Volume 223 — South Western Reporter

<p>1. Municipal corporations &wkey;>733(2) — City responsible for damages arising out of erection and operation of sewerage plant.</p> <p>If a sewerage plant could not be constructed and operated, however compelling the necessity for it, without doing injury to the property of a citizen, then the city must stand the loss, and is hound to compensate the citizen for the damage suffered.</p> <p>2. Eminent domain &wkey;>69 — Property taken or damaged must be paid for.</p> <p>Property may not be “taken” for a public use, nor can it be damaged, unless the citizen is compensated to the extent of the damage.</p> <p>3. Nuisance i&wkey; I — Definition.</p> <p>Anything that works hurt, inconvenience, or damage, or which is done to the hurt of the lands, tenements, or hereditaments of another, is a nuisance, and it is not necessary that the annoyance should endanger health; it being sufficient if it occasion that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and- Second Series, Nuisance.]</p> <p>4:. Municipal corporations <§=5736 — Sewerage system a nuisance.</p> <p>The construction and operation of a sewerage system by a city was a nuisance, where it made a citizen’s place undesirable as a residence and decreased its value.</p> <p>5.Trial &wkey;>355(3) — Finding of jury that sewage was not nuisance a mere immaterial expression of opinion.</p> <p>Where the jury, in answer to special issues, found facts showing that the construction and operation of sewerage system was a nuisance, an answer of the jury to another special issue that they did not believe that the construction and operation constituted a nuisance, was a mere expression of opinion, and not a finding of fact.</p> <p>6. Trial <&wkey;365(l)— Mere finding of “damage” to landi a finding of nuisance; “injure.”</p> <p>A finding, by a jury that a citizen’s land was damaged $10 per acre by reason of the construction and operation of a sewerage system by a city was a finding that such construction and operation constituted a nuisance, since “damaged” and “injured,” in the sense of the Oonstitution, are synonymous and convertible terms.</p> <p>[Ed. Note. — For -other definitions, see Words and Phrases, First and Second Series, Damage; Injure.]</p> <p>7. Appeal and error <&wkey;1094(l) — Finding of fact by Court of Civil Appeals binding on Commission of Appeals.</p> <p>The rule that findings of the Court of Civil Appeals as to questions of fact are binding on the Commission of Appeals is applicable and binding only as to issues which are clearly found, and finding upon which is material and controlling in the decision of the case.</p> <p>8. Municipal corporations <&wkey;>736 — City liable for nuisances same as natural citizen.</p> <p>A city is held to the same measure of liability, as'far as nuisances are concerned, as is a natural citizen.</p> <p>Holding of Supreme Court.</p> <p>9. Appeal and error <&wkey;>l 177(8) — Judgment cannot be rendered in Supreme Court on conflicting findings.</p> <p>On review of a judgment of the Court of Civil Appeals affirming a judgment in favor of defendant, where the trial court was not warranted in rendering a judgment against the plaintiff on account of contradictory findings of the jury in answer to special issues, the Supreme Court cannot render judgment in favor of plaintiff on the findings, although the contra--dictory findings, of the jury were found under an incorrect definition in the trial court’s charge.</p>

Suit by Anna F. Bass and others against A. P. McCord and others. Judgment dismissing the petition was reversed by the Court of Civil Appeals (178 S. W. 998), and defendants bring error.

Suit by C. T. Porter against J. W. Mitchell, receiver of the Commonwealth Bonding & Casualty Company, and another. From a judgment for plaintiff, the named defendant appealed to the Court of Civil Appeals, which affirmed (194 S. W. 981), and defendant brings error.

<p>Banks and banking @=3154(8) — Evidence insufficient to show guardian owner of funds held by bank.</p> <p>In suit by next- friend of a minor against a bank to recover money deposited with the bank by the minor’s mother, the money having been so blended and intermingled by the mother with her own funds that it could not be specifically designated, and it having been transferred to the son long after it was transferred to the bank by the mother, evidence held not to show that plaintiff was the owner of it.</p>

<p>1. Appeal and error &wkey;>733 — Assignment' too general for consideration.</p> <p>■ An assignment that court erred in rendering a judgment granting an injunction was too general to be considered.</p> <p>2. Appeal and error <&wkey;733 — Assignment too general for consideration.</p> <p>An assignment that the court erred in not rendering judgment that plaintiff take nothing by her suit, that defendants go hence and recover of plaintiff all costs of suit, was too general to be considered.</p> <p>3. Deeds &wkey;>l43 — Deed did not reserve life estate as matter of law.</p> <p>The clause in a deed that grantor was “to continue using said lot as she has always done, •so long as she may live,” did not, as a matter of law, constitute a reservation of a life estate.</p> <p>4. Evidence <©=»455 — Parol evidence held admissible to construe deed.</p> <p>Parol evidence was admissible to show the facts and circumstances surrounding the transaction, though subsequent thereto, which tended to show construction placed upon the words “as she has always done,” in a reservation in a deed providing that the grantor was “to continue using said lot, as she has always done, so long as she may live.”</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Action by T. E. Rooney against W. W. Porch. Judgment for defendant, and plaintiff appeals.</p>

Briggs, Judge. Action by Wilkens & Lange against A. J. Adams & Bro., wherein, after judgment in their favor, plaintiff sued out writ of garnishment against William Christian, Joe Bun-dick being made a party and answering. From judgment discharging the garnishee, plaintiffs appeal.

<p>Appeal from Karnes County Court; D. O. Klingeman, Judge.</p> <p>Suit by the San Antonio & Aransas Pass Railway Company against R. G. Harris. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Houston County Court; Nat Patton, Judge.</p> <p>Suit by the Crockett State Bank against W. G. Eyres and others. Judgment for plaintiff, .and defendants appeal.</p>

<p>1. Vendor and purchaser <®=>105(I) — No rights after forfeiture of executory contract for nonpayment.</p> <p>Purchaser has no rights under an execu-tory contract of purchase which expressly provides that failure to pay any of the purchase-money notes at maturity shall give the vendor right to cancel it, one of the notes never being paid, and the vendor having, pursuant to its right, declared the contract forfeited, and sold the land to another.</p> <p>2. Estoppel <@=87 — Declarations to estop must be acted on.</p> <p>Title by estoppel cannot be based on representations not acted on.</p> <p>On Motion for Rehearing.</p> <p>3. Vendor and purchaser <§==>228(4) — Purchaser’s title unaffected by notice of invalid claim.</p> <p>A purchaser’s title is unaffected by notice of a claim under a contract; claimant, by reason of forfeiture of contract, having no title or right enforceable against the vendor.</p>

<p>1. Insurance <@=3745 — Policy of fraternal benefit society not incontestable, unless so provided in contract.</p> <p>Policy issued by fraternal benefit society was not incontestable, unless so provided by the contract itself, since Rev. St. 1911, art. 4741, requiring policies to contain an incontestable clause, is not applicable to policy of a fraternal benefit society.</p> <p>2. Insurance <@=3688 — Statute as to contents of policy not applicable to fraternal benefit societies.</p> <p>Fraternal benefit societies are not within the purview of Rev. St. 1911, art. 4741, prescribing the provisions to be contained in insurance policy.</p> <p>3. Estoppel <@=52 — “Waiver” and “estoppel” distinguished.</p> <p>The terms “waiver” and “estoppel,” though often inaccurately used as synonyms, are not synonymous; a “waiver” being the relinquishment of some right by word or conduct, and an “estoppel” arising from the. perpetration of a wrong or a fraud which has misled another to his hurt or injury and from which justice and equity will prevent him from receiving profit or benefit.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Estoppel; Waiver.]</p> <p>4. Insurance <@==>718 — Member of fraternal society chargeable with knowledge of contract and constitution and by-laws.</p> <p>Member of a fraternal insurance society was chargeable with the full knowledge of the terms of his contract, of which the constitution and laws of the society were a part.</p> <p>5. Insurance <@=>755(3) — Forfeiture not prevented by receipt of premiums without knowledge of change of occupation.</p> <p>Where laws of fraternal benefit society required member to give the society 30 days’ notice and to pay increased assessment on his engaging in any of specified hazardous occupations, a member who entered into one of the hazardous occupations and continued working therein for three months, without giving the necessary notice of the change in occupation or paying the increased assessment, and without such fact being known by the society or any officer, forfeited the contract of insurance, notwithstanding acceptance of assessments by the clerk during such three months.</p>

<p>Appeal from District Court, McLennan County; Erwin J. Clark, Judge.</p> <p>Suit between L. F. Freeman and others and Mrs. Geraldine Classen and others. From an adverse judgment, Freeman and others appeal.</p>

Error from District Court, McCulloch. County; J. O. Woodward, Judge. Action by J. Q. Triplett against the Hartford Eire Insurance Company and the Gulf, Colorado & Santa Hé Railway Company, with action over by Insurance Company against Railway. Judgment for plaintiff on instructed verdict against Insurance Company, and judgment for Railway as to both plaintiff and eodefendant, and the Insurance Company brings error.

<p>Appeal from District Court, Brown County; J. O. Woodward, Judge.</p> <p>Action by Almeda William's against D. R. Bailey. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trespass to try title <@=>44 — Whether defendant entered under parol contract and made improvements held for jury.</p> <p>In trespass to try title, whether or not defendant entered into possession under a parol contract of sale and made improvements held for the jury.</p> <p>2. Vendor and purchaser <§=79 — Parties may contract for payment for property out of particular fund.</p> <p>Parties may contract that the payment for land under a contract of sale shall be out of a particular fund, the realization of which is a condition precedent.</p> <p>3. Vendor and purchaser <§=186 — Vendee not entitled to gain title without payment.</p> <p>Where defendant entered into possession of and was to be conveyed lot in consideration of his living thereon, and was to pay for improvements thereon out of commissions to be earned, and through the fault of neither party the addition failed, defendant could not in equity claim the property without paying for the same and the equities should be adjusted.</p> <p>4. Trespass to try title <§=l8 — Defendant cannot rely upon deed executed by plaintiff after suit to establish outstanding title.</p> <p>Defendant in an action of trespass to try title is not entitled to rely upon a deed from plaintiff made after the institution of the suit to show outstanding title.</p> <p>5. Lis pendens <@=18 — Failure to file did not effect rights in trespass to try title.</p> <p>In trespass to try title, failure of plaintiff to record a lis pendens did not affect his rights, where defendant was in possession of the premises in controversy at the time plaintiff executed a deed after the institution of the suit to a third party, thus effecting the purchasers with constructive notice as effectually as would have been the recording of lis pendens notice, under Rev. St. 1911, arts. 6839, 6840.</p> <p>6. Trespass to try title <§= 18 — Execution of deed by plaintiff prior to cross-petition did not create outstanding title.</p> <p>Execution of deed by plaintiff in trespass to try title after institution of suit and prior to filing of cross-action by defendant did not create outstanding title upon which defendant could rely as a defense.</p>

<p>Appeal from Harris County Court; Roy E. Campbell, Judge.</p> <p>Suit by the Eganhouse Optical Company against the Main Street Garage. Judgment for plaintiff, and defendant appeals.</p>

W. Taylor, Judge. Suit by William E. Paschen and others against the Edinburg Irrigation Company. Prom an order awarding preliminary mandatory writ of injunction, defendant appeals.

G. Street, Judge. Action by E. H. Young against the City National Bank of Galveston to set aside a judgment. From a judgment sustaining demurrer and exceptions to the bill and dismissing the suit, plaintiff appeal's.

Suit by Mary Green Bobbitt against Israel R. Bobbitt. Prom a judgment granting plaintiff a divorce and decreeing partition 'of property and appointing commissioners therefor, the defendant appeals.

<p>Appeal from District Court, El Paso County; J. R. Harper, Judge.</p> <p>Action by J. D. Lee against the El Paso' Electric Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Dallas County; W. E. Whitehurst, Judge.</p> <p>Suit by W. M. Haynes and others against W. C. Hedrick and others. Judgment of dismissal, and plaintiffs appeal.</p>

<p>1. Justices of the peace ¡@=44(2)— Jurisdiction fixed by allegations of lien.</p> <p>Jurisdiction is fixed by allegations of existence of a lien in favor of plaintiff farm laborer, and not lost by failure to prove them.</p> <p>2. Justices of the peace ©=44(2) — Facts immaterial on value of property against which farm laborer’s .lien asserted.</p> <p>Pacts that lien existed on oats, and that cattle bad been sold prior to filing for record of plaintiff farm laborer’s account, held, immaterial on issue of value of property against which be asserted lien.</p> <p>3. Courts ¡@=107 — Notations in granting writ • of error only tentative.</p> <p>Notations made on granting writs of error express only the tentative opinion of the court.</p> <p>4. Justices of the peace ¡@=344(2) — Value of property against' which farm laborer’s lien asserted controls jurisdiction.</p> <p>In view of Rev. St. 1911, art. 2000, value of property against which farm laborer’s lien is asserted, if greater than the debt, controls in determining jurisdiction, a rule applying to common law and statutory liens as well.</p> <p>5. Jury ¡@=3 16(1) — Farm laborer entitled to jury on issue of value of property.</p> <p>Earm laborer seeking to enforce lien was entitled to jury trial on issue of value of property, raised ob plea to jurisdiction of county court, but where evidence was undisputed it would have been proper to direct verdict.</p>

Error from District Court, Navarro County; H. B. Daviss, Judge. Suit by the trustees of Dover common school district No. 66 against Dawson independent school district. Judgment for defendant, and plaintiff brings error.

<p>Appeal and error <&wkey;H14 — Where jurisdiction of county court on appeal from justice is not shown, judgment will be reversed and case remanded for dismissal, unless record amended.</p> <p>Instead of dismissing appeal from judgment of the county court in a case in which, because of the small amount in controversy, it could have jurisdiction only on appeal from final judgment of a justice, the record not affirmatively showing that there was any trial or judgment in the justice court, and the parties having failed to supply the missing record, though having ample time after suggestion of the defect, judgment will be reversed, and cause remanded, with direction to dismiss, unless the jurisdictional fact be legally shown.</p> <p>Buck, J., dissenting.</p>

<p>1. Execution <&wkey;l72(3) — Judgment creditor necessary party in suit to restrain levy.</p> <p>The judgment creditor, as the one having the real interest in the subject-matter, is a necessary party to suit to enjoin a constable from levying execution, on the ground of the judgment being void. 1</p> <p>2. Parties &wkey;>29 — One to be directly affected necessary party.</p> <p>Every person to be directly affected by the judgment sought is a necessary party to the suit.</p> <p>3. Appeal and error <&wkey;l87(3) — Defect of party not pleaded available on appeal.</p> <p>Nonjoinder of a necessary party, though not pleaded, is available on appeal.</p>

<p>1. Appeal and error <&wkey;704(2) — Findings of fact conclusive in absence of statement of facts.</p> <p>In the absence of statement of facts, the court’s findings of fact are conclusive on appeal.</p> <p>2. Landlord and tenant <&wkey;63(2) — Tenant es-topped to deny title of landlord.</p> <p>A tenant is estopped to deny the title of his landlord, and in the absence of any proof of title in the plaintiff, in an action by a landlord against tenants in trespass to try title, plaintiff was entitled to recover under findings by the court that defendants held possession of the property solely as plaintiff’s tenants.</p> <p>3. Appeal and error <&wkey;878(l) — No complaint of judgment against sureties on replevy bond in absence of appeal by sureties.</p> <p>No complaint can be made on appeal concerning a judgment against sureties on a re-plevy bond, where the sureties prosecuted no appeal from the judgment against them.</p> <p>4.Sequestration ©=^20 — Judgment for rentals to accrue up to time possession of property is delivered to plaintiff authorized by replevy bond.</p> <p>In trespass to try title, where sequestration writ was issued and the property replev-ied, court, rendering judgment for plaintiff, was authorized to give judgment for rentals to accrue up to time possession of the property should be delivered to plaintiff, where authorized by replevy bond, in view of Yernon’s Sayles’ Ann. Oiv. St. 1914, arts. 7106-7109.</p>

<p>Railroads <@=^446 (6) — Negligence in permitting gap in fence as proximate cause of death of horse on bridge held for jury.</p> <p>Question of whether railroad’s negligence in permitting gap in its right of way fence was the proximate cause of the death of a horse, which strayed onto the right of way and became caught in a bridge, on recrossing bridge after having been frightened thereon by passing train, ‘held for the jury (conforming to opinion of Supreme Court, 221 S. W.' 929).</p>

<p>Error from District Court, Scurry County; W. W. Beall, Judge.</p> <p>Suit by E. J. Anderson .and others against the Moran Oil & Gas Company and others. To review judgment for plaintiffs by default, defendants bring error.</p>

<p>Appeal from Dickens County Court; Walter L. Powell, Judge.</p> <p>Action by the Associated Manufacturing Company against A. W. Jordan and others. Judgment for defendants, and plaintiff appeals.</p>