Volume 193 — South Western Reporter

<p>Exemptions <§=m4S — ‘ ‘Tool’ ’ — “Apparatus.”</p> <p>A well-drilling rig, consisting of boiler, engine, rotary, pumps, and other parts of complicated machinery, held not a tool or apparatus exempt to an oil driller from execution sale.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Apparatus; Tool.]</p>

Dannenbaum, Judge. The First National Bank of Houston intervened in receivership proceedings for the Cane & Rice Belt Irrigation Company, and from the judgment appeals adversely to Ben Campbell and others.

<p>1. Deeds &wkey;>208(l) — Delivery—Sufficiency of Evidence.</p> <p>In a suit of trespass to try title and to recover rents, evidence held insufficient to raise the issue of the nondelivery of the deed to the land by the deceased owner to plaintiff, his son.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 625, 630.]</p> <p>2. Evidence <&wkey;390(l) — Parol Evidence Affecting Writing — Deeds.</p> <p>In trespass to try title, where the court in submitting the question properly assumed delivery of the deed to plaintiff by the owner of the land, the legal effect of the execution and delivery of the deed could not be changed by a jury finding that the owner did not intend that the deed should pass title until his death, since, when actual delivery of a deed is shown, the deed defines its purpose, and cannot be contradicted except upon ground of fraud, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1720.]</p> <p>3. Mortgages <&wkey;>258 — Bona Fide Purchaser of Note — Foreclosure of Lien.</p> <p>An innocent purchaser of notes, secured by a deed of trust upon land, who acquired the instruments in due course before maturity, paying value to a party who had no notice when he purchased of the existence of the deed to the land from the maker of the notes to his son, or notice of any defense to the notes, was entitled to protection as an innocent purchaser for value, and to have his lien foreclosed in the son’s suit to recover title, possession, and rental value.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 689-691.]</p> <p>On Motion, for Rehearing Filed by Appellant.</p> <p>4.Mortgages <&wkey;258 — Innocent Purchaser for Value — Consideration:</p> <p>While cancellation of a pre-existing debt is not alone sufficient consideration to protect the purchaser or mortgagee against a prior title of which lie had.no notice, if, in addition, some other consideration of value is given for the execution of the deed or mortgage, the person claiming under the instrument is protected as an innocent purchaser.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 689-691.]</p>

G. Street, Judge. Action by Walter T. Smith, temporary administrator, under Compensation Act, to recover compensation for the .death of Chas. A. Lewis, employé, against the Southern Surety Company, insurer. Judgment for insurer, and plaintiff appeals.

<p>Appeal from District Court, Liberty County.</p> <p>Action to contest will of Miles F. Berryhill by C. .W. Berryhill and others against Ida Berryhill, proponent. Judgment for proponent, ancf contestants appeal.</p>

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Action by Charles Hoya against T. J. Self. Judgment for defendant, and plaintiff appeals.</p>

A. McDowell, Judge. Suit by Mrs. J. E. Fant and others against the City Commissioners of Port Arthur and others to restrain the construction of a drainage ditch. Injunction granted, and defendants appeal.

<p>Appeal from District Court, liberty County; J. Llewellyn, Judge.</p> <p>Action by O. A. Brown and another against Wesley Fisher. Judgment for defendant, and' plaintiffs appeal.</p>

<p>On Motion for Rehearing.</p> <p>1. Acknowledgment <&wkey;36(l) — Certificate —Sufficiency.</p> <p>A certificate of acknowledgment before a notary public showing substantial compliance with the law under which it is made is sufficient.</p> <p>[Ed. Note. — Eor other cases, see Acknowledgment, Cent. Dig. § 181.]</p> <p>2. Acknowledgment <&wkey;36(2) — Certificate —Sufficiency.</p> <p>A certificate of acknowledgment of a conveyance before a notary public made under the law requiring that the subscriber shall be personally known to the officer or proved to be such by the oath of a credible witness, which fact shall be stated in the certificate, is insufficient where it merely recited that the subscriber was represented to the notary to be the identical person whose signature appeared as a witness to the transfer annexed; the language of the certificate tending to show that the notary was not convinced of the identity.</p> <p>[Ed. Note. — Eor other cases, see Acknowledgment, Cent. Dig. §§ 188-191.]</p> <p>3. Vendor and Purchaser &wkey;>244 — Bona Fide Purchasers for Value — Who Are.</p> <p>In an action of trespass to try title, evidence held to warrant a finding that a purchaser was an innocent purchaser for value, without notice of the transfer of the certificate under which plaintiff claimed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611.]</p> <p>4. Evidence <&wkey;186(6) — Secondary Evidence — Ancient Documents.</p> <p>Where records of a county are shown to have been destroyed by fire, recitals in sheriff’s deed nearly 40 years old, which was an ancient instrument, are sufficient to show that the sale was made on execution under a valid judgment, and the deed cannot be excluded on the ground that it was only secondary evidence of the facts recited.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 667.]</p> <p>5. Execution <©==127 —Levy—Sale.</p> <p>Where the plaintiffs and defendants in each execution were the same, the sheriff might levy on the land to satisfy the three different executions.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 282-286.]</p> <p>6. Execution <&wkey;222(2) — Sale—Notice. ■</p> <p>Where proper notice was given of a sale under one of three executions levied on land, in which the parties were the same, the sale was valid, though notice was not given under the other executions.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 631, 633.]</p> <p>7. Vendor and Purchaser &wkey;>251 — Vendor’s Liens — What Constitute.</p> <p>Where a deed recited the payment of a cash consideration, notes which the grantors took up by deeding the land to the grantee cannot, because of a recital in the deed that they were of even date therewith, establish that they were a lien on the land.</p> <p>[Ed. Note. — For other' cases, see Vendor and Purchaser, Cent. Dig. §§ 624-635.]</p> <p>Brooke, J., dissenting.</p>

<p>1. Carriers <&wkey;305(l), 411 — Injury to Passenger-Concurrent Proximate Causes.</p> <p>Negligence of the Pullman Company in not closing the gate at the end of its ear next the baggage car when the train stopped where it knew the train would be cut between the two ears, and negligence of the railway company in cutting the train without seeing that the gate was closed, were concurrent proximate causes of injury to a passenger from the cutting of the train as she was stepping from one to the other of such cars.</p> <p>[IOd. Note. — For other cases, see Carriers, Cent. Dig. §§ 1136-1139, 1245, 1579, 1581.]</p> <p>2. Negligence <&wkey;136(3) — Proximate Cause-Determination by Court.</p> <p>Any duty of the court to determine proximate cause was performed when, on the jury’s special findings of negligence of each defendant being a proximate cause, it rendered judgment against both.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 280.]</p> <p>S. Appeal and Error &wkey;>729 — Assignment oe Error — Sueeiciency.</p> <p>Assignment of error, “Because the court erred in submitting * * * any question that * * * could or did suggest * * * that there were joint duties and liabilities of defendants,” is insufficient to point out the matter complained of; many issues being- submitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3013.]</p> <p>4. Appeal and Error <&wkey;1050(l) — Harmless Error — Admission oe Evidence.</p> <p>Admission of testimony as to duty of employes is not reversible error; other like testimony, subject to the same objection, that it disclosed that the witnesses were not qualified to testify, being admitted without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]</p> <p>5. Appeal and Error <&wkey;683 — Kecord—Ke-view — Objections to Deposition.</p> <p>It not appearing how long the deposition had been on file, right to make objection, at the trial, to it, relating to the form and manner of taking it, is not apparent.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2907.]</p> <p>6. Appeal and Error <&wkey;1060(l) — Harmless Error — Argument.</p> <p>Any error in permitting counsel in argument to jury to read and comment on a part of the original answer was harmless, where it could not, especially in view of findings of the jury, have had any influence on them in determining the issues, and the amended answer was practically the same.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135.]</p>

Pierson, Judge. Action by D. J. Harris against W. N. Williams, executor. Judgment for plaintiff, and defendant appeals. Louisa J. Harris, aunt of appellee, died intestate in Hopkins county, Tex., on March 26, 1913. The deceased, a feme sole, left an estate amounting to about $35,000, consisting of land, money, notes, accounts, and live stock.

Pierson, Judge. Action by Dollie Adams and others against W. N. Williams, executor. Judgment for plaintiffs, and defendant appeals. Louisa J. Harris, aunt of appellee Dollie Adams, died intestate in Hopkins county, Tex., on March 26, 1913. The deceased, a feme sole, left an estate amounting to about $35,000, consisting of land, money, notes, accounts, and live stock.

<p>Appeal from District Court, Jefferson County ; W. H. Davidson, Judge.</p> <p>Action by Thomas H. Langkam, receiver of the McFaddin-Wiess-Kyle Land Company, against the Texas Rice Land Company. Judgment for plaintiff, and defendant appeals.</p>

Goodwin, Judge. Action by F. B. Weaver against G. C. Cathey and others. Defendants other than Cathey were defaulted. Judgment for plain, •tiff, and Cathey appeals.

R. Owen, Judge. Suit by J. H. Batterson against the Houston & Texas Central Railroad Company. From a judgment for plaintiff against defendant and the surety on its appeal bond on appeal from the judgment of a justice, defendant and the surety appeal.

<p>Appeal from Knox County Court; J. H. Milam, Judge.</p> <p>Action by William Rea and others against Dave Evans and others. From a judgment for plaintiffs, deffendants appeal.</p>

H. Arnold, Judge. Action by J. L. Pierce against W. G. Lang-ston and others, in which defendants filed a cross-complaint. From a judgment for plaintiff, but -denying him a foreclosure of his attachment lien and the overruling of his motion for a new trial, he appeals.

Calhoun, Judge. Suit for injunction by the Pecos & Northern Texas Bailway Company against the Bailroad Commission of Texas. From a judgment for defendant and from the refu'sal of a motion for a new trial, the plaintiff appeals. Statement of the Case.

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Suit by Cornell & Wardlaw assignees of Charles S. Rees, against the Russell Oil Company wherein Clair McCormick and others, as receivers, intervened. Judgment for plaintiffs, and interveners appeal.</p>

<p>1. Appeal and Error <&wkey;>1053(3) — Reversal —Prejudicial Evidence.</p> <p>Whether a case will be reversed because of testimony introduced calculated to prejudice jury, when court instructed jury to disregard it, will depend on particular facts of each case.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4180-4182; Trial, Cent. Dig. § 977.]</p> <p>2. Appeal and Error <&wkey;1053(3) — Reversal —Prejudicial Evidence.</p> <p>Where a verdict against insurer was supported by the evidence, and jury were directed to disregard witness’ statements as to payment of a policy by another company, not called for by the question, and counsel asking it conceding the objection will be taken, it will not be reversed.</p> <p>[Ed. Note. — Por other eases, see Appeal and Error, Cent. Dig. §§ 4180-4182; Trial, Cent. Dig. § 977.]</p>