negligently permitted it to be at large in order to justify impounding it.</p>

<p>1. Receivers — Supersedeas Bond — Purchasing Company — Joinder of Actions.</p> <p>The receivers of a railway, with the railway company, having first appealed on a cost'bond from a judgment recovered against them, subsequently obtained writ of error with supersedeas bond. On the appeal the judgment was affirmed as to the receivers, but reversed as to the company; the writ of error was not prosecuted. In a subsequent suit on the supersedeas bond, against the sureties and against a railway company which had purchased the road by authority of a special act of the Legislature making it liable for the obligations of the receivers. Held, that both the bondsmen and the purchasing company were liable, and they could be jointly sued.</p> <p>3. 3VC., K. & T. Ry. Co. of Texas — Special Act — Liability' of Purchasing Company.</p> <p>The Missouri, Kansas & Texas Railway Company of Texas, having purchased the Gainesville, Henrietta & Western Railway under authority of the special act of April 16,1891, became, by the terms o'f that act, liable for a judgment for damages recovered against the receivers thereof, though in such judgment the original company was held not liable.</p> <p>3. Receivers — Improvements—Liability of Purchaser.</p> <p>A railway company which has taken back its road from the receivers of its property, without sale, extensive improvements having been made from the revenues of the receivership, can be held liable for a judgment against the receivers, by reason of such betterments, though it had been a party to the original suit against the receivers and had then been held not liable.</p> <p>4. Supersedeas Bond — Judgment—Interest.</p> <p>Sureties on a bond superseding a judgment for damages bearing interest at eight per cent., in accordance with the statute in force at the time of its rendition, are liable for interest at that rate, notwithstanding the subsequent statute that judgments should bear interest at six per cent.</p>

<p>1. Usury — Building Lien Contract — Monthly Payments.</p> <p>A building association loan was made at the highest legal rate of interest, and the notes therefor, made payable in monthly installments, included the interest to the time of each payment, and also provided for interest at the same rate after maturity, in case of default. Held, that this latter feature did not render the loan usurious, since, if the notes had been paid at maturity, the contract would have been legal, and the borrower could not make it illegal by his own default. Brown v. Crow, 39 S. W. Rep., 653, from the Third District, dissented from.</p> <p>2. ' Same — Rule of Construction.</p> <p>The legality of contracts should be determined on the assumption that the contracts will be performed according to their stipulations, and not upon the supposition that they will be violated.</p>

<p>1. Practice on Appeal — Agreement to Reverse and Remand.</p> <p>An appellate court will not reverse and remand a cause upon agreement of the parties, without reference to the merits of the case.</p> <p>2. Verdict on Special Issues — Judgment.</p> <p>A judgment based on a special verdict can include no matters excluded from the findings of the jury, although the evidence may establish the existence of such matters beyond controversy.</p> <p>3. Usury — Agent’s Commission Payable by Borrower.</p> <p>When a lender authorizes his agent to make loans for him, under a general agreement that he must look to the borrower for his compensation, and the agent effects a loan, the commission charged will be added to the interest in determining whether the loan is usurious.</p> <p>4. Same — Subsequent Incorporation of Usurers.</p> <p>Where a partnership has negotiated a usurious loan, a subsequent incorporation, with the members of the partnership as its principal stockholders and managers, will not enable it to avoid the penalties provided against usury.</p> <p>5. Homestead — Pretended Sale — Verdict.</p> <p>When the uncontroverted facts show that a borrower went to a loan agency to borrow money, and told it he had no security except his homestead; that it told him he could not give it as security, but that he could make an absolute sale, and if he took notes he could borrow on the notes; that shortly afterwards the borrower returned to the loan agency with a deed conveying his property to a third person, which deed was not shown ever to have been delivered, but was left with the loan agency to be recorded, after the insertion, at the suggestion of the loan agency, of the recital that a vendor’s lien was retained to secure the notes, — the jury is not warranted in saying that the loan agency had no notice that the sale was a mere pretense and sham.</p> <p>6. Discounting by Corporation — Constitution.</p> <p>The constitutional provision prohibiting the creation of corporations with discounting privileges, does not render illegal a transaction involving the discounting of a note by a corporation.</p>

<p>1. Homestead —Must be Urban or Rural.</p> <p>The homestead must be either urban or rural, and where a town lot is occupied as the homestead, land adjacent thereto in the country cannot be claimed as a part thereof.</p> <p>2. Same — Business Homestead Must be Used.</p> <p>To entitle the head of a family to a business homestead, the property must be used in the operation of his business.</p>

<p>1. Receiver — Accounting.</p> <p>Where, upon appeal in a case wherein a receivér was appointed upon application •of plaintiff, the decision of the Supreme Court is in favor of the defendant, the trial •court has authority, either upon its own motion or that of the defendant, to require an accounting on the part of the receiver, and a return of the property to the owners</p> <p>2. Same — Right of Jury Trial Upon Motion.</p> <p>Where defendants have filed a motion for an accounting by the receiver, and a return of the property, and the receiver’s report is controverted, and the matter referred to a master in chancery, and issues of fact are raised by the receiver’s objections to the master’s report, the receiver is entitled to have tried by a jury such issues of fact.</p> <p>3. Same — Liability of Receiver.</p> <p>Ordinary care is the test of the receiver’s responsibility, and he is therefore not necessarily liable for the loss of cattle merely because he allowed them to remain on the range, nor for property burned, merely because he failed to insure it.</p> <p>4. Costs on Appeal.</p> <p>Where the judgment is reversed on appeal, the appellant will nevertheless be charged with a part of the costs of the transcript, for matter improperly included therein.</p>

<p>1. Abstract of Judgment — Indexing.</p> <p>The law is complied with it an abstract of judgment is properly indexed on the direct side; and a reverse indexing is not fatally defective when the names of the members of a firm are correctly entered, though the firm name is not.</p> <p>2. Same — Effect of Appeal.</p> <p>The prosecution of an appeal with supersedeas does not destroy the effect of an abstract of judgment entered pending the appeal, but merely suspends the issuance of process.</p> <p>3. Same — Execution Within One Year not Required, When.</p> <p>If it is not legally within the power of the plaintiff in a judgment to have execution issued within the year limited by Sayles’ Civil Statutes, art. 3160, first on account a pending appeal and afterwards on account of a restraining injunction, he cannot be said to have failed to have issued one, and his lien is not lost.</p> <p>4. Execution Not Required When it Cannot be Levied.</p> <p>When there are legal obstacles to the levying of an execution, the law cannot attach any force to the matter of its issuance, and will not require it.</p> <p>5. Judgment Lien — Unsold Lands Eirst Subjected — Receiver.</p> <p>A purchaser of a portion of certain lands subject to a judgment lien is entitled to have the lands remaining in the hands of a subsequently appointed receiver of his vendor first subjected to the satisfaction of the lien.</p>

<p>1. Error in Judgment — Correction.</p> <p>Where an order on a motion to tax costs itself discloses that the judgment actually-rendered was not entered, the court may properly correct the error after the term, since it is not the correction of a judicial error.</p> <p>2. Same — Effect of Appeal — Taxation of Costs.</p> <p>After a judgment has been appealed from and affirmed, a motion in the trial court to correct an error in the taxation of costs comes too late, since the error should have been assigned in the appellate court and corrected there. ■</p>

<p>Error from Dallas. Tried below before Hon. Edward Gray.</p>

<p>Appeal from Grayson. Tried below before Hon. Don A. Bliss.</p>

<p>1. Pleading — Action Against Sheriff for Wrongful Levy — Sufficient Petition.</p> <p>Plaintiff sued defendant as the sheriff of Z. County. His petition alleged that defendant had levied upon certain cattle of value largely exceeding the amount of the executions in his hands; that at the time plaintiff possessed other property subject to levy, and sufficient to satisfy both executions; that defendant never asked him to point out the property upon which to levy, but plaintiff requested that the second levy be made upon such other property, which would have been pointed out had not defendant refused to levy upon it. Held, that the petition stated a cause of action, under the statute.</p> <p>2. Wrongful Levy — Measure of Damages.</p> <p>Expenses incurred by plaintiff in endeavoring, after the levy, to find buyers for cattle levied upon, are too remote to form elements of damage; and damages cannot be recovered for cattle sold by plaintiff in excess of what was sufficient to satisfy the executions, unless he could not have sold a sufficient number without selling all.</p>

<p>Appeal from Dallas. Tried below before Hon. R. E. Bubke.</p>

<p>1. Continuance — First Application.</p> <p>An application for a first continuance on account of the absence of a witness who had been duly subpoenaed and was, it seems, in attendance when the case was set for trial, but was absent when it was reached, should have been granted.</p> <p>2. Insurance Policy — Ownership of Property — Mortgage.</p> <p>An incumbrance upon the insured property is not within the contemplation of a clause in the policy avoiding it unless the assured is the sole, absolute and unconditional owner of the property.</p> <p>3. Same — Keeping Watchman on Premises.</p> <p>Where an insurance policy is conditioned that the insured shall keep a watchman on duty at night, it is not avoided by the fact that the watchman was asleep on the premises at the time of the fire, unless the insured had notice of the unfitness of the watchman, or had not observed ordinary care in employing and retaining him.</p>

<p>1. Municipal Corporation — Street Improvements — Repeal and Change of Charter.</p> <p>Under a city ordinance certain street improvements had been made, without any levy of assessments to pay for the work, and when the work was about completed, the city charter was repealed by a new one, without any saving clause. The city had not followed the requirements of the charter in doing the work, and the provisions of the new charter were different from and inconsistent with those of the old. Held, that the new charter would not authorize the levy oí a tax upon abutting property owners to pay for such improvements. Following, City of Dallas v. Ellison, 10 Texas Civ. App., 28.</p> <p>2. Same — Levy Under Former Charter — Equity—Injunction.</p> <p>Under such circumstances, a court of equity would not, as a condition precedent to granting an injunction restraining the sale of the property under a levy made by the city in accordance with the new charter, require the owners of the property to pay the amount which might have been levied under the old charter, had its terms been complied with by the city.</p> <p>3. Same — Levy of Assessment — Compliance With Charter Required.</p> <p>Before a city is authorized to levy a special tax to pay for street improvements, it must have complied with every condition precedent prescribed by charter or ordinance, and a failure to base a levy on the estimates of the city engineer, and to advertise for bids for doing the work, where these matters are required by the charter will render the levy void.</p> <p>4. Same — Estoppel—Illegality of Method.</p> <p>Owners of property abutting on a street are not estopped from denying the validity of an assessment to pay for the street improvements, because they petitioned the city to have the work done, and stood by and saw it done, since they did not petition to have it done otherwise than in a legal manner.</p>

<p>Appeal from Dallas. Tried below before Hon. R. E. Burke.</p>

<p>1. Legal or Equitable Title — Transfer of Land Certificate and Subsequent Patent to Original Grantee.</p> <p>Where the original grantee of a land certificate, whether before or after the location of the land, transfers the certificate, and the patent afterwards issues to such original grantee, the purchaser of the certificate has but an equitable title to the land; but if the conveyance be of the land itself, after its location, the subsequent issuance of the patent in the name of such original grantee will not divest the purchaser of the legal title.</p> <p>2. Quit Claim Deed — Bona Eide Purchaser.</p> <p>One claiming under a quit claim deed is a bona fide purchaser only to the extent of the interest owned by his grantor at the time of the conveyance.</p> <p>3. Same — Conveyance of “All Interest” a Quit Claim — Warranty of Title.</p> <p>A deed of land whereby the grantor “bargains and sells * * * all my right, title and interest in” the tract, with full warranty of “the title of said land,” is a quit claim.</p> <p>4. Laches and Stale Demand not Applicable, When — Repudiation—Hostile Act.</p> <p>Where a land certificate is sold by the original grantee before its location, the subsequent taking of the patent to the land in his own name by such vendor is not such an act of hostility to the rights of the purchaser as will put the rule of loches and stale demand in operation against the purchaser’s equitable title to the land.</p>

<p>1. Eire Insurance — Interest of Assured — Community Property.</p> <p>The fact that the homestead, constructed with community funds, and insured in the name of the husband, is situated upon the separate property of the wife, does not avoid the policy under a provision that it shall become void if the interest of the assured be “other than entire, unconditional and sole ownership of the property.”</p> <p>2. Same — Proof of Loss — Abandonment of Wife by Husband.</p> <p>Where community property is insured in the name of the husband, and he abandons his wife before the destruction of the property by fire, it is proper for the wife and a mortgagee beneficiary named in the policy to furnish proofs of loss, although it is stipulated that “proofs of loss shall be made by the party originally insured.”</p>

<p>Error from Dallas. Tried below before Hon. Edward Gray.</p>

<p>1. Fire Insurance — Negligence of Agent — Opinion Evidence.</p> <p>Upon an issue as to whether an insurance agent was guilty of negligence in not cancelling a policy as instructed by the company, the testimony of another agent as to what he would have done under the circumstances is not competent evidence.</p> <p>2. Same — Evidence of Custom — Pleading.</p> <p>Evidence that it is the custom of insurance agents to advance for the company the money for the return of an unearned premium, upon the cancellation of a policy, is not admissible where such custom has not been pleaded.</p> <p>3. Same — Cancellation of Policy — Duty of Agent.</p> <p>Where, under an insurance agent’s written contract of appointment, he was not charged with the duty of seeing to the cancellation of policies, he is not guilty of negligence in neglecting to cancel a policy as instructed by the company, unless it be shown, independent of the written contract, that this additional matter of agency had been conferred upon and accepted by him.</p>

<p>1. Homestead — Abandonment—Executory Sale and Repurchase.</p> <p>A widow sold her homestead by a deed expressly retaining the vendor’s lien, and also secured the unpaid purchase money by deed of trust. She intended to remove to another county when the purchase money should be paid, and in the meanwhile lived on rented premises. The purchaser made default in payment, and she, having acquired no new homestead, foreclosed the trust deed and repurchased the property, with the intention of resuming its occupancy as a homestead, which she did as soon as she was able to regain possession. Held, as against a creditor obtaining and registering a judgment after her repurchase, that she had not been divested of her superior title to the property and her homestead right therein.</p> <p>2. Same — Grand Child as Constituent of Family.</p> <p>Where a widow has residing with her an orphan grandson, 13 years of age, and whom she supports, she is the head of a family and entitled as such to the homestead exemption.</p>

<p>1. Life Insurance Company — Authority .of Agent — Premiums—Waiver.</p> <p>Whatever may be the limitations of an agent’s authority to receive and receipt for premiums as shown by the printed form of application for insurance, or in the policy, it is well settled that the same may be waived by the company.</p> <p>2. Same — Proof of Premium Paid in Property.</p> <p>In a suit against an insurance company' to recover a premium paid to its agent, partly in property, a receipt signed by such agent only individually, as. also proof of the delivery of the.property, is admissible to show that he received such premium; his right to do so, and the liability of the company thereon, being matters to be developed by further evidence.</p> <p>3. Same — Payment in Property — Presumption—Burden of Proof.</p> <p>An insurance agent’s authority to collect premiums does not imply an authority to accept property as payment therefor in lieu of money, and the burden of proving such authority is upon the party asserting it..</p>

<p>Pleading — Action by Administrator — Averment of Capacity.</p> <p>In an action by an administrator upon a judgment, where the petition alleges only that plaintiff was appointed and qualified as temporary administrator of the estate, and was afterwards appointed permanent administrator, with prayer “that plaintiff have judgment,” etc., but nowhere alleges that he seeks to recover for the benefit of the estate, it is insufficient to support a judgment in his favor as administrator.</p>

<p>1. Venue — Suit Against Defendant Whose Residence is Unknown.</p> <p>Under Revised Statutes, 1895, article 1194, providing that a defendant whose residence is unknown may be sued out of the county of his residence, such suit may be properly brought in the county of plaintiff’s residence, and is not invalidated by the fact that it is afterwards discovered that plaintiff resides within a given county in the State.</p> <p>2. Same — Burden of Proof — Diligence to Discover Residence.</p> <p>Where a defendant is sued out of the county of his residence, on the ground that his place of residence is unknown, and he pleads in abatement alleging his residence to be in a county in this State, the burden of proof is upon him on the hearing of such plea to show that the place of his residence was known to the plaintiff at the time of filing suit, and it is not incumbent upon plaintiff to first show that he used diligence to discover his residence.</p>

<p>Error from Dallas. Tried below before Hon. R. E. Burke.</p>

<p>Appeal from Harrison. Tried below before Hon. W. J. Graham.</p>

<p>1. Fraud — Admissibility of Evidence in Proof of.</p> <p>Upon an issue as to whether defendants purchased the goods in controversy from plaintiffs, without any intention to pay for them, but with the intent to defraud plaintiffs, evidence is not admissible to show the general reputation of defendants for dishonest dealings, or to show fraud in other transactions wholly disconnected from that alleged and not embraced in any alleged plan or scheme of fraud.</p> <p>3. Replevy Bond — Liability Where Property is Delivered to Receiver.</p> <p>Certain personal property was sequestered by plaintiff and was replevied by the defendant in possession, who was a trustee for the benefit of creditors. Afterwards, in another action in the same court, to which plaintiffs were not parties, a receiver of the debtor’s property was appointed, and the defendant trustee was ordered to deliver the property to him. Held, that such order did not relieve the defendant or his sureties from liability upon the replevin bond, as the defendant had the right to make the receiver party and have the rights of all the parties determined in the same judgment.</p>

<p>1. Building and Loan Association — Usury—Building Contract.</p> <p>For contract by a building and loan association to erect a house, to be paid for in monthly installments, held not to be tainted with usury, see the opinion.</p> <p>2. Same — Attorney Fee — Homestead Bight.</p> <p>In an action by a building and loan association upon a lien contract for improvements made on homestead property, which contract provided for attorney’s fees, the defendant, a subsequent purchaser of the property, and having himself no homestead right therein, cannot set up as a defense against the claim for attorney fees that when the contract was executed the property was the homestead of the then owner.</p>

<p>Appeal from the County Court of Waller. Tried below before Hon. A. G. Lipscomb.</p>

<p>1. Practice on Appeal — Reversal—Judgment Against "Weight of Evidence.</p> <p>While an appellate court will not reverse a judgment where there is evidence to support it unless it is clearly wrong, it is not only the province, but it is the imperative duty, of such court to reverse a judgment which is manifestly against the weight of the evidence.</p> <p>2. Trespass to try Title — Insufficient Proof.</p> <p>The contradicted and almost uncorroborated evidence of a witness who, if his testimony be true, was guilty of a fraud in having the land in controversy conveyed as a gift by him to his minor son (the plaintiff) and afterwards selling it, using his son’s name as his own, will not, after the lapse of twenty years, sustain a judgment, for the land against subsequent and innocent purchasers thereof.</p>

<p>1. Practice in Trial Court — Withdrawing Issue from Jury.</p> <p>Where defendant pleaded a contract and offered to show that it was evidenced by certain lost letters, and to prove the contents thereof, the fact that there were other letters of later date tending to show that no such agreement had been made did not authorize the court to withdraw from the jury the issue as to such contract.</p> <p>2. Statute of Frauds — Part Performance —Improvements.</p> <p>Possession of land and improvements made under a paroi contract of lease for a longer period than one year is such part performance as will take the case out of the statute of frauds; and a cultivation of the land such as enhances its value will be regarded as improvements.</p> <p>3. Pleading — Uncertainty.</p> <p>Where defendant had pleaded more than one written contract and then set up an oral contract, alleging its terms to be the same as those of “the written contract” already pleaded, an exception to the latter pleading was properly sustained.</p> <p>4. Evidence — Part of Written Instrument.</p> <p>Where a fragment of a letter is offered in evidence from which it cannot be determined just what the letter means, it is properly excluded unless evidence of the contents of the whole of the letter is offered in connection therewith.</p>

<p>1. Power of Attorney With Interest — Revocation by Death — Land Certificate.</p> <p>H. executed to B. a power'of attorney authorizing him to obtain from the legislature a special headright certificate to which H. was entitled, and to locate and sell the same, and for his services B. was to receive one-half the proceeds in land or cash. B. was further empowered to divide the land equally, if a location was made; and at the same time H. executed a deed conveying to B. one-half of the certificate or the land located thereunder. Held, that the interest of B. vested at once, and did not arise as the product of the execution of the power, and that the power to sell being coupled with an interest was not revoked by the death of H. prior to the issuance of the certificate.</p> <p>2. Same — Construction of Power — Location of Certificate.</p> <p>The power to sell applied only to the certificate, and did not authorize a sale of the land after its location; hut the mere filing of the certificate for location did not, prior to a survey made thereunder, merge the certificate into land and deprive B. of the power to sell.</p>

<p>Administration — Commissions for Paying Over Money.</p> <p>An administrator is not entitled to five per cent commissions under the statute for paying over money, proceeds of the estate, to executors of the decedent in another State, although such executors receive it for the executors of another estate who had recovered judgment against them for such proceeds.</p>

<p>1. Beceiver — Grounds of Appointment.</p> <p>Where there are any grounds oí relief prayed for that would authorize the appointment of a receiver, it need not appear conclusively that plaintiff is entitled to recover thereon, in order to authorize such appointment; it being sufficient that he has reasonable expectations of obtaining such relief.</p> <p>8. Same — Discretion of Court.</p> <p>The court appointing a receiver is invested with a large discretion as to the necessity for the appointment, and its decision of the fact on the supporting and counter-affidavits, is conclusive.</p> <p>3. Same — Action Against Cemetery Association.</p> <p>In an action against a cemetery association by a shareholder and lot owners, where it is shown that, the defendant has failed to maintain the cemetery in proper condition, and has wrongfully misapplied a trust fund provided by the charter for the purpose of improving the cemetery, it is within the discretion of the court to appoint a receiver, with the usual powers of that office, and with special authority to continue the business of the association and make all expenditures necessary to maintain the cemetery in a reasonable state of preservation.</p> <p>4. Parties — Actions Against Corporations.</p> <p>In an action against a corporation by a shareholder, objection that the transfer of stock to such shareholder was not made on the books of the company is cured by the intervention of the person from whom the stock was received.</p> <p>5. Same — Action by One for Many.</p> <p>A petition or bill filed in the interest of the complainant and all other persons similarly situated does not make such other persons parties to the suit.</p> <p>6. Same — Disqualification of Judge.</p> <p>In an action against a cemetery corporation, the fact that the judge before whom the cause is heard, is related to a shareholder, who is not directly a party to the suit, does not disqualify him; nor does the fact that a near relative of his is buried in the cemetery.</p> <p>7. Action Against Cemetery Corporation — Mandamus.</p> <p>A lot owner in a cemetery association may maintain a bill in equity against the corporation and its officers for failing to keep the cemetery in repair, without first resorting to mandamus for that purpose.</p>

<p>Damages — Injury "by Trees to Adjoining Land.</p> <p>Proof showing merely that a natural growth of tall trees upon the right of way of the defendant company adjacent to the cultivated lands of plaintiff shaded and injured his crops and„sapped his land of fertility will not authorize a judgment against the defendant for such damages.</p>

<p>1. Execution Sale — Irregularities—Conversion.</p> <p>A sale of personal property under an order issued on a judgment is not void so as to render the constable or the judgment plaintiffs liable as for a conversion, because of the constable’s failure to formally levy on the property or to advertise the sale, where the property was in his actual possession at the time of the sale and was delivered to the purchaser.</p> <p>2. Same — Liability of Judgment Plaintiff.</p> <p>The plaintiffs in a judgment are not liable for the manner in which the constable executes an order of sale issued on the judgment, unless it is shown that they directed it so to be executed and participated in the wrongful execution thereof, and that loss wasi thereby occasioned the judgment defendant. Following Morris v. Hastings, 70 T^exas, 29.</p> <p>3. Same — Levy not Necessary.</p> <p>A levy under an order of sale, describing the goods as set out in the judgment foreclosing the lien thereon, is not necessary to pass the title, where the officer has actual possession of the property at the time of sale. See also, Patton v. Collier, 89 Texas, 115 (upon certified questions in this case).</p> <p>4. Disqualification of Judge — Attorney Fees.</p> <p>A judge is not disqualified because of relationship to plaintiff’s attorney, to whom plaintiff has agreed to pay the sum provided in the note sued on as attorney’s fee, but who is not a formal party to the suit. Following Winston v. Masterson, 87 Texas, 800; and see also Patton v. Collier, 89 Texas, 115 (upon certified questions in case).</p>

<p>Appeal from Clay. Tried below before Hon. Geo. E. Miller.</p>

<p>1. Bona Fide Purchaser — Mortgage of Beal Estate — Consideration—Antecedent Debt.</p> <p>Land was conveyed to C. by a deed absolute in form, but which was in fact intended as only a mortgage to secure C. as surety on a note, and C. afterwards mortgaged the land to defendant to secure an antecedent debt of his own, the defendant extending the time for payment and having no notice that the conveyance to C. was a mortgage. ■ Held, that defendant was a bona fide lienholder for value.</p> <p>3. Same — Notice—Putting on Inquiry.</p> <p>That defendant’s cashier had been informed that C. was a surety on a note executed by the grantor in the deed to him, did not affect defendant with notice of the character of such deed as being in reality only a mortgage.</p>

<p>1. Action for Personal Injury — Allegation and Proof of Injury.</p> <p>Plaintiff’s petition in an action against a railway company for negligent injury alleged that he suffered great physical and mental pain from the injury, and would continue to do so; that he had expended large sums of money for medic mes and medical treatment; and that prior to the injury he was a sound man, but v as now a cripple for life. Held, that it was not error to allow plaintiff to testify that under the direction of physicians he had used morphine to alleviate the pain; that he used it all the time, and could not live without it, but never took opiates before the injury.</p> <p>2. Charge of Court — Weight of Evidence — Contributory Negligence.</p> <p>Charges of court which group together certain specified facts as constituting contributory negligence, such as would bar the plaintiff from recovering or would excuse the appellant from liability, are upon the weight of evidence, unless such facts are by the statute declared to be negligence, or sufficient to excuse liability.</p>

<p>1. Pleading — Amendment—New Cause of Action — Receiver—Limitation."</p> <p>Plaintiffs brought an action for damages against the receiver of a railway company, and upon the discharge of the receiver joined the railway company itself as a party defendant. In a subsequent amendment recovery was sought against the railway company on the ground of a fraudulent and void receivership. Held, that the cause of action set out in the amendment was not a continuation of that originally brought against the receiver, and was subject to the bar of limitation.</p> <p>2. Verdict — Special Issues — Controverted Facts Omitted.</p> <p>When special issues are submitted to a jury, the verdict must find all the facts controverted by the pleadings and not admitted by the parties, necessary to support the judgment. The court cannot in such case look to the evidence for facts upon which to found the judgment.</p>

<p>1. Setoff — Joint and Several Demands.</p> <p>A joint and several debt against two or more may be offset against a debt due either of them.</p> <p>2. Same — Assignee of Judgment.</p> <p>The assignee of a judgment recovered in an attachment suit, with notice that the property in controversy had been taken and converted by a third person under a claimant’s bond for the trial of the right of property, takes it subject to any existing defenses, including that of setoff, to a judgment on the claimant’s bond which could have been urged against the assignor.</p> <p>3. Same — Action Upon Claim Bond — Liquidated Damages.</p> <p>The statutory action on a claimant’s bond for trial of the right of property is not one for unliquidated damages, as to the right of setoff, where the amount sought to be recovered is agreed upon, and is determined by a judgment in plaintiff’s favor in another action, so that only the statutory penalty on the bond is to be added.</p> <p>4. Same — Setoff in Trial of Bight of Property.</p> <p>Where, in the statutory trial of the right of property, it is shown that plaintiff is insolvent and a non-resident, owning no property within the jurisdiction of the court except the claim then in suit, the defendant may setoff against defendant’s claim on the bond a debt due to himself by the plaintiff.</p>

<p>1. Evidence — Secondary Proof of Patent — Certified Copy.</p> <p>Where the record of the General Land Office of a land patent was put in evidence, but contained interlineations and erasures which rendered it doubtful as to what person the patent originally issued, and it was shown that the original patent could not be procured, a certified copy of such patent from the records of the county in which the land was situate was properly admitted; as was also the testimony of witnesses to the effect that the original patent was issued to defendant’s ancestor and contained no interlineations or erasures, such testimony being merely cumulative of the contents of such certified copy, and not objectionable as varying the land office records.</p> <p>2. Trespass to Try Title — Unrecommended Land Certificate.</p> <p>In an action of trespass to try title, a mere unrecommended land certificate, issued to plaintiff’s ancestor, is insufficient to support the action, in the absence of a showing of the legal title to the land.</p> <p>3. Same — Proof of Proceedings in Another Action.</p> <p>Where plaintiffs in trespass to try title claimed under an unrecommended land certificate, and defendants claimed under an alleged transfer of such certificate to their predecessor in title (of which transfer their proof was not legally admissible), and a subsequent patent from the State, the record of proceedings in a suit against the State begun by defendants’ predecessor in title, reciting such alleged transfer and resulting in a judgment ordering a patent to issue in such predecessor’s name, was admissible as part of the history of the title, and also to show that the patent was actually so issued, and the manner of its issuance, and, in connection with other facts, to show open and notorious claim to the land on the part of defendants.</p> <p>4. Same — Land Certificate — Presumption of Transfer.</p> <p>Where defendants claimed under an alleged transfer of a land certificate, their proof of which transfer was not legally admissible, and it was shown that they and their grantors had made open, notorious and continuous claim of title to the land for nearly fifty years from and after the date of such alleged transfer, and had paid all taxes on the property, and that during such time plaintiffs had made no claim of title, a transfer of such certificate will be presumed.</p> <p>5. Land Certificate — Transfer by Husband — Presumption as to Community Property.</p> <p>Where a headright certificate which was community property was transferred by the husband after the death of the wife, it will be presumed, after the lapse of nearly fifty years, that such transfer was made to pay community debts.</p> <p>6. Practice — Admission of Evidence — Harmless Error.</p> <p>Error of the court in admitting in evidence a certified copy of a transfer of a land certificate to defendants’ grantor from the records of a county in which the land was not situated, is harmless, where there was already sufficient evidence in the case to establish, by presumption, the existence of such transfer.</p> <p>7. Same.</p> <p>The exclusion of evidence which should have been admitted is harmless error, where, if admitted, it would not probably have affected the result.</p>

<p>Telegraph. Company — Special Delivery of Message in Country — Contract Construed.</p> <p>A telegraph company received a message for transmission to a point on its line; agreeing to there hire a special messenger and send it to the addressee at a named postoffice in the country. Held, that it was the company’s duty to find the man addressed, if by reasonable efforts and inquiry he could be found anywhere in the vicinity of the postoffice addressed, it being presumably known to both parties that the place addressed was a country postoffice in the vicinity of which the addressee lived.</p>

<p>1. Carrier — Notice of Claim for Damages.</p> <p>In a suit for injury to stock transported by rail, based on a contract requiring the shipper to give notice of his claim, plaintiff need not allege nor prove the giving " of such notice, and the burden of proving absence thereof is not met by defendant showing that such notice was not given to its local agent, where under the contract it might have been given to its general officers. Rev. Stats., art. 3379; Railway v. Greathouse, 83 Texas, 105.</p> <p>2. Same.</p> <p>A contract requiring a shipper to give notice to the carrier of his claim for damages within less than ninety days is made void by Act of March 4,1891. Rev. Stats., art. 3379.</p> <p>3. Damages.</p> <p>Three hundred dollars for damages to a jack in transportation, held sustained by the evidence, '</p> <p>4. Immaterial Error.</p> <p>Error in overruling defendant’s special exceptions to loss of profits alleged by plaintiff as ground for damages, becomes immaterial where the findings of the court show that such profits were excluded from consideration in estimating the damages.</p>

<p>1. Judgment — Fraud—Notice—Collateral Attack.</p> <p>A suit in trespass to try title, brought by a former owner of land against a purchaser from one who had recovered it by suit from plaintiff, in which action such vendor is also made a defendant and the former judgment sought to be attacked for fraud of which such vendee had notice, is maintainable and not subject to the objection that it is a collateral attack upon the judgment.</p> <p>2. Notice of Title by Possession — Tenant—Fraud in Lease.</p> <p>Possession of land by one who holds under a recorded lease is not notice of a title in the possessor other than under such lease; and the effect of the lease in qualifying the notice implied from the holder’s possession is not destroyed by the fact that its acceptance was obtained by frond unless the person sought to be taxed with notice is shown to have had knowledge of such fraud.</p>

<p>Pleading — Consideration—Extension of Note.</p> <p>An answer to a suit upon a promissory note alleging an extension of time for a valuable consideration, followed by an allegation of part payment at maturity on promise to extend the time, was not subject to special demurrer on the ground that it showed no consideration. The general allegation of consideration was sufficient, and it might have consisted in an agreement by payee to relinquish his right of payment. (Benson v. Phipps, 87 Texas, 580.)</p>

<p>Exemptions — Sale for Taxes.</p> <p>The exemption provided by Rev. Stats., art. 5065, is from taxation, not from sale for taxes due by the owner, to which all personal property is liable under art. 5176. A sewing machine belonging to a married man having less than two hundred and fifty dollars in value of household and kitchen furniture can be sold for his poll tax.</p>

<p>There was a former trial, appeal, and reversal upon an opinion reported in 4 Texas Civ. App., 213.</p>

<p>Attachment — Abatement of Writ.</p> <p>An attachment procured upon a petition which fails to show or does not show correctly whether the debt was due or not can not be abated on'a plea showing that only part of the debt was due at the time it was procured.</p>

The Rayner Cattle Company brought the suit against Bedford to recover on notes alleged to be given in consideration of a quit-claim deed to land, and for foreclosure of the vendor’s lien thereon. Defendant pleaded general denial and failure of title. The court directed a verdict for plaintiff for the amount of the notes and gave judgment therefor, with foreclosure of lien, from which defendant appealed.

<p>1. Mortgage of Live Stock — Description.</p> <p>A description of property in a mortgage as, “all of the horse stock, of every kind whatsoever, branded and unbranded, that are now owned by us in Nolan and adjoining counties of the State of Texas,” is sufficient. Articles 4940, 4941 and 4943, Rev. Stats., 1896 (4262, 4263 and 4264, Rev. Stats., 1879), requiring number, marks and brands to be given, apply to sales, not to mortgages.</p> <p>2. Evidence — Subscribing Witnesses.</p> <p>Where subscribing witnesses to an unacknowledged chattel mortgage were shown to be beyond the limits of the State its execution was properly proved by the grantee.</p> <p>3. Fraud — Evidence—Res Inter Alios.</p> <p>In proof of fraud, judgment against the party charged, in a suit by third parties, and acts and declarations of parties charged to have combined with him to commit the fraud, were not admissible.</p> <p>4. Attaching Creditors — Rights Against Debtor’s Mortgagee.</p> <p>In trial of right of property between a mortgagee and attaching creditors of the mortgagor, the mortgage being sustained, the mortgagee was entitled to retain possession till it was discharged, but the attachments being valid against the mortgagor, the creditors should be permitted to sell subject to the mortgage, and it was error to render judgment discharging the property from their liens.</p>

<p>Passenger’s Baggage — Delay.</p> <p>It is the duty oí a carrier to transport the passenger’s baggage in a reasonable time, but not necessarily on the same train: and where, by reason of the baggage car being full, it was transported to the point checked to on the next train, the passenger having continued his trip over another road without it and thus being deprived of its use for ten days during the trip, no failure of duty on the part of the carrier was shown.</p>

<p>1. Homestead — Rural Becomes Urban, When.</p> <p>When a rural homestead is brought within the corporate limits of a city over the protest of the owner, but he subsequently acquiesces by the dedication of city streets through his property, his rights become subject to the limitations applicable to urban homesteads.</p> <p>3. Urban Homestead — Value—Evidence.</p> <p>Where a rural homestead has been brought within the corporate limits of a city, evidence of the value of the block of ground upon which the residence is situated after the date of the acquiescence of the owner in the change is admissible, since his homestead rights are to be determined by the rules governing urban homesteads.</p> <p>3. Same — Lot Rented Out.</p> <p>When a lot claimed as a part of the urban homestead was, at the time of the recording of an abstract of judgment, being cultivated by another than the owner, upon an agreement for a division of the profits, such lot is subject to the judgment lien.</p> <p>4. Same — Products for Home Consumption.</p> <p>The use of a city lot to raise products for home consumption, is a use of such property for the purposes of a home.</p>

<p>Hallway Crossing — Accident at Crossing — Contributory Negligence as Matter of Law.</p> <p>Plaintiff’s wife had intended to cross the defendant’s railway track at a point some distance south, but finding a train there, and looking to the north and seeing none approaching from that direction, she decided to cross at another street. Before crossing there, she looked to the south, but not again to the north. She was struck on the crossing by a train from the north, which was moving with great speed, and which had not sounded its whistle or rung its bell. There was a strong wind from the south, and trees and other objects obstructed her view to the north. Held, that her negligence was not such as to debar her from recovering, as a matter of law, and the question should have been left to the jury.</p>

<p>Service on Non-Resident — Foreclosure of Vendor’s Lien.</p> <p>A vendor’s lien on land may be foreclosed, as against a non-resident defendant, on Service of the statutory notice.</p>

<p>1. Railway Company — Ejecting Trespasser from Train — Degree of Care.</p> <p>The degree of care required of a railway company in ejecting a trespasser from its train is such as considerations of humanity would demand, and the authorities do not place the degree of care upon a lower plane than that of reasonable and ordinary care.</p> <p>2. Same — Duty of Brakeman in Ejecting Trespasser — Burden of Proof.</p> <p>In an action against a railway company for injury received by reason of a brakeman ejecting a trespasser from the train, the burden of proving that the brakeman was acting within the scope of his authority in so doing was upon the plaintiff.</p> <p>3. Same — Apparent Danger Need Not be Real.</p> <p>The evidence showed in an action against a railway company for personal injury, that plaintiff was on defendant’s freight train as a trespasser; that he was a man of weak mind; that defendant’s brakeman ordered him to get off the train while it was moving rapidly; that plaintiff said he would if the train was stopped; that the brakeman told him that if he did not get off, he would get his gun and kill him, and started towards the caboose; and that plaintiff, believing he would execute his threat, jumped off the train and was injured. Held, that a requested instruction which made defendant’s liability depend on a gun being in the caboose, and the ability of the brakeman to put his threat into execution at the very time plaintiff jumped from the train, was properly refused.</p> <p>4. Practice on Appeal — Leave to Pile Motion for Rehearing.</p> <p>Leave will not be granted, after the expiration of 15 days from the rendition and entry of judgment by the appellate court, to file a motion for a rehearing, where an insufficient excuse is given for the failure to file it within the 15 days.</p>

<p>1. Fire Insurance Policy — Description of Building.</p> <p>The appellant company insured a building which was described in the policy as a two story metal roof building, occupied as a hotel, and known as the Central Hotel, and also the furniture therein. The rear part of the building was only one story, and part of the furniture was therein. The insurance agent officed in the building, and was familiar with its structure. Held, that the policy was not vitiated or affected by a misdescription of the property.</p> <p>S. Same — Sole Ownership — Subsequent Adverse Claim.</p> <p>After the policy was issued, a part of one of the walls of the building was claimed by a third party, who demanded lease rent therefor. The assured, who knew nothing of this claim when the insurance was effected, inquired of the insurance agent if the policy would be affected by such proposed lease, and was told that it would not. Held, that the policy was not vitiated by reason of the assured not being the sole owner of the property, as stated in the policy.</p>

<p>1. Limitations — Lands Deeded by Ancestor.</p> <p>Heirs cannot prescribe under the statute of limitations, when their ancestor has conveyed the premises by his deed.</p> <p>2. Estoppel — Representations Without Knowledge.</p> <p>An estoppel in pais cannot arise from representations made without knowledge of the facts, and without the intention that they should be acted upon.</p> <p>3. Trespass to Try Title — Charge of Court — Identification of Land.</p> <p>In trespass to try title, where the description of the land in plaintiff’s petition is copied from his deeds, and where the issue is whether the land in controversy is that described in plaintiff’s deeds, extrinsic evidence being necessary to identify it, it is error for the court to charge the jury that, if the land sued for and described in plaintiff’s petition is the same tract as that described in the deeds introduced in evidence, they would find for plaintiff.</p> <p>4. Deeds — Quit-claims—Purchaser in Good Faith.</p> <p>Deeds conveying only the “right, title, interest, and claim.” of the grantors or< mere quit-claims, and one holding under them cannot claim as a purchaser in good faith.</p> <p>5. Charge of Court — Wrong Reason Given.</p> <p>A charge founded on the wrong reason is not erroneous, when a good reason is apparent from the record.</p> <p>6. Acknowledgment Before Justice of the Peace — Seal—Notice.</p> <p>An acknowledgment taken before a Justice of the Peace, who is an ex officio notary public, should have a notary’s seal affixed, to entitle the instrument to record; and ii it has not, the record is not constructive notice.</p> <p>7. Defective Acknowledgment — Presumption on Appeal — Notice.</p> <p>Where on the trial the execution of a deed was proved as at common law, and there arises a doubt as to whether it was properly acknowledged, the appellate court will not presume that it was; and therefore its record carried no notice.</p> <p>8. Improvements — Defective Record of Deed — Diligence.</p> <p>Where the record of a deed carried no notice, on account of a defective acknowledgment, one placing improvements on the land conveyed by such deed, after due diligence to ascertain the location of his own land as separate from that of the grantee therein, being after such diligence mistaken as to its location, is entitled to recover the value of such improvements.</p> <p>9. Record of Deed — Notice—Description.</p> <p>The record of a deed will be constructive notice, if one, taking the description contained therein, can, from and by it, go upon the land and identify it.</p> <p>10. Erection of Improvements — Care in Ascertaining Title to Land.</p> <p>Where one has knowledge that another owns land in a certain survey, it is his duty to use ordinary care, before making improvements, to ascertain that the land in that survey on which they are to be placed is his.</p>

<p>1. Jurisdiction — Injury in Foreign Country — LexLoci.</p> <p>In an action between citizens of this State for damages for an injury inflicted in a foreign country, where the wrong is one for which a remedy was given at common law, the presumption will prevail that the common law is in force in the foreign state, and the remedy will be applied.</p> <p>2. Pleading — Amended Petition — New Cause of Action not Set up.</p> <p>Plaintiff’s third amended petition alleged that he was injured by the wreck of a railway train of the defendant on which he was a passenger, caused by the “giving way of a bridge.” His fourth amended petition, upon which the trial was had, alleged that the wreck of the train “was occasioned by a defective roadbed within a few feet of abridge.” The two petitions were almost identical in other respects. Held, that a new'cause of action was not set up by the latter.</p> <p>3. Railway Company — Damages for Future Suffering — Charge of Court.</p> <p>In an action for personal injuries, the charge permitted plaintiff to recover damages for “what he may suffer hereafter in consequence thereof.” Held, that the charge was not erroneous, since it made the consideration of future suffering as an item of damages contingent on its existence, which is all that is required.</p> <p>4. Damages for Personal Injuries — Amount not Excessive.</p> <p>Where plaintiff had his leg broken in two places, and also had ribs broken, and the broken leg is shorter than the other, and continually pains him, and curvature of the spine has resulted, the injuries being permanent, a verdict for $5000 was not excessive.</p>

<p>1. Pleading — Cross-Action—Implied Warranty of Title.</p> <p>In an action for the recovery of personal property, the defendants can properly make their vendor a party to the suit, and in the event of judgment against them, they are" entitled to recover from him upon an implied warranty of title the purchase price paid by them, with interest; but the amount of their demand should be alleged, as it does not follow that the recoveries would be in the same amount.</p> <p>3. Same — Exemplary Damages — Jurisdictional Amount on Appeal.</p> <p>In an action for the recovery of personal property, the defendants impleaded their vendor and prayed judgment over against him, in the event of a recovery against them, and also prayed for exemplary damages for maliciously and willfully taking the property sued for without their consent. Held, that there being nothing to show any connection between the claim for actual and for exemplary damages, the defendants were not entitled to recover the exemplary damages; and the amount involved being thus reduced below $100, the appellate court is without jurisdiction.</p>

<p>1. Carriers of Passengers — Degree of Care — Intoxicated Passenger.</p> <p>A carrier of passengers is held to the exercise of a high degree of care in providing for the comfort and convenience of passengers, and the power is given it to expel or exclude from its ears any person whose conduct or condition is such as to ren der rudeness or disturbance inevitable or reasonably probable; but the mere fact that an individual may have drunk to excess will not justify his expulsion from a public conveyance, if he appears to be peaceably inclined, and is not interfering with anyone.</p> <p>¡3. Same — Injury by Fellow Passenger Hot Anticipated.</p> <p>A passenger apparently in an intoxicated condition was asleep on a railway train. As he awoke and got up, a small pistol fell from his pocket, and was discharged as it struck the floor, the ball entering the foot of another passenger and seriously injuring him. There was nothing which could cause the ¡employes' of the railway company to anticipate such an accident, and the conduct of the drunken passenger would not have justified the carrier in refusing him admittance to the car or in ejecting him. Held, that the facts did not justify a verdict for damages against the carrier.</p>

<p>1. Evidence to Discredit Witness — Limited by Charge — Hearsay.</p> <p>Plaintiff claimed title under a deed to himself which disclosed that part of the consideration was paid in cash, and the remainder by his brother’s note. Defendant claimed through and under a deed of trust from the brother, given to secure a loan to him, and made on his sworn application reciting that he was owner of the' land. The brother testified on the trial that plaintiff was the owner, and the issue was whether plaintiff, as grantee of the land for which his brother paid the consideration, was merely a trustee of the naked leigal title, Held, that evidence of the application for the loan was hearsay as to plaintiff, and its admission was error, Without a charge restricting its effect to discrediting the brother’s testimony in the case.</p> <p>3. Trespass to Try Title — Evidence of Title.</p> <p>Where defendant claims title to the land as purchaser at a sale under a trust deed, such deed of trust, the deed made by the trustee after the sale, and a judgment in favor of the purchaser, based thereon, by which he recovered possession of the premises from the grantor in the trust deed, are admissible in evidence, although such grantor was not connected with the written record title, defendant alleging the real and equitable title to be in him.</p> <p>S. Purchase of Land — Deed to Another — Presumption.</p> <p>Where one brother purchases and pays for land, no presumption arises from the fact of his having the deed made to another brother that he intended it as a gift, the relationship between the parties not being such as to authorize it.</p> <p>4. Same — Resulting Trust — Presumptions From Recitals.</p> <p>When the recital in a deed of a payment of the purchase money does not show by whom it was made, the presumption is that it was paid by the grantee; but where the deed recites payment by another than the grantee, the burden is on the grantee to show that he acquired by the deed the equitable as well as the legal title.</p> <p>5. Same — Evidence Insufficient to Overcome Presumption.</p> <p>Where a deed recited that the consideration was partly cash and in part the note of another than the grantee, the fact that the cash was handed to the grantor by such other, the maker of the note, does not overcome the presumption arising from the deed, that it was paid by the grantee, where the evidence shows that the money belonged to him, and that such other person in paying it acted only as his agent.</p> <p>6. Resulting Trust — Fraud—Notice.</p> <p>Where defendant was induced by fraud to furnish money to another, which was used by the latter in payment of part of the price of land, title to which was taken in the name of a third person, defendant is not entitled to a proportionate interest in the land, on the theory of resulting trust, regardless of whether such third person, the holder of the title, was chargeable with knowledge of the fraud or whether he had compensated the borrower for the money paid out for him by the latter.</p>

<p>1. Fixtures — Mill Machinery — Right of Removal — Chattel Mortgage.</p> <p>Machinery for the operation of a gin and mill, such as gin stands, presses, shafting and pulleys, etc., which is not permanently attached to the building, but maybe removed without injury to the realty, is subject to removal under a chattel mortgage given for its purchase price and reciting that it should be considered as chattels until paid for.</p> <p>2. Same — Prior Vendor’s Lien as Attaching Against.</p> <p>Such mill machinery, being capable of removal without injury to the realty, did not become subject to a prior vendor’s lien on the mill building and lot, although placed and used in the mill without the knowledge of the holder of such vendor’s lien.</p> <p>3. Same — Reformation of Chattel Mortgage — Mutual Mistake.</p> <p>It was proper, in an action to foreclose a chattel mortgage on machinery placed in a gin and mill, to reform the mortgage so as to include an article omitted therefrom by mutual mistake; and the holder of a prior vendor’s lien on the mill building and lot had no right to resist such correction and the enforcement of the mortgage as corrected.</p>

<p>1. Costs — Amendment Setting up New Cause of Action.</p> <p>Where plaintiff’s petition in an action to recover land alleged that a deed thereof which she had executed to defendant was in fact a mortgage, and that she relied upon false representations by defendant as to the quantity of the land, and her amended petition made no claim that the deed was a mortgage, but alleged more fully the false representations, it was not such an amendment setting up a new cause of action as warranted the taxing against her of all costs prior to its filing.</p> <p>2. Statute of Frauds — Verbal Agreement to Reconvey Land.</p> <p>A verbal agreement by the grantee to reconvey land deeded to him absolutely is within the statute of frauds, and cannot be proved.</p> <p>S. Sale of Land — False Representations as to Quantity — Special Issues.</p> <p>Plaintiff’s petition, in an action to recover land, alleged that she was induced to convey to defendant by reason of her reliance on Ms false representations as to the quantity thereof, of which she was ignorant; and defendant testified that while he. expressed an opinion as to the number of lots, he did not know the quantity, and that he intended to buy the whole tract, without reference to its quantity. The case was submitted to the jury upon special issues. Held, that the court erred in refusing to submit to the jury special issues as to whether defendant stated the size, of the tract as a fact, or merely expressed his opinion as to the quantity; and whether plaintiff was as well acquainted with the land as the defendant; and whether plaintiff agreed to sell the property in gross or by lot, and the terms of such sale; and whether the parties took chances of profit and loss in buying and selling the property.</p> <p>4. Same — Issue Without Evidence.</p> <p>Where there was no evidence of any mutual understanding as to how much land was embraced in the tract, it was error to submit issues to the jury upon the theory that both parties understood and estimated the amount of land at the time the deed was made.</p> <p>5. Same — Immaterial Issue.</p> <p>Where defendant agreed, as part consideration for the deed, to make certain repairs of an agreed value to plaintiff’s houses on other lots, and admitted that he had afterwards agreed to release plaintiff from such repair contract, the amount of the repairs thereupon became a money demand against him, and it was an immaterial issue as to whether plaintiff, upon such agreement to reconvey the property, made-a trade of it to another person.</p>

<p>1. Mortgage or Assignment for Benefit of Creditors — Instrument Construed.</p> <p>An instrument executed by an insolvent merchant conveying to a trustee his entire stock of goods, book accounts, etc., to be sold and the proceeds applied to the payment of his creditors in the order designated therein, the surplus, if any, to be returned to such ceding debtor, is a mortgage, and not a general assignment for the benefit of creditors. Following Tittle v. Yanleer, 34 S. W. Rep., 715.</p> <p>2. Same — Right of Secured Creditor as Against Other Creditors — Usury,</p> <p>A secured creditor of an insolvent debtor may plead usury against the claims of a preferred creditor and have such claims purged, and it is error for the court to refuse to strike out usurious interest clearly shown by the evidence.</p> <p>3. Same — Marshalling Securities.</p> <p>A creditor of an insolvent debtor, secured by mortgage with another creditor, also has a right to the marshalling of the securities held by such other creditor against the common debtor, and to have such securities applied to the debt of such other creditor before he will be allowed to participate in the common fund.</p>

<p>1. Practice — Evidence—Interrogatories to Party to Suit not Taken as Confessed.</p> <p>A party to a suit failed to answer cross-interrogatories propounded to him as an adverse party, because the notary refused to permit him to take them to his attorney for counsel thereon. Afterwards his deposition was taken in answer to other interrogatories propounded to him as an adverse party, and he also testified fully at •the trial. Held, that it was not error to refuse to allow the original cross-interrogatories to be taken as confessed.</p> <p>2. Pleading — Trust Fund — Sufficiency of Allegations.</p> <p>For allegations in an action to follow a trust fund held sufficient to show the amount of the fund which went into a stock of attached goods, and the amount thereof to Which plaintiffs were entitled, see the opinion.</p> <p>3. Trust Fund Misappropriated — Priority of Lien of Beneficiaries and Attaching Creditors.</p> <p>Where a trustee misappropriated the trust funds and mingled them with other property of his own in the purchase of a stock of goods, his creditors by attaching the goods did not thereby acquire a lien superior to that of the beneficiaries in the trust.</p> <p>4. Practice — Judgment by Default Upon Cross-Bill.</p> <p>Where defendants filed a cross-bill and no citation was issued to the parties, against whom it was directed, and they did not waive the citation on the cross-bill,, it was not error to refuse judgment by default upon the cross-bill, and to permit an answer to be filed to the cross-action before the trial was begun.</p> <p>5. Same — Challenges to Jury.</p> <p>Where the interests of plaintiffs and defendants against whom other parties are seeking relief by cross-bill are adverse to each other, they are each entitled to six peremptory challenges in the formation of the jury.</p> <p>6. Trust Deed for the Benefit of Creditors — Acceptance.</p> <p>Where the beneficiaries of a mortgage t o secure creditors notify the trustee of their acceptance, this is sufficient to fix his responsibility to them, without notice to the mortgagor.</p> <p>7. Variance — Description of Note.</p> <p>Where in an action to enforce a trust the trust deed or mortgage describes the note scheduled therein as due to J. K. B. and signed by W. & H. as sureties, and the evidence shows that such a note was due to the wife of J. K. B., and that no note was due to the husband, there is no such variance as will render inadmissible evidence to show that the wife assented to the mortgage.</p> <p>8. Trust Deed — Acceptance by Surety.</p> <p>Where the trust deed itself shows that it was intended to secure debts for which another is surety, the surety can accept for his principal.</p> <p>9. Trust Fund — Bight of Preference.</p> <p>Where a trustee misappropriates trust funds, and is unable to replace them, he may protect the beneficiaries by a mortgage as preferred creditors, if he does not require immunity from criminal prosecution osa consideration therefor.</p> <p>10. Same — Preference Does not Bender Trust Deed Invalid, When.</p> <p>Where a debt is such that it cannot be lawfully preferred in a trust deed over other creditors, its preference will not, unless there is an illegal consideration therefor, or fraudulent intent therein, of which the other creditors have notice, invalidate the trust deed as to them.</p> <p>II. Costs — Cross-Action—Discretion of Court.</p> <p>Where defendants lose their case against plaintiffs, and against other parties against whom they filed a cross-bill, it is within the discretion of the court to tax against the cross-petitioners the entire costs of the suit.</p>